UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 5708
GINDY MANUFACTURING COMPANY,
Respondent.

May 7, 1974

ORDER OF REMAND

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

CLEARY, COMMISSIONER:

On February 14, 1974, petitioner Gindy Manufacturing Company’s petition for modification of abatement was dismissed by Administrative Law Judge Ben D. Worcester 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, I directed that the Judge’s decision and order be reviewed 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.

ACCORDINGLY, the Judge’s decision is reversed and the case is hereby remanded for further proceedings consistent with this decision.[1]

MORAN, CHAIRMAN, dissenting:

In my opinion this decision is wrong just as was the decision in Secretary v. H. K. Porter, Inc., supra. But its fallaciousness is compounded by the malevolent language it employs to cast aspersions against an Administrative Law Judge who has performed his sworn duty to uphold the Constitution and statutes of the United States as they are written—not as others think they should have been written.

The statute clearly states that the Secretary of Labor shall rule on petitions for modification of abatement—not the Commission:

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. 29 U.S.C. § 659(c).

To make it even clearer, 29 U.S.C. § 652(1) provides that, for the purposes of this Act—

The term ‘Secretary’ means the Secretary of Labor.

This opinion would have one believe that the Commission long ago ruled that the word ‘Secretary’ in § 659(c) really means ‘Commission,’ despite what § 652(1) says. The fact is that there was no such ruling until after the judge’s decision in this case was written. The startling revelation that ‘Secretary’ means ‘Commission’ was first announced on March 22, 1974 in the H. K. Porter decision, supra. It is therefore understandable that the judge, in deciding this case prior to March 22nd, would rule as he did.

As far back as 1972, a decision of this Commission in Secretary v. Continental Can Company, Inc., OSAHRC Docket No. 1104 (December 22, 1972) stated:

Sec. 10(c) of the Act provides that Respondent could contest the action of the Secretary through the Review Commission or after a good faith effort to comply with abatement requirements and factors beyond its control prevent its compliance it could have a hearing before the Secretary who could then modify or affirm the abatement requirements. [Emphasis added]

In the present case the judge followed the plain words of the statute as well as the dicta contained in this 1972 case. A disposition so founded hardly merits the gratuitous hypercriticism in which the Commission members have herein indulged.

There is, of course, no ‘long-standing Commission precedent’ to support the Commission’s decision in this case. The Continental Can case, supra is to the contrary, for example. So, too are many other matters which were alluded to in the H. K. Porter case, supra.

On May 1, 1973, the Chairman of the Occupational Safety and Health Review Commission sought a ruling from the Attorney General pursuant to 28 U.S.C. § 512 on this very issue.[2] The Attorney General did not rule on that request because, as stated in a reply dated May 25, 1973,

We understand that negotiations are in progress between the Commission and the Department of Labor in an attempt to resolve administratively any differences which may exist as to the proper interpretations of § 10(c). If that matter is resolved by negotiations, our opinion will not be needed. Pending your further advice, we shall hold your request in abeyance.

The negotiations referred to above continued until January 3, 1974, when Judge Dern ruled in the H. K. Porter case, supra, that the Commission had no jurisdiction over such matters. Because of the rule prohibiting ex parte communications, 29 C.F.R. § 2200. 103, those negotiations were then suspended while that case was pending before this tribunal.

Long before this matter was brought to the attention of the Attorney General, the Solicitor of Labor had expressed his concern about the practice which had developed with respect to the processing of petitions for modification of abatement (PMA’s). In a letter to the members of this Commission dated February 9, 1972, he stated in part

We believe considerable clarification is needed respecting procedures for modification of abatement requirements.

As further refutation of the ‘long-standing Commission precedent’ assertion, the following is quoted from a memorandum dated October 3, 1973, written by Jerrold Solomon, a Department of Labor Attorney, to Baruch Fellner, Counsel for Regional Litigation for the Occupational Safety and Health Administration:

. . . a meeting was held in the office of Associate Solicitor Mintz between representatives of the Commission and the Department on September 24, 1973. Current and future procedures for the handling of PMAs were discussed and the following principles were agreed upon: (1) Initial responsibility for resolving PMAs shall be lodged with the Secretary; (2) The Secretary shall adopt procedures for the rapid disposal of uncontested PMAs without referring the same to the Commission; (3) The Secretary shall also adopt procedures designed to informally resolve disputes as to the need for modification without resort to the Commission; (4) The Secretary’s rulings under such procedures, if not disputed by the petitioner or his employees, shall become, without action by the Commission, the final, non-reviewable order of the Commission; (5) The Secretary’s procedures shall afford affected employees the right to present their position; (6) Only in the event that the Secretary’s procedures fail to resolve the issue will the matter be transmitted to the Commission for hearing.

