“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 12153 PORT CHESTER ELECTRIC CONSTRUCTION COMPANY, INCORPORATED \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 13, 1976?ORDER VACATINGDIRECTION FOR REVIEW?Before BARNAKO, Chairman; MORAN andCLEARY, Commissioners.BY THE COMMISSION:The order for reviewissued 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 THE COMMISSION:?William S. McLaughlinExecutive SecretaryDated: FEB 13, 1976?MORAN, Commissioner, Dissenting:With this ?order?Messrs. Barnako and Cleary continue their illegal scheme of depriving a dulyappointed and qualified member of this Commission from exercising his statutoryright 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 Direction ForReview.?Not only does thisorder illegally deprive a member of this Commission of a statutory right but ithas no force or effect upon the parties to this case since it neither affirms,modifies nor vacates the matters placed in issue by respondent?s notice ofcontest. Consequently, there is no final order as to those contested issues andthey continue to pend before the Commission undecided.When duly contested,there is no requirement that an alleged violation be abated nor can theSecretary of Labor collect any monetary penalties?or rely on this case to provea prior violation?until a final order is issued. 29 U.S.C. ? 659(c).I discussed thesematters 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.?[Annex I text follows]MORAN, Commissioner, Dissenting:This order is without force or effectsince it neither affirms, modifies nor vacates the citation or proposedpenalty. Consequently, there is no final order, and the issues in dispute inthis case continue to pend before the Commission undecided. Until a final orderhas issued, there is no requirement that an alleged violation be abated nor canthe 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 Commissionshall thereafter issue an order, based on findings of fact, affirming,modifying or vacating the Secretary?s citation or proposed penalty, ordirecting other appropriate relief, and such order shall become final thirtydays after its issuance.? (Emphasis supplied.)\u00a0?That has not been done in this case. Nofinal action has been taken on the citations or proposed 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 thefinal order of the 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 section ofthe Act is even more specific in this regard. ? 660(b) allows the Secretary ofLabor to obtain enforcement of any ?final order? of the Commission if he filesa 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 any appeal ofthis ?order? permitted. The only Commission order which can be appealed 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 ofthe Commission with respect to questions of fact, if supported by substantialevidence on the record considered as a whole, shall be conclusive.??Messrs. Barnako andCleary 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 thehearing examiner shall become the final order of the Commission within thirtydays after such report . . . unless within such period any Commissionmember has directed that such report shall be reviewed by the Commission.?(Emphasis supplied.)?This is the onlystatutory provision giving finality to an Administrative Law Judge?s decision.[10]Such a decision cannot ?become the final order of the Commission? if anyCommission member directs that ?such report shall be reviewed by theCommission? within the time prescribed. See Secretary v. Gurney Industries,Inc., 6 OSAHRC 634, 637?641 (1973).There is no disputeover 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 text of thedirection for review is stated in the Commission order except for the firstparagraph thereof which provides the following:?Pursuant to theauthority contained in 29 U.S.C. ? 661(i), the undersigned hereby directsreview of the decision of the Judge in the above-entitled case.?My colleagues, ineffect, 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 notlimited to any portion thereof, nor indeed is there any statute, regulation,rule, practice or decision which requires a member of this Commission tospecify particular ?issues? in such directions or to prevent a member fromdirecting review of the entire decision of the Judge if that be hisdisposition. However, even if the direction for review specified particular?issues,? the Commission?s review of the Judge?s decision in such a case wouldnot be limited to the issues so specified in the direction for review. Thispoint was made clear in Accu-namics, Inc. v. OSAHRC, 515 F.2d 828, 834(5th Cir. 1975).[11]The action taken byMessrs. Barnako and Cleary in this case is nothing less than an unabashedattempt to deprive a member of this Commission of a statutory right to have aparticular decision reviewed.Congress createdthis agency for the single purpose of ?carrying out adjudicatory functionsunder the Act.? 29 U.S.C. ? 651(b)(3). It provided that it should operate as abi-level tribunal consisting of Administrative Law Judges who preside at trialsand make the initial decisions, with review thereof by the three members of theCommission sitting as a panel to review such decisions and issue final orders.29 U.S.C. ?? 659(c), 661(a), 661(d), and 661(i). It further provided that eachof the three members?. . . shall beappointed by the President, by and with the advice and consent of the Senate,from among persons who by reason of training, education, or experience arequalified to carry out the functions of the Commission under this Act.? 29U.S.C. ? 661(a).?? 