UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
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SECRETARY OF LABOR, |
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Complainant, |
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v. |
OSHRC DOCKET NO. 11552 |
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TEXAS WINDOW CLEANING COMPANY,
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Respondent. |
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February 17, 1976
ORDER
VACATING DIRECTION FOR REVIEW
BEFORE
BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
BY
THE COMMISSION:
The order for review issued in this
case is 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 respondent’s notice of contest.
Consequently, there is no final order as to those contested issues and they continue
to pend before the Commission undecided.
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. [1] 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).[2]
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.’[3] 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.[4] 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:[5]
‘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.”
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC DOCKET NO. 11552 |
|
TEXAS WINDOW CLEANING COMPANY,
|
|
|
Respondent. |
|
DECISION AND ORDER
APPEARANCES:
Ms. Jane A. Matheson, U. S. Department of Labor, Solicitor’s Office,
555 Griffin Square,
Suite 707, Dallas, Texas 75202,
Attorney for Complainant
Lawrence H. Clore, Esq., c/o Fulbright & Jaworski,
Bank of the Southwest Building, Houston, Texas 77002,
Attorney for the Respondent
Martin, Judge:
This is a proceeding brought pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, (29 USC 651 et seq.), hereinafter referred to as the Act. Respondent seeks review of a citation for an alleged serious violation issued on December 13, 1974, and also seeks review with reference to the notification of proposed penalty requesting a civil penalty of $500.00 for the alleged violation.
The aforementioned citation and notification of proposed penalty were issued as a result of an inspection conducted on December 12, 1974, at respondent’s workplace at the Memorial Hospital, 1010 Louisiana Street, Houston, Texas, at which location respondent’s employees were engaged in cleaning the windows.
`The citation alleged that on December 12, 1974, respondent violated section 29 CFR 1910.132(a) and the description of the alleged serious violation is as follows:
‘Personal protective equipment was not used where necessary by reason of hazards encountered in a manner capable of causing injury or impairment.
Employees cleaning windows on the Louisiana Street side of the Memorial Hospital building, standing on window ledges, five, six, seven, eight, and ninth floor levels not using safety belts. Employees using rope to descend from the ninth floor roof level to windows below.’
The aforementioned standard provides as follows:
‘Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazard of processes or environment, chemical hazards, radio-logical hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.’
Respondent, through his attorney, filed a notice of contest with the complainant’s Area Director in Houston, Texas, advising of his desire to contest the aforementioned citation and notification of proposed penalty. Following the filing of a formal complaint which was answered by respondent’s counsel, this matter was scheduled for hearing in Houston, Texas, on March 21, 1975, at which time complainant was represented by Ms. Jane A. Matheson, of the Regional Solicitor’s office, Dallas, Texas, and respondent was represented by Lawrence H. Clore, Esq., Attorney at Law, Houston, Texas. No additional parties desired to participate in this proceeding.
In the complaint filed herein, respondent was alleged to have violated the provisions of section 5(a)(1) of the Act on or about December 12, 1974, in that he failed to furnish his employees a place of employment free from a recognized hazard that was likely to cause death or serious physical harm to said employees. The complaint amended item 1 of the citation so as to allege a violation of section 5(a)(1) in place of section 29 CFR 1910.132(a). The reason assigned for this amendment was to more accurately describe the nature of the alleged violation and avoid confusion with various types of personal protective equipment as described in section 29 CFR 1910.132(a). The citation, as amended, describes the alleged violation as follows:
‘Personal protective equipment such as life lines and safety belts were not used where a hazard of falling which was likely to cause death or serious physical harm was present.
Employees cleaning windows on the Louisiana Street side of the Memorial Hospital building stood on window ledges at fifth, sixth, seventh, eighth, and ninth floor levels without the use of personal protective equipment.’
The only issues involved in this case are whether respondent violated section 5(a)(1) of the Act, commonly referred to as the general duty clause, whether the same was a serious violation within the purview of section 17(k) of the Act, and what penalty, if any, would be appropriate to assess in the event a violation has been established.
