UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 78–4923

 

 J.L. MANTA PLANT SERVICES COMPANY,

 

 

                                              Respondent.

 

November 3, 1982

DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

            The Secretary of Labor (‘the Secretary’) issued to J.L. Manta Plant Services Company (‘Manta’) two citations alleging that Manta had violated several parts of the coke oven emissions standard at 29 C.F.R. § 1910.1029 including section 1910.1029(c), which regulates employee exposure to coke oven emissions, and section 1910.1029(g)(3), which requires a respiratory protection program.[1]

            Before the hearing, Manta moved to vacate both citations on the ground that section 1910.1029 could not be validly applied to non-coke oven employees. Judge Louis J. Rubin granted Manta’s motion and vacated the citations.[2] In his petition for review, the Secretary sought review of the judge’s decision. In the last paragraph in his petition, the Secretary also moved to amend in the alternative to allege violations of the general industry standards at sections 1910.1000(a)(2) and (e), which regulate employee exposure to coal tar pitch volatiles (‘CTPV’). The motion was evidently made under Federal Rule of Civil Procedure 15(a).[3] Commissioner Cleary directed the case for review on the following issues:

            [1] In light of American Iron and Steel Institute, 577 F.2d 825 (3d Cir. 1978), did the administrative law judge properly vacate the citation alleging a violation of the coke oven emissions standard, 29 C.F.R. § 1910.1029?

             [2] Whether § 9(c) of the Act precludes amendment of the citation to 29 C.F.R. §§ 1910.1000(a)(2) and (e)?

            The first of these issues is no longer before us. In the Secretary’s brief before the Commission, the Secretary abandoned his argument that the judge erred in holding that section 1910.1029 could not be validly applied to Manta. He also changed his position on the amendment issue. Although stating that he was withdrawing one of the two citations, the Secretary asked to amend the other citation. However, he did not ask to amend to the general industry standards mentioned in his petition for review. Instead, he asked that the citation be amended under Federal Rule 15(a) to allege violations of the construction industry standards at sections 1926.55(a) (CTPV standard), 1926.103(c)(1) (instruction on the use and care of respirators) and 1926.21(b)(2) (instruction on avoidance of unsafe conditions and applicable regulations), and the general industry standards at 1910.134(b)(1) (written standard operating procedures for selection and use of respirators) and 1910.134(b)(6) (storage of respirators in a convenient, clean, and sanitary location). The Secretary explained in a footnote in his brief that ‘[a]fter further evaluation the Secretary has determined that Part 1926 (construction) standards are more properly cited in [this case] because [Manta] was engaged in construction, repair and maintenance work . . ..’

            We deny the motion to amend. The Secretary did not request amendment under Federal Rule 15(a) before the judge. Indeed, the motion to amend now before us was not made until the Secretary filed his brief on review; as we have noted, the Secretary’s petition first sought amendment to different standards. Under Commission Rule of Procedure 92(d), 29 C.F.R. § 2200.92(d),[4] the Commission ordinarily reviews only those issues that have been raised before the administrative law judge. See Willamette Iron & Steel Co., 81 OSAHRC 59/A2, 9 BNA OSHC 1900, 1904, 1981 CCH OSHD ¶25,427, p. 31,699 (No. 76–1201, 1981). This common rule of orderly procedure embodies the view that it is sounder practice to not pass on issues that the hearing judge has not had an opportunity to consider unless there are extraordinary circumstances. Similarly, courts have held that where a party had an opportunity to move to amend under Federal Rule 15(a) before an appeal and did not, the motion comes too late. See Swan v. Board of Education, 319 F.2d 56, 61 (2d Cir. 1963).

            There are no circumstances here excusing the Secretary’s failure to move to amend before the judge. Employers have often filed pre-hearing motions to vacate citations because the cited standard is invalid or inapplicable. The ordinary course is for the Secretary to then move to amend his citation to alternatively allege violations of other arguably applicable standards. The Secretary not only had the opportunity to so amend, he did not do so even though the construction standard at section 1926.55 would have been at least arguably applicable to construction contractors if the judge were to find that section 1910.1029 could not be validly applied. The record supplies no reason why counsel for the Secretary could not have foreseen that the judge might have disagreed with his validity argument, and taken the elementary step of moving before Judge Rubin to alternatively amend to the construction standard.[5]

            In short, the Secretary had an opportunity to raise the amendment issue before the judge and did not do so. Inasmuch as he has not shown any circumstances excusing this failure, we deny the motion to amend.[6] The judge’s decision is affirmed.

