“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11046 FISCHBACH & MOORE, INCORPORATED, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 18,1976ORDERVACATING DIRECTION FOR REVIEW?BEFORE BARNAKO, Chairman; MORAN and CLEARY,Commissioners.BY THECOMMISSION:The order forreview issued in this case is hereby vacated for the reasons assigned in FranciscoTower Service, BNA ?? O.S.H.C. ??, CCH E.S.H.G. para. ___ (No. 4845, 1976).?FOR THECOMMISSION:?William S.McLaughlinExecutiveSecretaryDated: FEB 18,1976?MORAN,Commissioner, Dissenting:With this?order? Messrs. Barnako and Cleary continue their illegal scheme of depriving aduly appointed and qualified member of this Commission from exercising hisstatutory 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 DirectionFor Review.??Not only doesthis order illegally deprive a member of this Commission of a statutory rightbut it has no force or effect upon the parties to this case since it neitheraffirms, modifies nor vacates the matters placed in issue by respondent?snotice of contest. Consequently, there is no final order as to those contestedissues and they continue to pend before the Commission undecided.?When dulycontested, there is no requirement that an alleged violation be abated nor canthe Secretary of Labor collect any monetary penalties?or rely on this case toprove a prior violation?until a final order is issued. 29 U.S.C. ? 659(c).?I discussedthese matters at greater length, including the reasons why my colleagues areproceeding in this unusual manner, in Secretary v. Francisco Tower Service,OSAHRC Docket No. 4845, February 6, 1976, which I attach hereto as Annex I andincorporate by reference herein.\u00a0[Text of Annex Ifollows]MORAN,Commissioner, Dissenting:This order is withoutforce or effect since it neither affirms, modifies nor vacates the citation orproposed penalty. Consequently, there is no final order, and the issues indispute in this case continue to pend before the Commission undecided. Until afinal order has issued, there is no requirement that an alleged violation beabated nor can the 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 Commission shall thereafter issue an order, based on findingsof fact, affirming, modifying or vacating the Secretary?s citation or proposedpenalty, or directing other appropriate relief, and such order shall becomefinal thirty days after its issuance. (Emphasis supplied.)?That has notbeen done in this case. No final action has been taken on the citations orproposed 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 the final order ofthe 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 sectionof the Act is even more specific in this regard. ? 660(b) allows the Secretaryof Labor to obtain enforcement of any ?final order? of the Commission if hefiles a 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 ?theCommission?s finding of fact and order shall be conclusive in connection withany [such] petition for enforcement.? Here, since the Commission has made nofindings of fact itself?and has not adopted the Judge?s findings of fact?nopetition for enforcement would lie even if this ?Order Vacating Direction forReview? could qualify as a ? 659(c) final order.Nor is anyappeal of this ?order? permitted. The only Commission order which can beappealed 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 of the Commission with respect to questions offact, if supported by substantial evidence on the record considered as a whole,shall be conclusive.??Messrs. Barnakoand Cleary 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 the hearing examiner shall become the finalorder of the Commission within thirty days after such report . . . unlesswithin such period any Commission member has directed that such report shall bereviewed by the Commission.? (Emphasis supplied.)?This is theonly statutory provision giving finality to an Administrative Law Judge?sdecision. [1] Sucha decision cannot ?become the final order of the Commission? if any Commissionmember directs that ?such report shall be reviewed by the Commission? withinthe time prescribed. See Secretary v. Gurney Industries, Inc., 6 OSAHRC634, 637?641 (1973).There is nodispute over 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 textof the direction for review is stated in the Commission order except for thefirst 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 theabove-entitled case.??My colleagues,in effect, 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).[2]The actiontaken by Messrs. Barnako and Cleary in this case is nothing less than anunabashed attempt to deprive a member of this Commission of a statutory rightto have a particular decision reviewed.Congresscreated this agency for the single purpose of ?carrying out adjudicatoryfunctions under the Act.? 29 U.S.C. ? 