Docket No. 79-5762

AMERICAN CYANAMID COMPANY

OSHRC Docket No. 79-5762

Occupational Safety and Health Review Commission

April 27, 1981

[*1]

Before BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Mark N. Duvall and Donald L. Morgan, for the employer

Marcia D. Greenberger and Nancy Duff Campbell, Center for Law and Social Policy, for the employees

Steven Wodka, International Representative, OCAW, Health and Safety Office, for the employees

OPINION:

DECISION

BY THE COMMISSION:

This is an appeal by the Secretary of Labor (the "Secretary") from a summary judgment in Respondent's favor. n1 The question for decision is whether an employer policy that excludes women aged 16 to 50, who have not been surgically sterilized, from certain employment constitutes a hazard within the meaning of section 5(a)(1), the "general duty clause," of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 (the "Act"). n2 We hold that the policy is not a hazard cognizable under section 5(a)(1).

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n1 Administrative Law Judge William E. Brennan granted Respondent's motion for summary judgment. The judge's ruling is before the Commission pursuant to 29 U.S.C. § 661(i).

n2 Section 5(a)(1), 29 U.S.C. § 654(a)(1), provides:

Sec. 5(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

[*2]

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In January 1978, Respondent, American Cyanamid Company, announced to employees of its Willow Island, West Virginia, pigments manufacturing plant that it intended to implement what it called the "fetus protection policy." This policy, as ultimately implemented, excluded women aged 16 through 50 from production jobs in the lead pigments department unless they could prove that they had been surgically sterilized. The stated purpose of the policy was to protect the fetuses of women exposed to lead, particularly during early pregnancy when the employee might not know of her pregnancy. n3 Between February and July 1978, five women employed in the lead pigments department submitted to surgical sterilization in a hospital not associated with Respondent. In September 1978, two women who had not been sterilized were transferred out of the lead pigments department. By October 2, 1978, no woman of childbearing capacity was employed in the department.

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n3 The parties stipulated that scientific studies indicate that lead has profoundly adverse effects on the course of reproduction both before and after conception; that fetuses are susceptible at all stages of development, including the first trimester when the mother may not know she is pregnant; and that maternal blood lead levels cannot be reduced instantaneously when pregnancy is discovered.

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In response to a complaint filed by the Oil, Chemical and Atomic Workers Union and its Local 3-499 in December 1978, an Occupational Safety and Health Administration ("OSHA") inspection was conducted between January 4 and April 13, 1979. In October 1979, a citation was issued charging Respondent with a willful violation of the general duty clause and proposing a penalty of $10,000. Respondent timely filed a notice of contest. The Secretary's citation and complaint alleged that Respondent failed to

furnish employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to employees, in that: the employer adopted and implemented a policy which required women employees to be sterilized in order to be eligible to work in those areas of the plant where they would be exposed to certain toxic substances.

Before Judge Brennan, Respondent moved for summary judgment on three grounds: (1) that the citation was barred by the six-month statute of limitations at section 9(c) of the Act, 29 U.S.C. § 658(c); n4 (2) that OSHA is [*4] precluded from exercising authority in this matter under section 4(b)(1) of the Act, 29 U.S.C. § 653(b)(1); n5 and (3) OSHA lacks jurisdiction because the conduct alleged was not a violation of the Act. The administrative law judge granted the motion on statute of limitations and section 4(b)(1) grounds. He ruled that the citation was untimely in that it was issued more than six months after five women had been sterilized and two others of childbearing capacity had been transferred out of the lead pigments department. He further concluded that OSHA is barred from exercising authority over the matter because two other federal statutes speak to such conditions of employment: the National Labor Relations Act, 29 U.S.C. § § 151-168, as a possible unfair labor practice, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), as possible impermissible sex-based discrimination.

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n4 Section 9(c) provides:

No citation may be issued under this section after the expiration of six months following the occurrence of any violation.

n5 Section 4(b)(1) provides:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

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Commissioner Cleary granted the Secretary's petition for review and directed expedited review of the timeliness and exemption issues. Acting Chairman Barnako directed the parties to brief two additional issues:

Assuming that the judge erred in granting Respondent's motion for summary judgment and vacating the citation on the grounds stated by the judge, is vacation of the citation at this stage in the proceedings nevertheless appropriate for the reason stated in Respondent's motion for summary judgment (that the conduct alleged does not constitute a violation of the Occupational Safety and Health Act) and in Respondent's second affirmative defense in its answer (that the citation and complaint fail to allege any injury or risk arising out of the workplace).

Acting Chairman Barnako's first directed issue raises the potentially dispositive question of whether a policy which excludes from certain employment women who have not been surgically sterilized constitutes a hazard within the meaning of the general duty clause. n6

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n6 The question before us on review is not whether Respondent has committed a violation. Our discussion is limited to the threshold issue of whether the complaint states a cognizable claim under the Act.

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On review Respondent argues that the fetus protection policy is not a hazard within the meaning of the general duty clause. Respondent takes the position that Congress did not intend the Act to apply to every conceivable aspect of employer-employee relations, and certainly not to voluntarily elected surgical procedures performed outside the workplace by physicians not associated with the employer. Respondent points to language in the Act and in the case law which, it asserts, reflects congressional intent to limit the ambit of the Act to injuries occurring in the workplace. n7

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n7 Respondent cites several phrases in the Act as evidence of this congressional intent: § 2(a) - "work situations"; § 2(b) - "safe and healthful working conditions"; § 2(b)(1) - "At their places of employment"; § 2(b)(7) - "work experience"; § 3(8) - "occupational safety and health standards" with reference to "employment and places of employment"; § 5(a)(1) - "employment and place of employment." In addition, Respondent contends that § 4(a), "This [Act] shall apply with respect to employment performed in a workplace. . ." (emphasis added by Respondent), establishes a jurisdictional prerequisite that the hazard addressed be in a workplace. These sections were also cited by the Secretary as evidence of the Act's broad reach.

Respondent also quotes from a Senate report which states that the Act was aimed at the "problem of assuring safe and healthful workplaces." S. Rep. No. 91-1282, 91st Cong. 2d Sess. 1970, reprinted in [1970] U.S. Code Cong. & Admin. News 5177, 5178 (emphasis added by Respondent).