 

SO ORDERED.

 

FOR THE COMMISSION:

 

Ray H. Darling, Jr.

Executive Secretary

DATED: NOV 3, 1982

 

COTTINE, Commissioner, dissenting:

            The majority narrowly construes Commission Rule of Procedure 92(d) which was meant to encourage orderly procedure and yet not unnecessarily foreclose a decision on the merits. Rather than precipitously dismissing this case, I would remand to the judge to consider whether the second motion to amend should be granted.[7]

            Under Commission Rule of Procedure 92(d), review is ordinarily limited to issues raised before the administrative law judge. However, this case has only progressed to pre-hearing motions before the judge. In fact, this case was in the early stages of preparation for the hearing when the citations were vacated on a pre-hearing motion. Although the Secretary had an opportunity to alternatively amend to section 1926.55 at that early stage, the parties’ attention was then focused on the larger issue of whether the new coke oven standard applied to non-coke oven employees. Under these circumstances, the Secretary’s failure to move to amend was not so egregious as to warrant dismissal.[8]

            The majority’s mechanical invocation of Commission Rule 92(d) is particularly unfortunate here. Federal Rule of Civil Procedure 15(a) states, among other things, that ‘leave [to amend] shall be freely given when justice so requires.’ The Supreme Court has construed this clear language as allowing liberal amendments, even after a complaint has been dismissed, so that the parties are given an opportunity to have their claims decided on the merits. See Foman v. Davis, 371 U.S. 178, 182 (1962). It is in this light that Commission Rule 92(d) should be applied here.

            Accordingly, I would remand this case for consideration of whether the second motion to amend should be granted. Manta claims that its new officers and directors did not have knowledge of the corporation’s activities at the time of the alleged violations and would have to rely on records which do not contain information on the amended citation. The judge is in a better position to resolve these factual matters and determine whether amendment would be proper.

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 78–4731

OSHRC DOCKET NO. 78–4923

OSHRC DOCKET NO. 78–5043

OSHRC DOCKET NO. 78–5051

OSHRC DOCKET NO. 78–5060

 

FURNCO CONSTRUCTION CO. J. L. MANTA INC. GENERAL DRAINAGE, INC. M & O INSULATION COMPANY MCAULIFFE MECHANICAL CONTRACTORS RESPONDENT

 

 

                                              Respondent.

 

December 7, 1979

ORDER ON MOTION TO DISMISS

            Respondent’s Motion to Dismiss citations issued under the coke oven emissions standards (29 CFR 1910.1029) is granted.

            The chronology and factual background is briefly summarized, setting forth facts not in dispute and stipulated by the parties:

            1. On October 19, 1976, the Secretary of Labor promulgated a new health standard governing employee exposure to coke oven emissions (29 CFR 1910.1029).

            2. Petitions for review were filed by several coke producers and their trade associations with the United States Court of Appeals for the Third Circuit. The Court issued its opinion and order on March 28, 1978, American Iron and Steel Institute, et al. v Occupational Safety and Health Administration, 577 F.2d 825 (3rd Cir. 1978) which held in pertinent part, ‘the Secretary’s coke oven emissions standard (is) affirmed except: . . . (3), application of the standard to non-coke oven employers.’ The court remanded the case for further proceedings consistent with its opinion as to the application of the standard to non-coke oven employers.

            3. Respondents are non-coke oven employers who were engaged in construction and maintenance services, as independent contractors, at the Inland Steel plant, East Chicago, Indiana, in August 1978.

            4. They were cited in September and October 1978, for violation of the standard.

            5. In December 1978, OSHA issued a ‘Supplemental Statement of Reasons’ which states, ‘This notice delineating the precise application of the standard to non-coke producing employers is in response to the remand ordered by the Court.’

