A.C. AND S., INCORPORATED; ANNING-JOHNSON COMPANY; UNITED STATES STEEL CORPORATION Doing Business as AMERICAN BRIDGE; COMMONWEALTH EDISON COMPANY; CONTINENTAL ELECTRIC CONSTRUCTION CO., a Corporation, GERSON ELECTRIC CONSTRUCTION CO., a Corporation, and HYRE ELECTRIC CO., a Corporation, Individually and Doing Business as a Joint Venture under the name of CONTINENTAL-GERSON-HYRE; CRESCENT ERECTION COMPANY; ECONOMY MECHANICAL INDUSTRIES, INC.; ILLINOIS BELL TELEPHONE COMPANY; INLAND-RYERSON CONSTRUCTION PRODUCTS COMPANY; MAYFAIR CONSTRUCTION COMPANY; CARL A. MORSE, INC., OF ILLINOIS, Doing Business as DIESEL CONSTRUCTION; PULLMAN SHEET METAL WORKS, INC.; SR INDUSTRIES CORPORATION (SCHMIDT IRON WORKS DIVISION); SKIDMORE, OWINGS & MERRILL, a Partnership; S. MARTIN TAYLOR, Individually and Doing Business as TAYLOR ELECTRIC COMPANY; THE V.S. WALLGREN COMPANY

OSHRC Docket No. 2229; 2157; 2268; 2163; 2174; 2159; 2164; 2097; 2169; 2171; 2230; 2168; 2176; 2165; 2160; 2172

Occupational Safety and Health Review Commission

July 28, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Herman Grant, Regional Solicitor

Richard G. Siegel, ILLINOIS BELL TELEPHONE COMPANY, for the employer

Steven H. Adelman, (ANNING-JOHNSON CO.) (CRESCENT-ERECTION CO.), for the employer

Jerrold L. Sager, (S. MARTIN TAYLOR d/b/a TAYLOR ELEC) (CONTINENTAL-GERSON-HYRG.), for the employer

J. C. Sibley, Jr., Commonwealth Edison Company, for the employer

James M. Hurley, (ECONOMY MECHANICAL INDUSTRIES, INC.), for the employer

David M. Spector, (SKIDMORE, OWINGS & MERRILL), for the employer

Mr. Bruce Klevin, Vice-President, FSM-Pullman Sheet Metal Works, Inc., for the employer

Nelson E. Schmidt, (INLAND-RYERSON CONSTRUCTION PRODUCE CO.), for the employer

Kent Lawrence, (MAYFAIR CONSTRUCTION CO.), for the employer

Raymond A. Fylstra, (V.S. WALLGREN CO.), for the employer

Carl N. Graf, Jr., (S R INDUSTRIES CORP.) SCHMIDT IRON WORKS DIV., for the employer

Jerrod E. Fink, (A C & S INC.), for the employer

George C. Pontikes, (CARL A MORSE INC. OF ILLINOIS), for the employer

Benjamin F. Cornelius, American Bridge, Division of United States Steel Corporation, for the employer

Mr. F. J. Cunningham, Business Representative, Local [*2] 134, IBEW, AFL-CIO, for the employees

Mr. D. J. Servatius, President-Business Manager, Local 165, IBEW, for the employees

Allen Douglas, Business Manager, Architectural & Ornamental Ironworkers, Local Union 63, for the employees

William J. Rooney, Secretary-Treasurer, Sheet Metal Workers Union, Local 73, for the employees

Mr. Glen Stone, International Union of Operating Engineers, Local 150, for the employees

George Vest, Jr., Carpenter's District Council of Chicago, for the employees

Robert Brankin, Lather's Union, Local, for the employees

Joseph Spingola, Construction & General Laborers, District Council of Chicago, for the employees

International Brotherhood of Electrical Workers, Local Union 134, for the employees

United Order of American Bricklayers & Stone Masons, Local 21 of the B.M. and P.I.U. of Chicago, for the employees

International Hod Carriers, Building & Common Laborers Union of America, Local 4, for the employees