Respondent also cites several cases in which the courts discuss the applicability of the Act in terms of workplaces: Cape & Vineyard Div. of New Bedford Gas v. OSHRC, 512 F.2d 1148, 1150 (5th Cir. 1975) (the goal of the Act is "to eliminate dangerous conditions in the workplace"); Getty Oil Co. v. OSHRC, 530 F.2d 1143, 1145 (5th Cir. 1976), and National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973) (the Secretary must establish that an employer failed to render its workplace free of hazard); Clary v. Ocean Drilling and Exploration Co., 429 F.Supp. 905 (W.D.La. 1977), aff'd, 609 F.2d 1120 (5th Cir. 1980) (offshore mobile drilling units are not workplaces within the meaning of the Act).

[*7]

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The Secretary, on the other hand, contends that any condition of employment which can ultimately result in reduced functional capacity is a hazard within the meaning of the general duty clause. The fetus protection policy is a condition of employment, the Secretary argues, which can lead to reduced functional capacity in that, as a direct result of the policy's implementation, some employees will undergo surgical sterilization in order to protect their jobs. Although the medical procedure itself is performed outside the workplace by health care providers not under the employer's control, the Secretary maintains that the employee's decision to preclude her reproductive capacity is directly related to her work experience. The Secretary cites the personal hygiene standards at 29 C.F.R. § § 1910.141 and 1910.142, n8 the Medical Removal Protection provision of the new lead standard, n9 and case law holding that employees traveling to and from work may be protected by the Act, n10 as examples of work-related conditions which have been held to fall within the ambit of the Act, even though they occur outside [*8] the workplace itself.

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n8 29 C.F.R. § 1910.141 establishes requirements for toilets, washing facilities, showers, eating and drinking, and personal services. 29 C.F.R. § 1910.142 prescribes safety and sanitation requirements for temporary labor camps.

n9 29 C.F.R. § 1910.1025(k) provides for the temporary renoval of employees with elevated blood lead levels from jobs involving exposure to lead. This provision of the lead standard was specifically upheld in United Steelworkers of America, AFL-CIO-CLC v. Murshall, 8 BNA OSHC 1810, 1980 CCH OSHD P24,717 (D.C. Cir. 1980), pet. for cert. filed, No. 80-1134 (Jan. 7, 1981).

The Secretary also relies on the prophylactic chelation prohibition in the new lead standard, 29 C.F.R. § 1910.1025(j)(4)(i), as further evidence that the Act applies to injuries which occur outside the workplace. Prophylactic chelation is a form of drug therapy used to reduce blood lead levels. It can have severe adverse side effects and may actually aggravate the dangers of lead poisoning. 43 Fed. Reg. 53001-53003.

n10 Sugar Cane Growers Coop. of Florida, 76 OSAHRC 62/E4, 4 BNA OSHC 1320, 1976-77 CCH OSHD P20,795 (No. 7673, 1976).

[*9]

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The Coalition for the Reproductive Rights of Workers ("CRROW"), the nonparty intervenor, n11 adds that by arguing that the Act does not apply to surgical procedures performed outside the workplace, Respondent mischaracterizes the nature of the alleged violation, "the crux of which is not the surgical procedure itself, but the employer-adopted sterilization policy that led up to it." Citing case law which holds that employees traveling to and from the worksite are protected by the Act n12 and that employer-provided and controlled housing may be covered by the Act, n13 CRROW maintains that the policy was surficiently interwoven with the employment experience at Respondent's plant to permit enforcement of the Act.

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n11 The Oil, Chemical, and Atomic Workers International Union and its Local 3-499 elected party status as the authorized employee representative and submitted letters and other documents in support of the Secretary's brief on review. The Center for Law and Social Policy, Coalition for the Reproductive Rights of Workers, was granted intervenor nonparty status and submitted a brief on review which argued substantially in support of the Secretary's brief.

n12 Sugar Cane Growers Coop. of Florida, supra note 10.

n13 C.R. Burnett and Sons, Inc., 80 OSAHRC , 9 BNA OSHC 1009, 1980 CCH OSHD P24,964 (No. 78-1103, 1980), pet. for leave to file out-of-time pet. for review denied, No. 81-7057 (5th Cir. Feb. 6, 1981), pet. for rehearing filed (February 20, 1981). The Commission held that a temporary labor camp bears a sufficient nexus to employment to permit enforcement of the Act because the camp bears a "direct relationship" to employment.

[*10]

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III

In our view, the critical point is not that the physical impact of the policy on employees, reduced functional capacity due to surgical sterilization, was ultimately achieved outside the workplace. We agree with CRROW that it is employee implementation of the policy that is at issue here and to that extent the policy is a condition of employment within the meaning of the Act. However, we believe that Respondent is correct in arguing that Congress did not intend the Act to apply to every conceivable aspect of employer-employee relations and that due to its unique characteristics this condition of employment is not a hazard within the meaning of the general duty clause. n14

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n14 In his citation and complaint the Secretary alleges that the fetus protection policy requires sterilization as a condition of employment. Inasmuch as it is impossible for an employer literally to compel employees to undergo sterilization, we believe it is more accurate to describe the policy as one excluding women of childbearing capacity from certain employment.

[*11]

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The purpose of the Act is "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. . . ." n15 To that end the general duty clause requires each employer to furnish employment and a place of employment free of recognized hazards that are causing or are likely to cause death or serious physical harm. The Act does not, however, define the term "hazard." Inasmuch as acts of Congress should be fairly read to effectuate congressional intent, n16 we must turn to the legislative history of the Act for guidance.

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n15 Section 2(b) of the Act, 29 U.S.C. § 651(b).

n16 See 2A SUTHERLAND STATUTORY CONSTRUCTON § 45.05 (Sands ed. 1973); Raven v. Panama Canal Co., 583 F.2d 169 (5th Cir. 1978), cert. denied, 440 U.S. 980 (1979).

