“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 NEW HAVEN FOUNDRY, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4514-P SECRETARY OF LABOR, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0ORDEROR REMANDMay 7, 1974Before MORAN, Chairman;VAN NAMEE and CLEARY, CommissionersCLEARY, COMMISSIONER:OnFebruary 11, 1974, petitioner New Haven Foundry?s petition for modification ofabatement was dismissed by Administrative Law Judge Joseph L. Chalk who ruledthat the Commission lacks jurisdiction under section 10(c) of the OccupationalSafety and Health Act (29 U.S.C. 651 et seq., hereinafter referred to as ?theAct?) to consider such petitions.OnFebruary 26, 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 long-standing 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.[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 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: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 asprovided in this subsection, shall issue an order affirming or modifying theabatement requirements 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?The term?Secretary? means the Secretary of Labor. \u00a0Thisopinion 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 throughReview Commission or after a good faith effort to comply with the 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 hereinindulged.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 Review Commissionsought a ruling from the Attorney General pursuant to 28 U.S.C. ? 512 on thisvery issue.[2]The Attorney General did not rule on that request because, as stated in a replydated 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.\u00a0Thenegotiations 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 parte communications, 29 C.F.R. ?2200.103, those negotiations were then suspended while that case was pendingbefore 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 of 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 of 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 lodgewith 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 thepetitioner or his employees, shall become, without action by the Commission,the final, non-reviewable order of the Commission; (5) The Secretary?sprocedures shall afford affected employees the right to present their position;(6) Only in the event that the secretary?s procedures fail to resolve the issuewill the matter be 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 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?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 ennunciated 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 (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 is 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 employers whoduly contest an action to assess an additional penalty for the alleged failureto 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 support 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 had 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 the an onsite inspection by a representative ofthe Secretary 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. Itthe 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 had 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[NoALJ decision below available.][1] Authorizedemployee representatives have asked to participate in the proceedings, aspermitted under rule 22(c) of the Commission?s Rules of Procedure. They areentitled to receive a copy of this 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. In 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):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 [of Labor], after anopportunity for a hearing as provided in this subsection, shall issue an orderaffirming or modifying the abatement requirements in such citation.Thisissue 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 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 I as is now required. He thereuponpetitions the Secretary to change the abatement date to October 1.It would beappreciated 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 may be contended thatan ambiguity exists because of the requirement in 29 U.S.C. ? 659(c) for theSecretary to furnish ?an opportunity for a hearing as provided in thissubsection, ?the simple answer to that contention is that this merely requiresthe Secretary to conduct his hearings in accordance with the AdministrativeProcedure Act, 5 U.S.C. ? 554 without regard to subsection (a)(3), as isrequired in Commission hearings by the parenthetical phrase in the firstsentence of 29 U.S.C. ? 659(c).\u00a0[4] United StatesCode Congressional and Administrative News 5192(1970).”