CHICAGO BRIDGE AND IRON COMPANY

OSHRC Docket No. 224

Occupational Safety and Health Review Commission

December 26, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On August 22, 1973, Judge Paul E. Dixon issued his decision and order on a previous remand in this case, and vacated items 1 through 5 of the Secretary's citation for non-serious violations.

On September 5, 1973, the Commission directed that the decision and order of the Judge be reviewed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et. seq. hereinafter referred to as "the Act").

Chicago Bridge and Iron (hereinafter referred to as CB & I) contracted with the Commonwealth Edison Company to construct two containment vessels to house two nuclear reactors as part of a nuclear power plant at Lake County, Illinois. After inspection on September 8, 9 and 10, 1971, CB & I was issued a citation on November 1, 1971, alleging that it had failed to comply with eight occupational safety and health standards. CB & I timely contested the citation and a hearing was held.

Judge Dixon vacated five contested items n1 on the grounds that the Secretary did not establish violations of the Act because there was no probative evidence that CB & [*2] I's employees were exposed to any hazards found by the compliance officer.

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n1 A stipulation between the parties contained an agreement to dismiss items 6, 7 and 8. The hearing was held as to the remaining five items.

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The allegations of the complaint for items 1 through 5 of the citation, which are at issue here, and the standards allegedly violated read as follows:

Item 1

Failure to provide attachment plugs that would endure rough usage and that were equipped with suitable cord grip to prevent strain on terminal screws.

29 CFR 1518.402(a)(4). n2 Attachment plugs for use in work areas shall be so constructed that they will endure rough use and be equipped with a suitable cord grip to prevent strain on the terminal screws.

Item 2

Failure to provide guards for temporary lighting to prevent accidental contact with the bulb.

1518.401(j)(i). Temporary lights shall be equipped with guards to prevent accidental contact with the bulb, except that guards are not required when the construction of the reflector [*3] is such that the bulb is deeply recessed.

Item 3

Failed to provide electrical cords and lights designed for suspension where temporary lights were suspended by their electrical cords.

1518.401(j)(2). Temporary lights shall be equipped with heavy duty electric cords with connections and insulation maintained in safe condition. Temporary lights shall not be suspended by their electric cords unless cords and lights are designed for this means of suspension. Splices shall have insulation equal to that of the cable.

Item 4.

Failure to reduce voltage on portable electric lighting to twelve (12) volts in moist locations.

1518.401(j)(4). Portable electric lighting used in moist and/or other hazardous locations, as for example, drums, tanks, and vessels shall be operated at a maximum of 12 volts.

Item 5

Failed to keep passageways cleared of hoses, cables, and other equipment.

1518.350(f)(7). Hoses, cables, and other equipment shall be kept clear of passageways, ladders, and stairs.

No penalties were proposed for any of the above items.

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n2 Part 1518 of Title 29, Code of Federal Regulations has been redesignated as Part 1926. See 36 Fed. Reg. 25232 (1971). The previous designated is used in this decision.

[*4]

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At the hearing, one of the compliance officers testified that attachment plugs were made out of plastic household type female receptacles with the connecting wires attached to the brass connecting screws. Tape was wrapped around them to insulate the connections. He stated this type of attachment plug did not have a suitable cord grip and was hazardous because the wires could have been pulled off thereby energizing any metal around the plug. He also stated that this type of attachment plug was used throughout the whole workplace including the area where CB and I's employees would have been working.

The compliance officer testified that throughout the entire reactor no. 1 the temporary lighting was not equipped with guards to protect the bulbs, nor were the bulbs deeply recessed in reflectors. He stated that CB & I's employees would necessarily pass by the exposed bare bulbs. He further testified that throughout the whole containment vessel the electric light cords that were used were not designed for self-suspension and were suspended on conduits and protruding nails. He stated that if [*5] these wires were bare, they could have energized anything in contact with them, including the side of the containment vessel.

In continuing his testimony, the compliance officer testified that the entire inside wall of the vessel was steel; that moisture had condensed on the walls; that the voltage of the portable temporary lighting was about 110 volts; and that respondent's employees would of necessity be exposed to the hazard of violation of the standard requiring 12 volt lighting under such conditions.

Finally, this compliance officer testified that throughout containment vessel no. 1 various types of hoses, cables, and cords were lying in passageways and on stairs creating tripping hazards. He stated that respondent's employees would have been exposed to these hazards.

Respondent did not present any evidence and elected to stand upon the record as established by the Secretary's witnesses. n3 Although CB & I had stipulated that seven employees were engaged in the installation of an access door to the containment vessel for reactor no. 1 on the dates of inspection, CB & I argued that its employees were not exposed to the non-complying conditions.

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n3 Although it is unclear from the record itself, respondent's brief on review states that it elected to stand upon the record.

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It is clear that non-complying conditions existed at the worksite. We find that CB & I's employees were actually exposed to the hazards created by these non-complying conditions. The compliance officer's testimony that these conditions existed throughout the worksite, and his testimony that CB & I's employees would have been exposed to these conditions, together with the stipulation that CB & I's employees were working at reactor no. 1 on the dates of inspection establishes actual exposure.

That exposure of CB & I's employees is established from circumstantial evidence rather than direct evidence is of no legal significance. It is enough that there is preponderating evidence in the record considered as a whole. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 (1951). For this reason we reverse the Judge's decision and affirm the contested items of the citation.

The Judge also found that there [*7] was no evidence that CB & I's employees created the electrical hazards. Fishback-Hatfield, a subcontractor of Walsh Construction, put in the temporary electrical lines. Walsh Construction had a contract with Commonwealth Edison for architectural construction. The Commission has consistently held that the fact that the immediate employer did not create the hazards is no defense when his employees are exposed. R.H. Bishop, No. 637 (May 30, 1974). Also, there has been no assertion here that CB & I has been asked to do anything impossible by way of abatement.

Accordingly, it is ORDERED that the five contested items of the citation for a non-serious violation are affirmed.

ORDER OF REMAND

January 19, 1973

Before Moran, Chairman; Van Namee and Burch, Commissioners

BURCH, Commissioner: On April 19, 1972, Judge Paul E. Dixon issued his recommended decision and order in the instant ase, vacating the Secretary's citation.

On April 21, 1972, I directed that the proposed decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., hereinafter referred to as "the Act").

The Commission has reviewed [*8] the briefs and exceptions filed by the parties and has considered the entire record. We do not adopt the Judge's recommended decision and order.

Respondent, one of many contractors engaged in the construction of a nuclear power palnt for Commonwealth Edison Company, was issued two citations for the non-serious violation of standards promulgated pursuant to section 6 of the Act. Respondent timely contested both citations and the Secretary filed a complaint on which issue was joined by respondent's answer. On Marach 8, 1972, a hearing was held. All items of citation two were dismissed pursuant to a stipulation of the parties. Testimony establishing the following facts was adduced by the Secretary.

On September 28, 1971, following the report of two fatalities, the Secretary's representative commenced his inspection of the power plant construction site, an area of 26 acres at which 58 contractors employed several thousand persons. At the time of the inspection there were some 25 employers conducting work with approximately 1500 employees. The compliance officer, confronted with the prospect of conducting an inspection in the company of at least 50 persons representing employers [*9] and affected employees, requested the project manager of Commonwealth Edison to organize a representative inspection party of six to eight persons and to notify all employers and employees of the impending inspection. The project manager organized such a party and the inspection was thereafter conducted over a period of five days.

Evidence of record shows that several of respondent's employees were engaged in work on two reactors. The testimony of the compliance officer was that he found in the above mentioned workplaces the follwoing conditions in violation of the Act; hoses, cables and other equipment in passageways, electrical lighting not reduced to 12 volts, bulbs unshielded and suspended on "pigtails," and light duty attachment plugs not equipped with cord grips to prevent strain on terminal screws.