Asbestos Workers Local #17, for the employees

Carpenter's Union, Local #1, for the employees

Laborer's International Union of North America, Local #1, for the employees

Mr. William Toomey, International Association of Bridge, Structural & Ornamental [*3] Iron Workers, AFL-CIO, for the employees

OPINIONBY: CLEARY

OPINION:

DECISION AND ORDER

CLEARY, Commissioner:

These cases arose out of a lengthy inspection, conducted between August 28 and September 11, 1972, of the working conditions of various construction contractors at the Sears Tower construction site in Chicago, Illinois. On November 16, 1973, Administrative Law Judge Louis J. Rubin consolidated the cases for hearing. The hearing was begun on December 17, 1973, and ended on March 8, 1974. The Judge's decision was received on February 27, 1975. On March 12, 1975, former Commissioner Van Namee ordered review of No. 2159, Crescent Erection Company, on the following issues:

1. Whether the trial Judge committed error in concluding that Respondent violated Section 5(a)(1) of the Act inasmuch as a specific construction standard, 29 C.F.R. 1926.28(a), is applicable under the circumstances of this case?

2. Assuming arguendo an affirmative answer to the aforesaid question, did the parties try the issue of a serious violation of 29 C.F.R. 1926.28(a) by consent in this matter?

He also granted a petition for discretionary review filed by A.C. and S., Inc., in No. 2229.

On March 18, 1975, former [*4] Chairman Moran ordered review of all 16 cases and listed the following issues:

1. Were respondents who were working pursuant to contracts entered into prior to the effective date of the occupational safety and health standards, upon which the charges were based, properly subject thereto?

2. Were the citations issued in accordance with the requirements of 29 U.S.C. 658(a)?

3. Was the decision of the Judge in accordance with the applicable principles of law set forth in Brennan v. OSAHRC and Underhill Construction Corp.,    F.2d    (2d Cir., Nos. 74-1579 and 74-1568, decided March 10, 1975), and Brennan v. OSAHRC and Raymond Hendrix d/b/a Alsea Lumber Co. (9th Cir., No. 73-1938, decided February 4, 1975)?

4. Was the inspection upon which the citation was based properly conducted in accordance with the requirements of 29 U.S.C. 657(a) and (e)?

5. Was there sufficient evidence to sustain the Judge's finding of viofation of 29 U.S.C. 654(a)(1)?

These issues are not necessarily present in all cases. For example, the first issue concerning the effective date of the construction standard was raised by eleven employers and not all sixteen. Issue 5 concerns only [*5] case No. 2159 that had been previously ordered for review by former Commissioner Van Namee. Issue 3 does concern all sixteen employers, and although it is not facially clear, it raises the question of how the Act should be applied to multiple-employer construction sites. Issue 2 was raised by all but two of the sixteen employers, and concerns essentially the question of whether the citation were issued with "reasonable promptness."

In four cases, No. 2168 (Pullman Sheet Metal Works, Inc.), No. 2164 (Economy Mechanical Industries, Inc.), No. 2230 (Carl A. Morse, Inc. of Illinois, d/b/a Diesel Construction), and No. 2163 (Commonwealth Edison Company), we note that respondents filed no petition for discretionary review, did not file submissions in response to the direction for review, and have not otherwise indicated any interest in review of the Judge's decision. The Secretary's brief expresses no objection to the Judge's disposition. This being so, and since there is no compelling public interest for review, we decline to pass upon this aspect of the Judge's decision. Abbott-Sommer, Inc., BNA 3 OSHC 2032, CCH 1975-76 OSHD para. 20,428 (No. 9507, February 17, 1976).

Pursuant [*6] to Commission Rule 10, 29 CFR 2200.10, No. 2159, Crescent Erection Company, dealing with an alleged violation of section 5(a)(1) of the Act, is hereby severed for decisional purposes. This case raises issues of law and fact not found in the other cases, and separate treatment is therefore both proper and necessary.

