UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
|
SOUTHWEST FILTER COMPANY, BETHLEHEM STEEL CORPORATION, BORDERS ELECTRIC
COMPANY, INC., GRAND UNION COMPANY, HENRY CARLSON COMPANY |
OSHRC DOCKET NOS. 13139, 12633, 13944, 10813,
13691 |
Respondents. |
|
February 17, 1976
ORDER
VACATING DIRECTION FOR REVIEW
BEFORE BARNAKO, Chairman; MORAN and CLEARY,
Commissioners.
BY THE COMMISSION:
The orders for review
issued in these cases are hereby vacated for the reasons assigned in Francisco
Tower Service, BNA —— O.S.H.C. ——, CCH E.S.H.G. para. ___ (No. 4845, 1976).
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
Dated: Feb 17, 1976
MORAN, Commissioner, Dissenting:
With
this ‘order’ Messrs. Barnako and Cleary continue their illegal scheme of
depriving a duly appointed and qualified member of this Commission from
exercising his statutory right to cause decisions of Administrative Law Judges
to be reviewed. 29 U.S.C. § 661(i). They do this by adoption of this ‘Order
Vacating Direction For Review.’
Not
only does this order illegally deprive a member of this Commission of a
statutory right but it has no force or effect upon the parties to this case
since it neither affirms, modifies nor vacates the matters placed in issue by
respondents’ notices of contest. Consequently, there is no final order as to
those contested issues and they continue to pend before the Commission
undecided.
The
current posture of three of these cases (Docket Nos. 10813, 12633, and 13139)
stands as follows: Respondents were cited and penalties were proposed.
Respondents thereafter filed notices of contest. The Judges vacated the contested
matters, but their decisions were directed for review. The Commission has not
affirmed those decisions. The contested matters, therefore, are still pending.
When
duly contested, there is no requirement that an alleged violation be abated nor
can the Secretary of Labor collect any monetary penalties—or rely on this case
to prove a prior violation—until a final order is issued. 29 U.S.C. § 659(c).
I
discussed these matters at greater length, including the reasons why my
colleagues are proceeding in this unusual manner, in Secretary v. Francisco
Tower Service, OSAHRC Docket No. 4845, February 6, 1976, which I attach
hereto as Annex I and incorporate by reference herein.
[Text of Annex I follows]
MORAN,
Commissioner, Dissenting:
This order is without force
or effect since it neither affirms, modifies nor vacates the citation or
proposed penalty. Consequently, there is no final order, and the issues in
dispute in this case continue to pend before the Commission undecided. Until a
final order has issued, there is no requirement that an alleged violation be
abated nor can the Secretary of Labor collect any monetary penalties.
29
U.S.C. § 659(c) establishes the procedure for adjudicating alleged violations
of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.,
hereafter the Act) when a cited employer contests the citation or penalty
proposal, as the respondent in this case has done. Once the employer, within
the time period prescribed, ‘notifies the Secretary that he intends to
contest,’ the Commission ‘shall afford an opportunity for a hearing.’ That has
been done in this case. However, the statute goes on to provide as follows:
The Commission
shall thereafter issue an order, based on findings of fact, affirming,
modifying or vacating the Secretary’s citation or proposed penalty, or
directing other appropriate relief, and such order shall become final thirty
days after its issuance. (Emphasis supplied.)
That
has not been done in this case. No final action has been taken on the citations
or proposed penalties.
The
above-cited provision of law is the only statutory authorization for the
issuance of orders giving final disposition to a citation or proposed penalty
which has been contested in accordance with § 659. Since the respondent in this
case did contest this enforcement action under that section of law—and the
Commission has not yet acted upon the Secretary’s citation—the matters raised
by respondent’s notice of contest remain undecided.
Section
666(d) specifies that a respondent shall not be required to abate the alleged
violation until the Commission acts on the citation. It provides that the
period for correcting a violation
‘shall not begin
to run until the date of the final order of the Commission.’ (Emphasis
supplied.)
Penalties,
of course, cannot be collected by the Secretary of Labor unless he can
demonstrate that any dispute over their amount has been adjudicated in
accordance with law. Where an order such as this takes no action on the
‘Secretary’s citation or proposed penalties,’ a respondent will be legally
entitled to decline any request by the Secretary for payment. Should that
happen and the Secretary then proceed in court to collect payment he would be
unable to prevail since he could not show any disposition of the ‘Secretary’s
citation or proposed penalties.’
Another
section of the Act is even more specific in this regard. § 660(b) allows the
Secretary of Labor to obtain enforcement of any ‘final order’ of the Commission
if he files a petition therefor in the appropriate court of appeals provided
that no adversely affected party has filed a petition for review within 60 days
of the Commission’s § 659(c) order. This section goes on to provide that ‘the
Commission’s finding of fact and order shall be conclusive in connection with
any [such] petition for enforcement.’ Here, since the Commission has made no
findings of fact itself—and has not adopted the Judge’s findings of fact—no
petition for enforcement would lie even if this ‘Order Vacating Direction for
Review’ could qualify as a § 659(c) final order.
