VY LACTOS LABORATORIES, INC.
OSHRC Docket No. 31
Occupational Safety and Health Review Commission
June 10, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission on an order of remand issued by the Court of Appeals for the 8th Circuit. Brennan v. Occupational Safety & Health Review Com'n (Vy Lactos Laboratories, Inc.,) 494 F.2d 460 (8th Cir. 1974) unofficially reported, BNA 1 O.S.H.C. 1623, CCH Employ. S&H Guide, para. 17,573 (April 5, 1974). The Court held that we erred in ignoring the Secretary's evidence of Vy Lactos' actual knowledge of the existence of a recognized hazard. It also held that the record was inconclusive as to the presence or absence of actual knowledge on the part of Vy Lactos. Accordingly, the matter was remanded for further fact finding proceedings.
Under our rules the Secretary has the burden of proving all elements of a violation in a proceeding initiated by a notice of contest. This is such a case. We agree with the court's holding that the record is inconclusive on the issue of actual knowledge. And were we to rule on that issue we would be inclined to find that the Secretary has failed to carry his burden of proof. * Armor Elevator Company, Inc., OSHRC Docket [*2] No. 425, 426, BNA 1 O.S.H.C. 1409, CCH Docket No. 425, 426, BNA 1 O.S.H.C. 1409, CCH Employ. S. & H. Guide para. 16,958 (Rev. Com'n., 1973). However, we need not reach the issue. On remand Vy Lactos has moved to withdraw its notice of contest. All criteria for hospitable consideration of its motion have been fulfilled.
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* Our colleague in dissent gives the impression that Vy Lactos had prior knowledge of the existence of hydrogen sulfide. The facts of record are (1) Vy Lactos' chemist had no prior knowledge since all of his testimony pertained to a post facto evaluation, and (2) employee complaints were infrequent and not conveyed to management.
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Accordingly, the motion to withdraw is granted, and Complainant's citation and the penalty proposed therefor are affirmed.
CONCURBY: CLEARY
CONCUR:
CLEARY, COMMISSIONER, concurring: I concur in the action taken by my colleagues in granting the respondent's motion to withdraw its notice of contest. I disassociate myself, however, from their ambivalent inclination [*3] concerning that action. Moreover, I disagree with their reading of the opinion of the Eighth Circuit that "[the court] also held that the record was inconclusive as to the presence or absence of actual knowledge on the part of Vy Lactos."
What the court, in fact, says is:
We further hold that the record before us is insufficient to conclusively establish either the presence or absence of actual knowledge on the part of Vy Lactos of the hazard. We therefore are compelled to remand this case to the Commission for further factfinding proceedings.
Brennan v. O.S.H.R.C. and Vy Lactos Laboratories, Inc., No. 73-1235 (8th Cir. April 5, 1974) (slip op. at 8).
Congress has given the Commission rather than the courts broad discretion to make findings of fact. n1 The court's holding is in effect that the evidence of record is insufficient, in the absence of crystal clear error by the Commission, to substitute its judgment for that of the Commission and make the finding of the presence or absence of actual knowledge. n2 It was for this reason that the court remanded the case.
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n1 Section 10(c) of the Act.
n2 Cf. N.L.R.B. v. Food Store Employees Union, Local 347, 42 LW 4758 (U.S. May 20, 1974).
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The court did not say that there was insufficient record evidence from which to find as fact that Vy Lactos had actual knowledge. Indeed, it said:
The record does reflect that Vy Lactos utilized proteinaceous fish solubles in its manufacturing process. The record also reflects that Vy Lactos stored the fish solubles and other ingredients in tanks in the basement. The record reveals that Vy Lactos knew that occasional overflows of some sort of material from these tanks into the adjacent basement room had occurred. From the record it is also clear that Vy Lactos had been informed by employees of certain infrequent but highly malodorous and physically irritating conditions in the basement room. Finally it is clear that Vy Lactos's chemist knew that the proteinaceous fish solubles were subject to natural decomposition, that the decomposition process would produce hydrogen sulfide gas, and that hydrogen sulfide gas in sufficient concentration poses a serious hazard of death or physical injury.
On the basis of the foregoing facts and the remainder of the record, either the hearing examiner or the [*5] Review Commission might well have been able to conclude as a finding of fact that Vy Lactos had actual knowledge of the hazard of hydrogen sulfide accumulation before the incident occurred. Such a finding of fact has not been made, however, by anyone except Commissioner Burch in his dissent (emphasis added).
Brennan v. O.S.H.R.C. and Vy Lactos Laboratories, Inc., supra, (slip op. at 7).
It is obvious that the court believed that the record evidence is sufficient for the Commission to make the finding of actual knowledge on the part of Vy Lactos. It is equally obvious that able counsel for Vy Lactos was of the same mind when he filed the motion to withdraw the notice of contest.
For the reasons set out by the court, supra, I would find, as did former Commissioner Burch, that Vy Lactos had actual knowledge of the hazard.
[See 2 OSAHRC 617]