“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3514-P CONTINENTAL STEEL CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0May 7, 1974ORDER OF REMANDBefore MORAN, Chairman; VAN NAMEE and CLEARY,CommissionersCLEARY, COMMISSIONER:??????????? OnFebruary 14, 1974, petitioner Continental Steel Corporation?s petition formodification of abatement was dismissed by Administrative Law Judge Joseph L.Chalk who ruled that the Commission lacks jurisdiction under section 10(c) ofthe Occupational Safety and Health Act (29 U.S.C. ? 651 et seq., hereinafterreferred to as ?the Act?) to consider such petitions.??????????? OnFebruary 25, 1974, I directed that the Judge?s decision and order be reviewedby the Commission pursuant to section 12(j) of the Act. The Commission, uponreview of the entire record, reverses and remands the case.??????????? TheJudge applied a theory of jurisdiction that the Commission concluded waserroneous in H. K. Porter, Inc., No. 1210?P (March 22, 1974). TheJudge?s decision is one of a number of recent instances in which judges haveheld that the Commission has no jurisdiction over petitions for modification ofabatement periods prescribed in citations that have become final orders of theCommission pursuant to section 10 of the Act. This holding is directly contraryto rule 34 of the Commission?s Rules of Procedure (29 CFR ? 2200.34, 37 Fed.Reg. 20240 (September 28, 1972)) and longstanding Commission precedent. See,e.g., Permaneer Corp., No. 947 (July 6, 1972).??????????? Apparentlythe obvious must be stated: Administrative Law Judges must follow Commissionrules, and they also must follow precedents established by the Commission. InsuranceAgents? International Union, 119 N.L.R.B. 768, 41 L.R.R.M. 1176, 1178(1957); Iowa Beef Packers, Inc., 144 N.L.R.B. 615, 54 L.R.R.M. 1109,1112 (1963). See M. Ruhlen, Manual for Administrative Law Judges, 61(Administrative Conference of the United States, 1974) and cases cited therein.Therefore, the approach taken by the Administrative Law Judges in this andsimilar cases is inexcusable.??????????? ACCORDINGLY,the Judge?s decision is reversed and the case is hereby remanded for furtherproceedings consistent with this decision.?MORAN, CHAIRMAN, dissenting:??????????? In myopinion this decision is wrong just as was the decision in Secretary v. H.K. Porter, Inc., supra. But its fallaciousness is compounded by themalevolent language it employs to cast aspersions against an Administrative LawJudge who has performed his sworn duty to uphold the Constitution and statutesof the United States as they are written?not as others think they should havebeen written.??????????? Thestatute clearly states that the Secretary of Labor shall rule on petitions formodification of abatement?not the Commission:??????????? Upona showing by an employer of a good faith effort to comply with the abatementrequirements of a citation, and that abatement has not been completed becauseof factors beyond his reasonable control, the Secretary, after an opportunityfor a hearing as provided in this subsection, shall issue an order affirming ormodifying the abatement requirements in such citation. 29 U.S.C. ? 659(c).\u00a0??????????? Tomake it even clearer, 29 U.S.C. ? 652(1) provides that, for the purposes ofthis Act?The term ?Secretary? means the Secretary of Labor.??????????? Thisopinion would have one believe that the Commission long ago ruled that the word?Secretary? in ? 659(c) really means ?Commission,? despite what ? 652(1) says.The fact is that there was no such ruling until after the judge?s decision inthis case was written. The startling revelation that ?Secretary? means?Commission? was first announced on March 22, 1974 in the H. K. Porterdecision, supra. It is therefore understandable that the judge, in decidingthis case prior to March 22nd, would rule as he did.??????????? Asfar back as 1972, a decision of this Commission in Secretary v. ContinentalCan Company, Inc., OSAHRC Docket No. 1104 (December 22, 1972) stated:Sec. 10(c) of the Act provides thatRespondent could contest the action of the Secretary through the ReviewCommission or after a good faith effort to comply with the abatementrequirements and factors beyond its control prevent its compliance it couldhave a hearing before the Secretary who could then modify or affirm theabatement requirements. [emphasis added]???????????? Inthe present case the judge followed the plain words of the statute as well asthe dicta contained in this 1972 case. A disposition so founded hardly meritsthe gratuitous hypercriticism in which the Commission members have hereinindulged.??????????? Thereis, of course, no ?long-standing Commission precedent? to support theCommission?s decision in this case. The Continental Can case, supra isto the contrary, for example. So, too are many other matters which were alludedto in the H. K. Porter case, supra.??????????? OnMay 1, 1973, the Chairman of the Occupational Safety and Health ReviewCommission sought a ruling from the Attorney General pursuant to 28 U.S.C. ?512 on this very issue.