661(b) provides that the ?terms ofmembers of the Commission shall be six years . . ..?The Act makes onlyone exception to the provision that the Commission members shall operate as acollegial tribunal in carrying out its adjudicatory functions under the Act. In? 661(i) it clearly grants to ?any? single member the power to require that anAdministrative Law Judge?s decision shall be reviewed by the tribunal.With this order,however, Messrs. Barnako and Cleary have combined to deprive a duly appointedand qualified member of the Commission of this statutory grant of authority.They have abrogated to themselves the authority which the Act gave to someoneelse. They have done this to impede the free flow of ideas which inevitablysprings from the collegial process. Nevertheless, even if their purpose couldbe truthfully regarded as sound public policy, it could not be legallyaccomplished because rulings articulated in Commission decisions?no matter howbeneficial?cannot rise beyond the Congressional delegation in the enablinglegislation. The fixing of a definite power in a statute?that of an individualmember to cause the Judge?s decision to be reviewed by the members of theCommission?is enough to establish the legislative intent that the power is notto be curtailed or restricted. What Congress has given cannot be taken away bymembers of this Commission. The Supreme Court stated it this way in Humphrey?sExecutor v. U. S., 295 U.S. 602 (1935):?The sound applicationof a principle which makes one master in his own house precludes him fromimposing his control in the house of another who is master there.??In the JustinianCode, this rule was expressed more succinctly: ?Delegata potestas non potestdelegari,? which Henry Campbell Black translates as ?a delegated power cannotbe delegated.?[12] This longstanding rule oflaw, however, has not deterred Mr. Barnako and Mr. Cleary from delegating tothemselves what Congress has delegated to me.Congressdeliberately chose to establish this Commission with three members, and thePresident, by his selection of persons of diverse backgrounds to constitute theoriginal membership, fully implemented that collegial purpose.[13]It was generally assumed that the tribunal would be truly impartial if itsdecisions included input from persons whose past experience had been in thebusiness and organized labor communities with an additional member who camefrom neither?much in the same manner as a tripartite labor arbitration panel. Itwas not intended?not even contemplated?that two of the members would combine toimpose a gag rule on the remaining member?thereby frustrating the purpose ofhaving three different in-puts into all Commission decisions. Certainly fromthe language of the Act cited supra, the establishment of a three membertribunal, and the President?s action in constituting it as he did, it canfairly be concluded that each member was to be free to exercise his individualjudgment without the leave or hindrance of any other member or any combinationof other members.I asserted earlierthat 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 action taken bymy colleagues in this case is a continuation of a policy which began shortlyafter Mr. Barnako took office on August 1, 1975. It has been detailed in thepublic press. See, for example, The Washington Star, November 27, 1975 articleentitled ?Press Releases on Failures Helped Demote Chief of Health Unit,? acopy of which is attached hereto as Appendix A. The matter was summarized bythe St. Louis Labor Tribune in a January 22, 1976 editorial entitled ?(Don?t)Let The Sunshine In? which is quoted herewith without elaboration:?An OSHAofficial?s attempts to let a little sunshine in on his record led to hisreplacement as captain of the Administration?s Review Commission and eventuallyto virtual exclusion from the business conducted by his fellow commissioners.?Robert D. Moran isstill on the team (his term runs until 1977), but in the meantime he isn?t eveninvited 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 replaced bya 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, ledBarnako, 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, cried Moranand 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 Tribuneapplauds Robert D. Moran, a man who won?t be muffled, and wishes him well inhis litigation.???The Hartford Couranttook a somewhat similar view in a December 4, 1975 editorial ?OSHA Needs MoreLight? quoted in part as follows:13a?When it enacted the Occupational Safety and Health Act of1970, Congress enacted a law with which it is uncommonly difficult to comply.The OSHA hierarchy is making it more difficult, even as Congress tries tocorrect its mistakes.?* * * Frank R. Barnako, newly-appointed chairman of theOSHA Review Commission, has directed that commission decisions will no longerbe published either as news releases or formal reports?both have been done inthe past.?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? concludedwith 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 that thispolicy of impeding the free flow of ideas is directed only at the views of onemember in particular can be amply demonstrated by the unresolved cases on thedockets of this Commission. During the period June 1, 1974, through November30, 1975, there were directions for review filed by the three members in atotal of 593 cases (most of them by Mr. Cleary). In 268 of these there was nopetition for review by any party.[14]In none of these cases (except those directions issued by me) has either Mr.Barnako or Mr. Cleary proposed an order vacating the direction for review. Norhas either of them?with respect to such directions for review?taken theposition that they do here:?