Judge Dixon, finding that section 8(e) of the Act imposes a mandatory jurisdictional requirement that an employer representative, when present on the premises, be afforded the opportunity to accompany the inspector at the time a violation is observed, and finding no substantial evidence that respondent was given this opportunity, vacated the citation. n1 We find the Judge's [*10] ruling to be erroneous. It is contrary to the purpose of the Act, unnecessarily retards the enforcement procedure, and affords respondent a right not intended by Congress in framing the Act. In addition, respondent was in no way prejudiced by not having a representative present, the Secretary's burden of proving the violaton being unaffected by this circumstance.

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n1 Judge Dixon also ruled, without discussion, that the Secretary has failed to carry the burden of proof as to respondent being in violation of section 5 of the Act.

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Section 8(e) of the Act states as follows:

(e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsecton (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult [*11] with a reasonable number of employees concerning matters of health and safety in the workplace.

In matters of statutory construction, effect must be given to the intent of Congress, and in so doing, the first reference is of course to the literal meaning of the words employed. Flora v. U.S. 357 U.S. 63 (1958). The purpose of affording employee and employer representatives the opportunity to accompany the Safety and Health Officer is clearly stated in secton 8 (e) -- it is ". . .for the purpose of aiding such inspection." The only additional explanation regarding the inspection tour refers to the Secretary's representative consulting with employees concerning matters of safety and health in the absence of the designation of an employee representative. This last sentence of section 8(e) is consistent with the stated purpose of providing for accompaniment.

The word "shall" appears twice in section 8(e) in describing the inspection procedure. It is stated that representatives ". . .shall be given an opportunity to accompany. . ." the inspector, who ". . .shall consult with. . .employees. . ." where there is no employee representative. It is reasonable to infer that the word "shall," [*12] used twice in such close proximity, has the same meaning in both cases, and that, in light of the specifically stated purpose of the section, it is directive to the Secretary's representative rather than constituting a mandatory requirement.

Assuming that some ambiguity exists regarding the meaning of statutory words, a thorough consideration of the legislative history is required. Flora v. U.S., supra. This basic rule applies to the interpretation of a single word, such as "shall," as well as to broad questions of legislative intent. The word "shall" as used in other statutes, cases or in general usage n2 is not as relevant as its intended use in the instant statute, as determined by an understanding of the Congressional intent. In construing the word "shall" it has been stated that whether it is mandatory ". . .can only be determined by ascertaining the legislative intent. If a requirement is so essential a part of the plan that the legislative intent would be frustrated by a non-compliance, then it is mandatory." U.S. v. St. Regis Paper Co., 355 F.2d 688, 692 (2d Cir. 1966) and material cited herein. Thus, we must consider the legislative intent of the Act, of the secton [*13] in question, and concomitantly ofthe word "shall."

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n2 Its meaning is often ambiguous in all of these uses.

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The purpose of Congress in enacting the Occupational Safety and Health Act of 1970 was to assure so far as possible every working man and woman in the Nation safe and healthful working conditions, in part by providing for an effective program of enforcement. n3 As is the case with most complex legislative enactments, the passage of the instant Act was preceded by various bills and amendments which were introduced in the two Houses of Congress. Naturally, all but the final version of the Act met their doom at some point in the legislative process. A careful persual of the various bills, some containing section 8(e) as passed, others having some reference to similar provisions, and some having no such provision whatsoever, leads to the conclusion that any attempt to discover legislative intent based upon the end result of each bill, without specific explanatory statements by the legislators involved, [*14] is mere speculation and not nearly the most informative legislators involved, is more speculation and not nearly the most informative history available. Ample reference has been made, in Committee and on the House and Senate floors, to the specific provision of section 8(e) and the purpose and intent therefor.

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n3 Occupational Safety and Health Act, section 2, 29 U.S.C. 651.

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The final House bill did not contain the language which the Judge ruled mandatory. The final Senate bill included section 8(e) as it appears in the Act. As the Senate's section 8(e) was adopted in its entirety, an analysis of the Senate's discussion concerning the section is the most relevant available legislative history.

The Report of the Senate Committee on Labor and Public Welfare, issued October 6, 1970, includes the following:

During the field hearings held by the Subcommittee on Labor, the complaint was repeatedly voiced that under existing safety and health legislation, employees are generally not advised of the content and results [*15] of a Federal or State inspection. Indeed, they are often not even aware of the inspector's presence and are thereby deprived of an opportunity to inform him of alleged hazards. Much potential benefit of an inspection is therefore never realized, and workers tend to be cynical regarding the thoroughness and efficacy of such inspections. Consequently, in order to aid in the inspection and provide an appropriate degree of involvement of employees themselves in the physical inspections of their own places of employment, the committee has concluded that an authorized representative of employees should be given an opportunity to accompany the person who is making the physical inspection of a place of employment under section 9(a). Correspondingly, an employer should be entitled to accompany an inspector on his physical inspection, although the inspector should have an opportunity to question employees in private so that they will not be hesitant to point out hazardous conditions which they might otherwise be reluctant to discuss.

Senate Subcommittee on Labor of the Committee on Labor and Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970 [*16] (S. 2193, P.L. 91-596) 92d Cong., 1st Sess. at 151

A comparative analysis of S. 2193 and the substitute bill S. 4404, as prepared by the Committee on Labor and Public Welfare, states, with respect to the final bill (S. 2193), as follows:

(b) "Walk-Around." Subject to regulations of the Secretary permits employees or their authorized representative to accompany the inspector during his inspection, for the purpose of aiding the inspection. [Emphasis added.]

Legislative History, supra, at 305.

In floor debate on November 16, 1970, Senator Williams, the primary sponsor of the Senate bill, refers to the fact that the bill permits employees to accompany the inspector, referring to the fact that ". . . no one knows better than the working man what the conditions are . . . ." Legislative History, supra, at 430.

H.R. 16785 was introduced with the following provision as section 9(e).

A representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany any person who is making an inspection under subsection (a) of any workplace.

This proposed bill was reported by the Committee on Education and Labor. The Report [*17] stated, with regard to this provision:

The Committee is aware of widespread concern that under present safety and health legislation, the results of a Federal or state inspection are never revealed to the workers and that much potential benefit from an inspection is never realized. If an inspector determines that a danger to health and safety exists, he should be able to advise a worker's representative or be able to question workers, who ought to be able to disclose their concern with an alleged dangerous work area.

Correspondingly, an employer should be entitled to accompany an inspector on his tour. The employer's presence should be helpful to the inspector and educational to the employer. For these reasons, H.R. 16785 provides that a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany any person who is making an inspection of any workplace under subsection 9(a).

Legislative History, supra, at 852.

Thus, it is apparent that both the Seante and House were concerned that employees should be allowed an active part in the inspection and fairness dictated that the employer should be included [*18] also.

The Conference Report on S. 2193 (the final bill) states:

The Senate bill required that both a management and an employee representative be given an opportunity to accompany an inspector conducting an inspection of the workplace. . . . The House amendment did not require such an opportunity for either. . . . The House receded . . . .

Legislative History, supra, at 1190.

It is reasonable to infer that the use of "required" here, in light of the explanatory language quoted above, is imprecise.

During discussion of the Conference Report on S. 2193 (the final bill) on the House floor, Mr. Steiger, the House sponsor of the bill, in reviewing the major differences resolved in the Conference Report asserted as follows:

Subsectin 8(e) requires the Secretary, in inspecting a facility, to make use of the knowledge of employees or their representatives by allowing them to accompany him and/or consult with him throughout the inspection. This provision, as well as a similar provision in the House bill, is intended as a specific aid to the Secretary and should be utilized by him for that purpose.

Legislative History, supra, at 1219.