At the outset of the hearing it was stipulated that two of respondent’s employees, Jones and Gregory, were washing windows on the east side (Louisiana Street) of Memorial Hospital, Houston, Texas, on the fifth, sixth, seventh, eighth, and ninth floors; that they descended from the top floor by means of 3/4 inch rope and used no safety devices while window cleaning and while standing on a ledge about 20 inches wide; that the two employees are experienced window washers and trained in safe window washing procedures; that the usual procedure for cleaning windows on the east side of the hospital is safe and would not constitute a violation of the Act; that the windows on the east side of said hospital did not open easily and the two employees decided not to clean them using the usual procedures; that said employees had in their possession equipment that would have allowed them to clean the east windows in an alternate safe manner; that said equipment in possession of the two employees had been used by them to safely clean all the windows at the hospital with the exception of the ones on the east side; that Jones had on a previous occasion cleaned the windows on the east side of the hospital, safety using the usual procedures; that respondent had not been previously cited for any violation of the Act; that the commission has jurisdiction over this subject matter and that respondent is engaged in a business affecting commerce; and finally, that the usual method for cleaning the windows on the east side of the hospital was to unlock the windows from the inside and clean both the inside and outside of the windows from the inside of the building (these particular windows roll around).
The inspection of respondent’s work place at the hospital was triggered by a telephone call concerning an imminent danger situation. Compliance Officer Petit went forthwith to the hospital where he observed two window cleaners on the fifth or sixth floor working without any lifelines or safety belts. He was of the opinion that a hazard was present because the men were washing windows while standing on a 20 inch wide window ledge, and also by using a rope as a means to get down to the next level, because a slip would certainly result in death or serious physical harm. The employees admitted to the compliance officer that they knew that the method used by them was not in compliance with safety regulations. The compliance officer indicated that the two employees were using a small powered platform (a basket of ‘spider’) in cleaning the windows on the other three sides of the building. The compliance officer found no fault with the equipment. He quoted the employees as stating that the east windows of the building wouldn’t open and that the company had stated ‘wash them the best way they could’.
Mr. Larry McIntyre, director of housekeeping services at the hospital, generally agreed with the compliance officer’s testimony. He assisted the compliance officer in getting the workers off the window ledge. It was his view the powered equipment could have been used on the east side of the building but stated that it would have been more difficult to use because of the existence of the roof over the walkway on the second floor level. He testified that respondent company had cleaned the hospital windows for many years and that there had never been any problems in the past and that he had never seen any unsafe procedures used.
Mr. Leon Jones, one of the window washers, has been cleaning windows for twelve years, testified that he had worked for respondent for about a year and had cleaned the hospital windows about three months before this incident. When questioned as to whether he received any specific instructions regarding the windows which were stuck, he replied ‘he just said do them’ and then we tried to figure out the best way we could do them. Mr. Jones stated that he was not a boss or supervisor and that he just worked along with Mr. Gregory. He admitted knowing that what he had done was unsafe and stated that he knew that Mr. Ehrenkrans would not have approved of his actions. He advised that Mr. Ehrenkrans stressed safety requirements in the performance of window washing.
Mr. Henry Ehrenkrans, owner of the Texas Window Cleaning Company, has been in business for about 30 years and has cleaned the windows at Memorial Hospital for some 20 years. He testified that he is familiar with the hazards involved and the safety measures to be taken. He advised that he hires only experienced window cleaners to work off of scaffolds and that he drives around to check on each job once or twice a day to see that the scaffold is working properly. (Tr. 52) He advised that the first he learned of the incident of December 12th was a call from the compliance officer. He stated that he received no call from either Jones or Gregory about the windows not opening. (Tr. 55) However, he advised that there was a liberal policy in effect at the hospital and that it was understood that if any of the windows could not be opened that they would be eliminated. He stated that he had never authorized any employees to clean windows in the manner that was employed on December 12th.
