UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

RED DIAMOND BATTERY MANUFACTURING CO., INC

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 1234

SECRETARY OF LABOR,

 

                                              Respondent.

 

 

ORDER OF REMAND

 

July 26, 1974

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

CLEARY, COMMISSIONER:

Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), review was directed of the Administrative Law Judge’s decision in the above-captioned case on April 2, 1974. The Judge’s decision in this case was rendered on the same day as the decision of the Commission in H. K. Porter, Inc., No. 1210–P (March 22, 1974).

Accordingly, it is ORDERED that this case is remanded to the Administrative Law Judge for further proceedings consistent with that decision. An expedited proceeding in this case is hereby ordered, pursuant to rule 101 of the Commission’s Rules of Procedure (29 CFR § 2200.101).

 

MORAN, CHAIRMAN, dissenting:

Judge Brenton decided this case correctly. I dissent from this reversal of his decision for reasons set forth in Secretary v. Continental Steel Corporation, OSAHRC Docket No. 3514–P (May 10, 1974); and Secretary v. H. K. Porter, Inc., OSAHRC Docket No. 1210–P (March 22, 1974).

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

RED DIAMOND BATTERY MANUFACTURING CO., INC

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 1234

SECRETARY OF LABOR,

 

                                              Respondent.

 

 

April 2, 1974

BRENTON, JUDGE:

This cause is before this tribunal pending a hearing on the merits of Respondent’s motion for abatement.

Examination of the record reveals that he Citation, proposed penalty and date fixed for abatement were issued to Respondent, employer on June 16, 1972.  Respondent’s request for an extension of the abatement period as fixed in the Citation is dated July 19, 1972 by the Secretary on July 20, 1972.

On July 30, 1972, the Review Commission received a copy of the Citation and so-called petition for abatement.  Thereafter the parties stipulated as to a reasonable extension date for abatement which was received by the Commission on August 10, 1972.  On September 1, 1972, the Acting Executive Secretary for the Commission granted the extension dates as agreed by the parties in the stipulation.

On September 21, 1972, the parties agreed on an additional extension for abatement which was received by the Commission on September 25, 1972.  Again this action was granted by the Acting Executive Secretary on October 10, 1972.

            On December 20, 1972, Respondent requested a further extension of the abatement date concurred in by the Secretary on January 2, 1973 and submitted to the Commission on January 5, 1973, which was granted by the Executive Secretary on January 9, 1973.

On May 30, 1973, Respondent again filed with the Secretary of Labor a request for further extension of the abatement period to July 1,1974, to which the Secretary concurred and submitted the same to the Commission on June 25, 1973.  This time the matter was assigned to Judge Bates for a Decision and Order, and on July 17, 1973, Judge Bates granted the application for modification of the abatement period as requested.

On November 20, 1973, Respondent again filed a request with the Secretary of Labor for an extension of the abatement period beyond July 1, 1974 which was forwarded to the Commission by the Secretary with his request for a hearing on the merits. Thereupon the matter was assigned to this tribunal for hearing and disposition.

The parties agreed and stipulated at the outset of the proceedings herein that the Review Commission had jurisdiction to hear and determine this case and in view of five cases heretofore decided by Judges of this Commission on the jurisdictional proposition it appears that the jurisdiction of the Review Commission in this proceeding should be the foremost consideration.

Even though the word ‘jurisdiction’ is a term of large and comprehensive import embracing every kind of judicial action, its fundamental concept has to do with the authority, capacity, power or right by which a tribunal takes cognizance of and decides a cause of action. Moreover, it is power conferred by the Constitution or by law.

In the instant case the question has arisen as to jurisdiction of the subject matter. This means, then, does this tribunal, acting on behalf of the Review Commission, by authority of law in specific terms, have jurisdiction of a class of cases to which this particular case belongs. Does the Occupational Safety and Health Act of 1970 empower this commission to hear and decide this case.

The cause of action is simply a request by an employer to modify the abatement requirements contained in the Citation issued to it by the Secretary of Labor. 

By section 9(a) of the Act Congress mandated that the Secretary fix a reasonable time for the abatement of a violation. 

By section 10(a) of the Act Congress mandated that if the employer fails to notify the Secretary that he intends to contest the Citation within fifteen (15) working days from receipt of the proposed penalty, the Citation and assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

At this point it is well to observe that the abatement period is a part of the Citation and thus if the Citation is uncontested within the fifteen (15) day period the abatement date becomes a final order of the Commission.  The Congress, however, in its wisdom made provision for modification of abatement in section 10(c) of the Act as follows:

Upon a showing by the employer of a good faith effort to comply with the abatement requirements of a Citation, and that abatement has not been completed because of factors beyond his reasonable control, the Secretary after an opportunity for a hearing as provided by this subsection, shall issue an order affirming or modifying the abatement requirements in such Citation.(Emphasis added). 

