“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 5708 GINDY MANUFACTURING COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0May 7, 1974ORDEROF REMANDBefore MORAN, Chairman;VAN NAMEE and CLEARY, CommissionersCLEARY, COMMISSIONER:OnFebruary 14, 1974, petitioner Gindy Manufacturing Company?s petition formodification of abatement was dismissed by Administrative Law Judge Ben D.Worcester who ruled that the Commission lacks jurisdiction under section 10(c)of the 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). 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., PermaneerCorp., 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.[1]?MORAN, CHAIRMAN,dissenting:Inmy opinion this decision is wrong just as was the decision in Secretary v.H. K. Porter, Inc., supra. But its fallaciousness is compounded bythe malevolent language it employs to cast aspersions against an AdministrativeLaw Judge who has performed his sworn duty to uphold the Constitution andstatutes of the United States as they are written?not as others think theyshould have been written.Thestatute clearly states that the Secretary of Labor shall rule on petitions formodification of abatement?not the Commission:Upon a showing byan employer of a good faith effort to comply with the abatement requirements ofa citation, and that abatement has not been completed because of factors beyondhis reasonable control, the Secretary, after an opportunity for a hearing as providedin this subsection, shall issue an order affirming or modifying the abatementrequirements in such citation. 29 U.S.C. ? 659(c).\u00a0Tomake it even clearer, 29 U.S.C. ? 652(1) provides that, for the purposes ofthis Act?Theterm ?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, indeciding this 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 theAct provides that Respondent could contest the action of the Secretary throughthe Review Commission or after a good faith effort to comply with abatementrequirements and factors beyond its control prevent its compliance it could have a hearing before the Secretarywho could then modify or affirm the abatement requirements. [Emphasisadded]?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 herein indulged.Thereis, of course, no ?long-standing Commission precedent? to support theCommission?s decision in this case. The Continental Can case, suprais to the contrary, for example. So, too are many other matters which werealluded to 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.[2] The Attorney General didnot rule on that request because, as stated in a reply dated May 25, 1973,We understand thatnegotiations are in progress between the Commission and the Department of Laborin an attempt to resolve administratively any differences which may exist as tothe proper interpretations of ? 10(c). If that matter is resolved bynegotiations, our opinion will not be needed. Pending your further advice, weshall hold your request 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 no jurisdictionover such matters. Because of the rule prohibiting ex parte communications, 29C.F.R. ? 2200. 103, those negotiations were then suspended while that case waspending 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 believeconsiderable clarification is needed respecting procedures for modification ofabatement requirements.\u00a0Asfurther 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 meetingwas held in the office of Associate Solicitor Mintz between representatives ofthe Commission and the Department on September 24, 1973. Current and futureprocedures for the handling of PMAs were discussed and the following principleswere agreed upon: (1) Initial responsibility for resolving PMAs shall be lodgedwith the Secretary; (2) The Secretary shall adopt procedures for the rapiddisposal of uncontested PMAs without referring the same to the Commission; (3)The Secretary shall also adopt procedures designed to informally resolvedisputes as to the need for modification without resort to the Commission; (4)The Secretary?s rulings under such procedures, if not disputed by the petitioneror his 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.\u00a0Thelogic 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 notices 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?s administrativeprocesses to the detriment of the expeditious disposition of its legitimateadjudicatory responsibilities in cases where there are actual issues in disputebetween the parties.Itappears to me that the nub of the rule enunciated in this case can be summarizedas follows: Congress specifically stated that the Secretary of Labor was to acton PMA?s when it adopted the wording of section 10(c) of the Act. The Presidentagreed when he signed the same into law. The Secretary of Labor does notquestion the plain wording of section 10(c). The employer in this case wantsthe Secretary to act upon its petition. The Administrative Law Judges who haveconsidered identical cases all agree. Everyone in fact is in agreement exceptthe two members of this Commission who boldly proclaim that all the foregoingare in error so they will disregard the express statutory language and arrogatethis function to the Commission. This in spite of the self-evident truth statedby the 5th Circuit Court of Appeals in Brennan v. OSAHRC et al (BillEchols case) 487 F.2d 230 (5th Cir. 1973):No commission oragency, even under the formidable label of ?absolute discretion? can arrogateto itself the power to say 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 onlyUpon a showing byan employer of good faith effort to comply with the abatement requirements of acitation and that abatement has not been completed because of factors beyondhis 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 same authority as would employees to obtain aruling from this Commission provided he filed a notice of contest to thecitation 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.[3] 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[4]as follows:It is anticipatedthat in many cases an employer will choose not to file a timely challenge to acitation when it is issued, on the assumption that he can comply with theperiod allowed in the citation for abatement of the violation. In some suchcases the employer may subsequently find that despite his good faith efforts tocomply, abatement cannot be completed within the time permitted because offactors beyond his reasonable control?for example, where the delivery ofnecessary equipment is unavoidably delayed. In order to prevent unfairhardship, the bill provides that in such instances the employer may obtainreview and modification by the Secretary of the abatement requirementsspecified in the citation, even thoughthe citation has otherwise become final. (Emphasis added)?This explanation makes itclear that Congress intended to provide an extraordinary remedy for theemployer, believing that he was fairly cited, does not contest an initialcitation, but later finds that, because of factors beyond his control, moretime is required to abate the hazardous condition than the uncontested citationallowed.