            6. On January 12, 1979, OSHA published a notice in the Federal Register at page 2725 stating that the Advisory Committee on Construction Safety and Health, (Advisory Committee) would meet on January 31 and February 1, 1979 to consider the application of the coke oven standard to non-coke oven employers. The Supplemental Statement was then presented to the Advisory Committee.

            7. The Advisory Committee met on May 17, 1979, pursuant to a notice in the Federal Register on April 27, 1979, and formulated its recommendations. The Advisory Committee accepted OSHA’s determination that the scope and application of the standard, (29 CFR 1910.1029) (a)) applied to all employers. Some disagreement was expressed with parts of the Supplemental Statement. The areas of disagreement have no direct bearing on the issue raised here.

            Complainant’s position is that the order of remand did not stay enforcement proceedings against non-coke oven employers. Consistent with its position, the Secretary did not institute any rule making proceeding. Instead, a ‘Supplemental Statement of Reasons’ was drafted for public consideration for the purpose of informing the Court of the precise application of the standard to independent contractors.

            Respondents maintain that the citations were issued in violation of the Court order and are invalid. Respondents argue that the Court was concerned with due process rights to notice and they were not afforded such notice. Respondents were cited in the interim period between the Court order and publication in the Federal Register of the ‘Supplemental Statement of Reasons.’

            The Court’s opinion, section VI, deals with the application of the standard to non-coke oven employers. The Court recites the arguments favoring the Secretary’s position; announces its conclusion.

            The case law submitted by the parties in support of their interpretations of the opinion and order is inconclusive. The decision cited do not involve notice of rule making, or the court specifically vacated or remanded with specific instructions for proceeding, or specifically ruled that the challenge should be pursued in an enforcement proceeding. However, I find respondent’s argument and analogy to the Review Commission decision, in American Urethane Corp., 5 BNA OSHC 1543, 1977–78 CCH OSHD para. 21, 903 (1977) to be persuasive. In American Urethane Corp., the Review Commission interpreted the Third Circuit opinion in Synthetic Organic Chemical Mfrs. Ass’n (SOCMA II), 506 F.2d 385 (3rd Cir. 1974) cert. denied 423 U.S. 830 (1975). The Review Commission held that a Court order of remand does not stay enforcement proceedings where the basis for the remand is the Court’s desire to ascertain the reasons for the agency action. In contrast, when the basis for remand is failure to afford adequate notice, remand was predicated on the conclusion that the promulgation did not meet the requirements of section 6 of the Act and necessitates vacation of the relevant provisions. This conclusion is in accord with the view that an administrative rule not promulgated in accordance with the notice requirements of section 553 of the Administrative Procedure Act is not enforceable. N.L.R.B. v. Wyman-Gordon Company, 394 U. S. 759 (1969); Wagner Electric Corp. v Volpe, 446 F.2d 1013 (3rd Cir. 1972); Texaco, Inc. v Federal Power Commission, 412 F.2d 740 (3rd Cir. 1969).

            The Court has ruled that respondents did not receive adequate notice. Proceedings, in accordance with the Court order of remand, were not held prior to the issuance of the citations. The defect in promulgation precludes enforcement of the standard against respondents in this case. It is noted that the same issue was before Judge Sparks, Review Commission Judge, in C. H. Heist Corporation et al. (OSHRC Nos. 79–0749 et al., decided November 16, 1979). Judge Sparks held that lack of notice was a fundamental defect and that the standard should not be enforced until the defect has been remedied.

            It is ORDERED:

            1. The citations alleging violations of 29 CFR 1910.1029 are vacated.

            2. General Drainage, Inc., No. 78–5043; M & O Insulation Company, No. 78–5051; and McAuliffe Mechanical Contractors, No. 78–5060 will be notified of the hearing date with respect to those items cited under standards other than 29 CFR 1910.1029.

            3. This constitutes a final order with respect to Furnco Construction Co., No. 78–4731; and J. L. Manta, Inc., No. 78–4923.

 

Louis J. Rubin

Judge, OSHRC

Dated: December 7, 1979

 

 


[1] This case was consolidated before the judge with four other cases: Nos. 78–4731, 78–5043, 78–5051 and 78–5060. The Secretary petitioned for review of the Manta case and Furnco Construction Co., No. 78–4731. Commission review was granted. Later, the Commission approved a settlement agreement in Furnco and granted the parties’ joint motion to sever Furnco from this case.

