“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13815 C. N. STEMPER COMPANY, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 23, 1976ORDERVACATING DIRECTION FOR REVIEWBEFORE BARNAKO,Chairman; MORAN and CLEARY, Commissioners.BY THECOMMISSION:Theorder for review issued in the above-captioned case(s) is hereby vacated forthe reasons assigned in Francisco Tower Service, BNA 3, O.S.H.C. 1952,CCH E.S.H.G. para. 20,401 (No. 4845, 1976).?FOR THECOMMISSION:?William S.McLaughlinExecutiveSecretaryDated: JUN 23,1976?MORAN,Commissioner, Dissenting:Theforegoing ?order? is deficient in three ways: (1) it is illegal, (2) it doesnot comport with the Occupational Safety and Health Act of 19701 and(3) it is ineffective.(1)The Order is IllegalThe merits of the issues in dispute betweenthe two parties to this case (the Secretary of Labor and the employer) have notbeen considered by either Mr. Barnako or Mr. Cleary. The ?order? has beenissued by the Executive Secretary as the result of a May 21, 1976 Memorandum1 29U.S.C. ? 651 et.seq., hereafter referred to as the Act.which isattached hereto as Annex II. That Memorandum directs the Executive Secretary tovacate the direction for review filed in some 64 cases which are identifiedonly by docket numbers contained upon a hand-written attachment thereto. In KFCNational Management Corp. v. NLRB, 497 F.2d 298, 306 (2d Cir. 1974) it washeld that fundamental concepts of administrative due process were violatedwhere the merits of an NLRB case were not considered by the members of thatBoard in rendering its disposition of the case.Theorder which has been issued in this case does not even pretend to address themerits of the issues in dispute. This fact, plus the attached Memorandum whichstates the manner in which the order issued and indicates the total lack ofconsideration it received from the members of this Commission, makes it clearthat this order violates ?fundamental concepts of administrative due process.?(2)The Order Does Not Comport With The ActTheorder is also illegal because it deprives one of the members of this Commissionof the express statutory authority to cause a decision of one of theCommission?s Administrative Law Judges (ALJ) to be reviewed by the Commissionmembers.TheAct confers upon each of the three members of the Commission the power to causea decision made by one of its ALJs to be reviewed by the three-member tribunal.This is made clear by the wording of 29 U.S.C. ? 661(i) providing that thereport of the ALJ ?shall become the final order of the Commission within thirtydays after such report . . . unless within such period any Commissionmember has directed that such report shall be reviewed by the Commission.?(Emphasis supplied.)Theplain meaning of the phrase ?such report shall be reviewed? manifests a clearCongressional intent that the Commission members would thereupon reexaminejudicially the ALJ?s findings of fact and conclusions of law. Use of the word?any? unmistakably signifies a Congressional intent to confer authority uponeach of the three members acting individually. This provision is included inthe same section of the Act which specifies that ?two members of the Commissionshall constitute a quorum? and that?. . . officialaction can be taken only on the affirmative vote of at least two members.? 29U.S.C. ? 661(e).\u00a0Fromthe choice of words in these two subsections, it can be logically concludedthat Congress intended to grant to each of the three members the power to placean ALJ?s decision before the tribunal for disposition?but that a dispositionthereon would only be authorized by the vote of a majority of the members.Thus,each of the three members has a statutory grant of authority. The order in thiscase, however, is an effort by two of the members to deprive the third memberof that statutory authority. To permit such a result would be to thwart thevery purpose which Congress sought to realize by definitely fixing the power inany single member.Section661(a), which establishes the Review Commission, states that it?shall be composedof three members who shall be appointed by the President, by and with theadvice and consent of the Senate, from among persons who by reason of training,education, or experience are qualified to carry out the functions of theCommission under this Act.?\u00a0Thissection of the Act has been held to have significance to reviewing courts. Brennanv. OSAHRC and Republic Creosoting Co., 501 F.2d 1196, 1198 (7th Cir. 1974);Brennan v. Gilles & Cotting, 504 F.2d 1255, 1262 (4th Cir. 1974).The structure of the Commission?s membership after the fashion of a tripartitelabor arbitration tribunal with one ?labor,? one ?management? and one ?neutral?member is discussed at pp. viii-ix of Annex I of this opinion. See infra.Thus,the general purposes of creating a three-member tribunal of experts, thelanguage of the Act itself, and the action of the President in structuring itas he did, all combine to demonstrate the intent to create a body of expertswho shall gain experience by length of service?a body which shall beindependent of Executive authority except in its selection with each memberfree to exercise his judgment without the leave or hindrance of any otherofficial or any department of the government.Itis quite evident that one member of a collegial tribunal whose judgment cannotbe exercised when it contravenes the will of the other members cannot bedepended upon to maintain an attitude of independence against the latter?swill. Such a result places a premium on conformity, reduces independence ofthought, and defeats the very purpose of a multi-member tribunal representingvarying backgrounds and experience.TheCommission itself has taken the position that each of its members has thestatutory right to direct review of an ALJ?s decision. In Secretary v.Thorleif Larsen and Son, Inc., 12 OSAHRC 313, 314 (1974) the Commission wasfaced with a case where a member who had directed review of an ALJ decisionwithin the ? 661(i) thirty-day period subsequently filed a notice withdrawingthe same after that period had expired. The decision held that this could notbe done because it ?would have the effect of denying the other members of theCommission an opportunity to act on the case.? That, of course, is exactly whathas been done in the matter presently before this body?except that it hashappened to one member rather than ?other members.? That same decision furtherstated:It is the statutoryright of each member of the Commission to direct review of any case.(Emphasis supplied.)\u00a0(3)The Order is IneffectiveNotonly does this order violate fundamental concepts of administrative due processand illegally deprive a member of this Commission of a statutory right, but ithas 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 ofcontest. Consequently, there is no final order as to those contested issues andthey continue to pend before the Commission undecided.Whenduly contested, there is no requirement that an alleged violation be abated norcan the Secretary of Labor collect any monetary penalties?or rely on this caseto prove a prior violation?until a final order is issued. 29 U.S.C. ? 