UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 722
GURNEY MANUFACTURING DIVISION, GURNEY INDUSTRIES, INC.,
Respondent.

October 17, 1973

ORDER OF REMAND

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

CLEARY, COMMISSIONER:

On March 9, 1972,[1] respondent was issued a citation and notification of proposed penalty for an alleged failure to comply with the occupational safety and health standard at 29 C.F.R. 1910.93(a)(2). Respondent timely filed a notice of contest. The Secretary’s complaint was filed on April 12, 1972. On April 17, 1972, the Commission received a letter from the authorized employee representative, in which it stated that it was exercising its right to be a party to the proceedings. Respondent and the authorized employee representative filed answers to the complaint on April 24, and April 26, respectively. After a number of preliminary motions a hearing was scheduled for October 26.

On October 10 respondent filed a motion to withdraw its notice of contest. By letter dated October 16 the authorized employee representative opposed respondent’s motion to withdraw. [2]On November 14 the Judge dated and signed a recommended order granting respondent’s motion to withdraw its notice of contest. This recommended order was received by the Commission on November 16.

On December 18 former Commissioner Alan F. Burch directed that the Judge’s recommended order dated November 14 granting respondent’s motion to withdraw its notice of contest be reviewed by the Commission. On April 27, 1973, based upon the December 18 direction for review, the Commission ordered the case remanded to the Judge for further proceedings.

On July 12, 1973, respondent filed a motion to dismiss further proceedings on the grounds that the December 18 direction for review had been untimely filed.

Respondent’s July 12, 1973, motion to dismiss, contended that the Judge’s recommended order dated November 14 granting respondent’s motion to withdraw its notice of contest became a final order of the Commission by operation of law pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A 651 et seq., 94 Stat. 1590, hereinafter referred to as ‘the Act’), and therefore the Commission was without jurisdiction to direct review and order remand of the Judge’s order dated November 14.

On September 4, 1973, pursuant to section 12(j) of the Act, I directed review of the Judge’s recommended decision and order granting respondent’s motion to dismiss further proceedings which is dated August 10, 1973, and is before us now.[3]

The Commission has reviewed the entire record in this case, including all pleadings and briefs filed by the parties. Based upon our review of the record we do not adopt the Judge’s decision.

The problem before us is the interpretation of section 12(j) of the Act which provides, in pertinent part,

A hearing examiner . . . shall hear, and make a determination upon, any proceeding instituted before the Commission . . . and shall make a report of any such determination which constitutes his final disposition of the proceedings. The report of the hearing examiner shall become the final order of the Commission within thirty days after such report by the hearing examiner, unless within such period any Commission member has directed that such report shall be reviewed by the Commission. [Emphasis added]

Judge Larkin’s recommended order granting respondent’s motion to dismiss is based upon the fallacious rationale that a Judge’s report is ‘made’ within the meaning of section 12(j) of the Act as of the date he affixes to that report. Thus, the issue here is whether, under section 12(j) ‘A hearing examiner . . . make[s] a report of .. . [his] . . . determination . . .’ as of the date he affixes to the document or when the document is received by the Commission.

His reasoning can be sustained only if one can ‘make a report’ without anyone receiving the information. To ‘make a report’ under the terms of section 12(j) has one clear, unambiguous meaning: to return to the Commission with his findings, conclusions, and recommendations, a matter officially assigned to an Administrative Law Judge. Regardless of the date affixed by the Judge to his report, he cannot ‘make a report’ unless and until that document is received by the Commission.[4]

Despite the error on the face of our order of remand of April 27, 1973,[5] it should have been abundantly clear that the Commission had exercised jurisdiction over the matter. The Judge is bound to follow Commission order for remand.

We noted, parenthetically, that the parties and the Judge refer to the date of the issuance of the direction for review as December 15, 1972. The correct date is December 18, 1972, for although it was signed on December 15, it was not received by the Executive Secretary until December 18.

Accordingly, it is ORDERED that this case be and is hereby remanded to the Judge for further proceedings consistent with this decision and our order of remand dated April 27, 1973.