Concerning the remaining cases, after the Judge issued his decision and subsequent to the orders for review issued and the submission of briefs by the parties, the Commission has rendered fully considered opinions dealing with most of the issues listed in the orders for review and raised by the parties. n1 These opinions provide the parties with effective guides for measuring their safety programs. As to the issues, the instant cases no longer present novel or unsettled questions. Hence, a decision on these issues is no longer crucial in formulating national policy to aid in the Act's administration. See Grossman Steel & Aluminum Corp., BNA 4 OSHC 1185, 1188, CCH 1975-76 OSHD para. 20,691 (No. 12775, May 12, 1976); Francisco Tower Service, BNA 3 OSHC 1952, CCH 1975-76 OSHD para. 20,401 (No. 4845, February 6, 1976). n2 Further, the violations involved [*7] are not "serious," and the penalties for them were low or nonexistent. We also take official notice of the fact that the Sears Tower has now been completed.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The attention of the parties is directed to several Commission decisions. On multiple-employer construction site problems, see generally, Grossman Steel and Aluminum Corp., BNA 4 OSHC 1185, CCH 1975-76 OSHD para. 20,691 (No. 12775, May 12, 1976); Anning-Johnson Co., BNA 4 OSHC 1193, CCH 1975-76 OSHD para. 20,690 (Nos. 3694 & 4409, May 12, 1976); Beatty Equipment Leasing, Inc., BNA 4 OSHC 1211, CCH 1975-76 OSHD para. 20,694 (No. 3901, May 13, 1976); Otis Elevator Co., BNA 4 OSHC 1219, CCH 1972-76 OSHD para. 20,693 (No. 8468, May 14, 1976). See also Bechtel Power Corp., BNA 4 OSHC 1005, CCH 1975-76 OSHD para. 20,503 (No. 5064, March 11, 1976); A.J. McNulty & Co., Inc., BNA 4 OSHC 1097, CCH 1975-76 OSHD para. 20,600 (No. 2295, April 8, 1976). On the relationship between Articles 320-5 and 305-2(c) of the National Electrical Code, see generally, Bertke Electric Co., Inc., 18 OSAHRC 840, BNA 3 OSHC 1303, CCH 1974-75 OSHD para. 19,753 (No. 3409, June 24, 1975). On the effective dates of the Construction Safety Act (40 U.S.C. 327 et seq.) standards adopted as OSHA standards and their applicability to contracts entered into after April 24, 1971, see generally, Underhill Construction Corp., 15 OSAHRC 366, BNA 2 OSHC 1556, CCH 1974-75 OSHD para. 19,276 (No. 1307, January 31, 1975), aff'd 526 F.2d 53 (2d Cir. 1975); Underhill Construction Corp., BNA 4 OSHC 1146, CCH 1975-76 OSHD para. 20,631 (No. 2516, April 19, 1976). The reasonable promptness issue is addressed in Coughlan Construction Co., Inc., 20 OSAHRC 641, BNA 3 OSHC 1636, CCH 1975-76 OSHD para. 20,106 (Nos. 5303 & 5304, October 28, 1975); Jack Conie & Sons Corp., No. 6794 (June 25, 1976) and many other cases. The decisions in Western Waterproofing Co., No. 1087 (June 21, 1976), and A.J. McNulty & Co., Inc., supra, note 1, are pertinent to the objections to the inspection procedures followed by the compliance officers. See also, Chicago Bridge & Iron Company v. O.S.H.R.C., No. 75-1163 (7th Cir., May 10, 1976). Our recent decision in Gilles & Cotting, Inc., BNA 3 OSHC 2002, CCH 1975-76 OSHD para. 20,448 (No. 504, February 20, 1976) decides the exposure-access question. There are also Commission decisions which speak to most of the lesser issued raised by these cases.

n2 Our reference to Francisco Tower Service should not be read to indicate that the present directions for review were invalid for want of specificity or similar reasons.

[*8]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Under these circumstances, a full-scale review of the cases could not be fairly undertaken without supplementary presentations by the parties applying recent precedents, and yet any resulting decision would have no impact upon the abatement of any "nonserious" hazards in the erection of Sears Tower itself. We therefore consider such full-scale review to be improvident at this time. Cf. Quinn v. Muscare, 44 U.S.L.W. 4627 (U.S. May 3, 1976). n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 In Francisco Tower Service, BNA 3 OSHC 1952, CCH 1975-76 OSHD para. 20,147 (No. 4845, February 6, 1976) we noted the analogy between the Supreme Court's certiorari procedure and our discretionary review process. Our approach here is not unlike that in Quinn, for here as there, the purpose of settling important issues of national importance would not be served by further proceedings in this case. In Quinn, the Supreme Court dismissed the writ of certiorari as improvidently granted when it appeared that subsequent to the granting of the writ and oral argument, another case of controlling importance was decided by the Court.