659(c).Idiscussed these matters at greater length, including the reasons why mycolleagues are proceeding in this unusual manner, in Secretary v. FranciscoTower Service, OSAHRC Docket No. 4845, February 6, 1976, which I attachhereto as Annex I and incorporate by reference herein. The instant case differsfrom Francisco Tower in the wording of the direction for review. Thefull text in this case provides that:?Pursuant to 29U.S.C. ? 661(i), I hereby direct that the decision of the Administrative LawJudge in the above-entitled case shall be reviewed by the Commission.?\u00a0However,this does not alter what I said in Francisco Tower concerning theillegality of the vacation order.Theorders of three different appellate courts support the proposition that this?Order Vacating Direction for Review? is ineffective. In Gurney Industries,Inc. v. OSAHRC, No. 73?1818 (4th Cir., November 28, 1973), it was held thata Commission order of remand to an ALJ could not be the subject of a petitionfor review because:?The Commission?sorder . . . does not affirm, modify or vacate the Secretary?s citation orproposed penalty nor does it direct ?other appropriate relief.? It istherefore, not the type of order which automatically becomes final withinthirty days under 29 U.S.C.A. ? 659(c).?\u00a0Thatorder cited Chicago Bridge & Iron Company v. OSAHRC, No. 73?1181(7th Cir., May 31, 1973), which held that:?Unless and untilpetitioner is aggrieved, or adversely affected, by an order requiring it toabate certain practices, or granting other relief against it, appeal to thiscourt is improper.?\u00a0Evenstronger support for the position taken herein is found in Armor ElevatorCompany, Inc. v. OSAHRC, No. 72?1996 (6th Cir., February 1, 1973), whichstated:?[I]t appearing tothe Court that because within thirty days of the filing of the hearingexaminer?s report a member of the respondent Commission directed that saidreport be reviewed by the Commission, it is concluded that the report of thehearing examiner did not become a final order of the Commission (29 U.S.C. ?661(i)). It is therefore concluded that the order from which this appeal wassought to be perfected was not a final order and that the respondent?s motionto dismiss should be sustained . . ..?\u00a0Finally,I must again point out that my colleagues do not practice what they preach. InSecretary v. P & Z Co., Inc., OSAHRC Docket No. 14822, May 21, 1976,Messrs. Barnako and Cleary stated without any reservations that:?[T]he Commissionand its administrative law judges are mandated by the Act to state findings offact, conclusions of law, and the reasons or basis therefor in alldecisions and reports.? (Emphasis added.)\u00a0Theirorder in this case does not comply with any of these requirements. In P& Z they remanded the case to the Judge because he did ?not statereasons or basis for his conclusions to vacate the citations.? Here, however,they disregard their own rule. As I have indicated in many decisions, theBarnako-Cleary ?rules? are applied only when they serve my colleagues? purpose.In those cases where their rules do not serve their purpose, they seem todevelop a temporary case of judicial myopia.\u00a0[Textof Annex I follows]MORAN,Commissioner, Dissenting:Withthis ?order? Messrs. Barnako and Cleary continue their illegal scheme ofdepriving a duly appointed and qualified member of this Commission fromexercising his statutory right to cause decisions of Administrative Law Judgesto be reviewed. 29 U.S.C. ? 661(i). They do this by adoption of this ?OrderVacating Direction For Review.?Notonly does this order illegally deprive a member of this Commission of astatutory right but it has no force or effect upon the parties to this casesince it neither affirms, modifies nor vacates the matters placed in issue byrespondent?s notice of contest. Consequently, there is no final order as tothose contested issues and they continue to pend before the Commissionundecided.Whenduly contested, there is no requirement that an alleged violation be abated norcan the Secretary of Labor collect any monetary penalties?or rely on this caseto prove a prior violation?until a final order is issued. 29 U.S.C. ? 659(c).Idiscussed these matters at greater length, including the reasons why mycolleagues are proceeding in this unusual manner, in Secretary v. FranciscoTower Service, OSAHRC Docket No. 4845, February 6, 1976, which I attachhereto as Annex I and incorporate by reference herein.[Textof Annex I follows]MORAN, Commissioner, Dissenting:This order is without force or effectsince it neither affirms, modifies nor vacates the citation or proposedpenalty. Consequently, there is no final order, and the issues in dispute inthis case continue to pend before the Commission undecided. Until a final orderhas issued, there is no requirement that an alleged violation be abated nor canthe Secretary of Labor collect any monetary penalties.29 U.S.C. ? 659(c)establishes the procedure for adjudicating alleged violations of theOccupational Safety and Health Act of 1970 (29 U.S.C. ? 651 et seq., hereafterthe Act) when a cited employer contests the citation or penalty proposal, asthe respondent in this case has done. Once the employer, within the time periodprescribed, ?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 Commissionshall thereafter issue an order, based on findings of fact, affirming,modifying or vacating the Secretary?s citation or proposed penalty, ordirecting other appropriate relief, and such order shall become final thirtydays after its issuance.? (Emphasis supplied.)\u00a0?That has not been done in this case. Nofinal action has been taken on the citations or proposed penalties.The above-citedprovision of law is the only statutory authorization for the issuance of ordersgiving final disposition to a citation or proposed penalty which has beencontested in accordance with ? 659. Since the respondent in this case didcontest this enforcement action under that section of law?and the Commissionhas not yet acted upon the Secretary?s citation?the matters raised byrespondent?s notice of contest remain undecided.Section 666(d)specifies that a respondent shall not be required to abate the allegedviolation until the Commission acts on the citation. It provides that theperiod for correcting a violation ?shall not begin to run until the date of thefinal order of the Commission.? (Emphasis supplied.)Penalties, ofcourse, cannot be collected by the Secretary of Labor unless he can demonstratethat 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 orproposed penalties,? a respondent will be legally entitled to decline anyrequest by the Secretary for payment. Should that happen and the Secretary thenproceed in court to collect payment he would be unable to prevail since hecould not show any disposition of the ?Secretary?s citation or proposedpenalties.?Another section ofthe Act is even more specific in this regard. ? 660(b) allows the Secretary ofLabor to obtain enforcement of any ?final order? of the Commission if he filesa petition therefor in the appropriate court of appeals provided that noadversely affected party has filed a petition for review within 60 days of theCommission?s ? 