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Congressional floor debates, committee reports, and individual and minority views reported in the legislative history are replete [*12] with discussions of air pollutants, industrial poisons, combustibles and explosives, noise, unsafe work practices and inadequate safety training, and the like. n17 The effects on employees which Congress hoped to alleviate are described in general terms such as accident, disease, industrial injury, reduced life expectancy, crippling, maiming, disablement and death, n18 and in specific terms such as cancer, allergy, heart disease, respiratory impairment, chemical poisoning, burns, broken bones, and the like n19 Repeated reference is made to the fact that congressional action with regard to occupational safety and health received its impetus from the vast numbers of on-the-job injuries and deaths reported each year. n20 In the words of Congressman Anderson, "the worker's surroundings and the conditions under which he works are of crucial importance in the whole environmental question for it is in this environment that he spends one-third of his day. The air he breathes and the tools and materials he handles can pose a direct threat to his health, safety, and well-being if adequate precautions are not taken. This is really what we are talking about today in considering the need for [*13] national industrial health and safety standards." n21 From this it is clear that Congress conceived of occupational hazards in terms of processes and materials which cause injury or disease by operating directly upon employees as they engage in work or work-related activities. n22

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n17 Subcommittee on Labor of the Committee on Labor and Public Welfare of the United States Senate, 92d Cong., 1st Sess., LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 (Comm. Print 1971) (hereinafter "LEGISLATIVE HISTORY"):

Discussion of air pollutants includes specific references to dust and lint (pp. 319, 343, 415), asbestos (pp. 319, 845, 1002, 1045, 1090), harmful vapors (p. 369), fumes (pp. 415, 456), silica dust (p. 985), and cotton fibers (p. 1002). References to specific industrial poisons include pesticides (pp. 412, 445, 517, 1002), betanaphthylamine (p. 845), lead (p. 985), insecticides (p. 1002), carbon tetrachloride (p. 1081), zinc (p. 1090), and mercury (pp. 985, 1090). Explosions are mentioned at pp. 438 and 459. Discussions of unsafe work practices and inadequate safety training focus on safety devices (pp. 324, 343, 1002), machine guards (p. 346), "unsafe" or "defective" equipment (pp. 455, 1002), "potentially hazardous processes" (p. 431), improper use of pesticides (p. 517), and "using wrong tools," "taking unnecessary chances," and "assuming awkward positions" (p. 1022). The dangers of excessive noise levels are mentioned at pp. 412 and 845.

n18 LEGISLATIVE HISTORY at pp. 320, 323, 324, 326, 411, 412, 518, 523, 983, 1003, 1040, 1045, 1079, 1080, 1084, 1086, 1148.

n19 Falls (p. 412), cancer (pp. 412, 845, 1001), allergies (p. 412), heart disease (p. 412), shortness of breath (p. 412), chronic cough (p. 412), fever (p. 412), convulsions (p. 413), black lung disease (pp. 513, 517, 1002), emphysema (pp. 513, 517, 1002), silicosis (pp. 845, 1045, 1090), paralysis (p. 1002), blindness (p. 1002), byssinosis (pp. 1002, 1045), asbestosis (pp. 1045, 1090), berylliosis (p. 1045), liver and skin disease (p. 1081), zinc, lead and mercury poisoning (p. 1090).

n20 LEGISLATIVE HISTORY at pp. 324, 326, 445, 509, 516-17, 519, 979, 981, 984, 985, 987, 1038.

n21 Id. at 981.

n22 In the ten years of the Act's existence, the Secretary has not, to our knowledge, cited an employer for a condition or practice that did not operate directly upon employees engaged in work or work-related activities.

[*14]

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The fetus protection policy is of a different character altogether. It is neither a work process nor a work material, and it manifestly cannot alter the physical integrity of employees while they are engaged in work or work-related activities. An employee's decision to undergo sterilization in order to gain or retain employment grows out of economic and social factors which operate primarily outside the workplace. The employer neither controls nor creates these factors as he creates or controls work processes and materials. For these reasons we conclude that the policy is not a hazard within the meaning of the general duty clause.

It is true, as the Secretary points out, that the Act is broad in scope and may be fairly described as intended to protect employees from reduced functional capacity as a result of the work experience. n23 However, it does not follow that the general duty clause applies to an employment policy whose physical impact on employees is indirect and derives not from work processes and materials but from social and economic factors outside the workplace.

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n23 To this end we have held that trucks used to transport farm workers to the fields are places of employment within the meaning of the general duty clause, Sugar Cane Growers Coop. of Florida, supra note 10, and that temporary labor camps are covered by the Act when they are owned, controlled and maintained by the employer and are provided to employees for the employer's benefit and convenience. C.R. Burnett and Sons, Inc., supra note 13.

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Although a statute can operate prospectively so as to include circumstances unknown at the time of enactment, the rule of progressive construction applies only where the language of the statute, as illuminated by legislative history and other extrinsic aids, can be read fairly to include the unforeseen circumstances. n24 Whether an unforeseen circumstance can be read fairly to fall within the ambit of a particular statute depends not only on policy considerations, but on whether that circumstance is "substantially comparable" to those actually contemplated by Congress. n25 This is so [*16] because the legislature does not merely enact general policies. "By the terms of a statute, it also indicates its conception of the sphere within which the policy is to have effect." n26

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n24 See 2A SUTHERLAND STATUTORY CONSTRUCTION § 49.02 (Sands ed. 1973); see also Barr v. United States, 324 U.S. 83 (1945).

n25 Cf. Investment Annuity, Inc. v. Blumenthal, 442 F.Supp. 681, 689 (D.D.C. 1977), rev'd on other grounds, 609 F.2d 1 (D.D.C. 1979), cert. denied, 100 S.Ct. 2961 (1980) (in connection with a provision of the Internal Revenue Code, the District Court stated: "The mere fact that Congress did not consider an as-yet uninvented alternative to a 'statutorily approved' arrangement cannot be said to bar application of the statute to a later-invested alternative if that alternative is comparable to the 'approved' arrangement in substantially all respects." (emphasis added).); Montana Power Co. v. Fed. Power Comm'n., 445 F.2d 739, 746 (D.C. Cir. 1970), cert. denied, 400 U.S. 1013 (1971) (in a case involving the read-justment of annual rentals due Indian tribes for use of tribal land by a power company, the Circuit Court stated that when Congress did not expressly address itself to a particular issue, "the court must discern the applicable legislative intent by what is necessarily an act of projection -- starting from the areas where the legislative intent is readily discernible, and projecting to fair and reasonable corollaries of that intent for the specific issue before us." (emphasis added).).

n26 Moragne v. states Martine Lines, Inc., 398 U.S. 375, 392 (1970).