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 orderprovisions 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 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 5708 GINDY MANUFACTURING COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 14, 1974WORCESTER, JUDGE, OSAHRC:OnNovember 7, 1973, the Secretary served a citation upon the Petitioner allegingthat an inspection of the Petitioner?s manufacturing plant had revealedviolations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 etseq.). Section 5(a) of the Act requires each employer to comply with itsprovisions. Section 6 of the Act authorizes the Secretary to promulgateregulations which each employer subject to regulation by the Act must obey.If,upon inspection of an employer?s premises the Secretary believes there has beena violation of Section 5 of the Act or any rule or order, he is required to dotwo things:1.Issue a citation in writing describing the nature of the violation, and;2.Fix a time for abatement of the violation.Section17 of the Act provides for the assessment of penalties against employers whohave violated the Act. The enforcement procedure is delineated explicitly inSection 10. Subparagraph (c) gives an employer the right to contest either thecitation and time fixed for abatement or the proposed assessment of a penaltyor both. An employee or representative of employees may also file a notice ofcontest but only as to the reasonableness of time fixed for abatement. Whentimely notice of contest is filed by either the employer or affected employee,the Occupational Safety and Health Review Commission is required to afford theparties a hearing in accordance with the provisions of Section 554 of Title 5,United States Code (Section 5 of the Administrative Procedure Act). However, jurisdictionof the Review Commission is not invoked unless the protesting employer files anotice of contest within 15 working days of the ?receipt? of the notice of theSecretary (Section 10(a)), or the employees file notice of their desire tocontest the reasonableness of the time for abatement within 15 days of the?issuance? of the citation (Section 10(c)). Neither employer nor employeesfiled a timely notice of contest in the instant case.TheCongress, in its wisdom, perceived that there might be occasions when anemployer, after a good faith effort to comply with the abatement requirementsof a citation, had been unable to complete the abatement because of factorsbeyond his reasonable control. Accordingly, Section 10(c) provides that where acitation has become a final order by operation of law so that the ReviewCommission never acquired jurisdiction, the employer can then ask for a hearingunder the provisions of Section 5 of the Administrative Procedure Act beforethe Secretary.Inthe instant case the citation was issued on November 7, 1973. This citationbecame a final order on November 29, 1973, because neither employer noremployees filed a timely notice of contest. However, the employer filed apetition for modification of the time for abatement on December 7, 1973, butthis petition was filed in the wrong forum. See H. K. Porter, Inc., v.Secretary of Labor, OSHRC Docket No. 1210?P, (January 3, 1974). TheSecretary of Labor, not the Review Commission, has jurisdiction of that issue.Itis therefore hereby ordered that this proceeding be dismissed and that theapplication of the Chairman of the Safety Committee to intervene, having becomemoot, is denied.[1] Authorized employee representativeshave asked to participate in the proceedings, as permitted under Rule 22(c) ofthe Commission?s Rules of Procedure. They are entitled to receive a copy ofthis decision and notice of further proceedings.[2]The text ofthat letter follows:Thisis a request for an interpretation of the Occupational Safety and Health Act of1970 (29 U.S.C. 651 et seq., 84 Stat. 1590) as it relates to the relativeresponsibilities of this agency and the Department of Labor.Section9 of that Act authorizes the Secretary of Labor to issue citations to employerswhen he believes them to be in violation of the Act. It further provides thatsuch a citation shall ?fix a reasonable time for abatement of the violation.?Pursuantto section 10(a) of the Act, if the Secretary?s enforcement action is notcontested as, and within the time period, therein provided it ?shall be deemeda final order of the [Occupational Safety and Health Review] Commission.?Thespecific provision of the Act upon which your interpretation is requested isthe penultimate sentence of section 10(c):Upon a showing byan employer of a good faith effort to comply with the abatement requirements ofa citation, and that abatement has not been completed because of factors beyondhis reasonable control, the Secretary [of Labor], after an opportunity for ahearing as provided in this subsection, shall issue an order affirming ormodifying the abatement requirements in such citation.\u00a0Thisissue arises because the Secretary has been sending such requests fromemployers (commonly referred to as Petitions for Modification of Abatement) tothis agency for disposition. Your advice is requested as to whether actionsmodifying abatement requirements should be issued by this Commission or by theSecretary of Labor.Hereis a typical fact situation calling for modification of the abatementrequirements of a citation: The Secretary issues a citation against employer Afor failure to install a guard on a machine and proposes a $50 penalty for theoffense. The citation states that a guard is to be installed on the machine bySeptember 1, 1972. Employer A receives the citation and notification ofproposed penalty on August 1 1972. He does not exercise his right to contestthis action ?within 15 working days? as set forth in section 10(a).Consequently, the Secretary?s enforcement action is ?deemed a final order ofthe Commission? on August 22, 1972. At some date later than August 22, Employera finds that, because of ?factors beyond his reasonable control,? he cannotinstall the machine guard by September 1 as is now required. He thereuponpetitions the Secretary to change the abatement date to October 1.Itwould be appreciated if we could have your advice as to which agency has theresponsibility under law to act upon employer petitions for modification of theabatement requirements contained in citations issued by the Secretary of Laborwhich have not been contested under the Occupational Safety and Health Act of1970 and have, thus, become final orders of this agency.[3] Although it maybe contended 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 20 U.S.C. ? 659(c).\u00a0[4] United States Code Congressionaland Administrative News 5192 (1970).”