651(b)(3). It provided that it shouldoperate as a bi-level tribunal consisting of Administrative Law Judges whopreside at trials and make the initial decisions, with review thereof by thethree members of the Commission sitting as a panel to review such decisions andissue final orders. 29 U.S.C. ?? 659(c), 661(a), 661(d), and 661(i). It furtherprovided that each of the three members?. . . 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 the Commissionunder 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 makesonly one exception to the provision that the Commission members shall operateas a collegial tribunal in carrying out its adjudicatory functions under theAct. In ? 661(i) it clearly grants to ?any? single member the power to requirethat an Administrative Law Judge?s decision shall be reviewed by the tribunal.With thisorder, however, Messrs. Barnako and Cleary have combined to deprive a dulyappointed and qualified member of the Commission of this statutory grant ofauthority. They have abrogated to themselves the authority which the Act gaveto someone else. They have done this to impede the free flow of ideas whichinevitably springs from the collegial process. Nevertheless, even if theirpurpose could be truthfully regarded as sound public policy, it could not belegally accomplished because rulings articulated in Commission decisions?nomatter how beneficial?cannot rise beyond the Congressional delegation in theenabling legislation. The fixing of a definite power in a statute?that of anindividual member to cause the Judge?s decision to be reviewed by the membersof the Commission?is enough to establish the legislative intent that the poweris not to be curtailed or restricted. What Congress has given cannot be takenaway by members of this Commission. The Supreme Court stated it this way in Humphrey?sExecutor v. U. S., 295 U.S. 602 (1935):?The sound application of a principlewhich makes one master in his own house precludes him from imposing his controlin the house of another who is master there.??In theJustinian Code, this rule was expressed more succinctly: ?Delegata potestas nonpotest delegari,? which Henry Campbell Black translates as ?a delegated powercannot be delegated.?[3] Thislong-standing rule of law, however, has not deterred Mr. Barnako and Mr. Clearyfrom delegating to themselves what Congress has delegated to me.Congress deliberatelychose to establish this Commission with three members, and the President, byhis selection of persons of diverse backgrounds to constitute the originalmembership, fully implemented that collegial purpose.[4] It was generally assumedthat the tribunal would be truly impartial if its decisions included input frompersons whose past experience has 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 assertedearlier that 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 actiontaken by my colleagues in this case is a continuation of a policy which beganshortly after Mr. Barnako took office on August 1, 1975. It has been detailedin the public press. See, for example, The Washington Star, November 27, 1975article entitled ?Press Releases on Failures Helped Demote Chief of HealthUnit,? a copy of which is attached hereto as Appendix A. The matter wassummarized by the St. Louis Labor Tribune in a January 22, 1976 editorialentitled ?(Don?t) Let The Sunshine In? which is quoted herewith withoutelaboration:?An OSHA official?s attempts to let a little sunshine in onhis record led to his replacement as captain of the Administration?s ReviewCommission and eventually to virtual exclusion from the business conducted byhis fellow commissioners.?Robert D. Moranis still on the team (his term runs until 1977), but in the meantime he isn?teven invited 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 replacedby a 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,led Barnako, 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, criedMoran and 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 Tribune applauds Robert D.Moran, a man who won?t be muffled, and wishes him well in his litigation.?The HartfordCourant took a somewhat similar view in a December 4, 1975 editorial ?OSHANeeds 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. TheOSHA hierarchy is making it more difficult, even as Congress tries to correctits mistakes.?* * * Frank R. Barnako, newly-appointed chairman of the OSHAReview Commission, has directed that commission decisions will no longer bepublished either as news releases or formal reports?both have been done in thepast.?