When questioned regarding instructions to employees in unusual situations, Mr. Ehrenkrans stated:
‘Well, mainly their obligation is, first, if they have a situation that looks unsafe, is to go to the building manager and let him know what the problem is. If there is no rapport between them and the building manager at that time, and there is some unreasonableness on their part, they in turn call me and I, in turn, come out and inspect the situation and then get the situation covered, which is the normal procedure.’ (Tr. 57)
Mr. Ehrenkrans stated that all windows at the hospital are accessible with the equipment the men were furnished although it may be a little more difficult on the east side. He testified that Jones had been on the hospital job previously and knew the proper manner of cleaning, that he was paid by the job and that he received the same amount of money regardless of the fact that some of the windows could not be opened and cleaned. He agreed that the manner of cleaning windows as occurred on December 12th was an unsafe practice and would constitute a hazard.
Mr. Phillip Gregory, a window cleaner with two years of experience testified that he was familiar with the company policies and that Mr. Ehrenkrans had instructed him in this regard. He verified the previous testimony relative to the efforts to get the windows open. He admitted that the way the windows were being cleaned was an unsafe one and that it was in violation of company policies. He knew that Mr. Ehrenkrans would not have approved of this type of cleaning. He testified that he did not hear Mr. Jones say anything about calling Mr. Ehrenkrans but heard him say ‘something about that he had called the shop—I didn’t know who he talked to’. Under cross-examination Mr. Gregory advised that Mr. Ehrenkrans had instructed him never to stand outside on a window ledge less than 36 inches wide without a guard railing.
Respondent has contended that the citation in this matter should be vacated because complainant did not comply with the requirements of section 9(a) of the Act in that the citation must state with particularity the nature of the violation and must include a reference to the regulation, standard or Act alleged to have been violated. While the citation alleged that respondent was in serious violation of section 29 CFR 1910.132(a) the formal complaint which was prepared by the solicitor’s office of complainant amended the citation so as to allege a serious violation of section 5(a)(1) of the Act. There is no merit to respondent’s contention with reference to the lack of particularity. Attention is invited to the case of National Realty and Construction Company, Inc. v. Occupational Safety and Health Review Commission, 489 F. 2nd 1257 (D. C. Cir. 1973) where the Court stated:
‘So long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue. This follows from the familiar rule that administrative proceedings are very liberally construed and very easily amended. The rule has particular pertinence here, for citations under the 1970 Act are drafted by non-legal personnel, acting with necessary dispatch. Enforcement of the Act would be crippled if the Secretary were inflexibly held to a narrow construction of citations issued by his inspectors.’
Basically, it is complaint’s position that respondent knew and should have known of the employee’s method of cleaning the windows on December 12th, that he did not specifically instruct his employees as to the proper method of cleaning the windows on the east side when informed that they couldn’t be cleaned in the usual manner and consequently that respondent exposed his employees to a recognized hazard likely to result in death or serious physical harm. On the other hand, respondent contends that the employees’ action was an isolated occurrence which was contrary to company policies and that the actions of the employees on the day in question were not known to respondent and could not have been foreseen, and further that the acts of the employees here were not preventable.
To constitute a violation of section 5(a)(1) of the Act the burden is upon the secretary to show that respondent did not furnish his employees a place of employment free from recognized hazards likely to cause death or serious physical harm. Section 5(b) of the Act also requires employees to comply with occupational safety standards and regulations issued pursuant to the Act,. However, the Act does not impose penalties upon employees. All witnesses who testified at the hearing were of the opinion that the way the two employees were cleaning the east windows of the hospital was unsafe and respondent’s owner admitted that their conduct could be considered as hazardous. Undoubtedly, a fall would have resulted in death or serious physical harm.