[*17]

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The definition of hazard proposed by the Secretary is not, under any fair reading of the legislative history, substantially comparable to the concept of hazard entertained by Congress in passing the Occupational Safety and Health Act of 1970. Accordingly, we hold that the citation in this case fails to allege a violation cognizable under the general duty clause of the Act and vacate that citation. n27

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n27 In light of our disposition of this matter we have no occasion to consider the questions of timeliness and exemption under § 4(b)(1) of the Act.

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SO ORDERED.

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting: *

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* The Respondent's motions for my voluntary refusal and for voir dire are denied. A memorandum opinion on these motions is attached as Appendix A.

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The threshold [*18] issue before the Commission is whether the judge erred in granting the Respondent's Motion for Summary Judgment on the basis that: (1) the citation is barred by the six-month statute of limitations of section 9(c) of the Act, 29 U.S.C. § 658(c), and (2) the cited working conditions are exempt from the provisions of the Act under section 4(b)(1), 29 U.S.C. § 653(b)(1). The second issue, which is treated as dispositive by the majority, is whether the summary judgment motion nevertheless should be granted on grounds not considered by the judge -- that the citation and complaint fail to allege a workplace hazard cognizable under section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), the Act's general duty clause. n1

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n1 My colleagues state that they "have no occasion to consider the questions of timeliness and exemption under § 4(b)(1) of the Act" because of their disposition. However, these are the only issues discussed in the judge's report that is before us on discretionary review under 29 U.S.C. § 666(i) and they are the only issues raised in the petitions for review filed by the Secretary and the Authorized Employee Representative that were granted by Commissioner Cleary in the exercise of his statutory discretion. Accordingly, these issues must be resolved.

[*19]

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A summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to a judgment on the existing record as a matter of law. Poller v. Columbia Broadcasting System, 368 U.S. 464 (1962); Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620 (1944); Nat'l Screen Service Corp. v. Poster Exchange, Inc., 305 F.2d 647 (5th Cir. 1962). Respondent is not entitled to judgment on the grounds stated by the judge and the record in this case raises triable issues of fact regarding the Respondent's alleged noncompliance with the general duty clause of the Occupational Safety and Health Act of 1970. The ruling on the summary judgment motion should be vacated and the case remanded for further proceedings on the merits. Accordingly, I dissent.

The citation in this case alleged that the Respondent, American Cyanamid Company, violated section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), by the adoption and implementation of a "Fetus Protection Policy" that required female employees of child-bearing [*20] age to be sterilized in order to work in areas of the Respondent's plant where they would be exposed to certain toxic substances. Pursuant to that policy five female production employees were voluntarily sterilized. The last surgical sterilization was performed prior to August, 1978. In December, 1978, the Oil, Chemical and Atomic Workers International Union and its Local 3-499 ("OCAW") filed a complaint with the Department of Labor. An inspection of American Cyanamid's worksite by OSHA personnel was conducted between January and April, 1979. The citation in this case alleging a willful violation of the Act was issued on October 9, 1979 and these proceedings were initiated by the employer's notice of contest. n2

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The administrative law judge ruled that the citation in this case is barred [*21] by the six-month statute of limitations at section 9(c) of the Act n3 because the last of the five sterilizations took place approximately 14 months before issuance of the citation and the last woman of child-bearing capacity to be removed from the Lead Pigments Department was transferred out approximately one year before the issuance of the citation. However, it is the policy, not the sterilizations, which is alleged by the Secretary to be violative of the general duty clause. The policy was in effect after the last sterilization was performed and remained in effect after the issuance of the citation. The fact that the five sterilizations occurred more than six months before the issuance of the citation does not bar the citation because actual physical harm is not an element of a general duty clause violation. See, e.g., Pratt & Whitney Aircraft, 80 OSAHRC 38/A2, 8 BNA OSHC 1329, 1980 CCH OSHD P24,447 (No. 13591, 1980), pet. for review filed, No. 80-4102 (2d. Cir. June 24, 1980). n4 Furthermore, the citation is not barred by the fact that all women of child-bearing capacity had been transferred out of the Lead Pigments Department more than six months [*22] prior to the issuance of the citation. Whether it is reasonably foreseeable that women employed elsewhere in the plant would sumbit to surgical sterilization in order to transfer into the Lead Pigments Department constitutes a genuine issue of material fact under this general duty clause citation. See Pratt & Whitney Aircraft, supra. Accordingly, the citation is not barred by 29 U.S.C. § 658(c).

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n3 Section 9(c) of the Act, 29 U.S.C. § 658(c), provides: "No citation may be issued under this section after the expiration of six months following the occurrence of any violation."

n4 These five sterilizations do constitute prima facie evidence that serious harm is likely to occur. See National Realty and Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).

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The judge also ruled that OSHA has been preempted from exercising jurisdiction in this matter under section 4(b)(1) n5 of the Act because either the Equal Employment Opportunity Commission ("EEOC") or the National Labor Regulations Board [*23] ("NLRB") has exercised authority over the cited practice. The judge did not point to any particular exercise of authority by the NLRB, but did cite the EEOC's Proposed Interpretive Guidelines on Employment Discrimination and Reproductive Hazards, issued February 1, 1980, 45 Fed. Reg. 7514 (1980), as an exercise of authority by that agency over the cited practice.