[2] The judge relied on American Iron & Steel Institute v. OSHA, 577 F.2d 825 (3d Cir. 1978). In that case, the court remanded section 1910.1029 to the Secretary for further proceedings as to whether the standard applied to non-coke oven employees. We have been unable to find any subsequent rulemaking actions by the Secretary that would have cured the problem that has made the standard unenforceable as to non-coke over employees such as Manta’s.

[3] Rule 15. Amended and Supplemental Pleadings.

(a) Amendments.

[A] party may amend his pleadings only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

[4] Rule 92 Review by the Commission.

(d) . . . Except in extraordinary circumstances, the Commission’s power to review is limited to issues of law or fact raised by the parties in the proceedings below.

[5] This lack of foresight was particularly inexplicable here because the possible application of section 1926.55 has figured prominently in coke oven litigation involving construction contractors. The United States Court of Appeals for the Third Circuit had remanded section 1910.1029 as to construction contractors because the court had ‘serious reservations concerning the broad construction of the standard’s applicability to independent contractors contained in’ a March 3, 1977, letter by Bert Concklin, then Acting Assistant Secretary of Labor for Occupational Safety and Health. American Iron & Steel Institute v. OSHA, 577 F.2d 825, 840 (3d Cir. 1978). In that letter, a request by the National Erectors Association for a stay of section 1910.1029 as to construction contractors and interim enforcement of the construction standard at section 1926.55 was rejected by Mr. Concklin on the sole ground that there was no applicable construction standard.

This point also appeared in the background of this case. The Secretary had appended the Concklin letter to his brief before Judge Rubin. In addition, both parties to this litigation had included in their stipulation of facts an unpublished supplemental statement by the Labor Department of reasons for the applicability of section 1910.1029. Like the Concklin letter, this supplemental statement declared that ‘the construction standards do not deal with the health hazard of carcinogenic coke oven emissions . . ..’ Yet, now the Secretary evidently thinks otherwise. The Labor Department’s failure to follow a consistent course on this question unnecessarily delayed the final disposition of this case and prevented an orderly resolution of the merits.

[6] Because we deny the motion on this ground, we need not consider whether the Secretary’s motion should be denied because it raises issues different from those in the petition. See Commission Rule 92(c), 29 C.F.R. § 2200.92(c).

[7] I do not agree with the intimation in the majority opinion that the amendment issue might not properly be on review under Commission Rule 92(c). The rule states in part that ‘review shall be limited to the issues specified in the petition . . ..’ Although the majority does not mention it, §§ 1926.55 and 1910.1000 have precisely the same threshold limit values for CTPV and require the same abatement methods. The Secretary’s motions to amend to the general industry standard and to the precisely equivalent construction industry standard do not present different issues that would frustrate Commissioner Cleary’s exercise of discretion in directing review on whether section 9(c) of the Act precludes amendment to the general industry standard and implicitly whether amendment is proper under Fed. R. Civ. P. 15(a).

[8] In note 5 of the lead opinion, the majority maintains that the Secretary’s failure to move to amend was ‘inexplicable’ because the applicability of § 1926.55 had ‘figured prominently in coke oven litigation’ and had ‘appeared in the background of this case.’ The Secretary’s actions are inexplicable to my colleagues because they mischaracterize the role that § 1926.55 has played here. The applicability of § 1926.55 did not occur to either party when this case was before the judge. The papers relied on by the majority were introduced as mere background to another issue. To magnify their significance now is inappropriate.

The majority’s conclusion that the Secretary’s positions have been inconsistent is also incorrect. The Secretary’s statements that § 1926.55 was inapplicable reflected nothing more than his completely plausible view that because the new coke standard comprehensively addressed the matter of coke ovens, the old construction standard had been pre-empted to that extent. This reasoning should be familiar to the majority. See, e.g., John T. Brady & Co., 82 OSAHRC 9/D10, 10 BNA OSHC 1385, 1982 CCH OSHD ¶25,941 (No. 76–2894, 1982), rev’d, No. 82–4082 (2d Cir. October 14, 1982). It was only when Judge Rubin held that the new standard could not be validly applied that the Secretary sought to apply the old standard. There is no inconsistency in that.