A serious violation of the Act is defined in section 17(k) as one where there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted, or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation (emphasis supplied). It is readily apparent from all of the evidence presented that death or serious physical harm could have resulted if one of the window cleaners, working without protective equipment such as lifelines or safety belts, had fallen from the fifth or sixth floor of the hospital. The crux of this matter boils down to the question of knowledge on the part of respondent’s owner or whether the employees’ hazardous activities on December 12th could have been anticipated or foreseen.
The evidence is in conflict as to whether Mr. Ehrenkrans was told of the problem of opening the windows on the east side of the hospital. He testified that he received no call from either Jones or Gregory regarding the problem. Mr. Jones, on the other hand, testified that he called Mr. Ehrenkrans the day before and told him that some of the windows wouldn’t open. However, he later testified that he came to work at 7:30 a.m. on the 12th of December and tried to open the windows and that this was the first time he had tried the windows. (Tr. 42) Obviously, Mr. Jones would have had no occasion to call anyone on the previous day since he didn’t become aware of the problem until the morning of the 12th. Also, Mr. Gregory testified that he never heard Mr. Jones mention a call to Mr. Ehrenkrans. (Tr. 72–73)
After carefully weighing all of the testimony in the record and considering the demeanor of the witnesses I am of the opinion that the statements made by Mr. Ehrenkrans are more reliable and credible than those of Mr. Jones and it is concluded that Mr. Ehrenkrans was not contacted about the difficulty of opening the east windows. It is apparent from all the facts developed that Jones and Gregory decided among themselves to clean the east windows while standing on the window ledge, undoubtedly because it was the easiest way to do it. Mr. Gregory stated: ‘We was just talking about it, both of us was, and we just decided that it would be the quickest way to do it because we couldn’t get the windows open and we would have been there for days trying to get it done, all of it, and we was getting behind on it’. (Tr. 75) Both Mr. McIntyre and Mr. Ehrenkrans stated that the same equipment (the powered platform or basket) could have been used to wash the east windows but that it would have been a little more difficult because of the roof over the walkway. Even Mr. Jones agreed that the windows could have been done in this manner.
Both Mr. Jones and Mr. Gregory were experienced cleaners and Mr. Jones had washed the hospital windows only three months before. Mr. Ehrenkrans testified that neither employee had ever violated any safety regulations to his knowledge. Both of the employees testified that they had never washed windows in the way that it was done on December 12th. Both admitted that their actions were contrary to company policies and that Mr. Ehrenkrans would not have sanctioned that type of conduct. Mr. Gregory advised that Mr. Ehrenkrans had cautioned him several times never to stand on ledges less than 36 inches wide without a guard railing. The two employees were both aware of the fact that the manner they employed in cleaning the east windows was unsafe and in violation of company safety policies.
Mr. Ehrenkrans testified that it was mutually understood with the hospital that if any of the windows couldn’t be opened, that they didn’t have to clean them and that payment would still be made for the complete job. Mr. Jones was fully aware of this understanding and while testifying recalled that on the job three months previously some of the windows wouldn’t open and that he was still paid for the job. When questioned as to whether he discussed this matter with Mr. Ehrenkrans on the previous job, he stated ‘they always told us if they wouldn’t open not do them’. (Tr. 38)
It seems clear from all of the evidence that the manner in which the two employees were cleaning windows on December 12th was an isolated event which could not have been anticipated by their employer. Employers have a general duty to do everything possible to prevent hazardous conduct by employees, however, it must be noted that Congress did not intend the general duty clause to impose strict liability. The facts in this case are similar to those in the National Realty case, supra, where the employee, contrary to company rules and policies was killed while riding on a front end loader. There the court stated:
‘A hazard consisting of conduct by employees, such as equipment riding, cannot, however, be totally eliminated. A demented, suicidal, or willfully reckless employee may on occasion circumvent the best conceived and most vigorously enforced safety regime. This seeming dilemma is, however, solvable within the literal structure of the general duty clause. Congress intended to require elimination only of preventable hazards. It follows, we think, that Congress did not intend unpreventable hazards to be considered ‘recognized’ under the clause. Though a generic form of hazardous conduct, such as equipment riding, may be ‘recognized’, unpreventable instances of it are not, and thus the possibility of their occurrence at a work place is not inconsistent with the work place being ‘free’ of recognized hazards.’