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 to theinstant case, the majority opinion states that ?. . . it has not been, nor isit now, before us on its merits.? But, by their double-standard reasoning, allthe directions for review filed by Mr. Cleary and former Commissioner VanNameewhere no party has petitioned for review are before us on their merits.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 for reviewasked only ?[w]hether the Administrative Law Judge committed reversible error.?In Secretary v. John T. Clark & Son of Boston, Inc., OSAHRC DocketNo. 10554, the direction for review asked only whether the Administrative LawJudge erred in vacating the citation alleging non-compliance with the standardat 29 C.F.R. 1918.105(a).? There is, of course, no difference whatsoeverbetween a sua sponte direction for review questioning whether the judge erredin his decision and one like that here under consideration which simplydirected the judge?s decision for review so that its findings of fact andconclusions of law could be reviewed by the members.Another indicationthat this action of Messrs. Barnako and Cleary is part of a continuing attemptto prevent the views of this member from being included in Commission decisionsis the 16 previous cases in which they issued an ?Order Vacating Direction forReview.? As mentioned in The Washington Star article (attached as an exhibithereto) and the above-quoted editorial in the St. Louis Labor Tribune, all 16of those ?orders? were issued by my colleagues without any notice to me thatthey were under consideration. After they had been typed, and signed by myfellow Commission members, they were not circulated to me prior to theirrelease to the parties so that my views could be appended thereto?a totaldeparture from the practice which has been in effect for every decision everissued by this Commission prior to the day Mr. Barnako became the Commission?sChairman.[15]It is my belief that a similar ?procedure? would have been employed in manyadditional cases were it not for my initiation on November 25, 1975?the day Ilearned of these ?orders??of a Petition in the U.S. District Court for theDistrict of Columbia to put a stop to it. This matter is also mentioned in thenewspaper articles referred to supra.The very fact thatthe majority is proceeding in this case in this most unusual manner?vacatingthe direction for review rather than affirming the decision of the judge?isadditional evidence that their purpose is to prevent my views on the issuesarising in this case from being included in the Commission?s decision. Theyapparently would prefer to have no decision?to have this and similar cases pendin limbo for infinity?rather than to have a decision in which I couldparticipate.I note the followinglanguage 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 wastheir disposition to affirm, they would have said so. On the other hand, theAct makes it crystal clear that a Judge?s decision could not affirm theSecretary?s citation if?as has happened in the case now before us?a Commissionmember has directed review thereof within thirty days of its issuance. 29U.S.C. ? 661(i). So, in their desperate attempt to prevent one member of theCommission from exercising his statutory rights, Messrs. Barnako and Clearyhave created the very monster they claim will result from my direction forreview?they ?permit a hazardous condition to continue unabated.?Of course there is avery 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 this purposerather nicely. Certainly they will concede that this procedure I suggest couldbe accomplished much more rapidly than the adoption of this ?Order VacatingDirection for Review? and it would avoid all the problems I?ve mentioned inthis opinion which result from the absence of a final disposition of the meritsof this case.It would be remissof 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 a question on this Commission?s backlog which wasaddressed to me during hearings conducted by the Senate Committee onAppropriations on June 25, 1974. I answered with the following words:?The members of the Commission have about 400 undecidedcases backed 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 time formerCommissioner Alan Burch?s term expired in April 1973, there was a backlog of228 undecided cases. His replacement announced that his No. 1 priority was areduction in that backlog. However, in April 1974 there had been an increase inthe backlog of more than 60 percent?making a total of 367 undecided cases. Thenumber 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, Isee no prospect for reducing this backlog during fiscal year 1975 unless thereare membership or legislative changes. On the contrary, I fully expect to seeit increase. At this time next year it will exceed 600 cases if the existingsituation continues.? Senate Hearings Before the Committee on Appropriations,Departments of Labor, Health, Education, and Welfare, and Related AgenciesAppropriations, H.R. 15580, 93d Congress, 2d Session, 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 that theabove discussion indicates how quick my colleagues have been in the recent pastto reject the ?unnecessary delay of the proceedings? of this Commission.Candor enjoins me toconcede that part of the reason for the recent increase in the backlog resultsfrom the high number of Judge?s decisions which I have directed for review inthe past few months. It is obvious from the comments in the majority opinionthat my colleagues do not agree with me that many of those cases ought to bereviewed by the Commission. They are, of course, perfectly within their rightsin taking this view. However, that being so, there is no reason why these casesshould remain in the backlog. They could affirm any Judge?s decision I directedfor review within thirty days of my action.