DIVESCO ROOFING AND INSULATION COMPANY

OSHRC Docket No. 345

Occupational Safety and Health Review Commission

August 13, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: On July 3, 1972, Judge Robert N. Burchmore issued a decision in this case whereby he affirmed Complainant's citation and assessed a penalty in the amount of $52. Review of the Judge's decision was directed in accordance with the authority of section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq. ).

We have reviewed the record and find no prejudicial error therein.

Accordingly, it is ORDERED that the Judge's decision be and the same is hereby affirmed in all respects.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: A number of recent cases, including the present one, have established the need for an analysis of the power of the Commission and its Judges to entertain and decide constitutional issues.

To begin with, the law is clear that an administrative agency is without power to pass upon the constitutionality of the Act it administers. "[W]e do not commit to administrative agencies the power to determine constitutionality of legislation." K. Davis, Administrative Law Text 20.04 at 388 (3d ed. 1972), citing Public Utilities Comm'n of Cal. v. United States, 335 U.S. 534, 539-40 (1958). As the court in Simpson v. Laprade, 248 F. Supp. 399 (W.D. Va. 1965), explicitly stated: "[A]n administrative agency does not have the power to determine the constitutionality of the statute it administers." Id. at 401, citing Panitz v. District of Columbia, 112 F. 2d 39 (D.C. Cir. 1940).

The Occupational Safety and Health Review Commission, a quasi-judicial administrative agency, has no power to invalidate duly promulgated standards on constitutional grounds, n1 or decide any case on constitutional grounds. "[I]t has been held that an administrative agency invested with discretion has no jurisdiction to entertain constitutional questions where no provision has been made therefor." Panitz v. District of Columbia, supra at 42; accord Public Utilities Comm'n of Cal. v. United States, supra; Engineers Pub. Serv. Co. v. S.E.C., 138 F. 2d 936, 952 (D.C. Cir. 1943). An administrative regulation has the force of law and can only be invalidated by a proper court. n2 Paul v. United States, 371 U.S. 245 (1963); Rucher v. Wabash R.R., 417 F. 2d 146 (7th Cir. 1969).

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n1 Section 6(f) of the Act sets out the procedure for contesting the validity of standards after they have been promulgated: "(f) Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standards. . ."

n2 Section 11(a) of the Act provides that all final orders of the Commission may be reviewed by the United States court of appeals: "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 curcuit 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."

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With regard to standards, the Commission does have the power to decide all questions short of invalidating the standards on constitutional grounds. It can determine the applicability of a standard to specific facts; it can decide the weight to be given to the Secretary's interpretation of a standard, and it can construe a standard to resolve vagueness and ambiguity.

The Commission also has the power to decide threshold constitutional questions relating to jurisdiction, such as constitutional applicability of legislation to particular facts ( see Davis, Administrative Law Text, supra 20.04 at 388) and whether a respondent is engaged in interstate commerce. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 49-50 (1938). Again, the final resolution of these questions rests with the circuit court of appeals following a petition for review under section 11(a) of the Act.

Even though the Commission has no power to resolve constitutional questions, it has the power and the obligation to hear such questions as an aid in the overall determination of the case. This approach was explained by the court in Simpson v. Laprade, supra.

[P]laintiff is not challenging the statute itself, and it is believed that whatever evidence of injury to his rights he might have had should in the first instance have been presented to the review committee to aid it in its overall determination. The theory is that if all the pertinent evidence is presented, the committee might decide the matter in plaintiff's favor, thus leaving no remnant of the constitutional issue. Such presentation before the committee is clearly require by Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 67 S. Ct. 1493, 91 L. Ed. 1796 (1947), and by language in Public Utilities Comm. v. United States, 355 U.S. 534, 78 S. Ct. 446, 2 L. Ed. 2d 470 (1958). This is merely a phase of the well established doctrine that before he may resort to the courts, a complainant must exhaust his administrative remedies.

Note that the review committee is still not authorized to make a constitutional determination, but it will take the facts upon which plaintiff bases his constitutional claim and see if the statute or regulations . . . affords him relief on those facts without resort to constitutional principles.

Id. at 401.