659(c) order. This section goes on to provide that ?the Commission?sfinding of fact and order shall be conclusive in connection with any [such]petition for enforcement.? Here, since the Commission has made no findings offact itself?and has not adopted the Judge?s findings of fact?no petition forenforcement would lie even if this ?Order Vacating Direction for Review? couldqualify as a ? 659(c) final order.Nor is any appeal ofthis ?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, inappeals as well as enforcement petitions, the Act provides that there must beCommission findings of fact. In this regard ? 660(a) provides that?The findings ofthe Commission with respect to questions of fact, if supported by substantialevidence on the record considered as a whole, shall be conclusive.??Messrs. Barnako andCleary have here declined to make any findings with respect to questions offact?nor have they adopted the findings with respect to questions of fact whichwere made by the Judge below. Consequently, this ?Order Vacating Direction forReview? prevents both the Secretary of Labor from filing an appeal or apetition for enforcement and any other ?adversely affected or aggrieved? partyfrom 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 fordisposition by this Commission arises when a cited employer contests thecomplainant?s enforcement action within the time prescribed. 29 U.S.C. ? 659. Atrial is held on the issues raised by the parties at a subsequent date beforeone of this Commission?s Administrative Law Judges (a position which, at thetime 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 thehearing examiner shall become the final order of the Commission within thirtydays after such report . . . unless within such period any Commissionmember has directed that such report shall be reviewed by the Commission.?(Emphasis supplied.)?This is the onlystatutory provision giving finality to an Administrative Law Judge?s decision.[10] Such a decision cannot?become the final order of the Commission? if any Commission member directsthat ?such report shall be reviewed by the Commission? within the timeprescribed. See Secretary v. Gurney Industries, Inc., 6 OSAHRC 634,637?641 (1973).There is no disputeover the fact that one member of the Commission, acting pursuant to theabove-stated statutory provision, directed that the Commission review theJudge?s decision in this case. The Commission, however, has failed to act uponthat decision. It has not reviewed the Judge?s report. This ?order? does notaddress itself to the Judge?s findings in any way. It simply purports to vacatethe direction for review. Furthermore, the majority neither asserts, suggests,nor implies that the ?order? herewith entered has the effect of adopting thedecision below.The full text of thedirection for review is stated in the Commission order except for the firstparagraph thereof which provides the following:?Pursuant to theauthority contained in 29 U.S.C. ? 661(i), the undersigned hereby directsreview of the decision of the Judge in the above-entitled case.?\u00a0My colleagues, ineffect, find that this direction for review is ineffective because ofvagueness. It does not, they say, present an ?issue? for adjudication by theCommission under the Act. A simple reading of the above-quoted first paragraphthereof, however, disproves that assertion. Review is directed ?of the decisionof the Judge.? The direction puts the Judge?s decision in issue. It is not limitedto any portion thereof, nor indeed is there any statute, regulation, rule,practice or decision which requires a member of this Commission to specifyparticular ?issues? in such directions or to prevent a member from directingreview of the entire decision of the Judge if that be his disposition. However,even if the direction for review specified particular ?issues,? theCommission?s review of the Judge?s decision in such a case would not be limitedto the issues so specified in the direction for review. This point was madeclear in Accu-namics, Inc. v. OSAHRC, 515 F.2d 828, 834 (5th Cir. 1975).[11]The action taken byMessrs. Barnako and Cleary in this case is nothing less than an unabashedattempt to deprive a member of this Commission of a statutory right to have aparticular decision reviewed.Congress createdthis agency for the single purpose of ?carrying out adjudicatory functionsunder the Act.? 29 U.S.C. ? 651(b)(3). It provided that it should operate as abi-level tribunal consisting of Administrative Law Judges who preside at trialsand make the initial decisions, with review thereof by the three members of theCommission 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 eachof the three members?. . . shall beappointed by the President, by and with the advice and consent of the Senate,from among persons who by reason of training, education, or experience arequalified to carry out the functions of the Commission under this Act.? 29U.S.C. ? 661(a).?? 661(b) provides that the ?terms ofmembers of the Commission shall be six years . . ..?The Act makes onlyone exception to the provision that the Commission members shall operate as acollegial 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 anAdministrative Law Judge?s decision shall be reviewed by the tribunal.With this order,however, Messrs. Barnako and Cleary have combined to deprive a duly appointedand qualified member of the Commission of this statutory grant of authority.They have abrogated to themselves the authority which the Act gave to someoneelse. They have done this to impede the free flow of ideas which inevitablysprings from the collegial process. Nevertheless, even if their purpose couldbe truthfully regarded as sound public policy, it could not be legallyaccomplished because rulings articulated in Commission decisions?no matter howbeneficial?cannot rise beyond the Congressional delegation in the enablinglegislation. The fixing of a definite power in a statute?that of an individualmember to cause the Judge?s decision to be reviewed by the members of theCommission?is enough to establish the legislative intent that the power is notto be curtailed or restricted. What Congress has given cannot be taken away bymembers of this Commission. The Supreme Court stated it this way in Humphrey?sExecutor v. U. S., 295 U.S. 602 (1935):?The sound applicationof a principle which makes one master in his own house precludes him fromimposing his control in the house of another who is master there.??In the JustinianCode, this rule was expressed more succinctly: ?Delegata potestas non potestdelegari,? which Henry Campbell Black translates as ?a delegated power cannotbe delegated.?[12] This longstanding rule oflaw, however, has not deterred Mr. Barnako and Mr. Cleary from delegating tothemselves what Congress has delegated to me.Congressdeliberately chose to establish this Commission with three members, and thePresident, by his selection of persons of diverse backgrounds to constitute theoriginal membership, fully implemented that collegial purpose.