Attention is also invited to a footnote in the National Realty case where Judge Wright stated:
‘Where the hazard involved is a form of hazardous conduct by employees, an employer’s safety program is in ‘serious’ violation of the general duty clause (1) if the misconduct involves a substantial risk of harm and is substantially probable under the employer’s regime of safety precautions, or (2) the employer, with the exercise of reasonable diligence, could have known that its safety program failed the standards of the clause by failing to preclude the occurrence of the preventable misconduct.’[6]
The evidence herein clearly shows that respondent had experienced window cleaners on the job who were familiar with the company’s policies; that the two employees knew of the understanding between their employer and the hospital that windows which couldn’t be opened did not have to be cleaned; that only experienced window cleaners were sent out on work requiring the use of scaffolds; that the employer’s employees were specifically warned not to work on ledges less than 36 inches wide without hooks or railings; that the window cleaners had not been known to have worked unsafely on previous jobs; and that respondent checked on scaffold jobs regularly, once or twice a day.
It is concluded that respondent did not fail to furnish his employees a safe work place since it is felt that the dangerous actions of Jones and Gregory were so implausible or unexpected that the employer could not have anticipated their occurrence. As stated in the National Realty case all preventable forms of hazardous conduct must be excluded from the work place. The hazardous conduct here, however, was completely idiosyncratic or implausible and could not be eliminated from the work place except perhaps by one hundred percent supervision. While the complaint here does not charge respondent with inadequate supervision it would appear infeasible or economically impossible for a foreman or supervisor to be on the job full time where men work in one or two-man crews as was the case here.
It must therefore be concluded that respondent did not commit a serious violation of the Act since he is not shown to have had knowledge of the irrational acts of the window cleaners.
FINDINGS
AND CONCLUSIONS
Based upon the entire record the following findings and conclusions are entered:
1. That respondent at all times referred to herein was engaged in a business affecting commerce within the meaning and intent of section 3 (5) of the Act and Review Commission has jurisdiction over the parties and subject matter herein.
2. That on December 12, 1974, respondent had a work place at the Memorial Hospital on 1010 Louisiana Street, Houston, Texas, where two employees were engaged in cleaning windows.
3. That on the aforementioned date respondent’s employees were observed cleaning windows on the east side of the hospital on the fifth and sixth floors while standing on the window ledge without the use of safety belts or lifelines.
4. That the employees in question were experienced window cleaners and were familiar with the company’s safety policies.
5. That the employees had adequate equipment on the job to clean the windows in the usual manner, to wit, by means of a powered platform or spider.
6. That the action of the two employees in washing windows, standing on a ledge, without lifelines, safety belts or guard railings, was contrary to company policy, was unauthorized by the company and was a reckless act which could not have been anticipated or foreseen by respondent.
7. That on December 12, 1974, respondent was not in violation of section 5(a)(1) of the Act, the general duty clause, as alleged in the complaint which amended the citation for serious violation issued on December 13, 1974.
ORDER
Based upon the foregoing findings and conclusions it is ordered that the citation for serious violation issued to respondent on December 13, 1974, be dismissed and that the notification of proposed penalty be and the same is hereby vacated.
Henry F. Martin, Jr.
Judge
Date: October 22, 1975
[1]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.)
[2] 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.’
[3] Black’s Law Dictionary 512 (rev.
4th ed. 1968).
[4] 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)
[6] Also see Secretary v. Georgia Power Co., 14 OSAHRC 513 (1974) and Secretary v. Engineers Construction, Inc., OSAHRC Docket No. 3551 (20 OSAHRC —— (1975).