“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 3675 & 7425 \u00a0 GENERAL ELECTRIC COMPANY \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0ORDEROF CONSOLIDATION AND REMANDMay 23 1974Before VAN NAMEEand CLEARY, CommissionersCLEARY,COMMISSIONER:OnFebruary 15, 1974, petitioner General Electric Company?s petition formodification of abatement (OSHRC Docket No. 3675?P) was dismissed byAdministrative Law Judge Abraham Gold who ruled that the Commission lacksjurisdiction under section 10(c) of the Occupational Safety and Health Act (29U.S.C. ? 651 et seq., hereinafter referred to as ?the Act?) to consider suchpetitions.OnFebruary 25, 1974, review of the Judge?s decision and order was directed by theCommission pursuant to section 12(j) of the Act. The Commission, upon review ofthe 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). The Judge?sdecision is one of a number of recent instances in which judges have held thatthe Commission has no jurisdiction over petitions for modification of abatementperiods prescribed in citations that have become final orders of the Commissionpursuant to section 10 of the Act. This holding is directly contrary to rule 34of 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 forAdministrative Law Judges, 61 (Administrative Conference of the UnitedStates, 1974) and cases cited therein. Therefore, the approach taken by theAdministrative Law Judges in this and similar cases is inexcusable.Petitioner?srequested abatement date has already passed, so the case would be moot exceptfor additional action taken by the Secretary. Following Judge Gold?s decision,the Labor Department reinspected petitioner?sfacility and proposed additional penalties for an alleged failure to abate twoof the items covered in the petition. General Electric filed a timely notice ofcontest, pursuant to section 10(b) of the Act, and the Commission tookjurisdiction of this new issue, Docket No. 7425. The Commission must afford anopportunity for a hearing on this issue under section 10(c) of the Act. Underthese facts, the two proceedings should be consolidated pursuant to rule 9 ofour Rules of Procedure for determination by Judge Gold.Thefact that there has been a reinspection and proposed additional penalties inthis case demonstrates the wisdom of the Congressional intent described in H.K. Porter, Inc., supra, to separate the enforcement functions vested in theLabor Department from the adjudicatory functions vested in the Commission. TheAct contains no explicit prohibition against the Secretary alleging a failureto abate certain items while a petition for modification of abatement of thosesame items is pending. Thus, if petitions for modification of abatement weremeant to be adjudicated by the Secretary, such a proceeding could be inprogress while the Secretary was appearing as a party before the Commission ina proceeding for alleged failure to abate the same items. The Commission?sdecision in H. K. Porter, supra, avoids such an incongruous result.ACCORDINGLY,the Judge?s decision is reversed. On its own motion, the Commission orders thatthe case be consolidated with Docket No. 7425, pursuant to rule 9 of theCommission?s Rules of Procedure, 29 CFR 2200.9, and is remanded for furtherproceedings consistent with this decision.?VAN NAMEE,COMMISSIONER, concurring:Iconcur in Commissioner Cleary?s opinion except for that portion where heindicates the case would be moot were it not for the failure to abate notice.His conclusion assumes the absence of a real and presently existingcontroversy. As this case demonstrates the controversy may still exist eventhough a requested extension date has passed. It may exist because theSecretary has the authority to issue a failure to abate notice as he has donehere. Indeed, if we do not act on the petition the Secretary is free to issue anotice alleging daily penalties from the end of the original or previouslyextended abatement period.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 3675 & 7425 \u00a0 GENERAL ELECTRIC COMPANY \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 15,1974GOLD, JUDGE,OSAHRC:OnNovember 7, 1973 Petitioner filed the instant petition for modification ofabatement. On November 16, 1973 the Secretary filed a response objectingthereto, and the matter was assigned to me on February 6, 1974.Petitionerwas cited on April 16, 1973 for 13 non-serious violations for which penaltiestotaling $135 were proposed. The cited items and proposed penalties became afinal order of the Commission pursuant to 29 U.S.C. ? 659(a) upon the failureof the employer to file a notice of contest within 15 working days of the dateof receipt of the notice of proposed penalties.Itwas not until July 9, 1973 that the employer filed a petition for modificationof abatement. That petition was granted by another Judge of this Commission, aswas a second petition, filed on August 30, 1973. The Secretary interposed noobjection to either of the earlier petitions.UnderSection 10(c) of the Occupational Safety and Health Act, 29 U.S.C. 659(c),after a final order of the Commission, only the Secretary of Labor (or hisdelegate) is empowered to hear and decide a matter involving a petition formodification of abatement. The pertinent statutory authority reads:Upon a showing by anemployer of a good faith effort to comply with the abatement requirements of acitation, and that abatement has not been completed because of factors beyondhis reasonable control, the Secretary after an opportunity for a hearing asprovided in this subsection, shall issue an order affirming or modifying theabatement requirements in such citation.\u00a0Whenthe Congress referred in Section 659(c) to ?a hearing as provided in thissubsection,? it could only have meant ?a hearing (in accordance with section554 of title 5, United States Code, but without regard to subsection (a)(3) ofsuch section).?Sincethere is no authority for the Commission to hold a hearing in this case, suchauthority being vested solely in the Secretary, IT IS ORDERED that this matterbe and the same is hereby DISMISSED for lack of jurisdiction.”