[13] It was generally assumedthat the tribunal would be truly impartial if its decisions included input frompersons whose past experience had been in the business and organized laborcommunities with an additional member who came from neither?much in the samemanner as a tripartite labor arbitration panel. It was not intended?not evencontemplated?that two of the members would combine to impose a gag rule on theremaining member?thereby frustrating the purpose of having three differentin-puts into all Commission decisions. Certainly from the language of the Actcited supra, the establishment of a three member tribunal, and the President?saction in constituting it as he did, it can fairly be concluded that eachmember was to be free to exercise his individual judgment without the leave orhindrance of any other member or any combination of other members.I asserted earlierthat the reason for this deprivation of my statutory right to cause theCommission to review a decision of an Administrative Law Judge was to ?impedethe free flow of ideas.? At this point I will undertake to relate some reasonswhich lead me to this conclusion.The action taken bymy colleagues in this case is a continuation of a policy which began shortlyafter Mr. Barnako took office on August 1, 1975. It has been detailed in thepublic press. See, for example, The Washington Star, November 27, 1975 articleentitled ?Press Releases on Failures Helped Demote Chief of Health Unit,? acopy of which is attached hereto as Appendix A. The matter was summarized bythe St. Louis Labor Tribune in a January 22, 1976 editorial entitled ?(Don?t)Let The Sunshine In? which is quoted herewith without elaboration:?An OSHAofficial?s attempts to let a little sunshine in on his record led to hisreplacement as captain of the Administration?s Review Commission and eventuallyto virtual exclusion from the business conducted by his fellow commissioners.?Robert D. Moran isstill on the team (his term runs until 1977), but in the meantime he isn?t eveninvited into the huddles anymore.?Appointed firstchairman of the commission in April 1971, Moran established a practice ofpublishing news releases (about five a week) on the wins and losses of hisReview Commission on ?significant cases.??This pristineinnocence was not acceptable to his bosses at the Labor Department whocautioned him to keep his mouth shut in late ?73, nor to the superchief over atthe White House, who last August 5, replaced him as Chairman of the Commission.?He was replaced bya man called Frank R. Barnako, a lawyer for Bethlehem Steel, who immediatelydiscontinued the news releases and reduced the dissemination of informationabout the Commission?s activities to a bare minimum.?But, Moran, hismind sated with the ideals of the ?Freedom of Information Act,? stubbornlypersisted in his attempts to keep the public informed on the disposition ofcases which came before the Review Commission.?This, in turn, ledBarnako, et. al., to illegally exclude Moran from the deliberations of theCommission and to conduct business without permitting him to participate. Moranfiled suit citing 16 cases in which the Commission denied a review of anadministrative law judge?s decision on an OSHA complaint without informingMoran of its action.?Foul, cried Moranand marched off to the United States District Court in Washington, D.C.declaring his rights as a public official have been abrogated and demandingthat they be restored by the courts and appropriate damages be assessed againstthe defendants.?The Labor Tribuneapplauds Robert D. Moran, a man who won?t be muffled, and wishes him well inhis litigation.???The Hartford Courant took a somewhatsimilar view in a December 4, 1975 editorial ?OSHA Needs More Light? quoted inpart as follows:13a\u00a0?When it enacted the Occupational Safety and Health Act of1970, Congress enacted a law with which it is uncommonly difficult to comply.The OSHA hierarchy is making it more difficult, even as Congress tries tocorrect its mistakes.?* * * Frank R. Barnako, newly-appointed chairman of theOSHA Review Commission, has directed that commission decisions will no longerbe published either as news releases or formal reports?both have been done inthe past.?The Review Commission is the ?supreme court? of a vastquasi-judicial system established to interpret OSHA regulations. Publication ofits 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? concludedwith this statement:?To most people, the OSHRC decisions will hardly makeexciting reading, but they ought to be available to those who may beinterested.?\u00a0The fact that thispolicy of impeding the free flow of ideas is directed only at the views of onemember in particular can be amply demonstrated by the unresolved cases on thedockets of this Commission. During the period June 1, 1974, through November30, 1975, there were directions for review filed by the three members in atotal of 593 cases (most of them by Mr. Cleary). In 268 of these there was nopetition for review by any party. [14]?In none of these cases (except thosedirections issued by me) has either Mr. Barnako or Mr. Cleary proposed an ordervacating the direction for review. Nor has either of them?with respect to suchdirections for review?taken the position that they do here:?If there is some appropriate reason for directing reviewsua sponte, the reason should be stated so the Commission may benefit from theparties? briefs on the issue.?\u00a0With respect to theinstant case, the majority opinion states that ?. . . it has not been, nor isit now, before us on its merits.? But, by their double-standard reasoning, allthe directions for review filed by Mr. Cleary and former Commissioner VanNameewhere no party has petitioned for review are before us on their merits.It would beimpossible to list the text of all the review-directed cases currently pendingbefore the Commission. However three of those filed by Mr. Cleary in caseswhere no petition for review was filed by any party are herewith noted. In Secretaryv. Alfred S. Austin Construction Co., OSAHRC Docket No. 4809, and Secretaryv. Fisk Oesco Joint Venture, OSAHRC Docket No. 4654, the direction for reviewasked only ?[w]hether the Administrative Law Judge committed reversible error.?In Secretary v. John T. Clark & Son of Boston, Inc., OSAHRC DocketNo. 10554, the direction for review asked only whether the Administrative LawJudge erred in vacating the citation alleging non-compliance with the standardat 29 C.F.R. 1918.105(a).? There is, of course, no difference whatsoeverbetween a sua sponte direction for review questioning whether the judge erredin his decision and one like that here under consideration which simplydirected the judge?s decision for review so that its findings of fact andconclusions of law could be reviewed by the members.Another indicationthat this action of Messrs. Barnako and Cleary is part of a continuing attemptto prevent the views of this member from being included in Commission decisionsis the 16 previous cases in which they issued an ?Order Vacating Direction forReview.? As mentioned in The Washington Star article (attached as an exhibithereto) and the above-quoted editorial in the St. Louis Labor Tribune, all 16of those ?orders? were issued by my colleagues without any notice to me thatthey were under consideration. After they had been typed, and signed by myfellow Commission members, they were not circulated to me prior to theirrelease to the parties so that my views could be appended thereto?a totaldeparture from the practice which has been in effect for every decision everissued by this Commission prior to the day Mr. Barnako became the Commission?sChairman.