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?concluded with 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 thatthis policy of impeding the free flow of ideas is directed only at the views ofone member in particular can be amply demonstrated by the unresolved cases onthe dockets of this Commission. During the period June 1, 1974, throughNovember 30, 1975, there were directions for review filed by the three membersin a total of 593 cases (most of them by Mr. Cleary). In 268 of these there wasno petition for review by any party.14 In none of these cases(except those directions issued by me) has either Mr. Barnako or Mr. Clearyproposed an order vacating the direction for review. Nor has either ofthem?with respect to such directions for review?taken the position that they dohere:?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.??With respect tothe instant case, the majority opinion states that ?. . . it has not been, noris it now, before us on its merits.? But, by their double-standard reasoning,all the directions for review filed by Mr. Cleary and former CommissionerVanNamee where no party has petitioned for review are before us on theirmerits.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 forreview asked only ?[w]hether the Administrative Law Judge committed reversibleerror.? In Secretary v. John T. Clark & Son of Boston, Inc., OSAHRCDocket No. 10554, the direction for review asked only whether theAdministrative Law Judge erred in vacating the citation alleging non-compliancewith the standard at 29 C.F.R. 1918.105(a).? There is, of course, no differencewhatsoever between a sua sponte direction for review questioning whether thejudge erred in his decision and one like that here under consideration whichsimply directed the judge?s decision for review so that its findings of factand conclusions of law could be reviewed by the members.Anotherindication that this action of Messrs. Barnako and Cleary is part of acontinuing attempt to prevent the views of this member from being included inCommission decisions is the 16 previous cases in which they issued an ?OrderVacating Direction for Review.? As mentioned in The Washington Star article(attached as an exhibit hereto) and the above-quoted editorial in the St. LouisLabor Tribune, all 16 of those ?orders? were issued by my colleagues withoutany 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 meprior to their release to the parties so that my views could be appendedthereto?a total departure from the practice which has been in effect for everydecision ever issued by this Commission prior to the day Mr. Barnako became theCommission?s Chairman.15 It is my belief that a similar?procedure? would have been employed in many additional cases were it not formy initiation on November 25, 1975?the day I learned of these ?orders??of aPetition in the U.S. District Court for the District of Columbia to put a stopto it. This matter is also mentioned in the newspaper articles referred to supra.The very factthat the majority is proceeding in this case in this most unusualmanner?vacating the direction for review rather than affirming the decision ofthe judge?is additional evidence that their purpose is to prevent my views onthe issues arising in this case from being included in the Commission?sdecision. They apparently would prefer to have no decision?to have this andsimilar cases pend in limbo for infinity?rather than to have a decision inwhich I could participate.I note thefollowing language 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 was theirdisposition to affirm, they would have said so. On the other hand, the Actmakes it crystal clear that a Judge?s decision could not affirm the Secretary?scitation if?as has happened in the case now before us?a Commission member hasdirected 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 fromexercising his statutory rights, Messrs. Barnako and Cleary have created thevery monster they claim will result from my direction for review?they ?permit ahazardous condition to continue unabated.?Of course thereis a very 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 beremiss of me, however, if I failed to note the hollow ring that surrounds mycolleagues? assertion that they will ?continue? to reject any ?unnecessarydelay of the proceedings.?16 I had occasion to respond to aquestion on this Commission?s backlog which was addressed to me during hearingsconducted by the Senate Committee on Appropriations on June 25, 1974. Ianswered with the following words:?The members of the Commission have about 400 undecided casesbacked 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 timeformer Commissioner Alan Burch?s term expired in April 1973, there was abacklog of 228 undecided cases. His replacement announced that his No. 1priority was a reduction in that backlog. However, in April 1974 there had beenan increase in the backlog of more than 60 percent?making a total of 367undecided cases. The number 