MORAN, CHAIRMAN, concurring in part, dissenting in part:

I concur with two principles enunciated in this order: (1) that a Judge’s report is not made until it is received by the Commission, and (2) a direction for review pursuant to section 12(j) of the Act takes effect with its filing by a Member of the Commission with the Executive Secretary of this agency.

It is my opinion, however, that this case should not be remanded now nor should it have been remanded six months ago. Judge Larkin correctly decided this case on November 14, 1972, when he rules

That Respondent may withdraw its Notice of Contest pursuant to 20 C.F.R. 2200.50 and the date on which the conditions must be corrected is extended from April 5, 1972, to December 1, 1972.

Had that decision not been directed for review this case would long since have been concluded to the satisfaction of all parties concerned. As things now stand it is quite likely that abatement of the hazard conceded to exist in this case will not be accomplished for more than a full year after it would have been achieved had this case not been directed for review.

It is my view that this is a case where the authority to direct review of a Judge’s decision has set back the Act’s objective of early abatement of occupational safety and health hazards.

It should be noted that both the complainant and the authorized employee representative (hereafter Union) consented to the respondent’s desire to withdraw this case.

In a letter to Judge Larkin dated October 16, 1972, counsel for the Textile Workers Union of America stated:

We consent to the granting of respondent’s motion to withdraw its notice of contest.

At an open hearing held on the Motion at Montgomery, Alabama, on October 26, 1972, the same counsel stated:

We view the Respondent’s motion as a two-part motion. The first part, as I say, we have no objection to, namely the motion to withdraw the notice of contest.

Counsel for the Secretary of Labor filed a document with the Commission stating as follows:

The respondent has paid the amount of the proposed penalty to the complainant and further represents: (1) that abatement will be accomplished by December 1, 1972; (2) that compliance will continue thru the continued use of respirators and continued determination and implementation of engineering and administrative controls.

Accordingly, complainant has no objection to the granting of the Motion and suggests a form of Decision reciting substantially the matters set forth in the last two paragraphs[6] above and the concurrence of complainant.

If there are 3 parties to a case and all agree that the case should be withdrawn, and the Judge agrees with the parties and approves the withdrawal, what then is the problem?

The problem is that the Union is trying to use this proceeding to question both the fact and the particular method approved by the Secretary of Labor to accomplish abatement and the Commission is supporting the Union in this endeavor even though both of these issues are beyond the purview of the Commission in this proceeding.[7]

This case involves only the single charge that respondent is in violation of the Act because, when the citation was issued, it allegedly was not complying with the occupational safety and health standard published as 29 C.F.R. 1910.93(a)(2).[8]

The only issue for the Commission to adjudicate in this case is whether or not respondent violated the Act as alleged. The answer to that question is ‘yes.’ Respondent conceded that when it filed its motion to withdraw.

The Union, however, seems to want this Commission to provide it with some kind of guarantee that respondent will abate the violation in a manner the Union considers to be satisfactory. As counsel for the Union stated at the October 26th hearing while discussing the use of respirators to abate the alleged violation:

. . . respirators are an interim measure and . . . an unsatisfactory measure because it is rather difficult for employees to work eight hours a day with these respirators.

What we are looking to is the ultimate solution of this problem.

We are also not particularly concerned whether this thing is going to be abated, whether it be 15 days after the withdrawal of the notice of the contest or 30 days.

I think our position today, what we are looking for is for a complete abatement . . ..’ [emphasis supplied]

This Commission recognized and supported this Union position by stating in its April 27th remand order

A conclusion is required as to whether, on the record before us, respondent’s providing and requiring the use of personal protective equipment satisfactorily met the cited standard, (29 C.F.R. 1910.93) and was thus an abatement . . ..

Faced with an order like that—to resolve an issue beyond the jurisdiction of the Commission—it is easy to understand why the Judge attempted to put the case to rest with his August 10th ruling that the direction for review was untimely.