[15] It is my belief that asimilar ?procedure? would have been employed in many additional cases were itnot 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 Columbiato put a stop to it. This matter is also mentioned in the newspaper articlesreferred to supra.The very fact thatthe majority is proceeding in this case in this most unusual manner?vacating thedirection for review rather than affirming the decision of the judge?isadditional evidence that their purpose is to prevent my views on the issuesarising in this case from being included in the Commission?s decision. Theyapparently would prefer to have no decision?to have this and similar cases pendin limbo for infinity?rather than to have a decision in which I couldparticipate.I note the followinglanguage in the majority opinion:?. . . if Commissioner Moran?s orders for review werepermitted to stand, it would act as a stay of abatement and, in those instanceswhere the Secretary?s citation has been affirmed, would permit a hazardouscondition to continue unabated?a result clearly contrary to the purposes of theAct.??As noted at theoutset of this dissenting opinion, this ?Order Vacating Direction for Review?does exactly what they say would happen if my ?order for review were permittedto 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 wastheir disposition to affirm, they would have said so. On the other hand, theAct makes it crystal clear that a Judge?s decision could not affirm theSecretary?s citation if?as has happened in the case now before us?a Commissionmember has directed review thereof within thirty days of its issuance. 29U.S.C. ? 661(i). So, in their desperate attempt to prevent one member of theCommission from exercising his statutory rights, Messrs. Barnako and Clearyhave created the very monster they claim will result from my direction forreview?they ?permit a hazardous condition to continue unabated.?Of course there is avery simple and quick way to avoid this from happening. They can adopt aone-sentence order affirming the decision of the Administrative Law Judge. Thiswould avoid their concern about ?an unnecessary delay of the proceedings? andindeed could be done quite quickly and simply?a rubber stamp would serve thispurpose rather nicely. Certainly they will concede that this procedure Isuggest could be accomplished much more rapidly than the adoption of this?Order Vacating Direction for Review? and it would avoid all the problems I?vementioned in this opinion which result from the absence of a final dispositionof the merits of this case.It would be remissof me, however, if I failed to note the hollow ring that surrounds mycolleagues? assertion that they will ?continue? to reject any ?unnecessary delayof the proceedings.?[16] I had occasion to respondto a question on this Commission?s backlog which was addressed to me duringhearings 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 undecidedcases backed up. The reason for this is that the members are not deciding casesexpeditiously and are directing cases for review at about three times theirrate of disposition. During the first four months of 1974, the Commissionmembers decided a total of 39 cases. During that same period they directed 140cases for review.At the time formerCommissioner Alan Burch?s term expired in April 1973, there was a backlog of228 undecided cases. His replacement announced that his No. 1 priority was areduction in that backlog. However, in April 1974 there had been an increase inthe backlog of more than 60 percent?making a total of 367 undecided cases. Thenumber has gone up since then.At the timeCommissioner Cleary announced that backlog-reduction was his top priority. Iasked him to join me in a rule which would automatically affirm a Judge?sdecision if it had been called for review but had remained before theCommission for three months or more without action. He declined. I cannot geteither of the other members to put such a rule into effect or set any timelimit for action by the members of the Commission. Consequently, the backlogcontinues to grow and cases are sitting before us for one and a half to two yearswithout final decision.In all honesty, Isee no prospect for reducing this backlog during fiscal year 1975 unless thereare membership or legislative changes. On the contrary, I fully expect to seeit increase. At this time next year it will exceed 600 cases if the existingsituation continues.? Senate Hearings Before the Committee on Appropriations,Departments of Labor, Health, Education, and Welfare, and Related AgenciesAppropriations, H.R. 15580, 93d Congress, 2d Session, at pages 4571?4572.There was, ofcourse, a subsequent membership change when Mr. Barnako became a member inplace 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 454cases. Five months later?on December 31, 1975?it had grown to 540 cases. Myfirst act upon swearing him into office was to hand him a written proposal thathe join me in a rules change which would set a time limit on actions byCommission members on review-directed cases. Mr. Cleary was given a copy ofthat proposal on the same day. No response to that proposal has yet beenmade?nor has any counter proposal been offered.I submit that theabove discussion indicates how quick my colleagues have been in the recent pastto reject the ?unnecessary delay of the proceedings? of this Commission.Candor enjoins me toconcede that part of the reason for the recent increase in the backlog resultsfrom the high number of Judge?s decisions which I have directed for review inthe past few months. It is obvious from the comments in the majority opinionthat my colleagues do not agree with me that many of those cases ought to bereviewed by the Commission. They are, of course, perfectly within their rightsin taking this view. However, that being so, there is no reason why these casesshould remain in the backlog. They could affirm any Judge?s decision I directedfor review within thirty days of my action.[17]Neither these cases?nor any other cases?should be permitted to languishinterminably without decision. I continue to urge the adoption of a rule ofprocedure setting a time-limit on actions by this Commission on review-directedcases.[18]There are othermatters in the majority opinion which also merit further discussion.After deliveringtheir lecture on the evils of sua sponte directions for review, Messrs. Barnakoand Cleary later state:?. . . our action here should not be interpreted as barringsua sponte orders of review by members of the Commission.??The clear import ofthis 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 thepublic interest.? Somehow this brings to mind H. L. Mencken?s definition of aJudge as ?a law student who marks his own examination papers.?The majority opinionalso contains a rather amusing attempt at ?bootstrapping? in the discussionequating directions for review with a writ of certiorari. They quote one?commentator? (William Fauver, a Department of Interior Administrative LawJudge) as noting that petitions (not directions) for ?discretionary review? are?quite similar? to the procedure at law known as certiorari. They then goon?discarding the ?quite similar? nomenclature in the process?to find thatsince the direction for review does not meet the criteria for issuance of awrit of certiorari, it