UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NOS. 3675 & 7425

 

GENERAL ELECTRIC COMPANY

 

                                              Respondent.

 

 

ORDER OF CONSOLIDATION AND REMAND

May 23 1974

Before VAN NAMEE and CLEARY, Commissioners

CLEARY, COMMISSIONER:

On February 15, 1974, petitioner General Electric Company’s petition for modification of abatement (OSHRC Docket No. 3675–P) was dismissed by Administrative Law Judge Abraham Gold who ruled that the Commission lacks jurisdiction under section 10(c) of the Occupational Safety and Health Act (29 U.S.C. § 651 et seq., hereinafter referred to as ‘the Act’) to consider such petitions.

On February 25, 1974, review of the Judge’s decision and order was directed by the Commission pursuant to section 12(j) of the Act. The Commission, upon review of the entire record, reverses and remands the case.

The Judge applied a theory of jurisdiction that the Commission concluded was erroneous in H. K. Porter, Inc., No 1210–P (March 22, 1974). The Judge’s decision is one of a number of recent instances in which judges have held that the Commission has no jurisdiction over petitions for modification of abatement periods prescribed in citations that have become final orders of the Commission pursuant to section 10 of the Act. This holding is directly contrary to rule 34 of the Commission’s Rules of Procedure (29 CFR 2200.34, 37 Fed. Reg. 20240 (September 28, 1972)) and longstanding Commission precedent. See, e.g., Permaneer Corp., No. 947 (July 6, 1972).

Apparently the obvious must be stated. Administrative Law Judges must follow Commission rules, and they also must follow precedents established by the Commission. Insurance Agents’ International Union, 119 N.L.R.B. 768, 41 L.R.R.M. 1176, 1178 (1957); Iowa Beef Packers, Inc., 144 N.L.R.B. 615, 54 L.R.R.M. 1109, 1112 (1963). See M. Ruhlen, Manual for Administrative Law Judges, 61 (Administrative Conference of the United States, 1974) and cases cited therein. Therefore, the approach taken by the Administrative Law Judges in this and similar cases is inexcusable.

Petitioner’s requested abatement date has already passed, so the case would be moot except for additional action taken by the Secretary. Following Judge Gold’s decision, the Labor Department reinspected petitioner’s facility and proposed additional penalties for an alleged failure to abate two of the items covered in the petition. General Electric filed a timely notice of contest, pursuant to section 10(b) of the Act, and the Commission took jurisdiction of this new issue, Docket No. 7425. The Commission must afford an opportunity for a hearing on this issue under section 10(c) of the Act. Under these facts, the two proceedings should be consolidated pursuant to rule 9 of our Rules of Procedure for determination by Judge Gold.

The fact that there has been a reinspection and proposed additional penalties in this case demonstrates the wisdom of the Congressional intent described in H. K. Porter, Inc., supra, to separate the enforcement functions vested in the Labor Department from the adjudicatory functions vested in the Commission. The Act contains no explicit prohibition against the Secretary alleging a failure to abate certain items while a petition for modification of abatement of those same items is pending. Thus, if petitions for modification of abatement were meant to be adjudicated by the Secretary, such a proceeding could be in progress while the Secretary was appearing as a party before the Commission in a proceeding for alleged failure to abate the same items. The Commission’s decision in H. K. Porter, supra, avoids such an incongruous result.

ACCORDINGLY, the Judge’s decision is reversed. On its own motion, the Commission orders that the case be consolidated with Docket No. 7425, pursuant to rule 9 of the Commission’s Rules of Procedure, 29 CFR 2200.9, and is remanded for further proceedings consistent with this decision.

 

VAN NAMEE, COMMISSIONER, concurring:

I concur in Commissioner Cleary’s opinion except for that portion where he indicates the case would be moot were it not for the failure to abate notice. His conclusion assumes the absence of a real and presently existing controversy. As this case demonstrates the controversy may still exist even though a requested extension date has passed. It may exist because the Secretary has the authority to issue a failure to abate notice as he has done here. Indeed, if we do not act on the petition the Secretary is free to issue a notice alleging daily penalties from the end of the original or previously extended abatement period.

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NOS. 3675 & 7425

 

GENERAL ELECTRIC COMPANY

 

                                              Respondent.

 

 

February 15, 1974

GOLD, JUDGE, OSAHRC:

On November 7, 1973 Petitioner filed the instant petition for modification of abatement. On November 16, 1973 the Secretary filed a response objecting thereto, and the matter was assigned to me on February 6, 1974.

Petitioner was cited on April 16, 1973 for 13 non-serious violations for which penalties totaling $135 were proposed. The cited items and proposed penalties became a final order of the Commission pursuant to 29 U.S.C. § 659(a) upon the failure of the employer to file a notice of contest within 15 working days of the date of receipt of the notice of proposed penalties.

It was not until July 9, 1973 that the employer filed a petition for modification of abatement. That petition was granted by another Judge of this Commission, as was a second petition, filed on August 30, 1973. The Secretary interposed no objection to either of the earlier petitions.

Under Section 10(c) of the Occupational Safety and Health Act, 29 U.S.C. 659(c), after a final order of the Commission, only the Secretary of Labor (or his delegate) is empowered to hear and decide a matter involving a petition for modification of abatement. The pertinent statutory authority reads:

Upon a showing by an employer of a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control, the Secretary after an opportunity for a hearing as provided in this subsection, shall issue an order affirming or modifying the abatement requirements in such citation.

 

When the Congress referred in Section 659(c) to ‘a hearing as provided in this subsection,’ it could only have meant ‘a hearing (in accordance with section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such section).’

Since there is no authority for the Commission to hold a hearing in this case, such authority being vested solely in the Secretary, IT IS ORDERED that this matter be and the same is hereby DISMISSED for lack of jurisdiction.