[*9]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, we propose to vacate the orders granting review of the remaining cases. Any affected party may submit, within thirty days, any objection thereto, with a brief and particularized statement of reasons as to why the Commission should proceed to the merits of its case. Any objection shall indicate whether the objecting party desires review to proceed, and if so, whether the case should be decided by the Review Commission, be remanded to an Administrative Law Judge for further proceedings, or be disposed of in accordance with an agreement that may be reached by the parties. It shall further state whether the parties have attempted to reach such an agreement. n4 This provisional order shall become final thirty days from its entry upon the failure of a party to file an objection.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 The Commission encourages the settlement of cases at any stage of its proceedings where such settlement is consistent with the provisions and objectives of the Act. Commission Rule 100(a), (29 CFR 2200.100(a)).

- - - - - - - [*10] - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

So ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The foregoing "statement" n5 is yet another in a series of bizarre moves undertaken by Messrs. Barnako and Cleary which amount simply to an illegal refusal to carry out their statutory duties and address the issues before them. Despite the fact that the Act, with no exceptions whatsoever, mandates review by the Commission of any Judge's decision so directed by any Commission member, n6 Messrs. Barnako and Cleary have recently chipped away at that mandate so relentlessly and furiously as to render it practically meaningless. With today's action, they make it clear that they will no longer even try to maintain the appearance of legality, and will review only those decisions that they, in their infinite ad hoc wisdom, deem worthy.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 Although the Act grants this Commission the authority only to decide issues in dispute and make determinations thereon, the foregoing does neither. It would be improper therefore to label it a "decision."

n6 29 U.S.C. 661(i) provides:

"A hearing examiner appointed by the Commission 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." (Emphasis added.)

[*11]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Without citing any valid authority for so doing, Messrs. Barnako and Cleary have in the past vacated directions for review on the grounds that the direction lacked specificity, that respondent neither petitioned for review nor briefed the issues specified in the direction, and/or that the directed issue did not involve a "compelling public interest." n7 As I have stated time and time again, there is positively no authority - anywhere - for their actions. n8 It is not only patently illegal but it is clearly intended to preclude the author of this opinion from exercising his statutory rights to cause a decision of an Administrative Law Judge to be reviewed by the three member tribunal. n9

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 See, for example, the dissenting opinions in the cases listed in note 7, supra.

It is interesting to note that Messrs. Barnako and Cleary have seen fit to apply their "rules," with one exception, only when review is directed by the author of this opinion. In the case before us, however, directions for review filed by two members of the Commission (a majority of the membership) are vacated.

[*12]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In addition to the matters discussed in the cases listed in footnotes 7 and 9, two additional points are pertinent to this case: First, 29 U.S.C. 661(i) provides that a Judge's report shall be the final decision in the case within 30 days of its issuance, unless a Commission member, within such time, directs that "such report shall be reviewed by the Commission." The quoted phrase - such report shall be reviewed - clearly mandates the judicial reexamination by the Commission members of the Judge's decision. That has not been done here. Second, the proposed vacation of the direction for review in this case, in the face of its clear and specific enunciation of issues raised therein and the five petitions for review with accompanying briefs, is clearly contrary to the Congressional testimony given by Mr. Barnako earlier this year when he was questioned on this matter by Congressman Silvio O. Conte of the House Appropriations Committee.

The following is quoted from the official Record of Hearing of the U.S. House of Representatives for February 11, 1976. n10

MR. CONTE. You decided recently [*13] in the Francisco Towers case that two of the Commission members could prevent the third member from getting a judge's decision reviewed by the members. Didn't Congress give that power to each of the three members? What is your authority for taking that right away?