is ?not authorized by law.? This kind of ?logic? couldequally be used to prove that Messrs. Barnako and Cleary are really justices ofthe United States Supreme Court or members of the Holy Trinity.However, it is clearthat William Fauver is neither an authority on certiorari nor does he pretendto be and not even he?or anyone else?said that the statutory right of a memberof this Commission to cause a decision by one of this agency?s AdministrativeLaw Judges to be reviewed by this three-member tribunal was conditioned uponthe presence of the same criteria as that which constrains a higher court inthe exercise of its power to cause a lower court to send up its decisions forexamination. If anyone were to attempt to establish this principle I submitthat they would find it impossible to equate with the common law writ ofcertiorari what the majority in this case concedes to be a ?short clause, fewerthan twenty words . . . [containing] the only mention of this statutory powerin the entire Act.?I must confess tobeing mystified by the reference in the majority opinion to ?section 8(a) ofthe APA? and the assertion that the direction for review issued in this case?is contrary to the intent? of that section. The Administrative Procedure Actwas codified as part of Title 5, United States Code, some ten years ago (seepublic law 89?554, 80 Stat. 378) so the provision of law to which reference ismade is 5 U.S.C. ? 557(b). I took cognizance of this provision in note 11 supraand the accompanying text. Briefly, this provision of law merely provides thatwhen a direction for review of a Judge?s initial decision has been issued theCommission then has the same power to act as did the Judge?except where theauthority ordering the review specifically limits the scope thereof. Theexception, of course, has no application in the matter now before us becausethe entire decision below was directed to be reviewed.The concludingportion of the majority opinion in this case contains another instance whereMessrs. Barnako and Cleary assume power never given to them. I quote them asfollows:?Indeed, the Courts have kept us mindful of ourresponsibility in the public interest to provide ?active and affirmativeprotection? to the working men and women of the nation and to perform apolicymaking function in the application of the Act as intended by Congress. Brennanv. O.S.H.R.C. and John J. Gordon Co., 492 F.2d 1027, 1032 (2d Cir. 1974); Brennanv. Gilles & Cotting, Inc. and O.S.H.R.C., 504 F.2d 1255, 1262 (4th Cir.1974).??Neither of thesecases support the broad assertion for which they are cited. They don?t evencome close. In the latter-cited case, at page 1262, the Court noted that theSecretary of Labor was seeking to overturn a ruling of this Commission that aprime contractor was not jointly liable with one of its subcontractors for asafety infraction. The Secretary argued that the Commission had no right todetermine this issue for the issue concerned only enforcement-policy on jointcontractor liability, a matter which ?should be committed to his discretion,not that of the Commission.? The Court rejected that argument with thefollowing statement:?To accept the Secretary?s position would mean that theCommission would be little more than a specialized jury charged only with factfinding. But, as we read the statute, the Commission was designed to have apolicy role and its discretion therefore includes some questions of law.???. . . Congress intended that this agency would have thenormal complement of adjudicatory powers possessed by traditionaladministrative agencies . . ..?\u00a0There is nothing inthis case which supports the quotation from the Barnako-Cleary opinion forwhich it is cited.In the other citedauthority, the Gordon case, the Court was concerned with a decision ofthis Commission which barred an Administrative Law Judge from reopening ahearing on his own motion in order to take evidence on jurisdiction under theCommerce Clause. The Court reversed the Commission and held that the Judgeacted properly. It then added the following comments concerning the reopeningaction of the Judge (at 1032):?The action of the Administrative Law Judge was in linewith Judge Hays? well-known admonition to the Federal Power Commission that itsrole [the FPC?s role] as representative of the public interest . . ..?(Emphasis supplied.)?The Court thenquotes what Judge Hays said about the Federal Power Commission in ScenicHudson 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 thatthe Federal Power Commission?s role as representative of the publicinterest?. . . does not permit it to act as an umpire blandlycalling balls and strikes for adversaries appearing before it; the right of thepublic must receive active and affirmative protection at the hands of the[Federal Power] Commission.? ?Surely the majority is not claimingthat 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 PowerCommission under the Federal Power Act[20]and the Natural Gas Act[21] or that the quotedreference in the Gordon case transposed the authority of this Commission froman adjudicatory agency into a protector of the public interest. The NinthCircuit specifically rejected such a result in Dale M. Madden ConstructionCo., Inc. v. Hodgson[22] with these words:?Unlike the NLRB and the FTC, [the Occupational Safety andHealth Review Commission] has neither prosecution nor enforcement powers. Thosehave been exclusively delegated to the Secretary [of Labor].?Policy making is arguablya by-product of the Commission?s adjudication. But the Act imposespolicy-making responsibility upon the Secretary, not the Commission . . .. Theadministrative procedure limits the Commission to adjudication.?I submit that theforegoing discussion demonstrates that the majority is once again resorting to?bootstrapping? in an attempt to arrogate to itself policy-making powers whichit simply does not have.I conclude thisopinion (and I apologize for its length but ask indulgence on the grounds thatI am being divested herein of a very basic statutory power) with theobservation that Commission members?just as all other persons?intend thenatural consequences of their acts. Obviously Messrs. Barnako and Cleary haveno intention in this case of affirming, modifying or vacating the decisionwhich was rendered by the Administrative Law Judge. Surely they would have saidso if that was their intention. Their failure to take any action on the Judge?sdecision?or on the Secretary?s citation or penalty proposal?is what is causingthe real delay in the enforcement of this Act. This ?order? is clearly inerror.APPENDIX APress Releases onFailures HelpedDemote Chief of HealthUnitBy David PikeWashington Star StaffWriterRobert D. Moran wasreasonably happy and secure for the first several years of being chairman ofthe three-member Occupational Safety and Health Review Commission, after beingappointed when it came into existence in April 1971.??????????? Moran,a lawyer with experience in. labor matters both in the private sector and withthe government, had a six-year presidential appointment and a salary in thehigh-$30,000 range with the commission, which serves as the ?court system? forthe Labor Department?s Occupational Health and Safety Administration (OSHA).But then in late1973, 