The logic behind the negotiations to place PMA responsibility with the Secretary of Labor was not only the recognition of a clear statutory requirement but the rectification of an earlier practice in the docketing of this agency’s cases which failed to distinguish between notices of contest (those issues raised by an employer within 15 working days of his receipt of service) and PMA’s (where there is no statutory filing time). It was not until February 14, 1972, that the first case reached this Commission which was specifically identified as a petition for modification of abatement. With little or no consideration of the Commission’s statutory authority to act upon PMA’s, a rule was adopted later that year setting forth in writing the procedure which had grown through actual practice. (It is this rule, 29 C.F.R. § 2200.34 which this opinion cites as ‘long-standing Commission precedent.’)

Since that time this agency has been deluged with PMA’s, the disposition in 99% of which is agreed upon by the parties before they are ever docketed, thus turning approximately 50% of the Commission’s caseload into a rubber-stamp operation. In one recent week (April 15 to 19, 1974), there were 111 new cases docketed with this agency, 52 were PMA’s and 59 were notices of contest. Over 3,000 PMA’s have been filed to date at an administrative cost to this agency alone in excess of one million dollars and without a single case where the disposition was different from that which the Secretary of Labor would have granted. There can be no logical reason for continuance in this agency of such a needless paper-pushing operation, one which threatens to engulf this agency’s administrative processes to the detriment of the expeditious disposition of its legitimate adjudicatory responsibilities in cases where there are actual issues in dispute between the parties.

It appears to me that the nub of the rule enunciated in this case can be summarized as follows: Congress specifically stated that the Secretary of Labor was to act on PMA’s when it adopted the wording of section 10(c) of the Act. The President agreed when he signed the same into law. The Secretary of Labor does not question the plain wording of section 10(c). The employer in this case wants the Secretary to act upon its petition. The Administrative Law Judges who have considered identical cases all agree. Everyone in fact is in agreement except the two members of this Commission who boldly proclaim that all the foregoing are in error so they will disregard the express statutory language and arrogate this function to the Commission. This in spite of the self-evident truth stated by the 5th Circuit Court of Appeals in Brennan v. OSAHRC et al (Bill Echols case) 487 F.2d 230 (5th Cir. 1973):

No commission or agency, even under the formidable label of ‘absolute discretion’ can arrogate to itself the power to say that night is day or that black is white. . . .

Although not saying that black is white or that night is day, the Commission is today saying that ‘Secretary’ is ‘Commission.’

It should also be noted that the authority to rule upon employee PMA’s is specifically granted to this Commission, while the authority to rule upon employer PMA’s is reserved to the Secretary of Labor. The first requires an adjudication as to what is an appropriate abatement date where the Secretary and the employees are in disagreement. The latter however is allowable only

Upon a showing by an employer of 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. . . .

Should an employer disagree with the abatement date specified in a citation (rather than initially attempting to comply therewith as contemplated by the language quoted above), he would have the same authority as would employees to obtain a ruling from this Commission provided he filed a notice of contest to the citation within the time limits specified in the Act. See 29 U.S.C. § 659(c) and Continental Can case, supra. The same applies to employers who duly contest an action to assess an additional penalty for the alleged failure to correct a violation within an abatement period established in a previously-issued citation. 29 U.S.C. § 659(b).

A basic rule of statutory construction is that resort to legislative intent is unwarranted where a statute is clear and unambiguous on its face. Caminetti v. United States, 242 U.S. 470, 485 (1917). Certainly, the words ‘the Secretary’ in 29 U.S.C. § 659(c) are clear and unambiguous.[3] Furthermore, analysis of the legislative history and other provisions of the Act supports the view that Congress intentionally used the words ‘the Secretary’ rather than the words ‘the Commission’ in this subsection of the statute.