This statement is perhaps the most [*19] illuminating specific explanation of section 8(e). The use of specific words such as "shall," "permit," "requires" and "allowing" are insignificant indicators compared to the clear purpose of the section as stated by its framers. Thus, it is obvious from an examination of the legislative history that no legislative intent would be frustrated by reading the word "shall" as used in section 8(e), as nonmandatory. See U.S. v. St. Regis Paper Co, supra. In fact, there is not one scintilla of direct evidence that section 8(e) was intended to establish an absolute right in the employer and employees, the denial of which deprives the Secretary of jurisdiction. On the contrary, the legislative history establishes that section 8(e) was intended to direct the Secretary to afford employees and employers the opportunity to accompany investigators in order to effectuate a full and complete investigation.

If the literal meaning of section 8(e) is subject to doubt and the legislative history is not sufficiently convincing, the final step in interpreting the meaning of a section involves an analysis of the logical consequences stemming from each of the possible alternative interpretations. [*20] "In the absence of direct evidence of legislative intent, a significant consideration in determining whether a statutory requirement should be given mandatory or directory effect is a comparison between the results to which each such construction would lead." Holbrook v. U.S., 284 F.2d 747, 752 (9th Cir. 1960) and material cited therein. In the instant case, the large size of the construction site (26 acres), the numerous employers (approximately 25) engaged in work at the site, and the duration of the inspection (five days), preclude accompaniment by representatives of all employers at all times. Such an unwieldly inspection party, also including employee representatives, would tend to inhibit the inspection as well as the performance of work on the project, and would create an unnecessary expense and inconvenience for employers. To preclude citing an observed violation because of the absence of an employer representative is contrary to the purpose of the Act. To cite such a violation effectuates the purpose and is in no way prejudicial to an employer, the burden of proof remaining upon the Secretary.

The Secretary's regulations, 29 CFR 1903.8, concerning the opportunity [*21] to accompany the compliance officer during his inspection, reiterate section 8(e) of the Act. Naturally, the Secretary's regulations must be consistent with the intent of Congress, under the authority of which the regulations are issued. These regulations are, of course, interpreted by the Commission as well as by the Secretary in the same manner as we have construed section 8(e). Supra. Accordingly, the failure in this case to afford an employer representative the opportunity to accompany the compliance officer is non-prejudicial and will not serve as a basis for vacating the citation. Administrative Procedure Act, section 10(c), 5 U.S.C. section 706; see Citizens to Preserve Overton Park, Inc. v. Volpe, 432 F.2d 1307, 1314-15 (6th Cir. 1970), rev'd on other grounds 401 U.S. 420 (1971).

Judge Dixon's failure to deal fully with the subject of the instant citation precludes our reaching a final decision.

Accordingly, it is ORDERED that the Judge's decision and order be set aside and that the cause be remanded for further proceedings not inconsistent with this opinion.

CONCURBY: VAN NAMEE; VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur with Commissioner [*22] Cleary's disposition. Complainant established a prima facie case, and I so stated in my concurring opinion to the original Commission decision in this matter. (BNA 1 O.S.H.C. 1086, CCH E.S.H.G. para. 15,415 (1973)).

As I indicated in my earlier opinion, Judge Dixon, on his own motion, vacated the citation for failure of proof. His order was entered upon the close of Complainant's case. When this matter was remanded the parties elected to stand on the existing record. That is, Complainant took the position that he had established a prima facie case, and Respondent took the contrary view. As I said in the Arvin Millwork Company case n4 in such situations the evidence must be viewed in Complainant's favor, and he is entitled to the most favorable inferences deductible therefrom.

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n4 Dkt. No. 587, BNA 2 O.S.H.C. 1056, CCH E.S.H.G. para. 18, 159 (July 1, 1974, concurring opinion).

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In this case the compliance officer's testimony as to existing conditions and employees' exposure thereto taken together [*23] with the stipulations of the parties is more than adequate to establish a prima facie case. Since Respondent elected to stand on the record rather than present evidence, a remand would be improper. I concur in the affirmance of the citation.

DISSENTBY: MORAN; MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: I dissent for two reasons: First, because respondent was denied its walkaround rights under 29 U.S.C. 657(e), a matter which I covered at some length in the order of remand previously issued in this case, and Second, because complainant has failed to prove that any of respondent's employees were exposed to any hazard as a result of non-observance of the safety standards, a necessary element of its prima facie u case. We have stated that:

A violation of this Act is not established unless there is evidence that employees of respondent have been exposed to a hazard as a result of noncompliance with the requirements of an occupational safety and health standard. Secretary v. Bechtel Corp., 12 OSAHRC 773 (1974), and cases cited therein.

While complainant has proved several instances where the provisions of an occupational safety and health standard were not observed, it is [*24] necessary, in order to find respondent guilty of a violation of the Act, that there be evidence demonstrating that its employees were exposed to hazard as a result thereof.

Our proceedings are governed by the Administrative Procedure Act. Section 556(d) thereof requires that:

A sanction may not be imposed . . . except on consideration of the whole record . . . and supported by and in accordance with reliable probative, and substantial evidence (Emphasis added).

Complaint's compliance officer, Mr. Brickman, testified that the violations took place inside vessel #1 and that anyone working in the vessel would be exposed. However, his later testimony shows his assessment of exposure is based merely on information related by a third party whom he can't identify.

Q. . . . did you ever personally talk to an employee of Chicago Bridge and Iron Company?

A. [Mr. Brickman] Not that I can recall, sir, no, sir.

Q. Were you ever personally made known the identity of a Chicago Bridge employee or group of employees, pointed out to you . . .?

A. No, sir, I can't say. They may have but I can't say.

Q. Did any third person point out to you that this is Chicago Bridge and Iron [*25] employees over there or give any specific location?

A. No sir.

Q. Did anyone point out an area where they would be working [employees], where they would be exposed to these hazards you testified to?

A. They identified the area as being off this bridge, yeah, to close it up.

Q. Did they give you a specific location other than that they were closing that area up?

A. Not that I recall, sir.

This exchange shows two reasons why the complaint has failed to carry its burden of proof. First, the evidence fails to show that respondent's employees were inside the vessels where the hazards were located. The testimony established only that they were closing up an opening in the side wall. Secondly, and more important, hearsay testimony like this, which is completely uncorroborated, does not constitute the required "reliable probative, and substantial evidence." There is no evidence of such kind in the record which could establish that any employee of respondent was exposed to hazards resulting from non-observance of the standards. Without such a showing, complainant has failed to carry its burden of proof.

Judge Dixon ruled on this case twice and he was completely correct [*26] both times. The Commission has erred twice by overturning him.

[The Judge's decision referred to herein follows]

DIXON, JUDGE: This case, originally heard March 8, 1972, resulted in an order on April 20, 1972, sustaining Respondent's Motion to Vacate Citations. By Review Commission's decision of January 19, 1973, the cause was remanded for further proceedings not inconsistent with the Review Commission's opinion that Section 8(e) was directive rather than mandatory. Subsequently, on May 4, 1973, further proceedings were held, wherein both Complainant and Respondent elected to stand on the record. The evidence was outlined in the original order of April 20, 1972.

FINDINGS OF FACT

1. It was stipulated that Respondent, an Illinois corporation, was an employer within the meaning of the Act, and that jurisdiction was conferred upon the Occupational Safety and Health Review Commission by Section 10(c); that numerous contractors were engaged in the construction of a nuclear power plant at Lake County, Illinois, and that Respondent contracted to construct two containment vessels and had a workplace at the Edison Plant with seven employees engaged in closing an access opening (T. [*27] 5, 6).

2. Respondent received two Citations of eight items with abatement dates.

3. Respondent received Notice of Proposed Penalties.

4. Respondent had no employees working on containment vessel no. 2 during the period of September 28 through October 9, 1971, and citations for Items 6, 7, and 8 of Citation II were vacated by the Complainant (T. 7).

5. Citation I, items 1, 2, 3 and 4 were at issue.

6. A total of 58 contractors were involved on the job with 15 workers at the jobsite consisting of 26 acres (T. 13, 14).

7. Commonwealth Edison let the general contract to Walsh Construction Company.

8. There were several prime contractors with individual subcontractors (T. 14).

9. On the dates of the inspection, there were approximately 20-25 employees at the jobsite (T. 14).

10. Some contractors had completed their work and some were yet to arrive (T. 14).

11. The inspection was the result of two fatalities of employees who were not comployed by the same employer (T. 15).

12. The accident site was nuclear reactor no. 1, a cylindrical building approximately 210 feet high and 140 feet in diameter (T. 18).