Nor
is any appeal of this ‘order’ permitted. The only Commission order which can be
appealed is
‘. . . an order of
the Commission issued under subsection (c) of section 659 . . ..’ 29 U.S.C. §
660(a).
Furthermore,
in appeals as well as enforcement petitions, the Act provides that there must
be Commission findings of fact. In this regard § 660(a) provides that
‘The findings of
the Commission with respect to questions of fact, if supported by substantial
evidence on the record considered as a whole, shall be conclusive.’
Messrs.
Barnako and Cleary have here declined to make any findings with respect to
questions of fact—nor have they adopted the findings with respect to questions
of fact which were made by the Judge below. Consequently, this ‘Order Vacating
Direction for Review’ prevents both the Secretary of Labor from filing an
appeal or a petition for enforcement and any other ‘adversely affected or
aggrieved’ party from obtaining a review in the Court of Appeals because of two
reasons: (1) there is no § 659(c) order, and (2) there are no findings of fact.
A
case for disposition by this Commission arises when a cited employer contests
the complainant’s enforcement action within the time prescribed. 29 U.S.C. §
659. A trial is held on the issues raised by the parties at a subsequent date
before one of this Commission’s Administrative Law Judges (a position which, at
the time this statute was enacted, was known as ‘hearing examiner’). 29 U.S.C.
§ 661(i). That section of the law then goes on to provide that:
‘The report of the
hearing examiner shall become the final order of the Commission within thirty
days after such report . . . unless within such period any Commission member
has directed that such report shall be reviewed by the Commission.’ (Emphasis
supplied.)
This
is the only statutory provision giving finality to an Administrative Law
Judge’s decision. [14]
Such a decision cannot ‘become the final order of the Commission’ if any
Commission member directs that ‘such report shall be reviewed by the
Commission’ within the time prescribed. See Secretary v. Gurney Industries,
Inc., 6 OSAHRC 634, 637–641 (1973).
There
is no dispute over the fact that one member of the Commission, acting pursuant
to the above-stated statutory provision, directed that the Commission review
the Judge’s decision in this case. The Commission, however, has failed to act
upon that decision. It has not reviewed the Judge’s report. This ‘order’ does
not address itself to the Judge’s findings in any way. It simply purports to
vacate the direction for review. Furthermore, the majority neither asserts,
suggests, nor implies that the ‘order’ herewith entered has the effect of
adopting the decision below.
The
full text of the direction for review is stated in the Commission order except
for the first paragraph thereof which provides the following:
‘Pursuant to the
authority contained in 29 U.S.C. § 661(i), the undersigned hereby directs
review of the decision of the Judge in the above-entitled case.’
My
colleagues, in effect, find that this direction for review is ineffective
because of vagueness. It does not, they say, present an ‘issue’ for
adjudication by the Commission under the Act. A simple reading of the
above-quoted first paragraph thereof, however, disproves that assertion. Review
is directed ‘of the decision of the Judge.’ The direction puts the Judge’s
decision in issue. It is not limited to any portion thereof, nor indeed is
there any statute, regulation, rule, practice or decision which requires a member
of this Commission to specify particular ‘issues’ in such directions or to
prevent a member from directing review of the entire decision of the Judge if
that be his disposition. However, even if the direction for review specified
particular ‘issues,’ the Commission’s review of the Judge’s decision in such a
case would not be limited to the issues so specified in the direction for
review. This point was made clear in Accu-namics, Inc. v. OSAHRC, 515 F.2d
828, 834 (5th Cir. 1975).[15]
The
action taken by Messrs. Barnako and Cleary in this case is nothing less than an
unabashed attempt to deprive a member of this Commission of a statutory right
to have a particular decision reviewed.
Congress
created this agency for the single purpose of ‘carrying out adjudicatory
functions under the Act.’ 29 U.S.C. § 651(b)(3). It provided that it should
operate as a bi-level tribunal consisting of Administrative Law Judges who
preside at trials and make the initial decisions, with review thereof by the
three members of the Commission sitting as a panel to review such decisions and
issue final orders. 29 U.S.C. §§ 659(c), 661(a), 661(d), and 661(i). It further
provided that each of the three members
‘. . . shall be
appointed by the President, by and with the advice and consent of the Senate,
from among persons who by reason of training, education, or experience are
qualified to carry out the functions of the Commission under this Act.’ 29
U.S.C. § 661(a).
§
661(b) provides that the ‘terms of members of the Commission shall be six years
. . ..’
The
Act makes only one exception to the provision that the Commission members shall
operate as a collegial tribunal in carrying out its adjudicatory functions
under the Act. In § 661(i) it clearly grants to ‘any’ single member the power
to require that an Administrative Law Judge’s decision shall be reviewed by the
tribunal.