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 twoyears without final decision.In all honesty, I see no prospect for reducing this backlogduring fiscal year 1975 unless there are membership or legislative changes. Onthe contrary, I fully expect to see it increase. At this time next year it willexceed 600 cases if the existing situation continues.? Senate Hearings Beforethe Committee on Appropriations, Departments of Labor, Health, Education, andWelfare, and Related Agencies Appropriations, H.R. 15580, 93d Congress, 2dSession, 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 thatthe above discussion indicates how quick my colleagues have been in the recentpast to reject the ?unnecessary delay of the proceedings? of this Commission.Candor enjoinsme to concede that part of the reason for the recent increase in the backlogresults from the high number of Judge?s decisions which I have directed forreview in the past few months. It is obvious from the comments in the majorityopinion that my colleagues do not agree with me that many of those cases oughtto be reviewed by the Commission. They are, of course, perfectly within theirrights in taking this view. However, that being so, there is no reason whythese cases should remain in the backlog. They could affirm any Judge?sdecision I directed for review within thirty days of my action.17Neither 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.18There are othermatters in the majority opinion which also merit further discussion.Afterdelivering 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 barringsua sponte orders of review by members of the Commission.??The clearimport 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, itis ?in the public interest.? Somehow this brings to mind H. L. Mencken?sdefinition of a Judge as ?a law student who marks his own examination papers.?The majorityopinion also contains a rather amusing attempt at ?bootstrapping? in thediscussion equating directions for review with a writ of certiorari. They quoteone ?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 clear that WilliamFauver is neither an authority on certiorari nor does he pretend to be and noteven he?or anyone else?said that the statutory right of a member of thisCommission to cause a decision by one of this agency?s Administrative LawJudges to be reviewed by this three-member tribunal was conditioned upon thepresence of the same criteria as that which constrains a higher court in theexercise 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 confessto being 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 apolicy-making 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);Brennan v. Gilles & Cotting, Inc. and O.S.H.R.C., 504 F.2d 1255, 1262(4th Cir. 1974).??Neither ofthese cases support the broad assertion for which they are cited. They don?teven come close. In the latter-cited case, at page 1262, the Court noted thatthe Secretary of Labor was seeking to overturn a ruling of this Commission thata prime 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 othercited authority, the Gordon case, the Court was concerned with adecision of this Commission which barred an Administrative Law Judge fromreopening a hearing on his own motion in order to take evidence on jurisdictionunder the Commerce Clause. The Court reversed the Commission and held that theJudge acted 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 thatits role [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 public interest?. . . 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 themajority is not claiming that this Commission which was given only a singlefunction to perform (?carrying out adjudicatory functions under the Act?)19has the broad scope of regulatory powers Congress granted to the Federal PowerCommission under the Federal Power Act20 and the Natural GasAct21or that the quoted reference in the Gordon case transposed the authority ofthis Commission from an adjudicatory agency into a protector of the publicinterest. 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 andHealth Review Commission] has neither prosecution nor enforcement powers. Thosehave been exclusively delegated to the Secretary [of Labor].?Policy makingis arguably a 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 the foregoingdiscussion demonstrates that the majority is once again resorting to ?bootstrapping?in an attempt to arrogate to itself policy-making powers which it simply doesnot 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 Releaseson Failures Helped Demote Chief of Health UnitBy David PikeWashington StarStaff WriterRobert D. Moranwas reasonably happy and secure for the first several years of being chairmanof the three-member Occupational Safety and Health Review Commission, afterbeing appointed