[17]Neither 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.[18]There are othermatters in the majority opinion which also merit further discussion.After deliveringtheir lecture on the evils of sua sponte directions for review, Messrs. Barnakoand Cleary later state:?. . . our action here should not be interpreted as barringsua sponte orders of review by members of the Commission.??The clear import ofthis 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, it is ?in thepublic interest.? Somehow this brings to mind H. L. Mencken?s definition of aJudge as ?a law student who marks his own examination papers.?The majority opinionalso contains a rather amusing attempt at ?bootstrapping? in the discussionequating directions for review with a writ of certiorari. They quote one?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 clearthat William Fauver is neither an authority on certiorari nor does he pretendto be and not even he?or anyone else?said that the statutory right of a memberof this Commission to cause a decision by one of this agency?s AdministrativeLaw Judges to be reviewed by this three-member tribunal was conditioned uponthe presence of the same criteria as that which constrains a higher court inthe exercise 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 confess tobeing 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 affirmative protection?to the working men and women of the nation and to perform a policymakingfunction in the application of the Act as intended by Congress. Brennan v.O.S.H.R.C. and John J. Gordon Co., 492 F.2d 1027, 1032 (2d Cir. 1974); Brennanv. Gilles & Cotting, Inc. and O.S.H.R.C., 504 F.2d 1255, 1262 (4th Cir.1974).??Neither of thesecases support the broad assertion for which they are cited. They don?t evencome close. In the latter-cited case, at page 1262, the Court noted that theSecretary of Labor was seeking to overturn a ruling of this Commission that aprime 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 other citedauthority, the Gordon case, the Court was concerned with a decision ofthis Commission which barred an Administrative Law Judge from reopening ahearing on his own motion in order to take evidence on jurisdiction under theCommerce Clause. The Court reversed the Commission and held that the Judgeacted 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 that itsrole [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 publicinterest?. . . 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 the majority is not claimingthat this Commission which was given only a single function to perform(?carrying out adjudicatory functions under the Act?)[19]has the broad scope of regulatory powers Congress granted to the Federal PowerCommission under the Federal Power Act[20]and the Natural Gas Act[21]or 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. Hodgson[22]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 making isarguably 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 theforegoing discussion demonstrates that the majority is once again resorting to?bootstrapping? in an attempt to arrogate to itself policy-making powers whichit simply does not 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 Releases onFailures HelpedDemote Chief of HealthUnitBy David PikeWashington Star StaffWriterRobert D. Moran wasreasonably happy and secure for the first several years of being chairman ofthe three-member Occupational Safety and Health Review Commission, after beingappointed when it came into existence in April 1971.??????????? Moran,a lawyer with experience in. labor matters both in the private sector and withthe government, 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 in late1973, it started to become apparent ?that the Labor Department didn?t like me,?Moran said yesterday. And the situation has become so bad lately, Moran chargedin 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 SAID yesterdaythat the situation began to deteriorate when he was called in late 1973 by anundersecretary to then Labor Secretary Peter Brennan and told that ?the bossdoesn?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 last year,Moran said, he was called by a personnel aide at the White House and told thathe shouldn?t offend the bosses at Labor and that he ?was putting himself in abad position.??But I said that Ifelt it was in the public interest to report what we were doing, to let thepublic, the trade associations and the unions know about the law in this area,?Moran said.BECAUSE HE continuedto issue the press releases, and because of some speeches he made to tradegroups, 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 last summer,one of the other commissioners resigned and Frank R. Barnako, a lawyer forBethlehem 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.??????????? Whilein Montreal, Moran was informed that Ford had designated Barnako 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 aschairman, Barnako eliminated the frequent and detailed press releases, Moransaid, and now the commission merely offers a brief mention of selected casesabout every three weeks.Barnako 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 new situationdid not deter Moran, and it led to the suit he filed this week. ?To circumventthe procedure, I began using my authority as a commissioner to order a reviewof 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 his suit isa case in which he ordered a review of a judge?s ruling and in which, Morancharged, the other two commissioners and the body?s executive secretary vacatedhis order ?without his knowledge.?The suit chargesthat