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n5 Section 4(b)(1) of the Act, 29 U.S.C. § 653(b)(1), provides:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal Agencies, and State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

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Under section 4(b)(1) of the Act, OSHA is precluded from exercising authority to regulate the working conditions of employees only if: (1) a sister agency possesses statutory authority to regulate the health and safety of the affected employees, and (2) that [*24] agency has actually exercised its authority over the cited working conditions. Northwest Airlines, Inc., 80 OSAHRC , 8 BNA OSHC 1982, 1980 CCH OSHD P24,751 (No. 13649, 1980). In this case, it is not necessary to consider whether the proposed guidelines issued by the EEOC constitute an exercise of authority for purposes of section 4(b)(1), because neither the EEOC nor the NLRB possesses statutory authority to regulate employee safety and health. EEOC has statutory authority to act with respect to discrimination in employment. Griggs v. Duke Power Co., 401 U.S. 424 (1971). Indeed, in its introduction to the proposed guidelines, EEOC itself has specifically disavowed any intent to regulate employee safety and health:

the proposed guidelines do not attempt to implement or enforce policies related to health and safety. These guidelines affirm the goal of Title VII . . . to assure equality of employment opportunity. The task of assuring a workplace free of conditions that threaten the health or safety of employees remains with the federal agencies specifically granted that responsibility.

43 Fed.Reg. at 7514. n6 The primary concern of the NLRB is the right of employees [*25] to engage in concerted activity for the purpose of collective bargaining. Carey v. Westinghouse Electric Corp., 375 U.S. 261 (1964). The NLRB has no statutory authority to regulate employee safety or health.

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n6 Even assuming the statutory authority to affect occupational safety or health, the interpretive guidelines were a rulemaking proposal and entitled to no substantive legal effect until finally adopted. See Indiana Harbor Belt Railroad Co., 77 OSAHRC 13/A2, 4 BNA OSHC 2006, 1976-77 CCH OSHD P21,473 (No. 12420, 1977); Seaboard Coast Line Railroad Co., 75 OSAHRC 11/E14, 3 BNA OSHC 1767, 1975-76 CCH OSHD P20,185 (No. 11904, 1975), appeal denied, 548 F.2d 1052 (D.C. Cir. 1976). The proposed guidelines were withdrawn by the EEOC on January 16, 1981. 46 Fed. Reg. 3916.

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Accordingly, the judge's ruling on American Cyanamid's summary judgment motion should be vacated.

III

The declared purpose of the Occupational Safety and Health Act is "to assure so far as possible every working man and [*26] woman in the Nation safe and healthful working conditions and to preserve our human resources . . . ." 29 U.S.C. § 651(b)(2). The Act places primary responsibility for occupational safety and health on the employer by requiring each employer to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees," 29 U.S.C. § 654(a)(1), and to "comply with occupational safety and health standards promulgated under this Act," 29 U.S.C. § 654(a)(2).

The Secretary's allegations in this case are directed toward a policy that the majority acknowledges to be a condition of employment. Nevertheless, my colleagues conclude that because the policy has an indirect physical impact on employees, deriving from social and economic factors outside the workplace that the employer neither creates nor controls, it is not cognizable as a workplace hazard under the Act. Corporate policy that offers employees a choice between jobs and surgical sterilization is comparable to a corporate policy that offers employees a choice between jobs and exposure to sterilizing chemicals. [*27] To say one choice is prohibited by the Act while the other is not is to repudiate the letter and spirit of the Act.

The Act's general duty clause, 29 U.S.C. § 654(a)(1), was included in the statute to "fill those interstices necessarily remaining after the promulgation of specific safety standards," because "[i]t would be utterly unreasonable to expect the Secretary to promulgate specific safety standards which would protect employees from every conceivable hazardous condition." Bristol Steel & Iron Works, Inc. v. OSAHRC & Marshall, 601 F.2d 717, 721 & n. 11 (4th Cir. 1979). The Senate Committee on Labor and Public Welfare explained the purpose of the clause as follows:

[P]recise standards to cover every conceivable situation will not always exist. This legislation would be seriously deficient if any employee were killed or seriously injured on the job simply because there was no specific standard applicable to a recognized hazard which results in such a misfortune. Therefore, to cover such circumstances the Committee has included a requirement to the effect that employers are to furnish employment and places of employment which are free from recognized hazards to the health [*28] and safety of their employees.

S. Rep. No. 91-1282, 91st Cong., 2d Sess. 9 (1970), reprinted in Subcomm. on Labor of the Senate Comm. on Labor & Public Welfare, 92d Cong. 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 149 (1971) ("Legis. Hist."). The House Committee on Education and Labor recognized that the absence of a general duty clause "would mean the absence of authority to cope with a hazardous condition . . . for which no standard has been promulgated." H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. 21 (1970), reprinted in Legis. Hist., at 851. The House Committee specifically acknowledged that the general duty clause was "to provide for the protection of employees who are working under such unique circumstances that no standard has yet been enacted to cover [the] situation." H.R. Rep. No. 91-1291, at 21-22, reprinted in Legis. Hist. at 851-52 (emphasis in original).

Incredibly, despite this clear legislative intent, the majority concludes that "due to its unique characteristics this condition of employment [the Fetus Protection Policy] is not a hazard within the meaning [*29] of the general duty clause." (Emphasis added). This unnecessarily restrictive construction of the general duty clause limits its application and endangers rather than protects the health of American workers. See American Smelting & Refining Co. v. OSHRC, 501 F.2d 504, 511 (8th Cir. 1974). My colleagues' narrow view of the reach of the general duty clause is in direct conflict with the remedial purpose of the Act and its legislative history. It is precisely because the legislators deemed it essentiaby operating directly upon employees as they engage in work or work-related activities, n7 it does not follow that Congress intended to exclude from the ambit of the Act an employment policy that offers employees a choice [*30] between work and surgical sterilization. The Act was designed to relieve employees of the choice between their jobs and their safety and health. In concluding that "[a] worker should not have to choose between his job and his life," the Sixth Circuit in Marshall v. Whirlpool Corp., 593 F.2d 715, 725 (6th Cir. 1979), aff'd, 445 U.S. 1 (1980), noted that "[a] right to a hazard free workplace is implicit throughout the act . . . [and is] specifically contained in the Act's statement of purpose." 593 F.2d at 736.