13. The compliance officer entered at level 600 or [*28] 605, about 15 feet from level 607 where the accident occurred (T. 21).

14. The compliance officer, upon entering the vessel had a sensation of avoiding tripping over items he could not recall and did not know what he stepped over (T. 22).

15. The compliance officer had no clear recollection of anything at the opening of reactor no. 1 (T. 29).

16. The compliance officer re-entered the vessel through the opening at level 576 (T. 31).

17. While inside the containment vessel, the compliance officer found household-type plastic female plugs within the container where temporary wiring and temporary outlets were noted throughout the containment vessel No. 1 (T. 33, 34). He felt that this was a violation of 1518.406(a) cited as 29 CFR 1910.12.

18. The compliance officer was told that Respondent's employees were working in the area of the opening (T. 38).

19. The compliance officer observed screw-in-type bare bulbs within the containment vessel which were unguarded, which he felt were in violation of 1518.401(j)(1) incorporated into 29 CFR 1910.12 (T. 40, 41).

20. The compliance officer observed temporary plugs and lights in the painter's section (T. 43).

21. The [*29] compliance officer observed pigtail screw-in outlets tied to wires for temporary lighting hung on protrusions within the container (T. 47).

22. The compliance officer felt this was in violation of 1518.401 incorporated in 29 CFR 1910.12, and that employees of Respondent would be exposed.

23. The compliance officer found hoses all over the establishment, in passageways and stairs, and not localized in any particular area (T. 63).

24. At the access area, the compliance officer found hoses and lights leading up to a platform that were off to the side and out of the passage area (T. 64). The compliance officer did not remember with particularity seeing any attachment plugs on the platform or near the platform and to the containment liner (T. 83).

25. He observed some attachment plugs at level 576, left of the opening for spray painting (T. 84).

26. Although familiar with the work area, at no time during the inspection of the platform and passageway did the compliance officer meet a representative of Respondent (T. 85).

27. Painters were working at painting the inside and outside walls at the lower level approximately 24 hours a day (T. 87).

28. Their equipment was plugged [*30] in (T. 88).

29. The compliance officer established that Fishback-Hatfield, subcontractor of Walsh Construction, put in the temporary electrical lines (T. 90).

30. The compliance officer did not recall if cables went through the access opening (T. 95).

31. The compliance officer never personally talked to any Respondent employee during the three days of preliminary work and inspection (T. 100).

32. The compliance officer was never made known the identity of any of Respondent's employees or group of employees (T. 101).

33. No third person pointed out any Respondent employee to the compliance officer or gave him a specific location as to their work (T. 101).

34. The compliance officer was advised that Respondent employees were only there a few days, had not been there for a while, and they were not expected back for a short period of time (T. 101).

35. The upper passageway at level 610 or 617 was pointed out as to where Respondent's employees would be working to close an acces door at the platform area (T. 103).

36. The only Respondent employee at the jobsite was Mr. Straite who was located in a workshop away from the container.

CONCLUSIONS OF LAW

1. Respondent [*31] is and at all material times, was an employer within the meaning of Section 5(a) as defined in Section 3(3) and 3(5) of the Act.

2. Jurisdiction is conferred upon the Commission by Section 10(c) of the Act and the Citations issued Respondent were in accordance with Section 9(a) of the Act.

3. There is no substantial probative or reliable evidence of any of Respondent's employees exposed to the hazards found by the compliance officer at the time of the existence of such hazards.

4. There is no substantial probative or reliable evidence that Respondent created said hazards, but to the contrary that said hazards were created by another subcontractor and consisted of "temporary" and "portable" lighting, as established by the compliance officer's testimony.

5. There is no substantial probative or reliable evidence that Respondent permitted, allowed or required its employees to work in any hazardous area.

6. The Secretary failed to carry the burden of proof as to Respondent being in violation of any standard.

DECISION

Based upon the foregoing, it is ordered that the Citations issued Respondent November 10, 1971, are vacated.

DIXON, JUDGE: The above-captioned case [*32] was originally heard March 8, 1972. The Undersigned issued a Decision on April 20, 1972, which sustained Respondent's Motion to Vacate Citations based upon:

(a) Subsection 8(e) of the Act requiring that a representative of the employer be present and given the opportunity to accompany the Secretary of his authorized representative during the physical inspection of the worksite was a mandatory provision.

(b) That there was no probative, substantial or reliable evidence to substantiate that any employees of Chicago Bridge & Iron were at the site of the alleged safety violations (T. 85-100-101).

Following the issuance of said Decision sustaining Respondent's Motion to Vacate, the Review Commission reviewed the aforesaid proceedings and by its Decision of January 19, 1973, held that Section 8(e) was directive to the Secretary's representative with regard to inspection rather than constituting a mandatory requirement.

In addition, it was ordered that the Judge's Decision and Order be set aside and the cause be remanded for proceedings not inconsistent with its opinion. In the Review Commission's penultimate paragraph it stated:

Judge Dixon's failure to deal fully with the subject [*33] of the instant citation precludes our reaching a final decision.

and concluded that;

. . . it is Ordered that the Judge's decision and order be set aside and that the cause be remanded for further proceedings not inconsistent with this opinion.

Thereafter, on February 14, 1972, the Undersigned denied a preliminary Motion so Stay filed by Respondent in that the Review Commission had not been served and had not been made a proper party Respondent to appeal proceedings filed with the United States Court of Appeals under Section 11 of the Act.

Thereafter, on April 23, 1973, pursuant to Rule 11, Federal Rules of Appellate Procedure, the record in the present cause was forwarded to the Clerk of the United States Court of Appeals for the Seventh Circuit and certified by the Executive Secretary of the Occupational Safety and Health Review Commission.

On April 25, 1973, Respondent filed its Motion for Suspension of the Proceedings before the Occupational Safety and Health Review Commission subject to such further action, if any, as may be directed by the Court of Appeals on the grounds that the Occupational Safety and Health Review Commission no longer had jurisdiction of [*34] the matter, referring to section 11(a) of the Act.

Upon the notice, hearing under the mandate order of remand was scheduled and held Friday, May 4, 1973, at which time Respondent renewed its Motion to Suspend Proceedings, and Complainant when offered the opportunity to proceed with further evidence elected to stand on the record (T. 133-134).

In the statutory provision for judicial review the Act provides:

. . . Sec. 11.(a) Any person adversely affected or aggrieved by an order of the Commission issued under subsection (c) of section 10 may obtain a review of such order in any United States court of appeals for the circuit in which the violation is alleged to have occurred or where the employer has its principal office, or in the Court of Appeals for the District of Columbia Circuit, by filing in such court within sixty days following the issuance of such order a written petition praying that the order be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Commission and to the other parties, and thereupon the Commission shall file in the court the record in the proceeding as provided in section 2112 [*35] of title 28. United States Code. Upon such filing, the court shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside in whole or in part, the order of the Commission and enforcing the same to the extent that such order is affirmed or modified. The commencement of proceedings under this subsection shall not, unless ordered by the court, operate as a stay of the order of the Commission. No objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive . . . Upon the filing of the record with it, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same [*36] shall be subject to review by the Supreme Court of the United States, as provided in section 1254 of title 28, United States Code . . .

The law of mandate of general remand, such as the mandate issued by the Review Commission on connection with the construction of paragraph 8(e) of the Act, may be generally stated that the Commission's findings that the "right of walkaround" being discretionary rather than mandatory is the sole "fixed point" or "law of the case" from which the remand works forward.