since Aug. 5, when Barnako became chairman, there have been ?at least 15other cases? in which Moran has been overruled by the others without tellinghim. The suit added that ?plaintiff (Moran) believes that there may be morecases which have been disposed of in the same manner … but he has been unableto identify the same because of efforts by the defendants to keep suchinformation from plaintiff.?Named as defendantsare Barnako, Commissioner Timothy F. Cleary and Executive Secretary William S.McLaughlin. Barnako was out of town late yesterday and could not be reached forcomment, Inquiries to the other defendants were handled by the commission?spublic information office, which said there would be no comment ?because itwould not, be proper in view of the pending litigation.?AT A HEARING earlieryesterday before U.S. District Judge June L. Green, on a request by Moran foran 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 agreement saidthat Moran will be informed of all commission actions and will be given anopportunity to participate in all decisions pending the hearing.Moran, 44, who livesin 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 up thesituation 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.?\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 12153 PORT CHESTER ELECTRIC CONSTRUCTION COMPANY, INCORPORATED \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0APPEARANCES:Francis V. LaRuffa, Regional SolicitorUnited States Department of Labor1515 Broadway, Room 3555New York, New York 10036Attorney for complainant by Samuel Gorin, Esq., of counsel\u00a0M. Carl Levine, Morgulas & Foreman, Esqs.747 Third AvenueNew York, New York 10017Attorneys for respondent by Frederick Cohen, Esq., ofcounsel?DECISION AND ORDERDitore, J.:PRELIMINARY STATEMENTThis is a proceedingpursuant to section 10 of the Occupational Safety and Health Act of 1970 (29U.S.C. ? 651, et seq., hereinafter called the Act), contesting citations forserious and nonserious violations of occupational safety and health standards,issued by complainant against respondent under the authority vested in thecomplainant by section 9(a) of the Act (29 U.S.C. ? \u00a0 658(a)).The citations allegethat as a result of an inspection made from January 8, 1975 to January 15,1975, of a workplace located at Broadway Plaza, White Plains, New York, anddescribed as ?Construction Site?, the respondent violated section 5(a)(2) ofthe Act (29 U.S.C. ?\u00a0654(a)(2)), by failing to comply with occupationalsafety and health standards promulgated by the Secretary by publication in theFederal Register on June 24, 1974, (39 F.R. 22801) and codified in 29 CFR ??1926.500(b)(1) and 1926.150(c)(1)(vi).The descriptions ofthe violations and the standards as promulgated by the Secretary are asfollows:Citation for seriousviolation of 29 CFR ? 1926.500(b)(1)?Exposure of two employees observed working on the fourthfloor of this complex, and also observed within inches of the edge of thesetotally unprotected floor openings.?Floor openings shall be guarded by a standard railing andtoeboards or cover.?\u00a0Standard as promulgated:?? 1926.500 . . ..?(b) Guarding of floor openings and floor holes. (1) Flooropenings shall be guarded by a standard railing and toeboards or cover, asspecified in paragraph (f) of this section. In general, the railing shall beprovided on all exposed sides, except at entrances to stairways.?\u00a0Citation fornonserious violation of 29 CFR ? 1926.150(c)(1)(vi)??A fireextinguisher, rated not less than 10B was not provided within fifty feet ofwhere oxygen and acetylene bottles were being used for the hot work operationon the third floor.?\u00a0Standard aspromulgated??? 1926.150(c)(1)?(vi) A fire extinguisher, rated not less than 10B, shall beprovided within 50 feet of wherever more than 5 gallons of flammable orcombustible liquids or 5 pounds of flammable gas are being used on the jobsite.This requirement does not apply to the integral fuel tanks of motor vehicles.?\u00a0Pursuant to theenforcement procedure set forth in section 10(a) of the Act (29 U.S.C. ?\u00a0659(a)),the respondent was notified by letter dated January 22, 1975, from the areadirector of the New York area, that the Occupational Safety and HealthAdministration proposed to assess a $500.00 penalty for the serious violationof 29 CFR ? 1926.500(b)(1), and a $40.00 penalty for the nonserious violationof of 29 CFR ? 1926.150(c)(1)(vi). The action was heard at New York, New York, onJuly 10, 1975.ISSUES1. Whether aviolation of 29 CFR ? 1926.500(b)(1) existed at respondent?s workplace onJanuary 8, 1975.2. If the violationexisted, whether it was serious.3. If it was seriouswhether respondent knew or with the exercise of reasonable diligence shouldhave known of the violation.4. If respondentknew and was responsible for the serious violation, whether the penaltyproposed was reasonable and proper.5. Whether anonserious violation of 29 CFR ? 1926.150(c)(1)(vi) existed at respondent?sworkplace on January 15, 1975.6. If the violationexisted, whether respondent knew of, and was responsible for, the violation.??????????? 