Under the doctrine of exhaustion, a litigant may be required to exhaust his administrative remedies as a prerequisite to judicial review. See Davis, Administrative Law Text, supra, Ch. 20 at 382 et seq. The Supreme Court has applied the exhaustion doctrine to constitutional issues in some cases. Where a constitutional challenge has been made that the contemplated agency action would be unconstitutional, the leading cases have required that administrative remedies be exhausted. Myers v. Bethlehem Shipbuilding Corp., supra; Aircraft & Diesel Equipment Corp. v. Hirsch, supra. Where the challenge has been based on a lack of jurisdiction in the administrative agency, exhaustion has usually not been required. Leedom v. Kyne, 358 U.S. 184 (1958); cf. Allen v. Grand Central Aircraft Co., 347 U.S. 535 (1954). With regard to challenges to the constitutionality of the basic statute, "the Supreme Court's answer is far from clear." Davis, Administrative Law Text, supra at 389.

Finally, a failure to raise a constitutional question before the Commission may have the effect of waiving that issue on appeal. Section 11(a) of the Act provides in part:

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.

Ordinarily, only jurisdictional questions may be raised for the first time on appeal. Manual Enterprises v. Day, 370 U.S. 478, 499 (1962); Davis, Administrative Law Text, supra, 20.06 at 390-91.

While I concur with the majority that Judge Burchmore's disposition of the present case was proper, I believe it necessary to note that the Judge's rulings and discussions with regard to constitutional questions were inappropriate.

[The Judge's decision referred to herein follows]

BURCHMORE, JUDGE, OSAHRC: By citation issued December 8, 1971, as amended, the Secretary of Labor charged that on November 2, 1971, Divesco Roofing and Insulation Co. failed to secure a ladder on its job site in violation of the regulation contained in 29 CFR 1926.450(a)(10), and further failed to provide a catch platform below a roof working area in violation of the regulation contained in 29 CFR 451(u)(3). Penalties in the amount of $15 and $22, respectively, were proposed, the violations being deemed not to be serious. Timely notice of contest was filed by the employer and this Commission has jurisdiction of the resulting proceeding by virtue of section 10 of the Occupational Safety and Health Act of 1970.

The case was assigned to the undersigned judge for hearing and adjudication. Hearing was held at Alameda, California, on March 20, 1972. The parties have filed proposed findings and conclusions and argument in support thereof. Requested findings that have not been adopted or discussed in this report have been considered and found not justified.

The Secretary filed a motion to strike certain evidence which the respondent introduced in support of its position, hereinafter discussed, that the involved regulations are unconstitutional and therefor invalid. The question presented is whether this Commission may, in an enforcement proceeding, determine the constitutionality and validity of the regulations adopted by the Secretary or whether such determination is reserved exclusively for the courts.

The Act declares in section 2(b)(3) that it is the purpose of Congress to authorize the Secretary to set mandatory standards and to create this Commission to carry out the "adjudicatory functions under the Act." Section 10(c) provides that in proceedings for the enforcement of the Secretary's standards this Commission shall, after hearing, enter an order affirming, modifying or vacating the Secretary's citation or proposed penalty.

Under section 6(f), the validity of any standard set by the Secretary is subject to pre-enforcement review upon petition to a court of appeals within sixty days after promulgation of the standard. While this would clearly be the exclusive method for obtaining pre-enforcement review of a standard, it does not foreclose an employer from challenging the validity of the standard during an enforcement proceeding. (See Senate Report No. 91-1282, p. 8 (91st Cong., 2nd Sess.)). Finally, judicial review of an order entered by this Commission in an enforcement proceeding is provided by section 11(a) upon petition to a court of appeals.

The statutory scheme plainly gives to the Secretary the function of setting safety and health standards. Moreover, this Commission has no authority to review the wisdom or appropriateness of the standards set by the Secretary. On the other hand, the legal validity of the standards under the constitution and statutes of the United States is necessarily involved in the adjudication of enforcement proceedings and this function has been reserved for the Commission subject to judicial review.