 

This provision is obviously inconsistent with the other provisions for hearings before the Commission as contained in section 10(c) of the Act.  Certainly the Secretary would not favor being saddled with the Commission’s rules of procedure in a hearing on abatement as is suggested by the last sentence of Section 10(c).

Section 3(1) of the Act states, ‘The term ‘Secretary’ means the Secretary of Labor as distinguished from the term ‘Commission’ meaning the Occupational Safety and Health Review Commission established under the Act.’ (Section 3(2))

Thus the sixty-four dollar question is by what rule of law can a tribunal substitute ‘Commission’ for ‘Secretary.’ It would appear, unequivocally, that to do so would be an usurpation of the power of the legislative branch of the Federal government. Legislating and/or proliferating are not powers bestowed upon an adjudicatory body. Its sole function is to interpret the laws and make a judgment.

It just seems that there is no way whereby it can be said that the Congress meant Commission when there is no ambiguity in the term Secretary.

If any ambiguity attaches it must relate to the phrase ‘after an opportunity for a hearing as provided in this subsection.’ The reference is to the phrase ‘and the Commission shall afford an opportunity for a hearing (in accordance with Section 554 of Title 5, United States Code, but without regard to subsection (a)(3) of such Section).’ The Commission’s obligation is to afford a hearing upon a contest initiated within the fifteen working days of the issuance of a Citation under Section 9(a), or notification under Section 10(a) or (b) or by any employee or representative e class of cases under consideration.

The absence of power to hear and decide a cause of action cannot be waived by the parties. Moreover, jurisdiction cannot be extended by Rule. By law, Section 12(g), the Commission may make such rules as are necessary for the orderly transaction of its proceedings. Thus it may make rules of procedure but it cannot by rule assert jurisdiction over a class of cases not delegated to it by law or constitution.

Research fails to disclose a definitive decision by the Commission whereby it has concluded that the provisions of Section 10(c) confer jurisdiction upon it to hear and decide the issue presented by the subject matter in the class of cases to which the instant case belongs. Confronted with this together with the declarations of law as to the lack of jurisdiction on the matter in five cases, infra, decided by Judges of this Commission the posture of the instant case is in the nature of an enigma.

It may well be that the Congress erred in enacting the provisions of Section 10(c) and it may well be that the Commission’s conclusion as to its capacity and power in this kind of case is the answer to the riddle. At this point in time, however, it is unfortunate that either or both situations exist. In any event, in full and complete view of the entire present existing situation, this tribunal cannot rationally postulate the existence of jurisdiction of the subject matter of the instant case.

            Four able Judges of this Commission, Dern, Chalk, Gold and Worcester, have postulated in five separate cases that jurisdiction to hear and decide the class of cases to which the particular instant case belongs is lacking in in the Commission.  Further, that the Congress, for reasons unknown, placed the power and authority within the Secretary to hear, decide and render on order in this particular class of cases.  See H.K. Porter Inc. v. Secretary of Labor, OSAHRC Docket No. 1210P, CCH Employment Safety and Health Guide, vol. 2, paragraph 17128; Gindy Manufacturing Company v. Secretary of Labor OSAHRC Docket No. 5708P, CCH Employment Safety and Health Guide, Vol. 2, paragraph 17308; New Haven Foundry v. Secretary of Labor, OSAHRC Docket no. 4514P, CCH Employment Safety and Health Guide, Vol. 2, paragraph 17323; Continental Steel Corp., v. Secretary of Labor, OSAHRC Docket No. 3514P, CCH Occupational Safety and Health Guide, Vol. 2 paragraph 17325; and General Electric Co. v. Secretary of Labor, OSAHRC Docket No. 3675P, CCH Occupational Safety and Health Guide, Vol. 2, paragraph 17333.

            In this tribunal’s view jurisdiction, the power to hear and decide a class of cases, either exists or does not exist by virtue of law or constitution.  There can be no middle ground or straddling upon which it may be derived.  Therefore, at this point in time, having due regard for all that has been said or done on the issue, there is but one ultimate resolution that may be logically concluded and that is that the Congress did not, by section 10(c) of the Act, confer jurisdiction upon the Commission to hear and decide cases for abatement extensions initiated or commenced after the fifteen day limitations in Section 10(a) and (c) of the Act.

It is further observed that Congress did not enact any time limitation for initiating an action or proceeding for an abatement extension. Arguably it may be that Congress felt that if abatement was not contested as a part of the Citation then the Secretary may be the better equipped to handle the abatement issue and left the matter of timing to a reasonable time under the peculiar facts and circumstances on a case by case basis.

ORDER

In accordance with the foregoing it is hereby Ordered and Adjudged that:

The Petition for Modification of Abatement in this case be and it is hereby dismissed.

It is so ORDERED.