OSHRC Docket No. 8618-P

Occupational Safety and Health Review Commission

March 18, 1975


Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners



MORAN, CHAIRMAN: An order of Review Commission Judge Paul L. Brady, dated August 9, 1974, 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 matter.



CLEARY, COMMISSIONER, concurring: Judge Brady, by his order of August 9, 1974, granted respondent's request for modification of abatement and extended the date of correction of the violation to January 1, 1975. It is now some time past the extended deadline and, thus, it is futile to do anything but concur in the disposition.

I am constrained to note, however, that error occurred in the treatment accorded the Local 715 employees' representative, even though the error was not prejudicial.

On June 24, 1974, three days before the original abatement date, the respondent filed a petition for modification of abatement with the Area Director for OSHA Region V. The petition requested that the deadline for correction of the violations be extended six months. The case was docketed by [*2] the Commission, and the petitioner was notified as to the posting and service requirements with regard to the affected employees.

On July 3, 1974, the Secretary notified the Commission that he would not oppose the petitioner's request for a six-month extension of the abatement date. On July 10, 1974, Local 715 informed the Commission in writing that it was aware of the pending petition and that it intended to participate in all proceedings with respect to the extention of time for abatement. Shortly thereafter, the case was assigned to Judge Paul L. Brady. On August 9, 1974, without a hearing, without consulting Local 715, and noting the absence of objection by the Secretary, the Judge granted petitioner's request. The Judge erred.

The Act, in section 10(c), specifically provides for the participation of affected employees or their representative in the Commission's proceedings, including those for modification of abatement requirements. The representative of the affected employees in this case had "party" status. The Administrative Procedure Act (APA) section 2(b) [5 U.S.C. 551(3)]; OSAHRC Rules of Procedure, rule 20 (29 CFR 2200.20). It was expressly interested [*3] in the disposition of the case. It should have been given an "opportunity for . . . the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment. . . ." APA section 5(b) [5 U.S.C. 554(c)]; American Airlines, Inc., No. 6087 (December 4, 1974). In American Airlines, we noted that "[a]lthough the 'public interest' represented by the enforcing agency usually coincides with that of persons protected by legislation, this is not always so. See J. Skelly Wright, Beyond Discretionary Justice, 82 Yale L.J. 575 (1972)." The Judge should have heeded the union's request to participate.

[The Judge's decision referred to nerein follows]

BRADY, JUDGE: On April 4, 1974, Complainant herein issued a citation alleging five non-serious violations of the Occupational Safety and Health Act of 1970.

The respondent on June 25, 1974, filed a petition for modification of an abatement period with the Secretary of Labor who timely transmitted such petition to the Commission.

Petitioner represents that three of the five paint spray areas the subject of the alleged violations set forth in items three and five of the citition, have been corrected. [*4] The installation of systems which has resulted in partial compliance, have ranged upward of $15,000. It is indicated by petitioner that considerable effort has been set forth in order to solve the problem but it will be impossible to accomplish same by June 27, 1974. In view of the difficult problem involved, and high corrective costs, an extension of six months is requested.

The response of the Secretary indicates no objection to such extension, and additional time for complete abatement is deemed warranted.

Wherefore it is hereby ORDERED that:

1. Petitioner's request for a modification of abatement period is granted.

2. The date for correction of the alleged violations listed it items three and five of the citation herein is extended to January 1, 1975.