It is the position of the Secretary that his standard setting regulations have the force and standing of legislation and that administrative agencies such as this Commission have no power to determine the constitutionality of legislation. However, two of the cases cited by the Secretary n1 support only the proposition that an agency may not review or act contrary to the legislation which created it. These cases have nothing to do with this one because in this case, one agency is asked to pass on the legal validity of a standard set by another agency as a necessary part of the adjudicatory process involved in the enforcement of that agency's standard. The remaining case cited by the Secretary n2 holds that, where only constitutional questions are presented, a litigant may safely defy the agency and go to court without being required first to exhaust an administrative remedy. It is not necessary to ascertain whether that case would be a precedent for invoking the exhaustion of remedies doctrine if the employer in this case had proceeded to go to court without raising the constitutional questions before this Commission. Here there is a controlling provision in section 11(a) that "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."

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n1 138 F.2d. 936; 112 F.2d 39.

n2 335 U.S. 538.

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For the reasons stated above, I conclude that this Commission has the suthority and duty, subject to judicial review, to determine the constitutional questions presented. The motion to strike is therefore denied.

Turning now to the merits of the citation n3, the regulation in 29 CFR 1926.451(u)(3) requires that:

A catch platform shall be installed below the working area of roofs more than 10 feet from the ground to eaves with a slope greater than 3 inches in 12 inches without a parapet. In width, the platform shall extend 2 feet beyond the projection of the eaves and shall be provided with a guardrail, midrail, and toeboard. This provision shall not apply where employees engaged in work upon such roofs are protected by a safety belt attached to a lifeline.

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n3 The employer did not contest one item which charged violation of 29 CFR 1518.300(b)(2), and that item with proposed penalty have become the order of this Commission by operation of law.

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The underlying facts are not in dispute. On or about November 2, 1971 on a job site on Springlake Drive, San Leandro, Calif., respondent was roofing subcontractor for a large apartment house under construction. Respondent's employees were observed shingling a roof with a slope of 4 inches in 12 inches and a distance from ground to eaves of 17 feet. There was no parapet, nor any catch platform below the work area, and no employees wore a safety belt attached to a lifeline.

The citation correctly identified the regulation (by its old number, 29 CFR 1518.451(u)(3)) but ineptly charged "working on roof without using safety belt attached to lifeline." The Secretary's complaint re-worded the charge in the language of the regulation, the essence being the failure to install a catch platform. Respondent argues that the citation failed to charge a violation of the regulation and that there is a fatal variance between the citation and the complaint. I find that the complaint does state a violation, that respondent had adequate notice of the charge against it and that its rights have in no way been prejudiced by the inept wording of the citation. The amendment of the citation by the complaint is allowed.

Respondent next objects to the citation on the basis of a difference which it finds in the regulation cited as compared with a similar regulation contained in 29 CFR 1910.28(s)(3); the only material difference is that 28(s)(3) applies the requirement for a catch platform to roofs more than 20 feet from the ground to the eaves, rather than 10 feet as in 451(u)(3). Respondent contends (1) that 451(u)(3) is inapplicable because 28(s)(3) is more recent and takes precedence for that reason; that if 451(u)(3) did apply (2) it would unconstitutionally deprive respondent of its property without due process because it is vague and fails to advise respondent as to what rule it must conform to; and (3) it would unconstitutionally discriminate and deprive respondent of equal protection under the law in that it would subject respondent to a harsher standard than other persons engaged in the same activity.

The Secretary points out that 451(u)(3) and 28(s)(3) took effect simultaneously so far as respondent is concerned. The earlier effectiveness of 451(u)(3) was only in connection with contractors for the United States Government under the provisions of the Contract Work Hours and Safety Standards Act. For this reason, and for the further reason that the two regulations are mutually exclusive (as developed below) I hold that the more lenient standard in 28(s)(3) does not take precedence over 451(u)(3).

Respondent's further claim, that there is nothing in the regulation to let it know which standard applies to it, must also be rejected. Section 451(u)(3) is contained in Part 1926, entitled Safety and Health Regulations for Construction. As indicated above, those regulations have long been in effect with respect to government contractors. They were adopted by OSHA for the construction industry generally through the provisions of Part 1910. Subpart B thereof, entitled Adoption and Extension of Established Federal Standards, provides in section 12 that the standards prescribed in Part 1926 shall apply to every employment and place of employment of every employee "engaged in construction work." Such designation of "construction work" is plainly more specific than the general provision of section 28(s)(3) which is found in Subpart D, entitled Walking-Working Surfaces. Section 451(u)(3) is therefor the exclusive rule for construction work because it is expressly provided in 1910.5(c)(1) that a specific provision shall prevail over a general one. Respondent concedes that it was engaged in construction work.

