UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 192

EXACTO PRODUCTS CORPORATION, 

 

                                              Respondent.

 

March 17, 1972

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

BY THE COMMISSION:

            On March 3, 1972, Hearing Examiner David H. Harris transmitted the file in this case to the Commission. In an accompanying letter, the Hearing Examiner stated that the file was transmitted for ‘use by the Commission in the event the complainant appeals from the undersigned’s Order dated March 3, 1972.’

            The order denied a request for reconsideration filed by the Secretary of Labor in which the Secretary requested that the Examiner reconsider his denial of a request for withdrawal of notice of contest filed by Respondent with the concurrence of the Secretary.

            The record in this case indicates that Respondent has abated each of the violations for which it was cited, has given assurance of continuing compliance, has tendered payment of the penalty proposed by the Secretary and has certified that the affected employees or their authorized representatives were afforded an opportunity to participate in the proceedings. There appears to be no disagreement between the parties that withdrawal is now an appropriate disposition of this case.

            While the record in this case was transmitted to the Commission in a manner and at a stage of the proceedings for which there is neither precedent nor rule, final disposition of the case at this time comports with the purposes of the Act. Accordingly, we will construe the Hearing Examiner’s letter of transmittal as certification of the case to the Commission on his own motion.

            In Secretary of Labor v. Dawson Brothers Mechanical Contractors, OSHRC Docket No. 12, Commissioner Van Namee, speaking for the Commission in an order of remand, stated:

The Commission will give hospitable consideration to stipulated withdrawals of notice of contest where the record reflects (1) the date on which abatement of the violation has been or will be accomplished; (2) assurance by the respondent of continuing compliance; (3) tender of payment of the penalty proposed by the Secretary of Labor; and, (4) evidence that the affected employees or their authorized representatives have been afforded an opportunity to participate in the proceedings.

 

            The record in this case so affirms. The good faith of the Secretary in issuing his citations and proposed penalties in accordance with the purposes of the Act is, of course, unquestioned. Accordingly, the notice of contest is dismissed and the citations and proposals of penalties issued by the Secretary on October 28, 1971, are affirmed as the final order of the Commission.

 

VAN NAMEE, COMMISSIONER, dissenting:

            The decision of the majority cannot be supported by the law, or by the facts of this case, and I must dissent.

            This case presents again the question of whether the Commission and its judges may require the parties to a proposed stipulated disposition to adduce evidence sufficient to produce a complete record. My views regarding that question are set forth at length in my dissent filed in Secretary of Labor, U.S. Department of Labor v. American Home Products Corporation, OSHRC Docket No. 3 (February 23, 1972).

            In my view, the Commission should give hospitable consideration to stipulated settlements where the record reflects abatement by Respondent of the violative conditions, assurance of his continuing compliance with the Act’s requirements, tender by him of the proposed penalty, and an opportunity by his employees—or their authorized representatives—for participation in the proceedings. That consideration must include such questions as whether the violations were serious or non-serious in nature and whether the penalty proposed by the Secretary is appropriate. See Sections 17(b), 17(c), and 17(j) of the Act. The majority’s decision in this case denies the Judge’s right to make an initial determination of these questions and to submit his final report in accordance with section 12(j) of the Act.

            In this case, Judge David H. Harris, following receipt of the parties’ stipulations to permit the Respondent to withdraw its notice of contest, ordered the Secretary to submit information to substantiate findings of the following facts, inter alia:

            1. Whether Respondent’s employees—or their collective bargaining representative—had been served with copies of the Secretary’s complaint and the Respondent’s motion to withdraw its notice of contest.

            2. Whether an inspection by the Secretary had been conducted subsequent to the inspection which revealed the violations, and, if so, whether that inspection confirmed abatement of the hazards by the respondent and confirmed his continuing compliance with the law.

            3. The facts and circumstances upon which the Secretary based his determination that the violations cited are not of a serious nature.

            Certain of the information was needed by the Judge to determine whether there had been compliance with the Commission’s rules (e.g., rule 7(i)). Other items of the information which the Judge sought to have adduced relate to that needed for his certification in accordance with rule 23 of the Commission’s rules of procedure.

            Rather than submit the information the Secretary moved for reconsideration of the order. The motion was denied, and the Judge, among other things, granted leave to appeal. Presumably he meant to grant leave to file an interlocutory appeal since his order did not finally dispose of the case. He did not, however, certify that his ruling on the motion ‘. . . involves an important question of law concerning which there is a substantial ground for difference of opinion; and [that] an immediate appeal from the ruling will materially expedite the ultimate disposition of the proceeding (OSHRC Rules of Procedure, Rule 12(c); 29 CFR 2200.12(c)).

            Judge Harris then returned the file to the Commission. His cover letter reads as follows:

Enclosed herewith please find the file in the above matter. The file is being returned for use by the Commission in the event the complainant appeals from the undersigned’s Order dated March 3, 1972 (H–7). I assume that in the event the complainant fails to appeal from the Order in question, the file will be returned to me for further handling. Also enclosed herewith are five additional copies of the said Order dated March 3, 1972.