[1] The Attorney General didnot rule on that request because, as stated in a reply dated May 25, 1973,We understand that negotiations are inprogress between the Commission and the Department of Labor in an attempt toresolve administratively any differences which may exist as to the properinterpretations of ? 10(c). If that matter is resolved by negotiations, ouropinion will not be needed. Pending your further advice, we shall hold yourrequest in abeyance.???????????? Thenegotiations referred to above continued until January 3, 1974, when Judge Dernruled in the H. K. Porter case, supra, that the Commission had nojurisdiction over such matters. Because of the rule prohibiting ex partecommunications, 29 C.F.R. ? 2200.103, those negotiations were then suspendedwhile that case was pending before this tribunal.??????????? Longbefore this matter was brought to the attention of the Attorney General, theSolicitor of Labor had expressed his concern about the practice which haddeveloped with respect to the processing of petitions for modification ofabatement (PMA?s). In a letter to the members of this Commission dated February9, 1972, he stated in partWe believe considerable clarification isneeded respecting procedures for modification of abatement requirements.???????????? Asfurther refutation of the ?long-standing Commission precedent? assertion, thefollowing is quoted from a memorandum dated October 3, 1973, written by JerroldSolomon, a Department of Labor Attorney, to Baruch Fellner, Counsel forRegional Litigation for the Occupational Safety and Health Administration:. . . a metting was held in the office ofAssociate Solicitor Mintz between representatives of the Commission and theDepartment on September 24, 1973. Current and future procedures for thehandling of PMAs were discussed and the following principles were agreed upon:(1) Initial responsibility for resolving PMAs shall be lodged with theSecretary; (2) The Secretary shall adopt procedures for the rapid disposal ofuncontested PMAs without referring the same to the Commission; (3) TheSecretary shall also adopt procedures designed to informally resolve disputesas to the need for modification without resort to the Commission; (4) TheSecretary?s rulings under such procedures, if not disputed by the petitioner orhis employees, shall become, without action by the Commission, the final,non-reviewable order of the Commission: (5) The Secretary?s procedures shallafford affected employees the right to present their position; (6) Only in theevent that the Secretary?s procedures fail to resolve the issue will the matterbe transmitted to the Commission for hearing.???????????? Thelogic behind the negotiations to place PMA responsibility with the Secretary ofLabor was not only the recognition of a clear statutory requirement but therectification of an earlier practice in the docketing of this agency?s caseswhich failed to distinguish between notice of contest (those issues raised byan employer within 15 working days of his receipt of service) and PMA?s (wherethere is no statutory filing time). It was not until February 14, 1972, thatthe first case reached this Commission which was specifically identified as apetition for modification of abatement. With little or no consideration of theCommission?s statutory authority to act upon PMA?s a rule was adopted laterthat year setting forth in writing the procedure which had grown through actualpractice. (It is this rule, 29 C.F.R. ? 2200.34 which this opinion cites as?long-standing Commission precedent.?)