With
this order, however, Messrs. Barnako and Cleary have combined to deprive a duly
appointed and qualified member of the Commission of this statutory grant of
authority. They have abrogated to themselves the authority which the Act gave
to someone else. They have done this to impede the free flow of ideas which
inevitably springs from the collegial process. Nevertheless, even if their
purpose could be truthfully regarded as sound public policy, it could not be
legally accomplished because rulings articulated in Commission decisions—no
matter how beneficial—cannot rise beyond the Congressional delegation in the
enabling legislation. The fixing of a definite power in a statute—that of an
individual member to cause the Judge’s decision to be reviewed by the members
of the Commission—is enough to establish the legislative intent that the power
is not to be curtailed or restricted. What Congress has given cannot be taken
away by members of this Commission. The Supreme Court stated it this way in Humphrey’s
Executor v. U. S., 295 U.S. 602 (1935):
‘The
sound application of a principle which makes one master in his own house
precludes him from imposing his control in the house of another who is master
there.’
In
the Justinian Code, this rule was expressed more succinctly: ‘Delegata potestas
non potest delegari,’ which Henry Campbell Black translates as ‘a delegated
power cannot be delegated.’[16] This long-standing rule
of law, however, has not deterred Mr. Barnako and Mr. Cleary from delegating to
themselves what Congress has delegated to me.
Congress
deliberately chose to establish this Commission with three members, and the
President, by his selection of persons of diverse backgrounds to constitute the
original membership, fully implemented that collegial purpose.[17] It was generally assumed
that the tribunal would be truly impartial if its decisions included input from
persons whose past experience has been in the business and organized labor
communities with an additional member who came from neither—much in the same
manner as a tripartite labor arbitration panel. It was not intended—not even
contemplated—that two of the members would combine to impose a gag rule on the
remaining member—thereby frustrating the purpose of having three different
in-puts into all Commission decisions. Certainly from the language of the Act
cited supra, the establishment of a three-member tribunal, and the President’s
action in constituting it as he did, it can fairly be concluded that each
member was to be free to exercise his individual judgment without the leave or
hindrance of any other member or any combination of other members.
I
asserted earlier that the reason for this deprivation of my statutory right to
cause the Commission to review a decision of an Administrative Law Judge was to
‘impede the free flow of ideas.’ At this point I will undertake to relate some
reasons which lead me to this conclusion.
The
action taken by my colleagues in this case is a continuation of a policy which
began shortly after Mr. Barnako took office on August 1, 1975. It has been
detailed in the public press. See, for example, The Washington Star, November
27, 1975 article entitled ‘Press Releases on Failures Helped Demote Chief of
Health Unit,’ a copy of which is attached hereto as Appendix A. The matter was
summarized by the St. Louis Labor Tribune in a January 22, 1976 editorial
entitled ‘(Don’t) Let The Sunshine In’ which is quoted herewith without
elaboration:
‘An OSHA
official’s attempts to let a little sunshine in on his record led to his
replacement as captain of the Administration’s Review Commission and eventually
to virtual exclusion from the business conducted by his fellow commissioners.
Robert
D. Moran is still on the team (his term runs until 1977), but in the meantime
he isn’t even invited into the huddles anymore.
Appointed
first chairman of the commission in April 1971, Moran established a practice of
publishing news releases (about five a week) on the wins and losses of his
Review Commission on ‘significant cases.’
This
pristine innocence was not acceptable to his bosses at the Labor Department who
cautioned him to keep his mouth shut in late ‘73, nor to the superchief over at
the White House, who last August 5, replaced him as Chairman of the Commission.
He
was replaced by a man called Frank R. Barnako, a lawyer for Bethlehem Steel,
who immediately discontinued the news releases and reduced the dissemination of
information about the Commission’s activities to a bare minimum.
But,
Moran, his mind sated with the ideals of the ‘Freedom of Information Act,’
stubbornly persisted in his attempts to keep the public informed on the
disposition of cases which came before the Review Commission.
This,
in turn, led Barnako, et. al., to illegally exclude Moran from the
deliberations of the Commission and to conduct business without permitting him
to participate. Moran filed suit citing 16 cases in which the Commission denied
a review of an administrative law judge’s decision on an OSHA complaint without
informing Moran of its action.
Foul,
cried Moran and marched off to the United States District Court in Washington,
D.C. declaring his rights as a public official have been abrogated and
demanding that they be restored by the courts and appropriate damages be
assessed against the defendants.
The Labor Tribune applauds Robert D. Moran, a man who
won’t be muffled, and wishes him well in his litigation.’
The
Hartford Courant took a somewhat similar view in a December 4, 1975 editorial
‘OSHA Needs More Light’ quoted in part as follows:[18]
‘When it enacted
the Occupational Safety and Health Act of 1970, Congress enacted a law with
which it is uncommonly difficult to comply. The OSHA hierarchy is making it
more difficult, even as Congress tries to correct its mistakes.
* * * Frank R.