when it came into existence in April 1971.Moran, a lawyerwith experience in. labor matters both in the private sector and with thegovernment, 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 inlate 1973, it started to become apparent ?that the Labor Department didn?t likeme,? Moran said yesterday. And the situation has become so bad lately, Morancharged in a suit filed this week in U.S. District Court, that the two othercommissioners and the body?s executive secretary have recently been makingdecisions without even telling him.MORAN SAIDyesterday that the situation began to deteriorate when he was called in late1973 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 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 saidthat I felt it was in the public interest to report what we were doing, to letthe public, the trade associations and the unions know about the law in thisarea,? Moran said.BECAUSE HEcontinued to issue the press releases, and because of some speeches he made totrade groups, 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 lastsummer, one of the other commissioners resigned and Frank R. Barnako, a lawyerfor Bethlehem 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.While inMontreal, Moran was informed that Ford had designated Baranko 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 as chairman,Baranko eliminated the frequent and detailed press releases, Moran said, andnow the commission merely offers a brief mention of selected cases about everythree weeks.Baranko 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 NEWsituation did not deter Moran, and it led to the suit he filed this week. ?Tocircumvent the procedure, I began using my authority as a commissioner to ordera review of 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 hissuit 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 secretaryvacated his order ?without his knowledge.?The suitcharges that since Aug. 5, when Baranko became chairman, there have been ?atleast 15 other cases? in which Moran has been overruled by the others withouttelling him. The suit added that ?plaintiff (Moran) believes that there may bemore cases which have been disposed of in the same manner … but he has beenunable to identify the same because of efforts by the defendants to keep suchinformation from plaintiff.?Named asdefendants are Barnako, Commissioner Timothy F. Cleary and Executive SecretaryWilliam S. McLaughlin. Baranko was out of town late yesterday and could not bereached for comment, Inquiries to the other defendants were handled by thecommission?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 HEARINGearlier yesterday before U.S. District Judge June L. Green, on a request byMoran for an 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 agreementsaid that Moran will be informed of all commission actions and will be given anopportunity to participate in all decisions pending the hearing.Moran, 44, wholives in 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 upthe situation 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\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11046 FISCHBACH & MOORE, INCORPORATED, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 29, 1975DECISIONAND ORDERAPPEARANCES:Ann M. Noble, Office ofHenry C. Mahlman, Associate Regional Solicitor, U.S. Department of Labor, 15019Federal Building, 1961 Stout Street, Denver, Colorado,forthe Complainant,\u00a0John J. Mullins, Jr.,Gorsuch, Kirgis, Campbell, Walker & Grover, Attorneys at Law, 1900 SecurityLife Building, Denver, Colorado,forthe Respondent.?October 29, 1975Morris, Judge,OSAHRC:Citationsallege violations of the Occupational Safety and Health Act of 1970 (29 U.S.C.651 et seq., hereafter called the Act). Complainant asserts that at aconstruction site in Little America, Wyoming respondent violated Section654(a)(2) of the Act in failing to comply with occupational safety and healthstandards established pursuant to Section 655.Citation4 alleges a serious violation of 29 CFR 1926.28(a). A civil penalty of $550 isproposed. It reads:A welder performingan arc welding operation while standing on an 8 inch wide beam about 18 feetabove ground floor level in the #3 Boilerhouse did not have a safety belt witha life line secured to protect him from the possible hazard of a fall, nor weresafety belts and lanyards used as described in 29 CFR 1926.104, on or aboutOctober 22, 1974.\u00a0Thestandard reads:? 1926.28 Personalprotective equipment.?