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n7 The majority states at n. 22 that, to its knowledge, the Secretary has not cited employers previously for conditions or practices that did not operate directly upon employees engaged in work or work related activities. However, the Commission decisions in C.R. Burnett & Sons, Inc. & Harllee Farms, 80 OSAHRC , 9 BNA OSHC 1009, 1980 CCH OSHD P24,964 (Nos. 78-1103 & 78-1105, 1980) and Sugar Cane Growers Cooperative of Florida, 76 OSAHRC 62/E4, 4 BNA OSHC 1320, 1976-77 CCH OSHD P20,795 (No. 7673, 1976), affirmed violations involving hazardous conditions that did not directly relate to work activities.

[*31]

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In keeping with its broad remedial purpose, the terms of the Act have been construed liberally. In Whirlpool Corp. v. Marshall, 445 U.S. 1, 100 S.Ct. 883 (1980), the United States Supreme Court upheld an OSHA regulation that protects employees' right to walk off the job under certain circumstances, despite the absence of express language in the Act to that effect. n8

The regulation . . . on its face appears to further the overriding purpose of the Act and rationally to complement its remedial scheme. In the absence of some contrary indication in the legislative history, the Secretary's regulation must, therefore, be upheld, particularly when it is remembered that safety legislation is to be liberally construed to effectuate the congressional purpose.

445 U.S. at , 100 S.Ct. at 891 (footnote omitted). The United States Court of Appeals for the District of Columbia has held that although the Act makes no mention of Medical Removal Protection programs for employees exhibiting excessive blood lead levels the "fact of the statute and the legislative history both demonstrate unmistakably that [*32] OSHA's statutory mandate is, as a general matter, broad enough to include such a regulation . . . ." United Steelworkers of America v. Marshall, No. 79-1048, slip op. at 84 (D.C. Cir. Aug. 15, 1980). n9 The court also upheld the OSHA regulation prohibiting voluntary prophylactic chelation, 29 C.F.R. § 1910.1025(j)(4)(i), a potentially hazardous treatment voluntarily undertaken by employees and commonly performed by physicians not associated with the employer. 43 Fed. Reg. 53003-04 (1978). In addition, the Commission has concluded that "the Act's remedial jurisdiction is not limited to locations where work is actually performed," but is based on "whether a particular condition bears a sufficient nexus to employment to permit enforcement of the Act." C.R. Burnett & Sons, Inc. and Harllee Farms, 80 OSAHRC , 9 BNA OSHC 1009, 1018, 1980 CCH OSHD P24,964 at p. 30,816 (Nos. 78-1103 & 78-1105, 1980). n10

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n8 The regulation in question, 29 C.F.R. § 1977.12, is an interpretive regulation adopted by OSHA to implement the Act's retaliatory discharge provision, 29 U.S.C. § 660(c)(1).

n9 The court took particular note of the argument advanced by Amici that without Medical Removal Protection regulations employers could discriminate against fertile women by excluding them from all lead-exposed jobs, concluding that "we think fertile women can find statutory protection from such discrimination in the OSH Act's own requirement that OSHA Standards ensure that 'no employee will suffer material impairment of health . . . .' 29 U.S.C. § 655(b)(5) (1976)." United Steelworkers of America v. Marshall, supra at n. 74 (emphasis in original).

n10 In Clarkson Construction Co. v. OSHRC, 531 F.2d 451, 458 (10th Cir. 1976), the Tenth Circuit rejected an employer's attempt to limit coverage of the Act to "worksites" as both "artificial" and "specious," stating that "[t]o draw narrow boundries which would have the effect of restricting the area of protection would effectively defeat the clear purpose of the statute . . . . We fail to see the logic in restricting the work area in some artificial manner, as a result of which the employer escapes responsibility." The Tenth Circuit also has indicated that in light of the Act's remedial purpose it "should not be given a narrow or technical construction." Frohlick Crane Serv., Inc. v. OSHRC, 521 F.2d 628, 631 (10th Cir. 1975).

[*33]

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Section 5(a)(1) was stated in general terms in order for the Act to be responsive to the changing technological environments where employees work. Congress anticipated changes in the working environment and sought to bring within the Act's reach conditions and practices which could not be contemplated at the moment of enactment. Thus, the general duty clause affords the Secretary enforcement flexibility to protect employees in "unique" circumstances and embodies a delegation of authority to the Commission to develop through the adjudicatory process a body of law consistent with the public interest in safe and healthful working conditions and the changing realities of workplace hazards. n11 It was clearly assumed that responsible judgment would be exercised in the adjudicatory process and that the facts of each case would dictate the necessary application of the general duty clause. n12 As a consequence, "it is unimportant that the particular application may not have been contemplated by the legislators" if the statutory language "fairly brings the situation within a statute." Barr v. United States, [*34] 324 U.S. 83, 90 (1945). n13

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n11 See generally, Note, Exclusionary Employment Practices in Hazardous Industries: Protection or Discrimination, 5 Colum. J. Envt'l L. 97, 120-130 (1978).

n12 See generally, van Beeck v. Sabine Towing Co., 300 U.S. 342 (1937) (Cardozo, J.); T. J. Hooper, 60 F.2d 737 (1932) (L. Hand, J.).

n13 See generally, B. Cardozo, The Nature of the Judicial Process 14-16 (1921); Curtis, A Better Theory of Legal Interpretation, 3 Vand. L. Rev. 407 (1950); Landis, Statutes and the Sources of Law in Harvard Legal Essays (1934).

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In the course of adjudicating the "general and common duty" imposed by the Act, n14 no strict definitional test is possible for the application of this remedial provision having widespread application in rapidly changing working environments. We must construe general language in a statute, as Commissioner Cleary so aptly put it, "in favor of those it seeks to protect." Prineville Mouldings, Inc., 74 OSAHRC 81/E12, 2 BNA OSHC 1334, 1335, 1974-75 [*35] CCH OSHD P19,017 at p. 22,758 (No. 1045, 1974) (concurring opinion). In doing so we must take cognizance of the fact that as many as 20 million jobs involve exposure to substances that could pose reproductive hazards n15 and the list of newly developed chemicals and processes being introduced into the workplace grows daily. n16 At the same time, it is simply not possible for the Secretary of Labor to promulgate standards for all of the new materials and processes confronted by working men and women. As a result, American workers, and the Secretary as their representative, must rely instead on the general duty imposed on employers by section 5(a)(1) to maintain workplaces free from recognized hazards. The exclusion of fertile women from certain employment invites employers to exclude other highly susceptible groups from employment when the effect varies among the exposed classes of individuals. n17 As a result, the burden for safety and health is borne by the employees.