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 chargedin a suit filed this week in U.S. District Court, that the two other commissionersand the body?s executive secretary have recently been making decisions withouteven telling him.MORAN SAID yesterdaythat the situation began to deteriorate when he was called in late 1973 by anundersecretary to then Labor Secretary Peter Brennan and told that ?the bossdoesn?t like the press releases? and that ?heads could roll in such asituation?At issue werereleases, as many as five a week, that reported decisions by the commission?s42 hearing judges and three commissioners on ?significant? cases involvingalleged safety violations by employers.The releasesreported the outcome, regardless of whether OSHA had won or lost the case, andMoran said that OSHA was losing about half the cases and didn?t like, thepublicity. Headlines on releases, such as ?Labor Department Loses Attempt toEnforce Safety Standards,? probably didn?t help, Moran recalled, but hepersisted anyway.Then early lastyear, Moran said, he was called by a personnel aide at the White House and toldthat he shouldn?t offend the bosses at Labor and that he ?was putting himselfin a bad position.??But I said that Ifelt it was in the public interest to report what we were doing, to let thepublic, the trade associations and the unions know about the law in this area,?Moran said.BECAUSE HE continuedto issue the press releases, and because of some speeches he made to tradegroups, Moran said, ?I think I was slated to be dumped as chairman in thesummer of 1974, but then President (Richard M.) Nixon resigned and things wereheld up.?Then last summer,one of the other commissioners resigned and Frank R. Barnako, a lawyer forBethlehem Steel, was appointed by President Ford to fill the slot. ?He wassworn in by me on Aug. 1, and I went off to the American Bar Associationconvention in Montreal,? Moran said.??????????? Whilein Montreal, Moran was informed that Ford had designated Barnako to be thecommission chairman and that he was now just a commissioner. ?I guess I wassort of Schlesingered out of my job,? Moran said with a chuckle, referring tothe recent shakeup at the Defense Department.On his first day aschairman, Barnako eliminated the frequent and detailed press releases, Moransaid, and now the commission merely offers a brief mention of selected casesabout every three weeks.Barnako alsodiscontinued the official report of the commission?s activities that wasprinted by the Government Printing Office, and the reporting is now left to theprivate journals that cover the commission, Moran said. He added that thisprocedure concerned him, ?because under the Freedom of Information Act, if youdon?t publish a decision, it can?t be used as a precedent in other cases.?The new situationdid not deter Moran, and it led to the suit he filed this week. ?To circumventthe procedure, I began using my authority as a commissioner to order a reviewof a hearing judge?s decision, because decisions of the commission getpublished,? Moran said.Most of thethousands of cases sent to the commission are resolved by the judges, whosedecisions are final unless a commission review is ordered within 30 days. Moransaid that once the commission reviews a ruling, he also has the opportunity toinclude his own comments in the review and in the published order.Cited in his suit isa case in which he ordered a review of a judge?s ruling and in which, Morancharged, the other two commissioners and the body?s executive secretary vacatedhis order ?without his knowledge.?The suit chargesthat since Aug. 5, when Barnako became chairman, there have been ?at least 15other cases? in which Moran has been overruled by the others without tellinghim. The suit added that ?plaintiff (Moran) believes that there may be morecases which have been disposed of in the same manner … but he has been unableto identify the same because of efforts by the defendants to keep suchinformation from plaintiff.?Named as defendantsare Barnako, Commissioner Timothy F. Cleary and Executive Secretary William S.McLaughlin. Barnako was out of town late yesterday and could not be reached forcomment, Inquiries to the other defendants were handled by the commission?spublic information office, which said there would be no comment ?because itwould not, be proper in view of the pending litigation.?AT A HEARING earlieryesterday before U.S. District Judge June L. Green, on a request by Moran foran emergency order blocking further such alleged abuses of his reviewauthority, Moran sat at one table, with the defendants and their lawyers seatedsternly at another. But any possible fireworks were avoided when Asst. U.S.Attorney Gil Zimmerman, representing the defendants, suggested a writtenagreement pending a full hearing on Jan. 7.The agreement saidthat Moran will be informed of all commission actions and will be given anopportunity to participate in all decisions pending the hearing.Moran, 44, who livesin Northwest Washington, said later that the situation was really quiteamicable. ?They just attempted to get away with something, and I?m showing themthat I have some recourse,? Moran said.He summed up thesituation by stating: ?It?s a power play, I think. It?s an attempt tocircumvent the public display of our views, to push through one-sided opinionswithout public scrutiny and news releases.?Asked about hisfuture 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 Inever intended to stay beyond the six years. I guess that?s why I?ve been soindependent while I?ve been here.?\u00a0[Annex II follows]May 21, 1976MEMORANDUMFORWilliamS. McLaughlin Executive Secretary?FROM: Frank R.Barnako ChairmanTimothy F.Cleary Commissioner?You are hereby directed to issuethe following order in each case listed on the attachment hereto. ?Thedirection for review issued by Commissioner Moran on the above captioned caseis hereby vacated for the reasons set forth in Secretary v. Francisco TowerService, OSHRC Docket No. 4845, February 6, 1976.? \u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13815 C. N. STEMPER COMPANY, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 5, 1976DECISIONAND ORDER?Bruce C. Heslop for the Secretaryof Labor.\u00a0Robert A. Stemper, Jr. for therespondent.\u00a0William Ellis for the employee?sunion.