7.If respondent was responsible for the violation whether the penalty proposedwas reasonable and proper.STATEMENT OF THEEVIDENCERespondent, PortChester Electric Construction Co., Inc., is incorporated in the State of NewYork, and maintains an office and place of business at 354 Main Street, PortChester, New York. Respondent is in the electrical contracting business andadmits its business affects commerce (complaint and answer).On January 8, 1975,respondent was engaged in electrical work at a construction site located atBroadway Plaza, White Plains, New York (T. 10, 61)[14].At the site an office building was under construction and at the time consistedof a steel structure approximately eight floors high. The structure was oblongin shape measuring 300 feet by 200 feet and located in the center of thestructure were four elevator shafts (T. 10?12, 62?64; Exh. R?1, T?67).On January 8, 1975,compliance officer John Tolmich of the Occupational Safety and HealthAdministration, made an inspection of respondent?s worksite at the constructionproject. Prior to the inspection, officer Tolmich held an opening conferencewith the general contractor and the subcontractors including respondent?sgeneral superintendent Robert Virtue. After the opening conference, officerTolmich conducted a walk-around inspection accompanied, among others, by Mr.Virtue (T. 12?18).Upon arriving at thefourth floor by means of a northside stairway, officer Tolmich observedimmediately adjacent to the left hand side of the stairway an unguardedelevator shaft opening measuring nine feet wide and thirty feet long. Two ofrespondent?s employees were standing and talking to each other within a foot ortwo of the nine foot side of the unguarded shaft opening. There were metalcovers stored within a foot or two of the unguarded shaft opening. Two othersmaller unguarded floor openings were located within a ten foot radius of theunguarded shaft opening (T. 19?23, 28, 48?49, 51?54). The distance from theunguarded elevator shaft opening to the ground below was sixty-five to seventyfeet (T. 22).The two employeesobserved near the edge of the unguarded fourth floor shaft opening stated toofficer Tolmich in Mr. Virtue?s presence that they were working on the fourthfloor; and that they were bringing metal raceways or covers to the fourth floor(T. 24, 25). The two employees immediately left the fourth floor area (T. 23).Officer Tolmich madefurther inspections of the jobsite on January 9th, 10th and 15th (T. 31, 32).On January 15th, officer Tolmich observed an employee of respondent engaged incutting and welding work with an acetylene torch on the third floor. There wereno fire extinguishers anywhere on the third floor (T. 32, 33, 59, 60). OfficerTolmich was told by Mr. Virtue that there were no fire extinguishers at thejobsite and that he would order some immediately (T. 34, 60).Based on the gravityof the violation created by the unguarded elevator shaft opening on the fourthfloor, and the probability of death or serious harm befalling either or both ofthe two employees if they accidentally fell into the unguarded shaft opening,officer Tolmich recommended an unadjusted proposed penalty of $1,000.00, whichhe reduced to $500.00 by allowing credits of 20% for food faith, 10% for sizeand 20% for prior history (T. 44, 45).Based on the gravityof the violation created by the lack of fire extinguishers on the third floor,officer Tolmich recommended an unadjusted penalty of $170.00 which he reducedto $40.00 after applying credits for good faith, size, prior history andabatement (T. 43, 44).Robert Virtue,respondent?s general superintendent at the jobsite stated that on January 8,1975, respondent?s two employees on the fourth floor were moving materials tothat floor (T. 64, 65, 69; Exh. R?1, material marked ?X?). Mr. Virtue furtherstated that when he was on the fourth floor with the compliance officer, heobserved respondent?s two employees no closer to the unguarded elevator shaftopening than six feet; that the materials stored there were no closer to theunguarded opening than eight feet; and that in moving the materials the twoemployees did not need to approach any closer to the unguarded opening than sixto eight feet. The materials consisted of forty to fifty steel plates, 24 to 30inches square, each weighing less than fifty pounds. It would have taken thetwo employees about fifteen minutes to move the metal plates (T. 66, 68?72,80).The two employeeswere sent to the fourth floor by one of Mr. Virtue?s foremen and to reach thatfloor, the two employees had to use the north stairway which required them topass within four to five feet of the unguarded shaft opening. Mr. Virtue wasnot aware that the shaft opening on the fourth floor was unguarded (T. 72, 77).Mr. Virtue alsostated that on January 15, 1975, there were no fire extinguishers on the thirdfloor. He did know that fire extinguishers prior to January 15, 1975, were atthe site but believed they were stolen (T. 73?75).Respondent has nosafety program of its own for its employees but relies on the safety program ofits employees? union (T. 78).OPINIONA preponderance ofthe evidence establishes, and there is no dispute, that the fourth floorelevator shaft was unguarded in violation of 29 CFR ? 1926.500(b)(1); that twoemployees of respondent were working moving materials within close proximity[15]of the unguarded shaft opening; that the moving work would have kept the twoemployees in the danger area for at least fifteen minutes; that the distancefrom the unguarded shaft opening to the ground below was sixty-five to seventyfeet; that an accidental fall through the opening, by one or both of theemployees would more probably than not have resulted in death or serious harmto the employees; and that respondent maintains no safety and training programof its own for its employees.The crucial issueremains of whether respondent knew or with the exercise of reasonablediligence, should have known of the serious violation.An employer underthe Act has the final responsibility of ensuring a safe workplace for itsemployees, but this responsibility is not measured against standards of strictliability. Secretary of Labor v. Engineers Construction, Incorporated,20 OSAHRC ??, Docket No. 3551 (September 29, 1975), and cases cited therein.The Court of Appealsin Secretary of Labor v. Butler Lime and Cement Company, et al, ?? F.2d??, 7th Cir., Docket No. 74?1963, (September 5, 1975), decision slip, p. 10,stated with relation to an employer?s knowledge that?. . . an employer is responsible if it knew or, with theexercise of reasonable diligence, should have known of the existence of aserious violation. A particular instance of ?hazardous employee conduct may beconsidered preventable even if no employer could have detected the conduct, orits hazardous nature, at the moment of its occurrence, . . . [where] suchconduct might have been precluded through feasible precautions concerningthe hiring, training, and sanctioning of employees?. National Realty,supra, 489 F.2d, 1266?67 n. 37 (emphasis added).??And, at decision slip p. 11, that?