QUEEN CITY SHEET METAL AND ROOFING, INC.

OSHRC Docket No. 4322

Occupational Safety and Health Review Commission

November 6, 1975

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners

COUNSEL:

Robert A. Friel, Assoc. Regional Solicitor

John H. Ober, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Jerry W. Mitchell, dated May 29, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, we affirm the Judge's disposition of this case.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I respectfully dissent from the majority's decision. The decision falls short of ruling upon the exceptions of the Secretary of Labor in the manner required by section 8(b) of the Administrative Procedure Act. 5 U.S.C. section 557(c). The majority does not adopt the Administrative Law Judge's decision as its own. It merely finds "no prejudicial error" in his decision. It is unclear whether they find that there is no error whatsoever, or whether there is error but it is not prejudicial. If the latter is intended there is no indication as to why it is not prejudicial. Of course it is not necessary that the exceptions be separately or expressly ruled upon. Key v. United [*2] States, 263 F. Supp. 544 (S.D. Ind. 1966). But the Secretary of Labor is entitled to know why his exceptions are overruled. Also, a reviewing court may have no choice but to remand the case to us because it "must know what a decision means before the duty becomes [theirs] to say whether it is right or wrong." The B.F. Goodrich Co. v. O.S.H.R.C., No. 74-1836 (6th Cir., April 24, 1975), quoting United States v. Chicago, M., St.P. & P. R.R., 294 U.S. 499, 510-11 (1935) (Cardozo, J.). See also, Brennan v. Butler Lime & Cement Co., No. 74-1963 (7th Cir., September 5, 1975) (slip op. at 9-10, 13).

The vacated citation alleged a violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., for failure to comply with 29 CFR 1910.212(a)(3)(ii) in that the respondent employer's mechanical punch presses lacked point-of-operation guards. Judge Mitchell held that under 29 CFR 1910.5(c)(1) the cited standard was inapplicable here because a more specific standard, 29 CFR 1910.217, is applicable to mechanical punch presses (which the parties agree is a species of mechanical power press). The Judge then relied on the [*3] divided Commission decision in Stephens Equipment Co., No. 1060 (April 23, 1973) and held that respondent was excused from non-compliance with 29 CFR 1910.217 by virtue of subsection 1910.217(a)(2).

On review, the Secretary acquiesces in Stephens Equipment Co., supra, but in reliance on the Commission decision in Irvington-Moore, Div. of U.S. Natural Resources, Inc., No. 3116 (April 7, 1975), he urges that by virtue of 29 CFR 1910.217(a)(2), section 1910.217 is inapplicable, and section 1910.212 therefore applies with full force. This powerful argument was not discussed by the Judge, and is not mentioned by the majority. This is plainly a failure to comply with the requirements of section 8(b) of the APA, as indicated above.

In my opinion, Stephens Equipment Co., supra, should be overruled. My views on this matter are fully set forth in Trojan Steel Co., No. 2885 (July 18, 1975) (separate opinion of Commissioner Cleary). True, the Secretary has acquiesced in Stephens Equipment, but this Commission is not bound by a party's erroneous view of the law. Sigman Meat Co., No. 251 (May 6, 1974) (at note 2). See generally, Leflar, [*4] Appellate Judicial Opinions 126-131 (1974). The final resolution of this question is a matter of public interest that "must receive active and affirmative protection at the hands of the Commission." Brennan v. O.S.H.R.C. & John J. Gordon Co., 492 F.2d 1027, 1032 (2d Cir. 1974) (Friendly, J.), quoting Scenic Hudson Preservation Conf. v. F.P.C., 354 F.2d 608, 620 (2d Cir. 1965), cert. denied 384 U.S. 941 (1966). "When the record . . . reveals an erroneous application of the law, the Commission has the authority to correct that erroneous application in order to assure that the Commission decision is in all respects correct and proper . . . ." Stevens Equipment Co., supra (2 OSAHRC at 1505).