Barnako, newly-appointed chairman of the OSHA Review Commission, has directed
that commission decisions will no longer be published either as news releases
or formal reports—both have been done in the past.
The Review
Commission is the ‘supreme court’ of a vast quasi-judicial system established
to interpret OSHA regulations. Publication of its precedent-setting decisions,
usually in business and technical journals, can offer useful guidance to
confused employers.
Mr. Barnako should
reverse his no-news decision . . ..’
A
December 4, 1975, editorial in the Honolulu Star-Bulletin entitled ‘Too Much
Openness’ concluded with this statement:
‘To most people,
the OSHRC decisions will hardly make exciting reading, but they ought to be
available to those who may be interested.’
The
fact that this policy of impeding the free flow of ideas is directed only at
the views of one member in particular can be amply demonstrated by the
unresolved cases on the dockets of this Commission. During the period June 1,
1974, through November 30, 1975, there were directions for review filed by the
three members in a total of 593 cases (most of them by Mr. Cleary). In 268 of
these there was no petition for review by any party.14
In none of these cases (except those directions issued by me) has either Mr.
Barnako or Mr. Cleary proposed an order vacating the direction for review. Nor
has either of them—with respect to such directions for review—taken the
position that they do here:
‘If there is some
appropriate reason for directing review sua sponte, the reason should be stated
so the Commission may benefit from the parties’ briefs on the issue.’
With
respect to the instant case, the majority opinion states that ‘. . . it has not
been, nor is it now, before us on its merits.’ But, by their double-standard
reasoning, all the directions for review filed by Mr. Cleary and former
Commissioner VanNamee where no party has petitioned for review are before us on
their merits.
It
would be impossible to list the text of all the review-directed cases currently
pending before the Commission. However three of those filed by Mr. Cleary in
cases where no petition for review was filed by any party are herewith noted.
In Secretary v. Alfred S. Austin Construction Co., OSAHRC Docket No.
4809, and Secretary v. Fisk Oesco Joint Venture, OSAHRC Docket No. 4654,
the direction for review asked only ‘[w]hether the Administrative Law Judge
committed reversible error.’ In Secretary v. John T. Clark & Son of
Boston, Inc., OSAHRC Docket No. 10554, the direction for review asked only
whether the Administrative Law Judge erred in vacating the citation alleging
non-compliance with the standard at 29 C.F.R. 1918.105(a).’ There is, of
course, no difference whatsoever between a sua sponte direction for review
questioning whether the judge erred in his decision and one like that here
under consideration which simply directed the judge’s decision for review so
that its findings of fact and conclusions of law could be reviewed by the
members.
Another
indication that this action of Messrs. Barnako and Cleary is part of a
continuing attempt to prevent the views of this member from being included in
Commission decisions is the 16 previous cases in which they issued an ‘Order
Vacating Direction for Review.’ As mentioned in The Washington Star article
(attached as an exhibit hereto) and the above-quoted editorial in the St. Louis
Labor Tribune, all 16 of those ‘orders’ were issued by my colleagues without
any notice to me that they were under consideration. After they had been typed,
and signed by my fellow Commission members, they were not circulated to me
prior to their release to the parties so that my views could be appended
thereto—a total departure from the practice which has been in effect for every
decision ever issued by this Commission prior to the day Mr. Barnako became the
Commission’s Chairman.15 It is
my belief that a similar ‘procedure’ would have been employed in many
additional cases were it not for my initiation on November 25, 1975—the day I
learned of these ‘orders’—of a Petition in the U.S. District Court for the
District of Columbia to put a stop to it. This matter is also mentioned in the
newspaper articles referred to supra.
The
very fact that the majority is proceeding in this case in this most unusual
manner—vacating the direction for review rather than affirming the decision of
the judge—is additional evidence that their purpose is to prevent my views on
the issues arising in this case from being included in the Commission’s
decision. They apparently would prefer to have no decision—to have this and
similar cases pend in limbo for infinity—rather than to have a decision in
which I could participate.
I
note the following language in the majority opinion:
‘. . . if
Commissioner Moran’s orders for review were permitted to stand, it would act as
a stay of abatement and, in those instances where the Secretary’s citation has
been affirmed, would permit a hazardous condition to continue unabated—a result
clearly contrary to the purposes of the Act.’
As
noted at the outset of this dissenting opinion, this ‘Order Vacating Direction
for Review’ does exactly what they say would happen if my ‘order for review
were permitted to stand.’ But, let’s further examine this quoted assertion!
Where are those ‘instances where the Secretary’s citation has been affirmed?’
Who has ‘affirmed’ them? Surely the Commission members have not done so. If it
was their disposition to affirm, they would have said so. On the other hand,
the Act makes it crystal clear that a Judge’s decision could not affirm the
Secretary’s citation if—as has happened in the case now before us—a Commission
member has directed review thereof within thirty days of its issuance. 29
U.S.C. § 661(i). So, in their desperate attempt to prevent one member of the
Commission from exercising his statutory rights, Messrs. Barnako and Cleary
have created the very monster they claim will result from my direction for
review—they ‘permit a hazardous condition to continue unabated.’