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n14 In reporting the general duty clause, the Senate committee described the employer's duty in common law terms.

The committee has concluded that such a provision is based on sound and reasonable policy. Under principles of common law, individuals are obliged to refrain from actions which cause harm to others. Courts often refer to this as a general duty to others. Statutes usually increase but sometimes modify this duty. The committee believes that employers are equally bound by this general and common duty to bring no adverse effects to the life and health of their employees throughout the couse of their employment. Employers have primary control of the work environment and should insure that it is safe and healthful. Section 5(a), in providing that employers must furnish employment "which is free from recognized hazards so as to provide safe and healthful working conditions," merely restates that each employer shall furnish this degree of care.

S.Rep. No. 91-1292, supra.

n15 45 Fed. Reg. 7514 (1980). See generally, Council on Envt'l Quality, Exec. Office of the President, Chemical Hazards to Human Reproduction (1981).

n16 As Congressman Sikes observed in 1970: "In addition to the health hazards of other years, we find that technological advances and new processes have brought numerous new hazards to industrial plants. The picture is worsening in every field all over America." Legis. Hist. at 1061. See generally, Council on Envt'l Quality, Exec. Office of the President, Toxic Chemicals and Public Protection ch. I (1980).

n17 Waritz, Biological Indicators of Chemical Dosage & Burden in 3 Party's Industrial Hygiene and foxicology 257 (1979).

[*36]

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One fact is inescapable in this case. Five American Cyanamid employees have been sterilized. As a matter of law, this irreversible termination of their child-bearing capacity is a material impairment of functional capacity resulting from a condition of employment imposed by their employer. This loss of reproductive capacity, whether actively or passively coerced, runs counter to the stated Congressional policy of assuring "insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience." 29 U.S.C. § 651(b)(7). n18

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n18 The Secretary argues for an "incident of employment" test for applicability of the general duty clause. However, since the cited hazard in this case is alleged as a coercive condition of employment it is not necessary to determine whether an alleged hazard less directly related to employment is cognizable under the Act.

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The citation [*37] and complaint raise triable issues under section 5(a)(1) of the Act and the case should be remanded for further proceedings on the merits.

Appendix A: MEMORANDUM OPINION

On December 20, 1979, the Respondent, American Cyanamid, applied for my voluntary recusal, requesting that I not participate in any decision-making concerning this case and other cases before the Commission to which American Cyanamid is a party. The Respondent has also moved to question me on voir dire with respect to whether I should participate in these proceedings.

American Cyanamid contends that certain "objective circumstances" suggest that my "impartiality might reasonably be questioned" within the meaning of 29 U.S.C. § 455(a) n1 and Canon 3C of the Code of Judicial Conduct. n2 Specifically, American Cyanamid alleges:

1. The Oil, Chemical, and Atomic Workers International Union ("OCAW") filed the complaint that led to this litigation.

2. Mr. Steven Wodka of OCAW has been involved in these proceedings.

3. Dr. Eula Bingham, then Assistant Secretary of Labor for Occupational Safety and Health Administration ("OSHA"), was "involved in the decision to bring at least the general duty clause case." [*38]

4. I have certain "relationships" with OCAW and OSHA personnel involved in this case, including:

(a) a friendship with Mr. Wodka,

(b) prior employment as an attorney for an organization that has served as outside counsel for OCAW (the Health Research Group),

(d) prior employment as special assistant to Dr. Bingham prior to becoming a member of the Commission.

American Cyanamid is of the belief that "these circumstances objectively establish reasonable grounds for questioning [my] impartiality" If I participate in this case. Having considered the motions, related memoranda and affidavits, I have concluded that the applications are insufficient to warrant disqualification and are DENIED. In addition, the motion to voir dire is DENIED.

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n1 29 U.S.C. § 455(a) provides:

§ 455. Disqualification of justice, judge, magistrate, or referee in bankruptcy

(a) Any justice, judge, magistrate, or referee in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

n2 Canon 3C provides, in pertinent part, the following:

C. DISQUALIFICATION.

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where;

(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

[*39]

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The appropriate tests for disqualification in administrative proceedings, Cinderella Career and Finishing Schools, Inc. v. F.T.C., 425 F.2d 583 (D.C. Cir. 1970), and judicial proceedings, 28 U.S.C. § 445 and Canon 3C of the Code of Judicial Conduct, are fully set forth in my separate opinion in National Manufacturing Co., 80 OSAHRC , 8 BNA OSHC 1435, 1980 CCH OSHD P24,519 (No. 76-4757, 1980). It is important to note that, although the truth of the matters alleged in an affidavit of disqualification must be accepted as true for the purpose of determining legal sufficiency, it is appropriate to put the facts alleged into proper context and to examine the surrounding circumstances. National Manufacturing Co., supra. I will review American Cyanamid's application in light of these standards.

American Cyanamid questions whether I am personally biased in favor of certain parties in this case because of what it claims is my relationship and friendship with OCAW and OSHA employees, including Mr. Wodka. Friendship as a basis for disqualification has been held to be insufficient to [*40] give fair support to a charge of personal bias or prejudice. Allegations of lack of impartiality stemming from acquaintanceship or friendship with a party's counsel that "does not exceed what might be expected as background or associational activities . . . fall short of supporting an inference of lack of impartiality under § 455(a)." Parrish v. Board of Commissioners of Alabama State Bar, 524 F.2d 98, 104 (5th Cir. 1975). General allegations of bias based on the background and association of a judge do not provide a reasonable basis for concluding that a judge cannot be impartial. See Parker Precision Products Co., Inc. v. Metropolitan Life Insurance Co., 407 F.2d 1070, 1077 (3rd Cir. 1969); Simmons v. United States, 89 F.2d 591 (5th Cir.), cert. denied, 302 U.S. 700 (1937). American Cyanamid has alleged no facts upon which it reasonably could be concluded that an appearance of impropriety sufficient to warrant disqualification exists. See also SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977).