This order or remand is, as was the April order, a blatant attempt to usurp the police powers given to the Secretary of Labor under the Act—powers which this Commission does not share in any way, shape or form. In short, the Judge is told to get information on whether the abatement method approved by the Secretary of Labor (use of personal protective equipment, i.e., respirators) is a satisfactory abatement of the hazard alleged in the citation.

If the Commission has this power, it has the right to second-guess the results of every investigation or inspection conducted by the Secretary of Labor under this Act. I submit that there is no such power in this Commission. The sole reason for its establishment is ‘for carrying out adjudicatory functions under the Act’ (section 2(b)(3)). Those functions are limited to deciding those issues contested under the provisions of section 10 of the Act. It has no other power or authority.

The only contested issue which is now or ever has been before this Commission in this case is whether there was a violation of the Act. That has now been answered in the affirmative. Whether the hazard that caused that violation is now abated, what particular device, method or process is employed to abate it, and whether or not there are grounds for bringing additional charges under the Act against this respondent, are all matters for the exclusive consideration of the Secretary of Labor, Section 9 mandates that whenever the Secretary believes an employer to be in violation of the Act, he shall issue a citation. Nowhere does the Act provide that the Secretary must account to this Commission when he does not believe an employer is in violation, nor explain why he approves one type of method to correct a hazardous condition rather than another.

CLEARY, COMMISSIONER:

After consideration of the record in this case, the importance of the issues therein, and the already protracted length of these proceedings, upon my own motion and pursuant to Commission Rule 101(a)(29 C.F.R. 2200.101(a)), I hereby order an expedited proceeding in this case.

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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 722
GURNEY MANUFACTURING DIVISION, GURNEY INDUSTRIES, INC.,
Respondent.

November 14, 1972

LARKIN, JUDGE, OSAHRC:

On August 10, 1973, an Order and Decision was issued granting Respondent’s Motion to Dismiss but containing an incorrectly worded Order.

Wherefore the August 10, 1973 Order is amended to read as follows:

‘Respondent’s Motion to Dismiss is granted and the Order stands issued on November 14, 1972, granting Respondent’s motion to Withdraw its Notice of Contest pursuant 29 C.F.R. 2200.50 and the date on which the conditions must be corrected extended from April 5, 1972 to December 1, 1972.’

LARKIN, JUDGE, OSAHRC:

On July 12, 1973, respondent filed motion to dismiss the case as the Review Commission’s direction for review (dated December 15, 1972) was issued 31 days after a final order of the hearing examiner (issued on November 14, 1972), and therefore, was not within the 30-day period prescribed by Section 12(j) of the Occupational Safety and Health Act (referred to as the Act).

The case, after becoming at issue on the pleadings, was originally assigned on April 27, 1972, by the Review Commission Chairman for hearing. Following disposition of preliminary matters such as a motion for production of documents, the case was set for hearing on October 12, 1972, and continued to October 26, 1972, at the request of the authorized employee representative.

On October 10, 1972, respondent with the concurrence of the complainant (referred to as the Secretary) filed a motion to withdraw notice of contest. This motion was opposed by the authorized employee representative, and the motion was heard on October 26, 1972. On November 6, 1972, the respondent, with the concurrence of the Secretary, filed an amended motion to withdraw its notice of contest setting forth in greater detail its grounds for withdrawal, and on November 13, 1972, the authorized employee representative filed its position on the motion to withdraw.

On November 14, 1972, an order was issued by the hearing examiner granting the motion to withdraw and copies were sent by certified mail to the parties. On this same day, the file together with the order was mailed to the Review Commission. The order and file were received by the Review Commission on November 16, 1972.

On December 15, 1972, one of the Commissioners issued a ‘Direction for Review’ pursuant to Section 12(j) of the Act. By order of the Executive Secretary dated April 27, 1973, the case was reassigned. The order of the Commission of the same date specified remand ‘. . . for further proceedings consistent with this decision.’ On June 11, 1973, respondent filed motion for stay due to Petition for Review with the United States Court of Appeals for the Fourth Circuit. This motion was denied by Review Commission ruling dated June 21, 1972, and the case was again set for hearing on July 31, 1973.