??????????? Sincethat time this agency has been deluged with PMA?s, the disposition in 99% ofwhich is agreed upon by the parties before they are ever docketed, thus turningapproximately 50% of the Commission?s caseload into a rubber-stamp operation.In one recent week (April 15 to 19, 1974), there were 111 new cases docketedwith this agency, 52 were PMA?s and 59 were notices of contest. Over 3,000PMA?s have been filed to date at an administrative cost to this agency alone inexcess of one million dollars and without a single case where the dispositionwas different from that which the Secretary of Labor would have granted. Therecan be no logical reason for continuance in this agency of such a needlesspaper-pushing operation, one which threatens to engulf this agency?sadministrative processes to the detriment of the expeditious disposition of itslegitimate adjudicatory responsibilities in cases where there are actual issuesin dispute between the parties.??????????? Itappears to me that the nub of the rule enunciated in this case can besummarized as follows: Congress specifically stated that the Secretary of Laborwas to act on PMA?s when it adopted the wording of section 10(c) of the Act.The President agreed when he signed the same into law. The Secretary of Labordoes not question the plain wording of section 10(c). The employer in this casewants the Secretary to act upon its petition. The Administrative Law Judges whohave considered identical cases all agree. Everyone in fact is in agreementexcept the two members of this Commission who boldly proclaim that all theforegoing are in error so they will disregard the express statutory languageand arrogate this function to the Commission. This in spite of the self-evidenttruth stated by the 5th Circuit Court of Appeals in Brennan v. OSAHRC et al(Bill Echols case) 487 F.2d 230 (5th Cir., 1973):No Commission or agency, even under theformidable label of ?absolute discretion? can arrogate to itself the power tosay that night is day or that black is white. . . .???????????? Althoughnot saying that black is white or that night is day, the Commission is todaysaying that ?Secretary? is ?Commission.???????????? Itshould also be noted that the authority to rule upon employee PMA?s isspecifically granted to this Commission, while the authority to rule uponemployer PMA?s is reserved to the Secretary of Labor. The first requires anadjudication as to what is an appropriate abatement date where the Secretaryand the employees are in disagreement. The latter however is allowable only upona showing by an employer of good faith effort to comply with the abatementrequirements of a citation and that abatement has not been completed because offactors beyond his reasonable control. . . .??????????? Shouldan employer disagree with the abatement date specified in a citation (ratherthan initially attempting to comply therewith as contemplated by the languagequoted above), he would have the have the same authority as would employees toobtain a ruling from this Commission provided he filed a notice of contest tothe citation within the time limits specified in the Act. See 29 U.S.C. ?659(c) and Continental Can case, supra. The same applies to employerswho duly contest an action to assess an additional penalty for the allegedfailure to correct a violation within an abatement period established in apreviously-issued citation. 29 U.S.C. ? 659(b).??????????? Abasic rule of statutory construction is that resort to legislative intent isunwarranted where a statute is clear and unambiguous on its face. Caminettiv. United States, 242 U.S. 470, 485 (1917). Certainly, the words ?theSecretary? in 29 U.S.C. ? 659(c) are clear and unambiguous.[2] Furthermore, analysis ofthe legislative history and other provisions of the Act supports the view thatCongress intentionally used the words ?the Secretary? rather than the words?the Commission? in this subsection of the statute.??????????? Thepurpose of the provision in 29 U.S.C. ? 659(c) permitting petitions formodification of abatement periods by employers is explained in Senate ReportNumber 91?1282[3]as follows:It is anticipated that in many cases anemployer will choose not to file a timely challenge to a citation when it is issued,on the assumption that he can comply with the period allowed in the citationfor abatement of the violation. In some such cases the employer maysubsequently find that despite his good faith efforts to comply, abatementcannot be completed within the time permitted because of factors beyond hisreasonable control?for example, where the delivery of necessary equipment isunavoidably delayed. In order to prevent unfair hardship, the bill providesthat in such instances the employer may obtain review and modification by theSecretary of the abatement requirements specified in the citation, even thoughthe citation has otherwise become final. (Emphasis added)???????????? Thisexplanation makes it clear that Congress intended to provide an extraordinaryremedy for the employer, believing that he was fairly cited, does not contestan initial citation, but later finds that, because of factors beyond hiscontrol, more time is required to abate the hazardous condition than theuncontested citation allowed.??????????? Aftera citation has become a final order of the Commission, the issue of whether anabatement period should be extended is an enforcement problem rather than ajudicial question. In recognition of this fact, it was logical for Congress tobestow jurisdiction over this extraordinary remedy upon the Secretary. Theplacing of this jurisdiction with the Secretary is consistent with otherprovisions of the Act which require the Secretary to conduct hearings and issueorders on similar matters, for example, applications by employers for avariance from a standard. 