OSHRC Docket No. 7885-P

Occupational Safety and Health Review Commission

January 26, 1976



T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

John M. Reiff, Secretary & Corp. Counsel, Coleman Company, Inc., for the employer

William H. Dye, for the employer

Mr. Ronald N. Loper, for the employees



BY THE COMMISSION: An order of Review Commission Judge Paul E. Dixon, dated October 4, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i). Review was directed on whether the Judge erred in extending the abatement date of June 7, 1974, as fixed in the citation, to December 6, 1974.

Since the extended abatement date is long past, the directed issue is now moot. The petitioner also filed a subsequent petition to modify the abatement date from December 6, 1974, to June 16, 1975, which is now moot for the same reason. Furthermore, we note that the employee who contested the first petition testified repeatedly at the hearing thereon that the abatement period requested in that petition was "not long enough."

Accordingly, the Judge's order is affirmed.




I must register my dissent.

An affected employee, a party, promptly and actively contested the Coleman Company's original petition to extend [*2] the time for abating a hazard resulting from unguarded machinery.

At the hearing, the petitioner-employer adduced no evidence whatsoever on the requisite elements of proof of good faith and that abatement was presently beyond its reasonable control. n1 Rather than dismiss for lack of evidence, the Judge held that the contesting employee had not adduced sufficient evidence. This was plain error. Commission Rule 34(d), 29 CFR 2200.34(d), as then an effect, placed the burden of proof upon the employer. Similarly, the Judge erred in failing to require use of interim abatement methods as requested by the employee. The Judge did not even reach the issue, but granted the petition and extended the abatement date to December 6, 1974.

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n1 The employer and the Secretary in effect joined in representing certain facts. This "stipulation" is obviously not binding on an unconsenting party. "A valid stipulation is binding on the parties thereto, but persons not parties to the stipulation are not bound thereby." 83 C.J.S. Stipulations 14 at 35 n.1. (Note that this employee was an original party, and not a subsequent intervenor; see id. at 36 n.12 and accompanying text.


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The majority misstates the record, however, by declaring that the contesting employee conceded that the requested abatement period was "not long enough." The affected employee repeatedly asserted that his employer had not, and could not, support its allegations of good faith nor prove that compliance was presently beyond its reasonable control. He urged that the company be required to institute interim controls, presently available, and that without such a program, the petitioner's good faith was not demonstrated. He voiced the concern of his fellow employees that because the permanent abatement scheme envisioned would be inevitably delayed, the lack of protection would continue. The following extracts from the record make clear that rather than conceding the material issues, the affected employee actually and emphatically denied the petitioner-employer's allegations.

Judge Dixon: Mr. Loper, are you satisfied that the Coleman Company is acting in good faith in requesting the extension of abatement until December?

The Witness: No, they could not possibly abate it by December 6th.

Tr. 11. [*4]

Judge Dixon: Do I understand you have in mind an alternative method where they could accomplish abatement in an earlier time?

The Witness: They could have, yes. They still might if they'll go ahead in the right way.

Judge Dixon: What would this involve in your judgment?

The Witness: Well, I've got some documents here that show the different type of safety devices that have been offered ever since 1971 that will fit these machines.

Tr. 12-13.

Q. [by counsel for the Secretary] . . . Is it your position that the devices . . . in this Exhibit would be able to be installed before that time?

A. Yes, before December 6th, they would, yes.

Q. That seems inconsistent to me. Then if that's the case, then December 6th would be too long, wouldn't it?

A. Well, I don't see that these devices, frankly myself, as being a permanent or overall meeting of the safety requirement that projected forth.

Tr. 21.

Judge Dixon: In other words, you would not be satisfied with this [suggestion] as a permanent solution to your problem?

Mr. Loper: Not as a permanent, but good faith would help.

Judge Dixon: At best, it would be an interim solution?

Mr. Loper: Right.

Tr. 22-23.

Judge Dixon: [*5] You're not satisfied with their Petition[,] matters they set forth in their -- that they are trying to do this for a long range basis?

Mr. Loper: No, because the experience and the machinery has been available, as I testified to, for a considerable amount of time.

Judge Dixon: I've got the impression that it would only be good on an interim basis.

Mr. Loper: Yes. That leaves nothing out, but that the Company can't add to it. . . . . These machines would be a positive indication that the Company was sincere.

Judge Dixon: . . . Wouldn't that sort of be a duplication of effort?

Mr. Loper: Yes, but the employees asked me -- they say, "Well when are they going to do it? So far it's been nothing."

Tr. 24-25.

But my colleagues affirm n2 this plainly erroneous decision on the sole ground that it is "moot." They err in doing so. It is now settled that challenged actions too short in their duration to be fully litigated prior to their cessation or expiration are not considered dismissable on grounds of mootness unless there is no reasonable expectation that the same complaining party would be subjected to the same action again. Weinstein v. Bradford, 96 S.Ct. 347 (1975); Sosna [*6] v. Iowa, 419 U.S. 393 (1975). See also Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498 (1911); Roe v. Wade, 410 U.S. 123, 125 (1975); Lucas Coal Co. v. Interior Bd. of Mine Operations Appeals, 522 F.2d 581 (3d Cir. 1975). It certainly cannot be said, in view of this employer's subsequent petition and the likelihood that in carrying out the "effective enforcement program" provided for by the Act (section 2(10)) the Secretary will reinspect respondent's plant and issue citations, that an expectation of repetition is unreasonable. The majority holding therefore effectively and unlawfully divests this Commission of authority to assure that the right of meaningful employee participation in Commission proceedings is not infringed in cases of this kind.

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n2 Affirmance of the Judge's decision is an incorrect disposition whether the case is moot or not. If moot, the petition should be denied as such. See generally, United States v. Munsingwear, Inc., 340 U.S. 36, 38-41 & n.2 and cases cited therein. There are here no exceptional circumstances warranting a departure from this general rule. Armendariz v. Hershey, 413 F.2d 1006, 1008 (5th Cir. 1969) (note at denial of petition for rehearing). Thus the Judge's decision should in no event be affirmed.


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Even more disturbing, however, is the majority's sudden unheralded pronouncement of mootness upon the subsequent supplementary petition for an additional extension of the abatement period. Section 5 of the Administrative Procedure Act, 5 U.S.C. 551 et seq., requires that before we take official action, we give interested parties the opportunity for the submission and consideration of facts and argument, and notice of the matters of fact and law asserted (e.g., the fact of the petition and the question of its mootness). 5 U.S.C. 554(b)(3), (c)(1), (c)(2), and 557(c). Yet the record shows no service of the subsequent petition upon the objecting employee, and there is no evidence that the petition was posted in accordance with Commission rules.

I would therefore deny the first petition on the merits. Before acting upon the second petition, I would order that affected employees be given notice of the matters in issue. In no event, however, would I affirm the Judge's order.