If a case is remanded generally, all issues are open to consideration on what is essentially a new trial and the pleadings may be amended or new and controlling facts may be produced. Bray v. St. Louis San Francisco Railway Company, 259 Southwest 2nd 132. The record may be open for reception of additional evidence. 18 so. 2nd 159. But in general, amendments are not permissible on remand if the case has been determined on its merits.

However, in the instant case, it is felt that a discourse on the law of remand would be superfluous in light of the record.

At the original hearing on March 8, 1972, following Respondent's Motion to Vacate Complainant's Citations and the [*37] sustaining and granting of said Motion, opportunity was afforded Complainant to present arguments on the vacation (T. 116). The Judge's basis for vacation on grounds other than the interpretation of Section 8(e) was orally expressed to both parties (T. 121). The Judge in concluding the hearing stated, "If we have nothing further, we'll close the hearing." (T. 122) No further evidence was offered by either party.

At the subsequent hearing on remand on May 4, 1973, the record was opened for the reception of further evidence (T. 125), in accordance with the language of the remand order pertaining to a "full and complete hearing."

The complainant had no other matters to take precedent over Respondent's Motion (T. 129). The Complainant elected to stand on the record (T. 134) and to present no further evidence in the matter (T. 136) except for rebuttal evidence in the event Respondent should elect to proceed to put on evidence.

Reference was made to the Government's closing of its case in the original hearing, March 8, 1972 (T. 115).

MR. PEARCE: I believe that's all the questions I have.

EXAMINER DIXON: Anything further on redirect?

MISS LORD: No.

EXAMINER DIXON: Any further witnesses? [*38]

MISS LORD: No.

EMAMINER DIXON: Is that the Government's case?

MISS LORD: Yes.

The writer knows of no requirement or sanction provided in the Act to force either a respondent or complainant to proceed to present evidence when either chooses to stand on the record as made.

Thus, it is incomprehensible from the foregoing portions of either or both records of proceedings to say other than there had been a "full and complete hearing." Therefore, Respondent had an appealable order, namely, the Review Commission's ruling and interpretation of the provisions of Section 8(e) of the Act which followed extensive argument and Briefing by both parties. Respondent has exhausted his administrative remedies.

To hold otherwise, because of the Review Commission's ignoring or failing to treat of the other basis for vacation of the Citation would put Respondent in a limbo of judicial and administrative duality which would be at least highly prejudicial, if not a denial of due process.

It is felt that the language of Section 11(a) is explicit that where a person has been aggrieved by an order of the Commission and appeals to the United States Court of Appeals that except for certain [*39] circumstances such as eminent danger, wherein the court would share jurisdiction with the Commission pending the outcome of enforcement proceedings under Section 13(a)(b), Section 11 contemplates that in precise language "Upon such filing, the court shall have jurisdiction of the proceeding and of the question determined therein."

In this case, the interpretation of Section 8(e) of the Act.

Section 11(a) further provides "upon the filing of the record with it, the jurisdiction of the Court shall be exclusive and its judgment and decree shall be final . . ."

The language of the Section does not specify that the person aggrieved must be aggrieved by a "final order." The Section must also be read in the light of the evidence of the case.

The Commission's remand order "for further proceedings not inconsistent with this opinion," mandated that Complainant's Citation could not be vacated on the basis of Complainant not affording the Respondent an opportunity for accompaniment with the compliance officer. That was the only "fixed law" in the mandate of remand. The Commission issued no mandate as to Complainant's failure to sustain the burden of proof.

Prior to the Commission's mandate [*40] of remand and subsequently, the record in this cause had been proffered and was reopened for any additional evidence that the Complainant wished to establish that Respondent's employees were engaged in work at the site of the alleged violation at the time the alleged violation took place.

The vacation of the Complainant's Citation upon these grounds was not commented on by the Commission nor was any further evidence offered by way of proof on behalf of the Complainant when the opportunity was presented. The evidence in chief at the original hearing showed that Respondent's employees had been to the jobsite at some time in the past and were expected to be to the jobsite some time in the future, with the exception of a shed located some distance from the alleged violation. There was no substantial showing of Respondent's participation in the alleged violation.

Therefore, there is no evidence of a continuing violation or an absence of abatement on part of Respondent or of an eminent danger situation, and therefore based upon both the evidence and a reading of the statute it is found that the Occupational Safety and Health Review Commission is without jurisdiction and that [*41] Respondent's Motion to Suspend Proceedings is sustained.

Ordered that:

Respondent's Motion for Suspension of the Proceedings before the Occupational Safety and Health Review Commission is sustained, subject to such further action, if any, as may be directed by the Court of Appeals.

VAN NAMEE, COMMISSIONER, concurring: I concur that the terms of the Act viewed in the light of the legislative history requires an interpretation that the word "shall" as used in section 8(e) be construed as directory.

I reach this conclusion for were we to affirm the Judge's interpretation, we would be elevating the right of employers and employees to accompany an inspector to a level that is higher than the right of the Secretary to make the inspection. The right to make a compliance inspection, however, is one of the primary tools provided by the Act for achieving the enunciated Congressional purpose ". . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." n4 It is a primary tool because if violations are determined from the inspection, and as a result of either a Commission decision or failure on the [*42] part of the employer to contest, abatement can be ordered. The right of accompaniment on the other hand is a secondary right since its use is to aid the inspection.

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n4 29 U.S.C.A. 651(b).

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The error of elevating the secondary right to a position of greater importance than the primary right is illustrated by this case. At the hearing, the Secretary made out a prima facie case at least as to some alleged violations. n5 Were we to adopt Judge Dixon's interpretation abatement could not be ordered where as here some violative and hazardous conditions are shown to exist, and Congress intended that such conditions be abated so far as possible. In this case we have a situation where it is possible to achieve some abatement. It is possible because we can choose to focus on the meaning of the word "shall" either as it is used in the narrow confines of the language of section 8(e) or as it and section 8(e) are used in the context of the entire Act. When viewed in the latter context, it becomes clear that the [*43] word "shall" as used in section 8(e) must be construed as directory. Through section 8(a) the Secretary obtains authority to make inspections. The authority to inspect was granted because it was in the public interest to make such inspections. Accordingly, the Secretary's authority is a public right. The rights granted by section 8(e) on the other hand are to private individuals and they therefore are private rights. Such rights must give way when they conflict with the public interest. The Judge's interpretation produces a conflict of this kind. Accordingly, we reverse.

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n5 Judge Dixon, sua sponte, ruled otherwise.

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MORAN, CHAIRMAN, dissenting: With this decision, the Commission has effectively scuttled a significant participatory role in government-conducted inspections of job safety and health conditions -- a right which was clearly and specifically granted by Congress to both employers and employees.

Although the facts in issue here concern only the employer's walk-around right, the employees' right is [*44] part of the same sentence of section 8(e) of the Act and must be construed identically: n6

. . . a representative of the employer and a representative authorized by his emloyees shall be given an opportunity to accompany [the inspector] during the physical inspection of any workplace . . .

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n6 The inextricable relationship of the two is recognized in the Commission's decision. See p. 9 ". . . there is not one scintilla of direct evidence that section 8(e) was intended to establish an absolute right in the employer and employees . . . "[emphasis added].

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What the Commission is saying today is that these plain words are only advisory -- that the Secretary of Labor can ignore this walk-around right when conducting his inspections and it will not affect their validity. To assert, as this decision does on page 10, that it is not prejudicial to omit the employer's walk-around right because the burden of proof remains upon the Secretary is to confuse the inspection process, which precedes all citations, with [*45] the adjudication of the 1 citation in 20 which is contested.

This section of the Act resulted from a 2-year battle by forces seeking a right for workers to participate fully in the discovery and alleviation of hazards connected with their jobs. n7 It was both fair and sensible that the same right be accorded the employer, and Congress did so with the language above-quoted.

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n7 Wallick, The American Worker; An Endangered Species, Ballantine Books Inc., 1972, p. 102 "The sixteen worker rights which are given in the Appendix were painfully fought for each step of the way," and p. 218 (Appendix) "Worker Rights in the New Job Safety and Health Law of 1970 (P.L. 91-596) . . . 3. The right to accompany inspectors when they inspect your job (sec. 8e)."