On July 12, 1973, respondent filed motion to dismiss on the grounds that the hearing examiner’s decision had become a final order of the Commission pursuant to the provisions of Section 12(j) of the Act as 30 days had passed before the Direction for Review was issued. On July 20, 1973, and July 25, 1973, counsel for the authorized employee representative and complainant, respectively, filed briefs opposing the motion to dismiss.

Section 12(j) of the Occupational Safety and Health Act as pertinent provides as follows:

A hearing examiner . . . shall hear, and make a determination upon, any proceeding instituted before the Commission and any motion in connection therewith, assigned to such hearing examiner by the Chairman of the Commission, and shall make a report of any such determination which constitutes his final disposition of the proceedings. The report of the hearing examiner shall become the final order of the Commission within thirty days after such report by the hearing examiner, unless within such period any Commission member has directed that such report shall be reviewed by the Commission

A study of the Congressional Committee Reports indicates that Section 12(j) originated as a portion of an amendment to the Act offered by Senator Javits. In support of his amendment, Senator Javits stated:

In most contested cases, between six months and two years would be saved under the provisions which provide for true self-enforcing orders and discretionary review of trial examiner decisions . . .

Under my amendment, an enforceable order would issue at the end of the administrative review state, rather than after judicial review (unless the Court of Appeals issued a stay). Furthermore, the administrative review stage itself would be shortened by three to six months in many cases by making review by the (Commission) of trial examiners’ decisions discretionary. If review were denied, the trial examiners’ decision would automatically become the final order of the (Commission) and enforceable as such.

(Legislative History of the Occupational Safety and Health Act of 1970. Committee on Labor and Public Welfare. United States Senate, June 1971, page 392).

The foregoing language emphasizes Congressional intent that time was to be of the essence under the provisions of Section 12(j) in obtaining a final enforceable order. Of greater import from the foregoing language is the emphasis that the trial examiner decision would become the final decision of the Commission by operation of law unless discretionary review was taken within the 30-day limitation period.

Turning then to the precise language of Section 12(j) of the Act for direction as to the commencement of the 30-day period, the language provides, ‘The report of the hearing examiner shall become the final order of the Commission within 30 days after such report by the hearing examiner’ (emphasis supplied). The language of the statute has to be read in its usual and ordinary context. Had the filing date with the Commission been intended as controlling, it seems reasonable that Congress would have so provided. It must be concluded from the language of Section 12(j) that the 30 days runs from the date of issuance of the hearing examiner’s report.

Such interpretation would seem to have been the interpretation by the Commission when the hearing examiner’s report was considered by it. The Commission’s decision states in opening, ‘On November 14, 1972, Judge . . . issued an order granting respondent’s motion to withdraw its notice of contest . . .’ In other words, the Commission recognizes the date of the order as the issuance date rather than the date received by the Commission. Excluding November 14, as the date of mailing, 30 days hence would end on December 14, and pursuant to the provisions of Section 12(j) of the Act, the hearing examiner’s decision became the final order of the Commission by operation of law and the Commission no longer retained jurisdiction. Its Direction for Review issued on December 15, 1972, was untimely.

Much of the argument of counsel for the Government and the authorized employee representative has been answered in the decisions of U.S. v. Easement and Right-of-Way (C.A. 6 1967), 386 F. 2nd 769, cert. denied, 88 S.Ct. 1034, 390 U.S. 947; Ewing v. Risher (C.A. 10, 1949), 176 F. 2nd. 641; and Robinson v. Celebrezze (E.D. Tenn. 1964), 237 F. Supp. 115. These cases emphasize that statutes containing limitation periods establish jurisdiction as distinguished from a procedural limitation and ‘. . . the limitation defines and controls the right and the right ceases to exist if not asserted within the time fixed in the statute therefore.’ (See Ewing v. Risher, supra, p. 644).