The purpose of the provision in 29 U.S.C. § 659(c) permitting petitions for modification of abatement periods by employers is explained in Senate Report Number 91–1282[4] as follows:

It is anticipated that in many cases an employer will choose not to file a timely challenge to a citation when it is issued, on the assumption that he can comply with the period allowed in the citation for abatement of the violation. In some such cases the employer may subsequently find that despite his good faith efforts to comply, abatement cannot be completed within the time permitted because of factors beyond his reasonable control—for example, where the delivery of necessary equipment is unavoidably delayed. In order to prevent unfair hardship, the bill provides that in such instances the employer may obtain review and modification by the Secretary of the abatement requirements specified in the citation, even though the citation has otherwise become final. (Emphasis added)

This explanation makes it clear that Congress intended to provide an extraordinary remedy for the employer, believing that he was fairly cited, does not contest an initial citation, but later finds that, because of factors beyond his control, more time is required to abate the hazardous condition than the uncontested citation allowed.

After a citation has become a final order of the Commission, the issue of whether an abatement period should be extended is an enforcement problem rather than a judicial question. In recognition of this fact, it was logical for Congress to bestow jurisdiction over this extraordinary remedy upon the Secretary. The placing of this jurisdiction with the Secretary is consistent with order provisions of the Act which require the Secretary to conduct hearings and issue orders on similar matters, for example, applications by employers for a variance from a standard. 29 U.S.C. § 655(b)(6) and (d). See also 29 U.S.C. § 660(b). It is also consistent with the authority of the Secretary to grant extensions of time under 29 U.S.C. § 655(e) and to establish the timing and manner of payment of penalties assessed under the Act.

Although several other sound reasons may have prompted Congress to confer jurisdiction on the Secretary, one of the most obvious is the need for the fastest possible disposition where an extraordinary remedy is sought. All citations issued under this Act must be preceded by an on-site inspection by a representative of the Secretary of Labor. 29 U.S.C. § 658(a). To fulfill this requirement it is necessary that the Secretary have representatives located in all areas of the country. Those representatives can readily provide the Secretary with the information upon which to base a decision when an employer, who has not contested an abatement date, asserts that factors beyond his reasonable control prevent him from complying with those unchallenged abatement requirements. If the reason is a flood or a strike or frozen ground or any of a dozen similar reasons, this Commission is far less able to make an expeditious determination than is the Secretary with his widespread field investigatory staff.

The law here is both sensible and clear: After a citation has become a final order, this Commission no longer has authority to modify an abatement period if the petition therefor is based on the sole grounds that abatement has not been completed because of factors beyond the reasonable control of the employer. If the Commission’s ruling to the contrary is allowed to stand, it will not only continue the problems alluded to above but will also permit future decisions to nullify 29 U.S.C. § 659(b) simply by the exercise of the Commission’s arrogated power to modify undisputed abatement dates.

For the foregoing reasons, it is my opinion that the ruling of the Judge was proper and its reversal by the Commission is erroneous.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 5708
GINDY MANUFACTURING COMPANY,
Respondent.

February 14, 1974

WORCESTER, JUDGE, OSAHRC:

On November 7, 1973, the Secretary served a citation upon the Petitioner alleging that an inspection of the Petitioner’s manufacturing plant had revealed violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.). Section 5(a) of the Act requires each employer to comply with its provisions. Section 6 of the Act authorizes the Secretary to promulgate regulations which each employer subject to regulation by the Act must obey.

If, upon inspection of an employer’s premises the Secretary believes there has been a violation of Section 5 of the Act or any rule or order, he is required to do two things:

1. Issue a citation in writing describing the nature of the violation, and;

2. Fix a time for abatement of the violation.

Section 17 of the Act provides for the assessment of penalties against employers who have violated the Act. The enforcement procedure is delineated explicitly in Section 10. Subparagraph (c) gives an employer the right to contest either the citation and time fixed for abatement or the proposed assessment of a penalty or both. An employee or representative of employees may also file a notice of contest but only as to the reasonableness of time fixed for abatement. When timely notice of contest is filed by either the employer or affected employee, the Occupational Safety and Health Review Commission is required to afford the parties a hearing in accordance with the provisions of Section 554 of Title 5, United States Code (Section 5 of the Administrative Procedure Act). However, jurisdiction of the Review Commission is not invoked unless the protesting employer files a notice of contest within 15 working days of the ‘receipt’ of the notice of the Secretary (Section 10(a)), or the employees file notice of their desire to contest the reasonableness of the time for abatement within 15 days of the ‘issuance’ of the citation (Section 10(c)). Neither employer nor employees filed a timely notice of contest in the instant case.