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The employer's presence during the inspection makes possible better and more accurate identification of the transgression with which he may be charged. n8 This will assist him to abate them if needed as well as permit him to adequately prepare his defense if [*46] a citation is issued which he chooses to contest. The presence of an employee representative also aids in the inspection, gives the employees an opportunity to identify hazards which affect them at their jobs, keeps them informed so they can decide whether to become parties in possible litigation, and provides the employees with knowledge of those conditions they may expect to be abated. Another very practical effect of ensuring the presence of the employer during inspection is the greater likelihood of speedy, if not immediate, abatement of obvious hazards as they are revealed during the inspection process.

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n8 The significances of this is amply demonstrated by Secretary of Labor v. Marine Terminals Corporation, It was the opinion of the Judge who heard this case that questions of this nature should be resolved during the walkaround. As he said: "The circumstances of this case call for the issuance by this Commission of an admonition to the parties that they make an effort in the future to avoid expensive and confusing issues such as the one presented herein. If the compliance officer and the superintendent on the job would both make it a point to verify immediately and in each other's presence such simple matters as the diameter of a wire rope, much wasted time and expense could be avoided by all concerned. More important than that, such a course would also avoid the ill feeling that cannot but result from the resolution of such an issue by litigation."

[*47]

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Quite apart from the wisdom of the walk-around requirement there are a number of additional reasons why the Judge who decided this case was correct in holding that section 8(e) must be taken as mandatory.

The plain and ordinary meaning of the word "shall" as generally used in statutes and regulations is imperative or mandatory. n9 Black's Law Dictionary, West Publishing Co., St. Paul, Minn. (Rev. 4th ed. 1968); Boyden v. Commissioner of Patents, 441 F. 2d 1041 (D.C. Cir. 1971); Wilshire Oil Co. of Cal. v. Costello, 348 F. 2d 241 (9th Cir. 1965); Taylor v. U.S., 285 F. 2d 703 (1960). There have been some exceptions to this judicial interpretation to fit various special factual situations Brown v. Hecht Co., 137 F. 2d 689, 692-694 (1943), rev. in Hecht Co. v. Bowles, 321 U.S. 321 (1944). It has occasionally been held that a statutory "shall" can be construed as "may" when applied to the Federal Government, Cairo & Fulton R. Co., v. Hecht, 95 U.S. 168, 170 (1877). However, controlling in this case is the superseding proposition that where the statute is designed to [*48] guard a right created in the public or in some person or class of persons, its provisions are construed as mandatory. In Re National Mills, 133 F. 2d 604 (7th Cir. 1943); Escoe v. Zerbst, 295 U.S. 490, 55 S. Ct. 818, 820, 79 L. Ed. 1566 (1935).

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n9 Interestingly, the citation in this case was based upon an alleged violation of construction safety standards. The following is quoted from the definitions which the Secretary of Labor included as part of those standards: "shall means mandatory" 29 CFR 1926.32(p). This decision therefore adopts a rather anomalous position taken by the Secretary of Labor; When he uses the word "shall" to employers, it is mandatory. When Congress uses "shall" to the Secretary, it is advisory.

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One of the first rules of statutory construction is to follow the plain meaning of the words of the law.

As Chief Justice Vinson said in Ex Parte Collett 337 U.S. 55, 61 (1949):

Petitioner's chief argument proceeds not from one side or the other of the literal boundaries of 1404(a), [*49] but from its legislative history. The short answer is that there is no need to refer to the legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction. Gemsco v. Walling, 324 U.S. 244. This cannot of construction has received consistent adherence in our decisions.

In this case, the word "shall" is so clear that there is no need to look to the legislative history of the Act as the Commission's decision does. n10 However, in view of the use of excerpts taken from the legislative history in an attempt to justify the erroneous conclusion reached in this case, it will be undertaken in the following paragraphs.

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n10 The Commission decision attempts to justify its forage into the legislative history by an ipsedixitism: "assuming that some ambiguity exists" regarding the meaning of the word "shall."

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The legislative history of the Act clearly shows that the presence of the employer's representative, and [*50] the presence of the employees' representative, was thought by Congress to be necessary during the inspection to protect the interests of both. S. 2193 was introduced in the U.S. Senate May 16, 1969, and reported October 6, 1970. It contained the mandatory language, quoted above, which today remains a vital part of this legislation. Legislative History of the Occupational Safety and Health Act of 1970 251, U.S. Government Printing Office, Washington, D.C. (June 1971). On October 13, 1970, Amendment No. 1056 to this Bill was offered. The explanation furnished with this proposed amendment stated it would have deleted the requirement that the Secretary must give the employer and the authorized employee representative an opportunity to accompany him while conducting inspections, and it would have left accompaniment by the employer or employee representative during inspection to the discretion of the inspector. However, the amendment would have provided for a meeting of the inspecting officer with employees or their representative to receive any information they desired to furnish. Id. at 370-372. This amendment was tabled and never brought up. On November 17, [*51] 1970, S. 2193 was passed with the original mandatory language of section 8(e). Id. at 528, 549.

On January 3, 1969, H.R. 846 was introduced in the U.S. House of Representatives, without the above-quoted mandatory language regarding the presence of an employer or employee representative at the inspection. On January 16, 1969, H.R. 3809 was likewise introduced without such mandatory language appearing therein. On January 23, 1969, H.R. 4294 was also introduced without such language, and on August 6, 1969, H.R. 13373 was introduced without said language. Id at 599, 629, 659, 679. On April 7, 1970, H.R. 16785 was introduced. It was submitted with the absolute language added by amendment in section 9(e):

A representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany any person who is making an inspection under subsection (a) of any workplace. [emphasis supplied] Id. at 737.

On September 15, 1970, H.R. 19200 was introduced which provided only the following, regarding accompaniment, in its section 9(b):

If the employer or his representative, accompanies the Secretary or his designated representative [*52] during the conduct of all or any part of an inspection, a representative authorized by the employees shall also be given an opportunity to do so. [emphasis supplied] Id. at 782-783.

These last two quoted sections represent the two opposing views in the House on this matter as this legislation approached its final enactment stages. On the one hand there was the absolute right to an opportunity to accompany the inspector, and on the other hand the word "if" implied something less than a mandatory situation. On July 9, 1970, H.R. 16785, containing the mandatory language, was reported favorably by the House Committee on Education and Labor. In its report accompanying this proposed Bill the Committee stated:

The Committee is aware of widespread concern that under present safety and health legislation, the results of a Federal or state inspection are never revealed to the workers and that much potential benefit from an inspection is never realized. If an inspector determines that a danger to health and safety exists, he should be able to advise a worker's representative or be able to question workers, who ought to be permitted to disclose their concern with an alleged dangerous [*53] work area.

Correspondingly, an employer should be entitled to accompany an inspector on his tour. The employer's presence should be helpful to the inspector and educational to the employer. For these reasons, H.R. 16785 provides that a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany any person who is making an inspection of any workplace under subsection 9(a). [Emphasis supplied] Id. at 852.

On November 23, 1970, the House voted to substitute by amendment virtually all the provision of H.R. 19200 for those of H.R. 16785. Thus H.R. 16785 was passed, as amended, without the mandatory language. Since this differed materially from S. 2193, which was passed in the Senate, the Bills were sent to a Conference Committee. Id. at 1112-1118, 1124, 1141. After somewhat lengthy deliberations the Conference Committee reported out the final version containing section 8(e) with the mandatory language as it is in the Act today. Id. at 1164, 1239. The Conference Report to accompany S. 2193 clearly stated as follows:

The Senate bill required that both a management and an employee representative [*54] be given an opportunity to accompany an inspector conducting an inspection of the workplace. . . . The House amendment did not require such an opportunity for either . . . The House receded. [emphasis supplied]. n11

The seesaw inclusion and exclusion of the mandatory language, along with the Committee reports, shows that Congress gave considerable, detailed attention to creating the absolute right in the employer and the employee to have the opportunity to be present at the inspection of the workplace. The final result is the deliberate use of mandatory language, which, appearing in the same clause and dependent upon the same "shall," creates this right in both the employer and the employees.