29 U.S.C. ? 655(b)(6) and (d). See also 29 U.S.C. ?660(b). It is also consistent with the authority of the Secretary to grantextensions of time under 29 U.S.C. ? 655(e) and to establish the timing andmanner of payment of penalties assessed under the Act.??????????? Althoughseveral other sound reasons may have prompted Congress to confer jurisdictionon the Secretary, one of the most obvious is the need for the fastest possibledisposition where an extraordinary remedy is sought. All citations issued underthis Act must be preceded by an on-site inspection by a representative of theSecretary of Labor. 29 U.S.C. ? 658(a). To fulfill this requirement it isnecessary that the Secretary have representatives located in all areas of thecountry. Those representatives can readily provide the Secretary with theinformation upon which to base a decision when an employer, who has notcontested an abatement date, asserts that factors beyond his reasonable controlprevent him from complying with those unchallenged abatement requirements. Ifthe reason is a flood or a strike or frozen ground or any of a dozen similarreasons, this Commission is far less able to make an expeditious determinationthan is the Secretary with his widespread field investigatory staff.??????????? Thelaw here is both sensible and clear: After a citation has become a final order,this Commission no longer has authority to modify an abatement period if thepetition therefor is based on the sole grounds that abatement has not beencompleted because of factors beyond the reasonable control of the employer. Ifthe Commission?s ruling to the contrary is allowed to stand, it will not onlycontinue the problems alluded to above but will also permit future decisions tonullify 29 U.S.C. ? 659(b) simply by the exercise of the Commission?s arrogatedpower to modify undisputed abatement dates.??????????? Forthe foregoing reasons, it is my opinion that the ruling of the Judge was properand its reversal by the Commission is erroneous.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3514-P CONTINENTAL STEEL CORPORATION ??????????????????????????????????? , \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 ?February 14, 1974 CHALK, JUDGE, OSAHRC:??????????? Thisis the second petition filed by Petitioner in this case for modification ofabatement. The first petition, filed on June 28, 1973, and unopposed byRespondent, was granted by another judge of this Commission on September 28,1973. The present petition, opposed by Respondent, was filed on November 16,1973.??????????? Asjurisdiction to entertain and adjudicate petitions for modification ofabatement vests exclusively in the Secretary of Labor (see New Haven Foundryv. Secretary of Labor et al, Docket No. 4514?P, February 11, 1974), theproceedings are dismissed.?It is SO ORDERED.\u00a0?\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3514-P CONTINENTAL STEEL CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September 28, 1973PATTON, JUDGE, OSAHRC:??????????? Thiscase is before this Administrative Law Judge on the petition of ContinentalSteel Corporation, hereinafter referred to as petitioner for modification ofabatement period. A citation was issued in this case on May 29, 1973, by theSecretary of Labor, United States Department of Labor, hereinafter referred toas respondent, alleging that petitioner had violated section 5(a)(2) of theOccupational Safety and Health Act, hereinafter referred to as the Act, andvarious Occupational Safety and Health Standards including standard 29 CFR 1910.179(g)(2)(i). It was alleged that said standard was violated in thatpetitioner had failed to guard or enclose electrical equipment so that liveparts would not be exposed to accidental contact under normal operatingconditions on the ten ton Cleveland crane in the old hot mill area and on theskull cracker crane. Said citation required the petitioner to abate saidalleged violation by July 1, 1973. The petitioner did not file a contest ofsaid citation or of proposed penalty and said citation became a final order.??????????? OnJune 28, 1973, the petitioner filed a request for modification of abatementdate as to said alleged violation requesting