The Congress, in its wisdom, perceived that there might be occasions when an employer, after a good faith effort to comply with the abatement requirements of a citation, had been unable to complete the abatement because of factors beyond his reasonable control. Accordingly, Section 10(c) provides that where a citation has become a final order by operation of law so that the Review Commission never acquired jurisdiction, the employer can then ask for a hearing under the provisions of Section 5 of the Administrative Procedure Act before the Secretary.

In the instant case the citation was issued on November 7, 1973. This citation became a final order on November 29, 1973, because neither employer nor employees filed a timely notice of contest. However, the employer filed a petition for modification of the time for abatement on December 7, 1973, but this petition was filed in the wrong forum. See H. K. Porter, Inc., v. Secretary of Labor, OSHRC Docket No. 1210–P, (January 3, 1974). The Secretary of Labor, not the Review Commission, has jurisdiction of that issue.

It is therefore hereby ordered that this proceeding be dismissed and that the application of the Chairman of the Safety Committee to intervene, having become moot, is denied.

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[1] Authorized employee representatives have asked to participate in the proceedings, as permitted under Rule 22(c) of the Commission’s Rules of Procedure. They are entitled to receive a copy of this decision and notice of further proceedings.

[2] The text of that letter follows:

This is a request for an interpretation of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590) as it relates to the relative responsibilities of this agency and the Department of Labor.

Section 9 of that Act authorizes the Secretary of Labor to issue citations to employers when he believes them to be in violation of the Act. It further provides that such a citation shall ‘fix a reasonable time for abatement of the violation.’

Pursuant to section 10(a) of the Act, if the Secretary’s enforcement action is not contested as, and within the time period, therein provided it ‘shall be deemed a final order of the [Occupational Safety and Health Review] Commission.’

The specific provision of the Act upon which your interpretation is requested is the penultimate sentence of section 10(c):

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 [of Labor], after an opportunity for a hearing as provided in this subsection, shall issue an order affirming or modifying the abatement requirements in such citation.

This issue arises because the Secretary has been sending such requests from employers (commonly referred to as Petitions for Modification of Abatement) to this agency for disposition. Your advice is requested as to whether actions modifying abatement requirements should be issued by this Commission or by the Secretary of Labor.

Here is a typical fact situation calling for modification of the abatement requirements of a citation: The Secretary issues a citation against employer A for failure to install a guard on a machine and proposes a $50 penalty for the offense. The citation states that a guard is to be installed on the machine by September 1, 1972. Employer A receives the citation and notification of proposed penalty on August 1 1972. He does not exercise his right to contest this action ‘within 15 working days’ as set forth in section 10(a). Consequently, the Secretary’s enforcement action is ‘deemed a final order of the Commission’ on August 22, 1972. At some date later than August 22, Employer a finds that, because of ‘factors beyond his reasonable control,’ he cannot install the machine guard by September 1 as is now required. He thereupon petitions the Secretary to change the abatement date to October 1.

It would be appreciated if we could have your advice as to which agency has the responsibility under law to act upon employer petitions for modification of the abatement requirements contained in citations issued by the Secretary of Labor which have not been contested under the Occupational Safety and Health Act of 1970 and have, thus, become final orders of this agency.

[3] Although it may be contended that an ambiguity exists because of the requirement in 29 U.S.C. § 659(c) for the Secretary to furnish ‘an opportunity for a hearing as provided in this subsection,’ the simple answer to that contention is that this merely requires the Secretary to conduct his hearings in accordance with the Administrative Procedure Act, 5 U.S.C. § 554 without regard to subsection (a)(3), as is required in Commission hearings by the parenthetical phrase in the first sentence of 20 U.S.C. § 659(c).

[4] United States Code Congressional and Administrative News 5192 (1970).