The authorized employee representative argues that to grant respondent’s motion to dismiss in effect is reversing the order of the Commission. To deny this motion without considering it on its merits would be an easy out, but it would not be fair to the parties nor meet a responsibility that it is concluded would be expected by the Commission. More importantly, it would not be in conformance with the mandate of Section 12(j). Section 12(j) specifically provides that once the case is assigned to the examiner that the examiner ‘. . . shall hear and make a determination upon any proceeding instituted before the Commission and any motion in connection therewith . . .’ (emphasis supplied). As jurisdiction is never waivable, it may be raised at any juncture of the the proceedings. The jurisdiction motion was never raised before the Commission and as far as known, the issue is a case of first impression for consideration of the Commision (see, however, Matt J. Zaich Construction Company v. Occupational Safety and Health Review Commission, No. 73–1955, pending before the United States Court of Appeals for the Ninth Circuit). It is concluded that the mandate of Section 12 stating that the examiner shall hear and make a determination upon any motion in connection with assigned cases place upon the examiner a direct mandate to rule on the motion leaving to the Commission its discretion under Section 12(j) to reverse if it disagrees.

Counsel for the authorized employee representative argues it is common practice of the Commission to calculate the 30-day review period from the date of filing of the Judge’s decision with the Commission and refers to the new internal practice which uses the date of filing of the Judge’s decision as the date of issuance of the decision. The fallacy with this argument is that the controlling facet of the running of the 30-day period still remains the date stated on the examiner’s report and such date is placed on the decision in the field and under the direction of the examiner. Such new internal practice can only be interpreted as recognition by the Commission of the controlling aspects of the date of issuance of the report by the examiner in conformance with the language of Section 12(j). Moreover, any practice or internal procedure by the Commission cannot take precedent over the mandate of the Act itself.

Counsel argues that three days as provided by Rule 6(e) of the Federal Rules of Civil Procedure and Rule 4(b) of the Rules of Procedure before the Review Commission are to be added to the 30 days specified by Section 12(j). Rule 4(b) specifies it is applicable to a pleading or document mailed pursuant to Rule 7. Rule 7 is limited to such documents as pleadings, notices of posting, notices of hearings, proof of service, petition for modification of abatement period, response to modification of abatement, and similar documents only. Both Rule 4 and Rule 7 do not apply to decisions or orders (cf. U.S. v. Easement and Right-of-Way, supra). Rule 2 of the Commission’s Rules of Procedures provides that the Federal Rules of Civil Procedure are applicable only in the absence of a specific rule by the Commission. It is obvious that Rule 4 was patterned after Rule 6 of the Federal Rules, and Rule 6 would be inapplicable by exclusion under Rule 2 of the Commission’s Rules. Even assuming that Rule 6(e) of the Federal Rules is applicable, it has been held that Rule 6(e) does not apply to a limitation period operating as a jurisdictional condition (U.S. v. Easement and Right-of-Way, supra).

Counsel next relies upon the Supreme Court case of N.L.R.B. v. J. H. Rutter-Rex Manufacturing Company, Inc., 396 U.S. 258 at 264–5, arguing that the failure of the Commission to act within the 30-day period ‘. . . cannot stand as a basis for denying the authorized employee representative and the employees it represents the substantial rights accorded to them under the Act.’ The Rutter-Rex case is clearly distinguishable from the present case and in no way applicable. That case involves Section 6(a) of the Administrative Procedures Act 5. U.S.C. 555(b), where the lower court found that the N.L.R.B. had been guilty of ‘inordinate’ delay (approximately five years in fact) in violation of Section 6(a). The Supreme Court, in reversing, held that the N.L.R.B’s delay could not be used as a basis for shifting the consequences of the delay from the wronged employees to the benefit of the wrongdoing employers. That case in no way involved a statutory limitation period or any facts similar to the facts involved in the present case.

Counsel for complainant argues that the word ‘report’ in Section 12(j) implies that the filing date with the Commission must control as Webster’s Dictionary defines the word ‘report’ as ‘to return or present a matter officially referred for consideration with conclusions or recommendations.’ The complainant argues that it could not be a report until filed. Complainant, in essence, argues that the definition of one word taken out of context should control over the complete context of the statute. Such position is contrary to the normal concepts of statutory construction.