Of
course there is a very simple and quick way to avoid this from happening. They
can adopt a one-sentence order affirming the decision of the Administrative Law
Judge. This would avoid their concern about ‘an unnecessary delay of the proceedings’
and indeed could be done quite quickly and simply—a rubber stamp would serve
this purpose rather nicely. Certainly they will concede that this procedure I
suggest could be accomplished much more rapidly than the adoption of this
‘Order Vacating Direction for Review’ and it would avoid all the problems I’ve
mentioned in this opinion which result from the absence of a final disposition
of the merits of this case.
It
would be remiss of me, however, if I failed to note the hollow ring that
surrounds my colleagues’ assertion that they will ‘continue’ to reject any
‘unnecessary delay of the proceedings.’16
I had occasion to respond to a question on this Commission’s backlog which was
addressed to me during hearings conducted by the Senate Committee on Appropriations
on June 25, 1974. I answered with the following words:
‘The members of
the Commission have about 400 undecided cases backed up. The reason for this is
that the members are not deciding cases expeditiously and are directing cases
for review at about three times their rate of disposition. During the first
four months of 1974, the Commission members decided a total of 39 cases. During
that same period they directed 140 cases for review.
At
the time former Commissioner Alan Burch’s term expired in April 1973, there was
a backlog of 228 undecided cases. His replacement announced that his No. 1
priority was a reduction in that backlog. However, in April 1974 there had been
an increase in the backlog of more than 60 percent—making a total of 367 undecided
cases. The number has gone up since then.
At
the time Commissioner Cleary announced that backlog-reduction was his top
priority. I asked him to join me in a rule which would automatically affirm a
Judge’s decision if it had been called for review but had remained before the
Commission for three months or more without action. He declined. I cannot get
either of the other members to put such a rule into effect or set any time
limit for action by the members of the Commission. Consequently, the backlog continues
to grow and cases are sitting before us for one and a half to two years without
final decision.
In all honesty, I
see no prospect for reducing this backlog during fiscal year 1975 unless there
are membership or legislative changes. On the contrary, I fully expect to see
it increase. At this time next year it will exceed 600 cases if the existing
situation continues.’ Senate Hearings Before the Committee on Appropriations,
Departments of Labor, Health, Education, and Welfare, and Related Agencies Appropriations,
H.R. 15580, 93d Congress, 2d Session, at pages 4571–4572.
There
was, of course, a subsequent membership change when Mr. Barnako became a member
in place of Mr. Van Namee whose term expired on April 27, 1975. At the time Mr.
Barnako was sworn into office on August 1, 1975, the backlog stood at 454
cases. Five months later—on December 31, 1975—it had grown to 540 cases. My
first act upon swearing him into office was to hand him a written proposal that
he join me in a rules change which would set a time limit on actions by
Commission members on review-directed cases. Mr. Cleary was given a copy of
that proposal on the same day. No response to that proposal has yet been
made—nor has any counter proposal been offered.
I
submit that the above discussion indicates how quick my colleagues have been in
the recent past to reject the ‘unnecessary delay of the proceedings’ of this
Commission.
Candor
enjoins me to concede that part of the reason for the recent increase in the
backlog results from the high number of Judge’s decisions which I have directed
for review in the past few months. It is obvious from the comments in the
majority opinion that my colleagues do not agree with me that many of those
cases ought to be reviewed by the Commission. They are, of course, perfectly
within their rights in taking this view. However, that being so, there is no
reason why these cases should remain in the backlog. They could affirm any
Judge’s decision I directed for review within thirty days of my action.17 Neither these cases—nor any other
cases—should be permitted to languish interminably without decision. I continue
to urge the adoption of a rule of procedure setting a time-limit on actions by
this Commission on review-directed cases.18
There
are other matters in the majority opinion which also merit further discussion.
After
delivering their lecture on the evils of sua sponte directions for review,
Messrs. Barnako and Cleary later state:
‘. . . our action
here should not be interpreted as barring sua sponte orders of review by
members of the Commission.’
The
clear import of this is that when Mr. Moran directs review in such a manner it
is ‘improvident’ and ‘detrimental’ but when Mr. Barnako and Mr. Cleary does so,
it is ‘in the public interest.’ Somehow this brings to mind H. L. Mencken’s
definition of a Judge as ‘a law student who marks his own examination papers.’
The
majority opinion also contains a rather amusing attempt at ‘bootstrapping’ in
the discussion equating directions for review with a writ of certiorari. They
quote one ‘commentator’ (William Fauver, a Department of Interior
Administrative Law Judge) as noting that petitions (not directions) for
‘discretionary review’ are ‘quite similar’ to the procedure at law known as
certiorari. They then go on—discarding the ‘quite similar’ nomenclature in the
process—to find that since the direction for review does not meet the criteria
for issuance of a writ of certiorari, it is ‘not authorized by law.’ This kind
of ‘logic’ could equally be used to prove that Messrs. Barnako and Cleary are
really justices of the United States Supreme Court or members of the Holy
Trinity.