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n11 It is noted that the Commission decision cavalierly dismisses this language with another ipsedixitism: "It is reasonable to infer that the use of 'required' here . . . is imprecise."

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The mandatory nature of the walk-around right is further supported by the regulations issues by the Secretary of Labor in implementation [*55] of this section of the statute. Section 8(e) begins: "Subject to regulations issued by the Secretary. . . ." The Secretary's regulations were published in the Federal Register on September 4, 1971 (36 F.R. 17850 et seq., ) 29 C.F.R. 1903.1 et seq. They demonstrate that the Secretary has recognized, reiterated and reimposed the legal duty of section 8(e) upon himself. See 29 C.F.R. 1903.8(a), where the following language is again found:

A representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Compliance Safety and Health Officer during the physical investigation of any workplace. . . . [emphasis supplied].

Under thiese regulations the inspecting officer may allow additional persons to accompany the inspection tour, 29 C.F.R. 1903(a), (b), (c). However, the only section relating to discretion to deny "the right of accompaniment" [emphasis supplied] appears in section 1903.8(d), where accompaniment may be denied to a person whose conduct actually interferes with a fair and orderly inspection, a sensible exception to prevent an employer or employee representative from obstructing or [*56] harassing the inspecting officer during inspection. It should be noted that in his own regulations the Secretary recognizes "the right" of accompaniment.

It is well established that where the Secretary pursues his cause of action under the Act, he must comply with his own rules of procedure for enforcement, which he has promulgated pursuant to the authority granted in the same Act. This rule has been applied by the United States Court of Appeals, Seventh Circuit, so that where the National Labor Relations Board fails to follow its own regulations, it will be denied the relief it seeks, Madden v. International Organization, etc., 259 F. 2d 297 (7th Cir. 1958); Madden v. International Hod Carriers, etc., Union, 277 F.2d 688 (7th Cir. 1960); and the Board will not be allowed to establish an alleged violation of section 8(b)(4)(D) of the National Labor Relations Act, 29 U.S.C. 158(b)4(D), National Labor Rel. Bd. v. United Brotherhood of Carp., 261 F. 2d 166 (7th Cir. 1958).

Other circuits have made similar rulings, National Labor Relations, Board v. Guy F. Atkins Co., 195 F. 2d 141 (9th Cir. 1952) (where petition for enforcement was denied for failure to properly adopt [*57] formal substantitive rules); and Building & Construction Trades Coun. of Met. Dist. v. Alpert, 302 F. 2d 594 (1st Cir. 1962) (where an alleged violation was dismissed for the Board's failure to make a proper preliminary investigation as provided for under its own rules).

In the leading case, Madden v. International Organization, etc., supra, the court held that the NLRB must comply with its own statements of Procedure, as well as statutory mandates. The Board had failed to conduct the preliminary investigation required by 10(1) of the National Labor Relations Act, 61 Stat. 136, 29 U.S.C. 141, et seq., and further required by the Board's own Statements of Procedure, section 101.4, under which preliminary investigation is required prior to filing a petition for injunction. The District Court for the Northern District of Illinois, Eastern Division, had dismissed the Board's subsequent appeal.

Thus, we see that the statute has imposed a legal duty upon the Secretary to give the employer the opportunity to accompany the inspecting officer during the inspection of the premises, and the Secretary, in recognition of this legal duty, has incorporated it into his [*58] own regulations.

Courts have consistently held that administrative due process is denied a respondent when an agency of the Government proceeds against him without complying with the procedural conditions it has imposed. The Secretary of Labor has established an inspection procedure with a walk-around "right" vested in the employer. A citation based upon an inspection where that right has not been granted is a clear violation of administratively established due process, Jeffries v. Olesen, 121 F. Supp. 463 (U.S.D.C., S.D. Cal., Cent. Div. 1954).

The Commission's decision further attempts to justify the abrogation of this employer's walk-around right on the ground that there were 25 employers engaged in work at this jobsite, which would produce an "unwieldly inspection party." It approves the approach taken by the Secretary's representative in this case of organizing "a representative inspection party of six to eight persons." It is submitted that the right of accompaniment in employer and employees, and the correlative duty in the Secretary to assure the opportunity, cannot be subject to destruction by an agreement between the Secretary and third persons. The inspecting officer [*59] has not been given any opportunity under this act to appoint the prime contractor or anyone else to represent to choose a representative of the employer rests with the employer and no one else.

Whenever this legal right is denied to an employer, the inspection becomes the sort of poison tree that can bear only poison fruit in the form of inadmissible evidence and invalid citations as to the employer who has been excluded from the inspection process. n12

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n12 The concurring opinion takes the position that the value of abating conditions which the Secretary of Labor alleges to be hazardous (which is labeled a "primary" right) is more important than observing the conditions and procedures with which Congress has surrounded that process (a "secondary right"). The answer to that is (1) a person (including a corporation) cannot be deprived of his property by the government without due process of law and (2) the Judge did not find that this respondent had violated the Act in this case so abatement obviously is not required at this time.

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It should be noted in this regard, that the walk-around requirement is to give the employer and employee representative an opportunity to be present during the inspection. This means inquiring whether either party desires to accompany the inspection tour. In the present case, the opportunity might have been declined and the Secretary's representative in this case, would not have had the problem, which he sought to avoid, of too many representatives accompany him during the inspection. By failing to offer the opportunity he not only violated the mandate of the Act and the Secretary's regulations, but he failed to determine whether there would have been any difficulty with a large inspection party. However, there is another alternative if the problem does in fact exist.

In a circumstance, as here, where a number of contractors are working on an extensive construction project, some extra effort should be expected of the inspecting officer. Upon entering each employer's respective work area, such as the containment vessel at this jobsite where respondent's employees were alleged to be at work, those representatives not concerned could drop out of the inspecting [*61] party. The inspector could inquire of the prime contractor or of employees and their supervisors actually on the job in the immediate area than being inspected specifically which employers and employees were actually at work in that particular area. This was done to some extent in the instant case, although not sufficient to identify Chicago Bridge & Iron Company or its employees.

In dissenting for the reasons set forth above, I cannot omit commenting upon the two final paragraphs of the Commission's decision with which I also disagree.

The complainant had a full hearing upon his charges against the respondent and the Judge ruled inter alia, following completion of complainant's case, that he had failed to sustain his burden of proving the violations alleged.

Nevertheless, the Commission orders that the decision of the Judge be set aside and that "the cause be remanded for further proceedings not inconsistent with this opinion." There is no indication as to what further proceedings are contemplated. Does the Commission want the Judge to rewrite his decision? Or does it want a new hearing to give the complainant a second opportunity to prove its case?

Perhaps [*62] there are other alternatives but it seems to me that, by this nebulous order, the Commission is inviting the same sort of criticism it delivered to the Judge in the penultimate paragraph of its opinion.

[The Judge's decision referred to herein follows]

DIXON, JUDGE: Petitioner issued citations against respondent in connection with the construction of a nuclear plant at Zion, Illinois, said citations involving alleged violations of the Occupational Safety and Health Act of 1970 and involving in particular violations of 29 CFR 1910.12, 1518.402(a)(4), 1818.401(j)(1), 1910.12, 1518.40(j)(2), 1910.12, 1518.401(j)(4) and 1910.12, 1518.350.