[a]n employer must take reasonable precautionary steps toprotect its employees from reasonably foreseeable recognized dangers that arecausing or are likely to cause death or serious physical injury. Andprecautionary steps, of course, include the employer?s providing an adequatesafety and training program. (cases omitted)??Respondent hereinhas no safety and training program, much less an adequate one. There is noevidence that respondent?s employees or its supervisory personnel, whether theybe from the ranks of labor or management, are instructed and trained as tosafety. In short, respondent does nothing concerning safety except to rely onthe employees? union for safety instructions, if any, to its members. Ifrespondent had maintained an adequate active safety and training program, properlyimplemented with knowledgeable supervisory personnel, it would have with theexercise of reasonable diligence, known of the serious violation herein.Respondent failed inits responsibility under the Act and is responsible for the serious violation.The gravity of the violation was high. It exposed two employees to theprobability of death if an accident befell them because of the violation.Consideration of the gravity of the violation with the other factors of 17(j)of the Act, renders the proposed penalty of $500.00, reasonable and proper.As to the nonseriousviolation of 29 CFR ? 1926.150(c)(1)(vi) for the failure to have an adequatefire extinguisher available for an employee of respondent performing metalcutting and welding work with acetylene gas, respondent concedes and admits theviolation (T. 82?83), but in mitigation states that fire extinguishers wereprovided and were stolen (T. 83)[16].What has been saidabove in relation to the serious violation applies to this violation. Ifrespondent maintained an adequate safety and training program, it would haveknown that its welding employee would have to begin work without the benefit ofa fire extinguisher, and respondent would have been in a position to preventsuch work until an extinguisher was provided.Based on the gravityof the violation and consideration of the other factors of section 17(j) of theAct, the proposed penalty of $40.00 is found reasonable and proper.FINDINGS OF FACTThe credibleevidence and the record as a whole, establishes preponderant proof of thefollowing specific findings of fact.1. Respondent, PortChester Electric Construction Co., Inc., is incorporated in the State of NewYork, and maintains an office and place of business at 354 Main Street, PortChester, New York.2. Respondent is inthe electrical contracting business and admits its business affects commerce.3. On January 8,1975 and January 15, 1975, respondent was engaged in electrical work at aconstruction site located at Broadway Plaza, White Plains, New York.4. On January 8,1975, two of respondent?s employees on the order of their foreman, were workingon the fourth floor of the structure. They were to move electrical materialswhich consisted of forty to fifty metal covers weighing less than fifty poundsand measuring twenty-four to thirty square inches.5. On January 8,1975, the two employees on the fourth floor were observed by a complianceofficer within a foot or two of an unguarded elevator shaft opening whichmeasured nine feet wide and thirty feet long. The electrical materials theywere to move were stored within one to two feet of the same unguarded elevatorshaft opening.6. Floor openingsare required to be guarded in accordance with 29 CFR ?\u00a01926.500(b)(1).7. The distance fromthe unguarded shaft opening to the ground below was sixty-five to seventy feet.8. An accidentalfall by one or both of the two employees through the unguarded shaft opening tothe ground below would more probably than not have resulted in death or seriousphysical harm to the employees. The violation of 29 CFR ? 1926.500(b)(1) wasserious.9. Respondent doesnot maintain any safety and training program for any of its employees includingits management and labor supervisory personnel.10. There is noevidence that respondent knew its two employees were exposed to the serioushazard, but its lack of knowledge or its acquisition with reasonable diligence,was due to its failure to assume its responsibility of providing andmaintaining an adequate safety and training program which would have alertedrespondent to the danger in time to prevent its employees from being exposed tothe hazard.11. Respondent isresponsible for the serious violation of 29 CFR ? 1926.500(b)(1).12. Respondent,concedes that on January 15, 1975, one of its employees performing metal andwelding work with acetylene gas on the third floor of the structure underconstruction, did not have available, if needed, a fire extinguisher inviolation of 29 CFR ? 