However, it is clear that William Fauver is neither an
authority on certiorari nor does he pretend to be and not even he—or anyone
else—said that the statutory right of a member of this Commission to cause a
decision by one of this agency’s Administrative Law Judges to be reviewed by
this three-member tribunal was conditioned upon the presence of the same
criteria as that which constrains a higher court in the exercise of its power
to cause a lower court to send up its decisions for examination. If anyone were
to attempt to establish this principle I submit that they would find it
impossible to equate with the common law writ of certiorari what the majority
in this case concedes to be a ‘short clause, fewer than twenty words . . .
[containing] the only mention of this statutory power in the entire Act.’
I
must confess to being mystified by the reference in the majority opinion to
‘section 8(a) of the APA’ and the assertion that the direction for review
issued in this case ‘is contrary to the intent’ of that section. The
Administrative Procedure Act was codified as part of Title 5, United States
Code, some ten years ago (see public law 89–554, 80 Stat. 378) so the provision
of law to which reference is made is 5 U.S.C. § 557(b). I took cognizance of
this provision in note 11 supra and the accompanying text. Briefly, this
provision of law merely provides that when a direction for review of a Judge’s
initial decision has been issued the Commission then has the same power to act
as did the Judge—except where the authority ordering the review specifically
limits the scope thereof. The exception, of course, has no application in the
matter now before us because the entire decision below was directed to be
reviewed.
The
concluding portion of the majority opinion in this case contains another
instance where Messrs. Barnako and Cleary assume power never given to them. I
quote them as follows:
‘Indeed, the
Courts have kept us mindful of our responsibility in the public interest to
provide ‘active and affirmative protection’ to the working men and women of the
nation and to perform a policy-making function in the application of the Act as
intended by Congress. Brennan v. O.S.H.R.C. and John J. Gordon Co., 492
F.2d 1027, 1032 (2d Cir. 1974); Brennan v. Gilles & Cotting, Inc. and
O.S.H.R.C., 504 F.2d 1255, 1262 (4th Cir. 1974).’
Neither
of these cases support the broad assertion for which they are cited. They don’t
even come close. In the latter-cited case, at page 1262, the Court noted that
the Secretary of Labor was seeking to overturn a ruling of this Commission that
a prime contractor was not jointly liable with one of its subcontractors for a
safety infraction. The Secretary argued that the Commission had no right to
determine this issue for the issue concerned only enforcement-policy on joint
contractor liability, a matter which ‘should be committed to his discretion,
not that of the Commission.’ The Court rejected that argument with the
following statement:
‘To accept the
Secretary’s position would mean that the Commission would be little more than a
specialized jury charged only with fact finding. But, as we read the statute,
the Commission was designed to have a policy role and its discretion therefore
includes some questions of law.’
‘. . . Congress
intended that this agency would have the normal complement of adjudicatory
powers possessed by traditional administrative agencies . . ..’
There is nothing in this
case which supports the quotation from the Barnako-Cleary opinion for which it
is cited.
In
the other cited authority, the Gordon case, the Court was concerned with
a decision of this Commission which barred an Administrative Law Judge from
reopening a hearing on his own motion in order to take evidence on jurisdiction
under the Commerce Clause. The Court reversed the Commission and held that the
Judge acted properly. It then added the following comments concerning the reopening
action of the Judge (at 1032):
‘The action of the
Administrative Law Judge was in line with Judge Hays’ well-known
admonition to the Federal Power Commission that its role [the FPC’s
role] as representative of the public interest . . ..’ (Emphasis supplied.)
The
Court then quotes what Judge Hays said about the Federal Power Commission in Scenic
Hudson Preservation Conf. v. F.P.C., 354 F.2d 608, 620 (2d Cir., 1965). Picking
up where I left off in the Gordon case, the Court continues that the
Federal Power Commission’s role as representative of the public interest
‘. . . does not
permit it to act as an umpire blandly calling balls and strikes for adversaries
appearing before it; the right of the public must receive active and
affirmative protection at the hands of the [Federal Power] Commission.’
Surely
the majority is not claiming that this Commission which was given only a single
function to perform (‘carrying out adjudicatory functions under the Act’)19 has the broad scope of regulatory
powers Congress granted to the Federal Power Commission under the Federal Power
Act20 and the Natural Gas Act21 or that the quoted reference in the
Gordon case transposed the authority of this Commission from an adjudicatory
agency into a protector of the public interest. The Ninth Circuit specifically
rejected such a result in Dale M. Madden Construction Co., Inc. v. Hodgson22 with these words:
‘Unlike the NLRB
and the FTC, [the Occupational Safety and Health Review Commission] has neither
prosecution nor enforcement powers. Those have been exclusively delegated to
the Secretary [of Labor].