It was stipulated at the hearing that the jurisdiction of the action was conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Occupational Safety and Health Act (29 USC 651, et seq. ); that respondent was an Illinois corporation; that respondent was an employer within the meaning of the Act; that numerous subcontractors and contractors were engaged in the construction of a nuclear power plant for the Commonwealth Edison Company; that the nuclear power plant, referred to a "Edison Plant" was located [*63] on Shiloh Boulevard, Zion, Illinois; that respondent had entered into a contract with Commonwealth Edison to construct two containment vessels to house two nuclear reactors; that respondent on the dates of September 28, 29, and 30, and thereafter through October 9, 1971, had a workplace at the Edison Plant where seven employees of respondent were engaged in the closing of an access opening to containment vessel no. 1; that respondent received two citations pursuant to section 9(a) of the Act containing a total of eight items alleging violations of Occupational Safety and Health standards duly promulgated; that no monetary penalty was assessed; that respondent had no employees working in containment vessel no. 2 during the period of September 28, 1971 through October 9, 1971 and that violations set forth in items 6, 7, and 8 of citation II referred to containment vessel no. 2 and were dismissed.

At the conclusion of petitioner's case, respondent moved for a dismissal of petitioner's evidence failed to show a representative of the employer (Chicago Bridge & Iron Company) had been given an opportunity to accompany the compliance officer for the Occupational Safety and Health Administration [*64] of the U.S. Department of Labor during the physical inspection of the workplace pursuant to section 8(e) of the Act and further that the Secretary failed in his burden of proof.

THE EVIDENCE

Mr. Morley Brickman, compliance officer for the Occupational Safety and Health Administration, U.S. Department of Labor, testified that he went to the Edison plant site, to investigate two fatalities that had occurred earlier and to conduct a compliance inspection under the Occupational Safety and Health Administration standards. He was accompanied by a Mr. Farenga, a trainee (T. 106). There were several prime contractors and several subcontractors about 58 in number, employing 1500 people on a 26 acre site. Mr. Brickman contacted a project manager, Walsh, who directed Mr. Brickman to the project manager of Commonwealth Edison, wherein a meeting was held and wherein Mr. Brickman had a conversation with a Mr. Cosaro "and I told him I wanted all the contractors who were to be involved who were on the workplace to be informed who was in the inspection party" (T. 16). Mr. Cosaro was the project manager for Commonwealth Edison and Mr. Brickman requested that Mr. Cosaro make the arrangements [*65] to provide he, Mr. Brickman, with employee and employer representatives.

Mr. Brickman further testified that with the project manager of Walsh and Mr. Cosaro they arranged for the inspection for the employer representatives. Mr. Cosaro was to contact the other employers for two reasons. To inform the inspection party was taking place and who was in it and secondly, to expect Mr. Farenga in their offices to gather information needed on certain report forms (T. 17). Within the nuclear reactor housing site number 1 Mr. Brickman found numerous violations of the electrical standards in that temporary wiring was used, improper plugs both male and female were being used and improper voltage was being utilized with bare bulbs.

Mr. Brickman was satisfied that the various employers had been consulted and that the arrangements made would be satisfactory (T. 27).

In placing the respondent in the area of the alleged safety violations Mr. Brickman testified "I had been told they were working in the area of the construction opening" (T. 38). Mr. Brickman observed some men outside on a platform burning off some reinforcing rod or pipe but at that particular time the lines were off to the side [*66] and out of the passageway and they were not Chicago Bridge & Iron employees (T. 64).

Following Mr. Brickman's inspection of September 28, September 30 (sic) 31, actually October 1, 1971, he arranged with Mr. Cosaro to set up a conference with the employers who were represented on the site during the days of the inspection (T. 67). A roster was made up of all employers in attendance which was assigned by the employers (T. 68). Chicago Bridge & Iron was not on the roster (T. 97). At no time during the course of his inspection did he meet a representative of Chicago Bridge & Iron (T. 85). At no time during the period of 2-1/2 days of inspection did Mr. Brickman ever personally talk to an employee of the Chicago Bridge & Iron Company (T. 100). Nor was he ever personally made known the identity of a Chicago Bridge employee or group of employees pointed out to him, nor did any third person point out to him any Chicago Bridge & Iron employee or a specific location (T. 101). Although he was advised that as to Chicago Bridge & Iron they had only been there for a few days, they hadn't been there for a while and they didn't expect them back for a short period of time (T. 101). [*67]

The only contact made with Chicago Bridge & Iron which maintained a warehouse on the premises (T. 109) in the nature of a workshop, was made by Mr. Farenga, a trainee who called upon a Mr. Strait and whose duties with respect to the inspection -- investigation was to interview any witnesses to the accident of the previous week resulting in fatalities and to fill out the Occupational Safety and Health Report Form, OSHA 1 Form, for each of the employers on the site (T. 106). Mr. Farenga explained the purpose of his being on the site and went through a series of questions and basically reading information off of the form itself and asking for an answer to each of the questions and gave Mr. Strait informational material pertaining to the Occupational Safety and Health Act (T. 107). At no time during the course of his testimony did Mr. Farenga offer to Mr. Strait the opportunity to accompany him on an inspection of the job site.

CONCLUSIONS OF LAW

Section 8(a) provides that in order to carry out the purposes of the Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized --

(1) to enter without delay and at reasonable [*68] times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer;

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment and materials therein and to question privately any such employer, owner, operator, agent or employee.

(e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in workplace.

The concluding paragraph of section 8(e) of the Act provides that where there is no authorized employee representative the Secretary's [*69] representative shall consult with a reasonable number of employees concerning the matters of health and safety in the workplace. It will be noted that the evidence demonstrates that Chicago Bridge & Iron did in fact have a workshop, presumably a fabrication workshop in connection with their operations which was some distance from the site of the violations. Respondent had a workman and representative on the premises working in the workshop. A careful review of the Act does not demonstrate in any fashion where, other than under the aforesaid circumstances, where there is no employee representative on the premises, the enforcement officer can delegate his duties with respect to giving an opportunity to an employer representative to accompany him on his inspection such as was demonstrated by Mr. Brickman's testimony in several instances (T. 16, 17, 27, 66-67).

Chapter 5 USC annotated section 55(d) in pertinent part provides . . . a saction may not be imposed . . . unless supported by and in accordance with the reliable, probative, and substantial evidence. Title 29 Chapter 29, Occupational Safety and Health Review Commission, part 2200, Rules of Procedure, Subpart 2200.33 [*70] provides in pertinent part that the burden of proof shall be on the Secretary in all proceedings to sustain the assertions contained in his citations, notification of proposed penalty and notification of a failure to correct a violation.

Both through oral argument and by brief the use of the two terms "may" and "shall" as indicating the use of the word "shall" is other than mandatory would require a review of practically every section of the Act. The congressional intent as to those matters which are discretionary so described as actions which "may" be taken as opposed to the mandatory expression of "shall" would completely thwart the intent of congress in its legislation and in its wisdom in selecting the use of the words. Further, it would violate the legal meaning of the word "shall" as a work of legal art and as it is understood universally in all state and Federal jurisdictions.

DECISION

1. Respondent is and at all material times was, an employer within the meaning of section 5(a) as defined in section 3(3) and 3(5) of the Act.

2. Jurisdiction is conferred upon the Commission by section 10(c) of the Act and the citations issued respondent were in accordance with section [*71] 9(a) of the Act.

3. Section 8(e) of the Act is a mandatory requirement that a representative of an employer when present on the premises be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of the work site.

4. There is no probative, substantial or reliable evidence to substantiate that any representative of Chicago Bridge & Iron was at the site of the alleged safety violations.

5. There is no probative, substantial or reliable evidence to indicate that respondent's representative who was in a workshop was afforded an opportunity to accompany the Secretary's representative but to the contrary the evidence clearly discloses that respondent's employee was given informational material and asked questions with regard to a fatality which had occurred some time previous to the inspection.

6. The Secretary has failed to carry the bruden of proof as to respondent being in violation of section 5 of the Act.

ORDER

Based upon the foregoing it is ordered that the motion of the respondent to dismiss and vacate the aforesaid citations be sustained and the aforesaid citations are hereby dismissed and vacated.