There is a theoretical basis for respondent's objection that the employer engaged in construction work is subjected to discrimination in that others engaged in similar activity, but not construction work, are allowed a more lenient standard. And there is nothing in this record to show what considerations led the Secretary to adopt the classification complained of. However, such theoretical basis is not sufficient ground for declaring the regulation to be unconstitutionally discriminatory. The burden is on the one who challenges the constitutionality of the regulation to show that there is no rational basis for it. Respondent makes such an assertion but the assertion is based on assumption. This Commission cannot properly indulge such an assumption; rather, the presumption, if any, must be that the classification rests upon some rational basis within the knowledge and experience of the Secretary. Railway Express Agency v. New York, 336 U.S. 106 (1954); Metropolitan Co. v. Brownell, 294 U.S. 580, 584 (1934).

The evidence which respondent did present on the constitutional issue of due process indicates that the standard in 451(u)(3) is not in common use in the United States, that a roof slope of 4 in 12 inches is considered gentle in the roofing industry, that toeboards with metal jacks or cleats are the usual safety devices used in the roofing industry, that the use of catch platforms would result in large increase in the cost of residential roofing and re-roofing, that the use of catch platforms involves certain hazards to workmen and that the use of safety lines also involves certain hazards to workmen. The Secretary countered with testimony to the effect that the use of catch platforms is related to the safety of working on roofs and that the catch platform is the best solution known to the Secretary at the present time.

The evidence clearly establishes that the assailed regulation is burdensome, expensive and, with respect to roofs having a very easy slope of 3 to 4 inches in 12 inches, it is my opinion that the regulation is unduly burdensome and expensive. Indeed, the Secretary's technical witness conceded that there is need for additional study and a more reasonable solution. All such considerations to the contrary notwithstanding, the regulation nevertheless bears a rational relation to the safety of the employees; it is apparent that the Secretary has decided that the danger of a workman falling off such a roof outweighs the expense and risks attendant upon the use of catch platforms or safety lines. Since such a rational basis exists, it cannot be held that the regulation is unreasonable, arbitrary or capricious or results in a denial of substantive due process. This Commission and the courts may disagree with the Secretary on the wisdom of the regulation, but such disagreement does not warrant setting the regulation aside as unconstitutional. I hold, therefor, that the assailed regulation is valid and that the citation and proposed penalty must be affirmed.

The remaining item pertains to the further, agreed facts that respondent's employees used a portable aluminum extension ladder at the aforementioned time and place and that such ladder was extended to its full, 20-foot length with its top resting on the eaves of the building under construction. The bottom of the ladder was equipped with safety shoes, but the top was not tied, blocked or fastened to the building.

The governing regulation is found in 29 CFR 1926.450(a)(10) and provides:

Portable ladders in use shall be tied, blocked, or otherwise secured to prevent their being displaced.

Respondent contends that the use of safety feet constituted full compliance with the regulation, because such use fulfills the disjunctive phrase, "or otherwise secured." To hold otherwise, according to respondent, would render the regulation unconstitutionally vague in that respondent would have no way of knowing what steps are required to comply with the regulation.

The objections are rejected for the reason that the plain requirement of the regulation is that ladders are "secured to prevent their being displaced." That requirement is neither vague nor is it satisfied by any tying or blocking or other gesture which in fact falls short of securing the ladder. The ladder in this case was not secured against displacement because, while apparently secured against slipping of the feet at the bottom, it was not secured at the top against sideways slipping along the eaves. Respondent's claim of compliance is no more acceptable than would be the absurd notion that compliance might be found if the ladder had been blocked at the top against sideways displacement even though it rested at the bottom upon an icy slope without safety feet or other security against slippage at that point. The citation should be affirmed.

Considering the criteria contained in section 17 of the Act, I find that the proposed penalties are appropriate to the non-serious citations involved. The circumstances of this case are substantially different from those found in No. 250, Secretary of Labor v. General Meat Company, Inc. (June 20, 1972) and do not warrant the vacating of either penalty, albeit the penalties are small in amount.

Premises considered, it is ORDERED that the citation and proposed penalties be and the same are hereby affirmed and that this proceeding be and the same is hereby discontinued.