\u00a0BURCHMORE, Judge:Bycitation issued May 27, 1975, complainant charged that on May 16, 1975, therespondent committed 25 nonserious violations of section 5(a)(2) of theOccupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (the Act), inthat respondent failed to comply with various provisions of the OccupationalSafety and Health Standards provided in 29 C.F.R. 1910. Timely notice ofcontest was filed as to items 10 and 12 of the citation and the proceeding wasassigned to the undersigned administrative law judge for hearing andadjudication. Hearing was held at Dayton, Ohio, on October 15, 1975. Theparties have submitted the case for decision on the record, without filingbriefs.Atthe outset of the hearing, it was stipulated and conceded, and I find, thatrespondent in an employer engaged in a business affecting commerce within themeaning of the Act. It was also announced that respondent was withdrawing itsnotice of contest to item 12 of the citation. Accordingly, item 12 and theproposed penalty of $55 will be affirmed.Theremaining item, number 10, for which zero penalty is proposed, charges thatrespondent at its Dayton, Ohio, place of business violated 1910.36(b)(8) whichprovided in general terms as follows:(8) Every buildingor structure, section, or area thereof of such size, occupancy, and arrangementthat the reasonable safety of numbers of occupants may be endangered by theblocking of any single means of egress due to fire or smoke, shall have atleast two means of egress remote from each other, so arranged as to minimizeany possibility that both may be blocked by any one fire or other emergencyconditions.?Accordingto complainant, the violation was that ?an exit door was not present at theback of the warehouse and was needed as the nearest exit was 115 feet away,which created a hazard in case of fire to employees as no other way out waspossible from the area.?Theinspecting officer made a sketch of the layout of the property, which isreproduced as Appendix A. The evidence establishes that the warehouse portionof the building contains storage of food products. The products are stored instacks between which there are four, ten-foot aisles leading from front torear, connected by two narrower cross aisles. At times there may be as many asseven employees in the warehouse, but usually there are only one or two. Thereare no highly flammable materials stored in the warehouse; the food productsare packed either in paper bags or in tins in boxes. Egress is availablethrough the four front doors of the warehouse, which are hand operated overheadtype, or via the office or meat cutting room to the front office door or anelectrically operated overhead door beyond the office.Theunion steward testified that the four doors in the warehouse are sometimespartially blocked by trucks loading or unloading, at which times the only otheregress is as stated above.Thebuilding is of masonry with concrete floor. The office partition wall is ofwood and the office is carpeted. The distance from the back wall of thewarehouse to the front doors is about 115 feet. There has not been a fire inthe warehouse in the 25 years that respondent had done business there.Theinspecting officer testified (R. 17) that it was the narrowness of the aislesthat led him to believe there was a problem. However, that condition was thesubject of a separate item number 9 in the citation, and it has been abated.Theevidence shows that, even when trucks are loading, there is room for a personto get out between the side of the truck and the side of the door. (R. 37?8)Consideringall of the evidence, I conclude that the size, occupancy, and arrangement ofrespondent?s workplace are not such that the reasonable safety of occupants maybe endangered by the blocking of a single means of egress. I find that thereare several means of egress, remote from each other, and so arranged as tominimize any possibility that all may be blocked by any emergency condition.Accordingly, I conclude that there has been no violation of the regulation andthe citation should be vacated.Itis ORDERED that item 10 of the citation be and the same is hereby vacated, thatitem 12, and the proposed penalty therefor, be and the same are hereby affirmedand that this proceeding be and the same is hereby discontinued.?RobertN. BurchmoreJudgeOSAHRCJanuary 5, 1976?APPENDIX A[10]There is a parallelprovision in the Administrative Procedure Act. 5 U.S.C. ? 557(b) provides, inpart, that ?. . . the presiding employee . . . shall initially decide the case. . .. When the presiding employee makes an initial decision, that decision thenbecomes the decision of the agency without further proceedings unlessthere is . . . review on motion of the agency within time provided by rule.?(Emphasis supplied.) [Footnote numbering taken from original.][11]The pertinent APA provision is 5 U.S.C. ? 557(b): ?On . . . review of theinitial decision, the agency has all the powers which it would have in makingthe initial decision except as it may limit the issues on notice or by rule.?[12]Black?s Law Dictionary 512 (rev. 4th ed. 1968).\u00a0[13]A March 19, 1971 announcement from the Office of the White House PressSecretary included the following:?The Presidenttoday 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 ReviewCommission . . ..?\u00a0The announcementwent on to describe these nominees in these terms:Moran??Anattorney and labor arbitrator?VanNamee??Administrator of Accident Prevention for the Westinghouse ElectricCorporation in Pittsburgh since 1961?Burch??Directorof the Department of Safety and Accident Prevention of the International Unionof Operating Engineers for the past six years?During the jointhearing conducted by the Senate Labor and Public Welfare Committee on theirconfirmation as members of the Commission reference was made to Van Namee as?representing management? and Burch as ?representing labor.?13a The fulltext of this editorial appears at page S.673 of the Congressional Record forJanuary 28, 1976 with accompanying comments by Senator Lowell Weicker, quotedpartially as follows: ?. . . the decision of the Occupational Safety and HealthReview Commission to cease publication of their rulings . . . cannot butadversely effect the fair administration of the law.?[14]In excess of 45% of alldirections for review were issued in cases where no party petitioned forreview. Contrast this actual experience with the assertion in the majorityopinion that directions for review are ?largely? in response to petitions fordiscretionary review filed by the parties.[15] In order to insure that Iwould be kept in the dark about the issuance of these orders a written noticehad to be given to the Executive Secretary from Mr. Barnako (who is hisimmediate superior) because the Executive Secretary would not otherwise havemailed the orders to the parties until he saw that all three members hadparticipated in these decisions. That written notice specified that I was notto be allowed to participate in those 16 decisions.[16] In this connection see mydissenting opinion in Secretary v. Trustees of Penn Central Transport Co.,OSAHRC Docket No. 5796, December 22, 1975 for a specific instance where aCommission member delayed the issuance of a decision for reasons totallyunrelated to the merits of the case under consideration.[17] When a Judge?s decisionis directed for review the Administrative Procedure Act requires that partiesto the case be given a ?reasonable opportunity? to submit briefs, exceptions,and proposed findings and conclusions to the Commission members before themembers make their decision. 5 U.S.C. ? 557(c).\u00a0[18] If either Mr. Cleary orMr. 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 to5 U.S.C. ? 555(b) in their majority opinion in this case), they could do so byjoining me in setting a deadline for the resolution of all review-directedcases. Currently, the average time for disposition of review-directed casesexceeds two years from the date an employer contests a citation to the date ofthe ? 659(c) final order. It is rapidly creeping toward the three-year mark.[19] 29 U.S.C. ? 651(b)(5)\u00a0[20] 16 U.S.C. ?? 791a?825r\u00a0[21] 15 U.S.C. ?? 717?717w\u00a0[22] 502 F.2d 278, 279?280(9th Cir. 1974).”