Policy
making is arguably a by-product of the Commission’s adjudication. But the Act
imposes policy-making responsibility upon the Secretary, not the Commission . .
.. The administrative procedure limits the Commission to adjudication.’
I submit that the foregoing discussion demonstrates that
the majority is once again resorting to ‘bootstrapping’ in an attempt to
arrogate to itself policy-making powers which it simply does not have.
I
conclude this opinion (and I apologize for its length but ask indulgence on the
grounds that I am being divested herein of a very basic statutory power) with
the observation that Commission members—just as all other persons—intend the
natural consequences of their acts. Obviously Messrs. Barnako and Cleary have
no intention in this case of affirming, modifying or vacating the decision
which was rendered by the Administrative Law Judge. Surely they would have said
so if that was their intention. Their failure to take any action on the Judge’s
decision—or on the Secretary’s citation or penalty proposal—is what is causing
the real delay in the enforcement of this Act. This ‘order’ is clearly in
error.
APPENDIX
A
Press
Releases on Failures Helped Demote Chief of Health Unit
By
David Pike
Washington
Star Staff Writer
Robert
D. Moran was reasonably happy and secure for the first several years of being
chairman of the three-member Occupational Safety and Health Review Commission,
after being appointed when it came into existence in April 1971.
Moran,
a lawyer with experience in. labor matters both in the private sector and with
the government, had a six-year presidential appointment and a salary in the
high-$30,000 range with the commission, which serves as the “court system” for
the Labor Department’s Occupational Health and Safety Administration (OSHA).
But
then in late 1973, it started to become apparent “that the Labor Department
didn’t like me,” Moran said yesterday. And the situation has become so bad
lately, Moran charged in a suit filed this week in U.S. District Court, that
the two other commissioners and the body’s executive secretary have recently
been making decisions without even telling him.
MORAN
SAID yesterday that the situation began to deteriorate when he was called in
late 1973 by an undersecretary to then Labor Secretary Peter Brennan and told
that “the boss doesn’t like the press releases” and that “heads could roll in
such a situation”
At
issue were releases, as many as five a week, that reported decisions by the
commission’s 42 hearing judges and three commissioners on “significant” cases
involving alleged safety violations by employers.
The
releases reported the outcome, regardless of whether OSHA had won or lost the
case, and Moran said that OSHA was losing about half the cases and didn’t like,
the publicity. Headlines on releases, such as “Labor Department Loses Attempt
to Enforce Safety Standards,” probably didn’t help, Moran recalled, but he
persisted anyway.
Then
early last year, Moran said, he was called by a personnel aide at the White
House and told that he shouldn’t offend the bosses at Labor and that he “was
putting himself in a bad position.”
“But
I said that I felt it was in the public interest to report what we were doing,
to let the public, the trade associations and the unions know about the law in
this area,” Moran said.
BECAUSE
HE continued to issue the press releases, and because of some speeches he made
to trade groups, Moran said, “I think I was slated to be dumped as chairman in
the summer of 1974, but then President (Richard M.) Nixon resigned and things
were held up.”
Then
last summer, one of the other commissioners resigned and Frank R. Barnako, a
lawyer for Bethlehem Steel, was appointed by President Ford to fill the slot.
“He was sworn in by me on Aug. 1, and I went off to the American Bar
Association convention in Montreal,” Moran said.
While
in Montreal, Moran was informed that Ford had designated Baranko to be the
commission chairman and that he was now just a commissioner. “I guess I was
sort of Schlesingered out of my job,” Moran said with a chuckle, referring to
the recent shakeup at the Defense Department.
On his first day as chairman, Baranko eliminated the
frequent and detailed press releases, Moran said, and now the commission merely
offers a brief mention of selected cases about every three weeks.
Baranko
also discontinued the official report of the commission’s activities that was
printed by the Government Printing Office, and the reporting is now left to the
private journals that cover the commission, Moran said. He added that this
procedure concerned him, “because under the Freedom of Information Act, if you
don’t publish a decision, it can’t be used as a precedent in other cases.”
THE
NEW situation did not deter Moran, and it led to the suit he filed this week.
“To circumvent the procedure, I began using my authority as a commissioner to
order a review of a hearing judge’s decision, because decisions of the
commission get published,” Moran said.
Most
of the thousands of cases sent to the commission are resolved by the judges,
whose decisions are final unless a commission review is ordered within 30 days.
Moran said that once the commission reviews a ruling, he also has the
opportunity to include his own comments in the review and in the published
order.
Cited
in his suit is a case in which he ordered a review of a judge’s ruling and in
which, Moran charged, the other two commissioners and the body’s executive
secretary vacated his order “without his knowledge.”
The
suit charges that since Aug. 5, when Baranko became chairman, there have been
“at least 15 other cases” in which Moran has been overruled by the others
without telling him. The suit added that “plaintiff (Moran) believes that there
may be more cases which have been disposed of in the same manner ... but he has
been unable to identify the same because of efforts by the defendants to keep
such information from plaintiff.”