 

            Clearly this case is not before the Commission. Judge Harris requested the return of the file for action by him ‘. . . in the event the complainant fails to appeal . . .’ to the Commission. Two conclusions may be drawn: (1) Judge Harris believed the case to be pending before him; and (2) he believed that it was necessary for the complainant to file an appeal before the matter could come before the Commission for review. There is no notice of appeal in the record. Nevertheless, my colleagues, in complete disregard of the above-emphasized language, choose to treat the language of Judge Harris’ cover letter as being a ‘. . . certification of the case to the Commission on his own motion . . .’ It is interesting to note that they also admit that there is ‘. . . neither precedent nor rule . . .’ for Commission review of the case.

            Indeed, there cannot be precedent or rule for the Commission’s action because Judge Harris’ letter cannot be said to comply with the requirements of Rule 12(c). As said above the rule requires a certification that the ruling involves an important question of law and that resolution of the question will materially expedite the ultimate disposition of the proceeding. Clearly these requirements are not met by the content of Judge Harris’ letter.

            Moreover, Rule 12(d) allows discretionary interlocutory appeals following certification by the Judge if ‘. . . a petition is made to it within 5 days after such certification . . .’ As noted above, the record discloses no such petition. And, Rule 12(d) also specifies that the petition ‘. . . shall not stay the proceedings before the [Judge] for more than 5 days unless otherwise ordered by the Commission for extraordinary circumstances.’ In this case Judge Harris’ letter was received by the Commission on March 7, 1972, and the Commission acted on March 17, 1972, that is, five days after the automatic stay would have expired had all other requirements for an interlocutory appeal been fulfilled. Of course, the Commission did not issue a stay on March 12, 1972 thus under Rule 12(d) the matter (again assuming all other requirements had been fulfilled) would have reverted to Judge Harris.

            A reading of Rule 12 indicates clearly that an interlocutory appeal will be allowed by the Commission only in extraordinary circumstances. It was indeed that intention of the Commission which led to the inclusion in that rule of such exclusionary words as ‘only’ and ‘extraordinary circumstances.’ The fact is that the first several drafts of the rules—before their adoption—contained no provision at all for an appeal from an interlocutory ruling of a Judge.

            Thus it is obvious that the question of the correctness of the Judge’s order of March 3 simply is not before the Commission at this time, and, by its own rules, the Commission is precluded from considering that question unless the Judge makes the required certification and the Secretary petitions for a review within 5 days thereafter. My colleagues’ willingness to ‘construe’ the Judge’s letter of transmittal as certification of the question and as a petition for an interlocutory appeal ‘on his own motion’ is not only highly irregular and directly contrary to the Commission’s rules, but regrettably may serve as a precedent to deny the Commission’s Judges that degree of independence which is rightfully accorded to them by the Administrative Procedure Act. See David, Administrative Law Treatise, vol. 2, sec. 10.02.

            The interlocutory ruling involved here is not of such moment as to require consideration by the Commission prior to the submission by the Judge of his final report in accordance with section 12(j) of the Act (84 Stat. 1605; 29 U.S.C. 661(j)).

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 192

EXACTO PRODUCTS CORPORATION, 

 

                                              Respondent.

 

 

March 3, 1972

HARRIS, JUDGE, OSAHRC:

            Complainant, by motion dated February 11, 1972 and forwarded on February 16, 1972, moved the undersigned to reconsider a request for the following 5 items of information contained in a letter to the parties dated January 3, 1972:

            1. Whether the Regional Solicitor at Chicago, Illinois, is in accord with the respondent’s proposed offer to withdraw its Notice of Contest.

            2. The facts and circumstances upon which the Occupational Safety and Health Administration made the specific determinations that the alleged violations of the standards, as they appear in the Citation, are not of a serious nature.

            3. Whether the Occupational Safety and Health Administration has made an inspection of the respondent’s premises on or subsequent to November 19, 1971. If so, the results of that inspection.

            4. Proof of service of the complaint herein upon the affected employees of the respondent or upon the labor organization which is the certified bargaining representative of said affected employees.

            5. Proof of service of a copy of the Exacto Products letter of December 14, 1971, upon its affected employees or upon the certified bargaining representative of such employees.

            The said request for additional information was occasioned by a letter dated December 14, 1971, written by respondent in which it seeks approval to withdraw its notice of contest dated November 11, 1971, and filed on November 19, 1971, in opposition to complainant’s citation, dated October 28, 1971, charging violations of four specific standards, all of which are deemed to be not of a serious nature and his Notification of Proposed Penalty thereon aggregating $93.75.

            Complainant filed his complaint herein on November 26, 1971. The respondent has failed to file any answering pleading to the complaint.

            The factual situation presented is generally similar to that in Hodgson v. New York Packaging Corporation, OSHRC Docket No. 193. The motion for reconsideration in that case was denied by Order dated March 2, 1972, and a copy of a Order denying the same is attached to and made a part hereof.

            For the reasons expressed in the Order dated March 2, 1972 in the matter of Hodgson v. New York Packaging Corporation, OSHRC Docket No. 193, and good cause therefore appearing, it is ORDERED that:

            1. Complainant’s motion for reconsideration be and the same is hereby denied.

            2. Complainant is given leave to appeal to the Commission from the within Order denying his motion for reconsideration.

[NOTE: SECRETARY V. NEW YORK PACKAGING CORPORATION, 1 OSAHRC 169]