Complainant refers to Rule 91 of the Commission’s Rules in permitting a petition for discretionary review to be filed ‘. . . on or before the 25th day following receipt by the Commission of the Judge’s decision.’ Complainant states, ‘the intention to allow the Commission a minimum of five days to consider such petition seems clear.’ The answer to counsel’s argument is as pointed out by the Court in the Easement and Right-of-Way case, supra, and that is, the statute (Section 12(j)) establishes a jurisdictional limitation as distinguished from a procedural limitation (Rule 91). The establishment of a procedural limitation lies within the authority of the Commission, but an extension of a jurisdictional limitation does not lie within the authority of the Commission (cf. Ewing v. Risher, supra).

Counsel argue that to require the filing date with the Commission as starting the 30-day period provides consistency. This consistency is now maintained by recently established internal procedure not effective at the time of issuance of the hearing examiner’s report in the present case. Even so, any internal procedure must conform to the mandate of the Act requiring ‘the report of the hearing examiner shall become the final order of the Commission within thirty days after such report by the hearing examiner . . .’ (emphasis supplied). As previously stated, apparently in establishing such internal procedure, the Commission recognizes that the language of the Act must be conformed with and the date of the examiner’s report initiates the running of the 30-day period.

Therefore, having considered the mandate of Section 12(j) and the argument of the parties,

It is Ordered:

Respondent’s motion to dismiss is granted and the citation and notification of proposed penalty issued on March 9, 1972, are vacated.

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[1] All dates are 1972 unless otherwise specified.

[2] The authorized employee representative’s letter of October 16 was somewhat ambiguous as to whether the union opposed respondent’s motion to withdraw. It stated:

We consent to the granting of respondent’s motion to withdraw its notice of contest.

We do not agree with respondent’s offer of settlement on the grounds that such settlement is not consistent with the provisions of the Act, and therefore does not merit approval (29 C.F.R. 2200.33).

This position was clarified in the course of the following dialogue at the October 26 hearing on respondent’s motion to withdraw:

MR. ABBEY (Counsel for authorized employee representative): We view the Respondent’s motion as a two-part motion. The first part, as I say, we have no objection to, namely the motion to withdraw the notice of contest.

JUDGE LARKIN: Well, let me say, Mr. Abbey, in regard to your letter of October 16th, I wasn’t quite clear, because you seem to concur in the Respondent’s motion to withdraw, but you do not agree to the terms of settlement.

I think that, from my aspect, I have to consider this an all-inclusive package, so I am sorry, will you go ahead and state your position.

MR. ABBEY: Well, I think perhaps that is the rub, then. We think the offer of settlement is inadequate and is not in conformity with the [A]ct.

Judge Larkin was correct in considering that the authorized employee representative was opposed to respondent’s motion to withdraw its notice of contest. This conclusion is re-enforced by the authorized employee representative’s petition for discretionary review in which it states:

The employee representative opposed the granting of the employer’s motion [to withdraw its notice of contest] upon the conditions proposed.

[3] Judge Larkin issued an amended order dated August 16, 1973. This amended order is null and void ab initio. Once a Judge’s report is received by the Commission he is without jurisdiction to amend the substance of his decision. Secretary of Labor v. Singleton Sheet Metal Works, Inc., OSHRC Docket No. 878 (October 19, 1972).

[4] The arguments of the authorized employee representative are instructive as to the consequences of holding otherwise. Any other interpretation would deny the Commission a full thirty day review period and ‘. . . would give the Commission and parties different review periods based on the vagaries of mailing and filing.’

[5] The date of the Judge’s report should have been November 16, 1972.

[6] One of these 2 paragraphs is set forth in this opinion immediately above this sentence. The other paragraph is as follows: ‘Respondent represents, in its showing of good faith efforts to come into compliance, that certain engineering and administrative controls have heretofore been determined and implemented.’

[7] This precise principle was decided in Secretary of Labor v. Oil, Chemical and Atomic Workers International Union, AFL-CIO (Mobil Oil Corporation) OSAHRC Docket No. 562, February 6, 1973.

[8] The Respondent did not contest the proposed penalty in this case.