Named
as defendants are Branako, Commissioner Timothy F. Cleary and Executive
Secretary William S. McLaughlin. Baranko was out of town late yesterday and
could not be reached for comment, Inquiries to the other defendants were
handled by the commission’s public information office, which said there would
be no comment “because it would not, be proper in view of the pending
litigation.”
AT
A HEARING earlier yesterday before U.S. District Judge June L. Green, on a
request by Moran for an emergency order blocking further such alleged abuses of
his review authority, Moran sat at one table, with the defendants and their
lawyers seated sternly at another. But any possible fireworks were avoided when
Asst. U.S. Attorney Gil Zimmerman, representing the defendants, suggested a
written agreement pending a full hearing on Jan. 7.
The
agreement said that Moran will be informed of all commission actions and will
be given an opportunity to participate in all decisions pending the hearing.
Moran,
44, who lives in Northwest Washington, said later that the situation was really
quite amicable. “They just attempted to get away with something, and I’m
showing them that I have some recourse,” Moran said.
He
summed up the situation by stating: “It’s a power play, I think. It’s an
attempt to circumvent the public display of our views, to push through
one-sided opinions without public scrutiny and news releases.”
Asked
about his future on the commission in view of all the trouble, Moran replied:
“I’m fine. I’m here until April 27, 1977. I don’t intend to stay one day
longer, and I never intended to stay beyond the six years. I guess that’s why
I’ve been so independent while I’ve been here.”
[14]There is a parallel provision in the Administrative Procedure Act. 5 U.S.C. § 557(b) provides, in part, that ‘. . . the presiding employee . . . shall initially decide the case . . .. When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless where is . . . review on motion of the agency within time provided by rule.’ (Emphasis supplied.) NB: Numbering starts at 10 in original.
[15] The pertinent APA
provision is 5 U.S.C. § 557(b):
‘On . . . review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule.’
[16] Black’s Law Dictionary 512 (rev.
4th ed. 1968).
[17] A March 19, 1971
announcement from the Office of the White House Press Secretary included the
following:
‘The President
today announced his intention to nominate Robert D. Moran, James F. Van Namee,
and Alan F. Burch to be members of the Occupational Safety and Health Review
Commission . . ..’
The announcement
went on to describe these nominees in these terms:
Moran—‘An attorney
and labor arbitrator’
Van
Namee—‘Administrator of Accident Prevention for the Westinghouse Electric
Corporation in Pittsburgh since 1961’
Burch—‘Director of
the Department of Safety and Accident Prevention of the International Union of
Operating Engineers for the past six years’
During the joint
hearing conducted by the Senate Labor and Public Welfare Committee on their
confirmation as members of the Commission reference was made to Van Namee as
‘representing management’ and Burch as ‘representing labor.’
13a The full text of
this editorial appears at page S.673 of the Congressional Record for January
28, 1976 with accompanying comments by Senator Lowell Weicker, quoted partially
as follows:
‘. . . the
decision of the Occupational Safety and Health Review Commission to cease
publication of their rulings . . . cannot but adversely effect the fair
administration of the law.’
14 In excess of 45% of all directions for review were issued in cases where no party petitioned for review. Contrast this actual experience with the assertion in the majority opinion that directions for review are ‘largely’ in response to petitions for discretionary review filed by the parties.
15 In order to
insure that I would be kept in the dark about the issuance of these orders a
written notice had to be given to the Executive Secretary from Mr. Barnako (who
is his immediate superior) because the Executive Secretary would not otherwise
have mailed the orders to the parties until he saw that all three members had
participated in these decisions. That written notice specified that I was not
to be allowed to participate in those 16 decisions.
16 In this
connection see my dissenting opinion in Secretary v. Trustees of Penn Central Transport
Co., OSAHRC Docket No. 5796, December 22, 1975 for a specific instance where a
Commission member delayed the issuance of a decision for reasons totally
unrelated to the merits of the case under consideration.
17 When a Judge’s decision is directed for review the Administrative Procedure Act requires that parties to the case be given a ‘reasonable opportunity’ to submit briefs, exceptions, and proposed findings and conclusions to the Commission members before the members make their decision. 5 U.S.C. § 557(c).
18 If either Mr. Cleary or Mr. Barnako wishes to add meaning to the lip-service they pay to the need for ‘speed of adjudication’ (see their citations to Senator Javits’ comments and to 5 U.S.C. § 555(b) in their majority opinion in this case), they could do so by joining me in setting a deadline for the resolution of all review-directed cases. Currently, the average time for disposition of review-directed cases exceeds two years from the date an employer contests a citation to the date of the § 659(c) final order. It is rapidly creeping toward the three-year mark.
19 29 U.S.C. § 651(b)(5)
20 16 U.S.C. §§ 791a–825r
21
15
U.S.C. §§ 717–717w
22
502
F.2d 278, 279–280 (9th Cir. 1974)