1926.150(c)(1)(vi).13. The credibleevidence establishes that respondent had no fire extinguishers at its worksiteat any time prior to, and during, the January 15th inspection of the thirdfloor. Respondent is responsible for this nonserious violation for the reasonsset forth in paragraph 10, above.CONCLUSIONS OF LAW1. Respondent is,and at all times material herein was, engaged in a business affecting commercewithin the meaning of section 3 (5) of the Act (29 U.S.C. ? 652(5)).2. The OccupationalSafety and Health Review Commission has jurisdiction over the subject matterand parties to this action.3. On January 8,1975, respondent was in serious violation of 29 CFR ? 1926.500(d)(1) in that itfailed to protect two of its employees from the danger of an unguarded elevatorshaft opening located on the fourth floor of the construction project atBroadway Plaza, White Plains, New York.4. Under thecircumstances of this case with due consideration to the statutory factors ofsection 17(j) of the Act, the proposed penalty of $500.00 for the serious violationis reasonable and proper.5. On January 15,1975, respondent was in nonserious violation of 29 CFR ? 1926.150(c)(1)(vi) inthat it failed to have available a properly rated fire extinguisher for itsemployee performing work with acetylene gas on the third floor of theconstruction project.6. Under thecircumstances of this case with due regard to the statutory factors of section17(j) of the Act, the proposed penalty of $40.00 for the nonserious violationis reasonable and proper.ORDERDue deliberationhaving been had on the whole record, it is herebyORDERED that thecitations for a serious violation of 29 CFR ? 1926.500(b)(1) and for anonserious violation of 29 CFR ? 1926.150(c)(1)(vi), are affirmed, it isfurtherORDERED that thenotification of proposed penalty of $500.00 for the serious violation and$40.00 for the nonserious violation, is affirmed.?JEROME C. DITOREJUDGE, OSAHRCDated: October 23, 1975New York, New York[10]There is a parallelprovision in the Administrative Procedure Act. 5 U.S.C. ? 557(b) provides, inpart, that ?. . . the presiding employee . . . shall initially decide the case. . .. When the presiding employee makes an initial decision, that decisionthen becomes the decision of the agency without further proceedings unlessthere is . . . review on motion of the agency within time provided by rule.?(Emphasis supplied.) [Footnote numbering taken from original.][11]The pertinent APA provision is 5 U.S.C. ? 557(b): ?On . . . review of theinitial decision, the agency has all the powers which it would have in makingthe initial decision except as it may limit the issues on notice or by rule.?[12]Black?s Law Dictionary 512 (rev. 4th ed. 1968).\u00a0[13]A March 19, 1971 announcement from the Office of the White House Press Secretaryincluded the following:?The Presidenttoday announced his intention to nominate Robert D. Moran, James F. Van Namee,and Alan F. Burch to be members of the Occupational Safety and Health ReviewCommission . . ..?\u00a0The announcementwent on to describe these 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 jointhearing conducted by the Senate Labor and Public Welfare Committee on theirconfirmation as members of the Commission reference was made to Van Namee as ?representingmanagement? and Burch as ?representing labor.?13a The fulltext of this editorial appears at page S.673 of the Congressional Record forJanuary 28, 1976 with accompanying comments by Senator Lowell Weicker, quotedpartially as follows: ?. . . the decision of the Occupational Safety and HealthReview Commission to cease publication of their rulings . . . cannot butadversely effect the fair administration of the law.?[14]In excess of 45% of alldirections for review were issued in cases where no party petitioned forreview. Contrast this actual experience with the assertion in the majorityopinion that directions for review are ?largely? in response to petitions fordiscretionary review filed by the parties.[15] In order to insure that Iwould be kept in the dark about the issuance of these orders a written noticehad to be given to the Executive Secretary from Mr. Barnako (who is hisimmediate superior) because the Executive Secretary would not otherwise havemailed 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] In this connection see mydissenting opinion in Secretary v. Trustees of Penn Central Transport Co.,OSAHRC Docket No. 5796, December 22, 1975 for a specific instance where aCommission member delayed the issuance of a decision for reasons totallyunrelated to the merits of the case under consideration.[17] When a Judge?s decisionis directed for review the Administrative Procedure Act requires that partiesto the case be given a ?reasonable opportunity? to submit briefs, exceptions,and proposed findings and conclusions to the Commission members before themembers make their decision. 5 U.S.C. ? 557(c).\u00a0[18] If either Mr. Cleary orMr. 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)\u00a0[20] 16 U.S.C. ?? 791a?825r\u00a0[21] 15 U.S.C. ?? 717?717w\u00a0[22] 502 F.2d 278, 279?280(9th Cir. 1974).[14]Reference key: T. refers to pages of minutes of transcript.[15] The testimony is conflicting as to where the twoemployees were standing in relation to the unguarded shaft opening at the timethey were observed by the compliance officer and respondent?s representative.Whether it was one to two feet as contended by complainant or six feet ascontended by respondent is rendered immaterial by the rationale of Secretaryof Labor v. Underhill Construction Corp., 513 F.2d 1032, 1039 (2d Cir.,1975) as long as the employees were in or had access to the danger zone.[16]The compliance officer testified he was told by Mr. Virtue that there were nofire extinguishers at the worksite.”