that the abatement date be changedfrom July 1, 1973, to July 11, 1973. The petitioner stated that when petitionerstarted making repairs on the ten ton Cleveland crane in the hot mill area itwas determined that all electric wiring should be replaced. Petitioner statedthat due to the magnitude of the job, the original abatement date could not bemet. On July 11, 1973, the petitioner and the respondent filed a stipulationfor modification of abatement date, wherein the respondent agreed to themodification of abatement date to require abatement by July 11, 1973, ratherthan July 1, 1973. It was alleged in said stipulation that petitioner wasproceeding in good faith encumbered only by factors beyond its control andrespondent agreed that an extension of time for abatement to said new abatementdate was reasonable within the meaning of section 9(a) of the Act andrecommended that it be granted by the Occupational Safety and Health ReviewCommission. It appears to this Judge that said petition for modification ofabatement date is proper and should be granted.??????????? It istherefore Ordered that the date for abatement of the violation of standard 29CFR 1910.179(g)(2)(i) as set forth in Item No. 16 of the citation be and thesame hereby is changed from July 1, 1973, to July 11, 1973.[1] The text of thatletter follows:This is a request for an interpretation ofthe Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat.1590) as it relates to the relative responsibilities of this agency and theDepartment of Labor.Section 9 of that Act authorizes theSecretary of Labor to issue citations to employers when he believes them to bein violation of the Act. It further provides that such a citation shall ?fix a reasonabletime for abatement of the violation.?Pursuant to section 10(a) of the Act, ifthe Secretary?s enforcement action is not contested as, and within the timeperiod, therein provided it ?shall be deemed a final order of the [OccupationalSafety and Health Review] Commission.?The specific provision of the Act uponwhich your interpretation is requested is the penultimate sentence of section10(c):Upon a showing by an employer of a goodfaith effort to comply with the abatement requirements of a citation, and thatabatement has not been completed because of factors beyond his reasonablecontrol, the Secretary [of Labor], after an opportunity for a hearing asprovided in this subsection, shall issue an order affirming or modifying theabatement requirements in such citation.This issue arises because the Secretaryhas been sending such requests from employers (commonly referred to asPetitions for Modification of Abatement) to this agency for disposition. Youradvice is requested as to whether actions modifying abatement requirementsshould be issued by this Commission or by the Secretary of Labor.Here is a typical fact situation callingfor modification of the abatement requirements of a citation: The Secretaryissues a citation against employer A for failure to install a guard on amachine and proposes a $50 penalty for the offense. The citation states that aguard is to be installed on the machine by September 1, 1972. Employer Areceives the citation and notification of proposed penalty on August 1, 1972.He does not exercise his right to contest this action ?within 15 working days?as set forth in section 10(a). Consequently, the Secretary?s enforcement actionis ?deemed a final order of the Commission? on August 22, 1972. At some datelater than August 22, Employer A finds that, because of ?factors beyond hisreasonable control,? he cannot install the machine guard by September 1 as isnow required. He thereupon petitions the Secretary to change the abatement dateto October 1.It would be appreciated if we could haveyour advice as to which agency has the responsibility under law to act uponemployer petitions for modification of the abatement requirements contained incitations issued by the Secretary of Labor which have not been contested under theOccupational Safety and Health Act of 1970 and have, thus, become final ordersof this agency.[2] Although it may becontended that an ambiguity exists because of the requirement in 29 U.S.C. ?659(c) for the Secretary to furnish ?an opportunity for a hearing as providedin this subsection,? the simple answer to that contention is that this merelyrequires the Secretary to conduct his hearings in accordance with theAdministrative Procedure Act, 5 U.S.C. ? 554 without regard to subsection(a)(3), as is required in Commission hearings by the parenthetical phrase inthe first sentence of 29 U.S.C. ? 659(c).[3] United States CodeCongressional and Administrative News 5192 (1970).”