(a) The employer isresponsible for requiring the wearing of appropriate personal protectiveequipment in all operations where there is an exposure to hazardous conditionsor where this part indicates the need for using such equipment to reduce thehazards to the employees.?Theevidence: Respondent?s employee, precariously balanced between a scaffold and anarrow beam, welded a metal strut. Working eighteen feet above the groundlevel, he had no safety belt or life line (Tr. 12?13, 35, 89, 978 98; compl?s.ex. 1).Respondent?stestimony questions the accuracy of complainant?s photographs but supervisorypersonnel concedes the necessity of a safety belt if the employee did positionhimself outside the scaffold (Tr. 73, 90). A gang box 25 to 30 feet awaycontains safety belts (Tr. 79, 92).Clearlythe evidence supports the finding of a violation of citation 4. The inspectoracted properly in issuing the citation at the time of the inspection.Inits brief respondent attacks as unenforceably vague Part 1926.28(a). Thefollowing Commission decisions dispose of this arguments: Secretary v.Hoffman Construction Company, 15 OSAHRC 327 (1975); Secretary v. GeneralBronze Architectural Products, 18 OSAHRC ?? Docket Number 2031, May 29,1975; Secretary v. Armor Elevator Company, Inc., 18 OSAHRC ??, DocketNumber 2204, June 2, 1975. The Commission in Hoffman held, in part:?Therefore, itis not necessary that such other standards be specifically alleged bycomplainant: 29 CFR 1926.28(a) cited alone, as in this case, is sufficient toimpose a duty that safety belts be tied off.?Respondentargues that because its employee momentarily stepped off the scaffold to weld aparticular piece no serious violation can be established (29 U.S.C. 666j).Secretary v. Stearns Rogers Corporation 12 OSAHRC 172 and Secretary v. BradfordRoofing Insulation Company, 19 OSAHRC ??, Docket Number 4374 (final orderAugust 13, 1975) reject this argument. Placement of inadequate scaffolding forthe work to be performed constitutes sufficient notice to an employer of thelikelihood of a violation (Tr. 101?102).Citation5 with a proposed penalty of $30 alleges a nonserious violation of 29 CFR1926.353(c)(3).Thecitation:An employee wasengaged in welding metal containing or coated with cadmium bearing materials inthe open air without the protection of a filter type or other approved typerespirator at the east side of and about 18 feet above ground level of the #3Boilerhouse.?The standardreads:? 1926.353Ventilation and protection in welding, cutting, and heating.(c) Welding,cutting, or heating of metals of toxic significance.?(1) Welding,cutting, or heating in any enclosed spaces involving the metals specified inthis subparagraph shall be performed with either general mechanical or localexhaust ventilation meeting the requirements of paragraph (a) of this section:?(i) Zine-bearingbase or filler metals or metals coated with zinc-bearing materials;?(3) Employeesperforming such operations in the open air shall be protected by filter-typerespirators in accordance with the requirements of Subpart E of this part,except that employees performing such operations on berylium-containing base offiller metals shall be protected by air line respirators in accordance with therequirements of Subpart E of this part.\u00a0Atthe commencement of the trial complainant moved to amend the citation to allegethat the metal being welded contained a zinc rather than a cadmium base.Commission precedent authorizes an amendment to a citation where no resultingprejudice occurs. Secretary v. J. L. Mabry Grading, Inc., 9 OSAHRC 98(1973): Secretary v. Lovell Clay Products, Inc., 10 OSAHRC 237 (1974).Respondent declined an offer of additional time to meet the new allegation.Theevidence: Statements to the inspector indicated the metal being weldedcontained cadmium. He later learned the metal was zinc coated (Tr. 18, 31?32;compl?s. ex. 30. The manufacturer?s catalogue, the brand name on the metal, andthe uniform coloring establish that the metal contained zinc (Tr. 37, 38, 40;compl?s. ex. 3). Respondent?s vague defense fails to overcome complainant?sprima facie case (Tr. 43, 75, 76, 85, 104, 105, 107). Respondent failed topresent direct, positive evidence showing the composition of the metal.Complainantoffered proof in support of his proposed civil penalties (Tr. 14?18, 20?21).The Commission makes its evaluation independently from such proposals. Secretaryv. Drehr Pickle Company, 2 OSAHRC 497 (1973). The gravity of the violationrequires a greater weight than the other statutory features Secretary v.Baltz Brothers Parking Company, 2 OSAHRC 384 (1973).Incitation 4 the gravity of a fall from eighteen feet is a grave enough situationwarranting no further discussion. On the other hand respondent, a nationwideelectrical contractor (Tr. 47?48), conducts an ongoing safety program withposters, letters and weekly gang box safety meetings (Tr. 48, 50, 52, 53, 60,88; resp?s. ex?s. A to U). In addition to safety programs at its jobsites it furnishesextensive safety equipment to its employees (Tr. 57, 70?71, 91). No adversehistory nor