MR. BARNAKO. The right has not been taken away because vacation of a direction for review occurs only when the direction did not address an issue. It is essential that the Commissioner directing review must delineate the issue on review in order that the parties and the other Commissioners will know what issues to address in the review process."

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n10 Department of Labor and Health, Education, and Welfare Appropriations for 1977. Hearings before a Subcommittee of the Committee on Appropriations, House of Representatives. Ninety-Fourth Congress, Second Session. Part 1 at page 1322 [emphasis supplied].

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The five issues specified in the March 18, 1975 direction for review make it clear to all parties and the other Commissioners just what issues [*14] to address in the review process. The parties in fact addressed those issues in their briefs. Certainly, this case makes it clear, however, that Mr. Barnako's statements - even those given to duly constituted Committees of the Congress - are worthless.

In the consolidated cases here at issue, Messrs. Barnako and Cleary, being able to dispose of only four of the cases on the basis of their prior rationale, were faced with the problem of how to avoid addressing the issues directed for review when several of the parties petitioned for review and also filed briefs. Of course, anyone familiar with prior opinions by Messrs. Barnako and Cleary would immediately know that such a problem can easily vanish under the Barnako-Cleary School of Legal Prestidigitation. Now, apparently, even if a respondent files a petition for review and briefs in support thereof, and such petition is granted by a member of the Commission, Messrs. Barnako and Cleary will henceforth refuse to review the Judge's decision and will, in effect, require the filing of another petition for review unless they believe that the issue is "crucial in formulating national policy to aid in the Act's administration," or [*15] unless they feel that the alleged violations in question are "serious" and the penalties "high," or unless they think that review would have an impact upon the abatement of the alleged violations. Of course, even if a party files another petition for review pursuant to a Barnako-Cleary provisional order of vacation, there is no assurance they will then review the decision since they give us no rules to understand their thinking, or guidelines for use in guessing what they might - or might not - do at any particular time.

It goes without saying that they cite no valid authority for their action. Seemingly swept on high in a paroxysmal whirlwind of confusion, layered with the trappings of power and unfulfilled dreams, my colleagues have apparently seen the Law of the Land, and it is they. On the contrary, however, they are not members of the Supreme Court, and their attempt to analogize between the Commission review process and the Supreme Court's certiorari procedure is specious. The Supreme Court's certiorari procedure is purely discretionary and governed almost completely by the Court's own internal rules. Our review procedure is governed wholly by statute and is [*16] only discretionary to the extent that each Commission member has the discretion to grant review. Once it has been granted by any member, review of the Judge's decision is no longer discretionary but mandated by statute.

The Judge has issued his decision in these cases after an extensive trial of three months duration, several additional months study of the record, and thorough consideration of the applicable legal precedent. The respondents have petitioned for review, and two Commission members have directed them to be reviewed. Accordingly, the Commission should affirm, modify, reverse, or remand the cases in accordance with its statutory obligation. 29 U.S.C. 659(c). To vacate the directions for review unless the affected parties submit "any objection thereto" is an abdication of the Commission's statutory duties and palpably unfair to the parties, who have already spent a vast amount of time and effort trying to get a fair and final decision from the Commission. If these respondents, because of recent changes in our precedents, have not had a fair opportunity to present their defenses, then the cases should be remanded to give them such an opportunity. To allow the [*17] Judge's decision to be confined to the dustbins of limbo, unless the parties once again ask for review "with a brief and particularized statement of reasons as to why the Commission should proceed to the merits of the case" is patently unjust.

Finally, I take exception to the rather cavalier statement that the decisions cited in note 1, supra, "provide the parties with effective guides for measuring their safety programs." No one who has read those decisions can understand them and the "principles" of law stated therein (if any) are just as trustworthy and meaningful as the statements Mr. Barnako submits to Congressional Committees (see note 10, supra, and the accompanying text). The further statement that "we take official notice of the fact that the Sears Tower has now been completed" is just as chimerical. No tribunal can take official notice of such a matter without allowing the parties an opportunity to be heard. Furthermore, even if the building is completed, safety violations may also have been built into it which are unlikely to disappear as the result of the Barnako-Cleary mumbo-jumbo used in the Sears Tower cases before this Commission.