Respondent further implies that my impartiality might reasonably be questioned because of my representation of OCAW in certain OSHA proceedings unrelated [*41] to this case prior to the time I became a member of the Commission. From August 1972 until October 1975, I served as a staff attorney for the Health Research Group ("HRG"), a public interest group. Consistent with my responsibilities at HRG I represented OCAW in a number of administrative and judicial proceedings. My legal representation of OCAW in one proceeding continued after my association with HRG terminated and ended when I joined the Department of Labor in April 1977. The union complaint that initiated the proceedings in this case was not filed until 1978. Accordingly, the enforcement stage of these proceedings had not even commenced when I served as counsel for OCAW. Furthermore, based on my personal knowledge and the affidavit of Mr. Steven Wodka, I never discussed this case with him or any other representative of OCAW. n3

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n3 The text of Mr. Steven Wodka's sworn affidavit filed in response to the Respondent's disqualification motion states the following:

1. I am employed by the Oil, Chemical and Atomic Workers International Union as an International Representative. Also, I was the author of and signator to the complaint to OSHA on December 27, 1978 that gave rise to the inspection and subsequent OSHA citations that are the subject of these two dockets. I am knowledgeable of all actions taken by the Union in its representation of its members in these cases.

2. I have never discussed nor communicated the merits of either of these American Cyanamid cases with Bertram Cottine. I have never been in a meeting with Bertram Cottine where the merits of either of these American Cyanamid cases have been discussed.

3. At the time when Bertram Cottine did act as counsel to the OCAW, these two cases were not being handled by myself nor was I knowledgeable of the facts in these two cases.

4. Moreover, I do not know of any discussions, meetings or communications between any other representatives of the OCAW nd Bertram Cottine concerning the merits of these American Cyanamid cases.

[*42]

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Neither the administrative nor statutory standards for recusal require the disqualification of a judge hearing a case because one of the parties is a former client. A judge is not required to disqualify himself merely because he or she previously represented a party if the case in which the judge is sitting is not connected with any matter on which the judge previously acted as counsel. National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953 (2d Cir. 1978); In re Rogers, 537 F.2d 1196 (4th Cir. 1976); Darlington v. Studebaker-Packard Corp., 261 F.2d 903 (7th Cir.), cert. denied, 359 U.S. 992 (1959); School District of Kansas City v. Missouri, 438 F.Supp. 803 (W.D. Mo. 1977); see Wright, Miller & Cooper, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION § 3544 at 357 (1975). n4

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n4 My hiring of a former HRG employee as my administrative assistant at the Review Commission has no bearing on this matter.

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American Cyanamid also alleges that my impartiality might be questioned because of my prior employment as an assistant to Dr. Bingham. American Cyanamid implies that I may have participated in OSHA's decision to commence enforcement proceedings in this case. While employed at OSHA I did not participate in any aspect of this case. My employment at the Department of Labor terminated before OCAW filed the complaint that initiated the inspection in this case. Neither Dr. Bingham nor any member of her staff discussed the merits of this case with me during the time that I served at the Department of Labor. n5 In the absence of actual contact with the merits of a particular case, mere prior employment in a party agency is insufficient to suggest to a reasonable person that a judge's impartiality may be in question and is not grounds for disqualification. Note, Disqualification of Judges and Justices in the Federal Courts, 86 HARV. L. REV. 736, 761 (1973); see Laird v. Tatum, 409 U.S. 824 (1972).

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n5 The text of the sworn affidavit of Dr. Eula Bingham filed in support of Complainant's Opposition to the Recusal of Commissioner Bertram R. Cottine states the following:

1. I am the Assistant Secretary of Labor for the Occupational Safety and Health Administration, U.S. Department of Labor.

2. I have never discussed nor communicated the merits of the OSHRC cases entitled Secretary of Labor v. American Cyanamid Company, OSHRC Docket Numbers 79-2438, 79-4876 and 79-5762 with Bertram Cottine during the period of time that he served as my assistant nor at any other subsequent time. Further, I have never been in attendance at any meeting with Bertram Cottine where the merits of the above numbered cases were discussed.

3. I have further determined that, to the best of my knowledge, no member of my staff has discussed the merits of the instant cases with Bertram Cottine at any meeting and that Mr. Cottine did not influence the decision to issue this citation in light of his departure from the Department of Labor prior to the issuance of this citation.

[*44]

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It is clear that disqualification on the grounds of impartiality must have a reasonable basis. H.R. REP. No. 93-1453, 93d Cong., 2d Sess. 4-5, reprinted in [1974] 3 U.S. CODE CONG. & AD. NEWS 6351, 6354-55. The allegations in this case fail to "give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." U.S. v. Haldeman, 559 F.2d 31, 134 (D.C.Cir. 1976), cert. denied, 431 U.S. 933 (1977), quoting Berger v. U.S., 255 U.S. 22, 33-4 (1921). The motion for disqualification is denied.

Finally, the Respondent's motion to voir dire is also denied. The facts alleged as a basis for disqualification have been taken as true for the purpose of assessing the sufficiency of the claims. The claims have been fully considered. An evidentiary hearing is unnecessary. See U.S. v. Mitchell, 377 F.Supp. 1312, 1316 (D.D.C. 1974), aff'd sub nom. U.S. v. Haldeman, supra.

Bare suspicions cannot serve as a basis "for extended fishing expeditions" in the hope of discovering a basis on which to challenge agency action. Caro, [*45] Inc. v. F.T.C., 338 F.2d 149, 153 (1st Cir. 1964); cf. San Francisco Mining Exchange v. SEC, 378 F.2d 162 (9th Cir. 1967) (absent factual allegations and offer of proof tending to support charge of bias and prejudice, issuance of a subpoena directed to SEC Commissioners for purpose of ascertaining their state of mind during the decisional process is improper); School Services, Inc., 71 F.T.C. 1703 (1967) (subpoena probing internal decision-making process of the F.T.C. will not be issued when based on mere suspicion).