injury are noted. Considering all of the statutory criteria a civilpenalty of $250 is appropriate.Theproposed civil penalty of $30 for the violation of citation 5 falls within theCommission doctrine of Secretary v. Hydroswift 1 OSAHRC 921, (1972) tothe effect that small penalties do effectuate the purpose of the Act where thegravity of the violation is other than low in that it reminds employers thattheir primary responsibility under the Act consists of adherence to itsprotective mechanisms.FINDINGSOF FACT1.Respondent employer engages in a business affecting commerce (complaint,answer, Tr. 47?48, 58).2.An employee standing outside a scaffold are welded a strut without a safetybelt or life line while situated 18 feet above the ground level (Tr. 12?13, 35,89, 97, 98, 101; compl?s. ex. 1).3.The employee in paragraph 2 without an approved respirator are welded a strutcontaining a zinc bearing base (Tr. 18?19, 31, 32, 37; compl?s ex. 2, 3;response to request for admissions 15, 16).CONCLUSIONS1.Respondent is subject to Act (Facts 1).2.Respondent violated 29 CFR 1926.28(a) and citation 4 should be affirmed (Facts2).3.The proposed civil penalty of $550 for the violation established in thepreceding paragraph should be vacated and a civil penalty of $250 establishedin lieu thereof.4.Respondent violated 29 CFR 1926.353(c)(3) and citation 5, as amended, should beaffirmed (Facts 3).5.The proposed civil penalty of $30 for the violation established in thepreceding paragraph should be affirmed.ORDERBasedon the foregoing findings of fact and conclusions of law it is hereby ORDEREDand ADJUDGED as follows:1.Citation 4 for the alleged violation of 29 CFR 1926.28(a) is affirmed; theproposed civil penalty of $550 is vacated and a civil penalty of $250 isassessed in lieu thereof.2.Citation 5 for the alleged violation of 29 CFR 1926.353(c)(3) and the proposedpenalty of $30 are affirmed.SoORDERED in the City and County of Denver, Colorado.?John J. MorrisJudge, OSAHRC[1]Thereis a parallel provision in the Administrative Procedure Act. 5 U.S.C. ? 557(b)provides, in part, that ?. . . the presiding employee . . . shall initiallydecide the case . . .. When the presiding employee makes an initial decision,that decision then becomes the decision of the agency without furtherproceedings unless where is . . . review on motion of the agency withintime provided by rule.? (Emphasis supplied.)?NB: Numbering starts at 10 in original.[2] Thepertinent APA provision is 5 U.S.C. ? 557(b): ?On .. . review of the initial decision, the agency has all the powers which itwould have in making the initial decision except as it may limit the issues onnotice or by rule.?[3] Black?s Law Dictionary 512 (rev.4th ed. 1968).\u00a0[4] AMarch 19, 1971 announcement from the Office of the White House Press Secretaryincluded the following:?ThePresident today announced his intention to nominate Robert D. Moran, James F.Van Namee, and Alan F. Burch to be members of the Occupational Safety andHealth Review Commission . . ..?The announcement went on to describethese 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 joint hearingconducted 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 Thefull text of this editorial appears at page S.673 of the Congressional Recordfor 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 ceasepublication of their rulings . . . cannot but adversely effect the fairadministration of the law.?\u00a014 Inexcess of 45% of all directions for review were issued in cases where no partypetitioned for review. Contrast this actual experience with the assertion inthe majority opinion that directions for review are ?largely? in response topetitions for discretionary review filed by the parties.15 In order toinsure that I would be kept in the dark about the issuance of these orders awritten notice had to be given to the Executive Secretary from Mr. Barnako (whois his immediate superior) because the Executive Secretary would not otherwisehave mailed 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 Inthis connection see my dissenting opinion in Secretary v. Trustees of PennCentral Transport Co., OSAHRC Docket No. 5796, December 22, 1975 for a specificinstance where a Commission member delayed the issuance of a decision forreasons totally unrelated to the merits of the case under consideration.17 When a Judge?sdecision is directed for review the Administrative Procedure Act requires thatparties to the case be given a ?reasonable opportunity? to submit briefs,exceptions, and proposed findings and conclusions to the Commission membersbefore 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 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)\u00a020 16 U.S.C. ?? 791a?825r\u00a02115U.S.C. ?? 717?717w\u00a022502F.2d 278, 279?280 (9th Cir. 1974)”