“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. \u00a0 SOUTHWEST FILTER COMPANY, BETHLEHEM STEEL CORPORATION, BORDERS ELECTRIC COMPANY, INC., GRAND UNION COMPANY, HENRY CARLSON COMPANY OSHRC DOCKET NOS. 13139, 12633, 13944, 10813, 13691 \u00a0 ????????????????????????????????????????????? Respondents. \u00a0 \u00a0February 17, 1976?ORDERVACATING DIRECTION FOR REVIEWBEFORE BARNAKO, Chairman; MORAN and CLEARY,Commissioners.BY THE COMMISSION:The orders for reviewissued in these cases are 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 17, 1976?MORAN, Commissioner, Dissenting:Withthis ?order? Messrs. Barnako and Cleary continue their illegal scheme ofdepriving a duly appointed and qualified member of this Commission fromexercising his statutory right to cause decisions of Administrative Law Judgesto be reviewed. 29 U.S.C. ? 661(i). They do this by adoption of this ?OrderVacating Direction For Review.?Notonly does this order illegally deprive a member of this Commission of astatutory right but it has no force or effect upon the parties to this casesince it neither affirms, modifies nor vacates the matters placed in issue byrespondents? notices of contest. Consequently, there is no final order as tothose contested issues and they continue to pend before the Commissionundecided.Thecurrent posture of three of these cases (Docket Nos. 10813, 12633, and 13139)stands as follows: Respondents were cited and penalties were proposed.Respondents thereafter filed notices of contest. The Judges vacated the contestedmatters, but their decisions were directed for review. The Commission has notaffirmed those decisions. The contested matters, therefore, are still pending.Whenduly contested, there is no requirement that an alleged violation be abated norcan the Secretary of Labor collect any monetary penalties?or rely on this caseto prove a prior violation?until a final order is issued. 29 U.S.C. ? 659(c).Idiscussed these matters at greater length, including the reasons why mycolleagues are proceeding in this unusual manner, in Secretary v. FranciscoTower Service, OSAHRC Docket No. 4845, February 6, 1976, which I attachhereto as Annex I and incorporate by reference herein.[Text of Annex I follows]MORAN,Commissioner, Dissenting:This order is without forceor effect since it neither affirms, modifies nor vacates the citation orproposed penalty. Consequently, there is no final order, and the issues indispute in this case continue to pend before the Commission undecided. Until afinal order has issued, there is no requirement that an alleged violation beabated nor can the Secretary of Labor collect any monetary penalties.29U.S.C. ? 659(c) establishes the procedure for adjudicating alleged violationsof the Occupational Safety and Health Act of 1970 (29 U.S.C. ? 651 et seq.,hereafter the Act) when a cited employer contests the citation or penaltyproposal, as the respondent in this case has done. Once the employer, withinthe time period prescribed, ?notifies the Secretary that he intends tocontest,? the Commission ?shall afford an opportunity for a hearing.? That hasbeen 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.)?Thathas not been done in this case. No final action has been taken on the citationsor proposed penalties.Theabove-cited provision of law is the only statutory authorization for theissuance of orders giving final disposition to a citation or proposed penaltywhich has been contested in accordance with ? 659. Since the respondent in thiscase did contest this enforcement action under that section of law?and theCommission has not yet acted upon the Secretary?s citation?the matters raisedby respondent?s notice of contest remain undecided.Section666(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 beginto run until the date of the final order of the Commission.? (Emphasissupplied.)?Penalties,of course, cannot be collected by the Secretary of Labor unless he candemonstrate that any dispute over their amount has been adjudicated inaccordance with law. Where an order such as this takes no action on the?Secretary?s citation or proposed penalties,? a respondent will be legallyentitled to decline any request by the Secretary for payment. Should thathappen and the Secretary then proceed in court to collect payment he would beunable to prevail since he could not show any disposition of the ?Secretary?scitation or proposed penalties.?Anothersection of the Act is even more specific in this regard. ? 660(b) allows theSecretary of Labor to obtain enforcement of any ?final order? of the Commissionif he files a petition therefor in the appropriate court of appeals providedthat no adversely affected party has filed a petition for review within 60 daysof the Commission?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.Noris any appeal of this ?order? permitted. The only Commission order which can beappealed is?. . . an order ofthe Commission issued under subsection (c) of section 659 . . ..? 29 U.S.C. ?660(a).?Furthermore,in appeals as well as enforcement petitions, the Act provides that there mustbe Commission 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 and Cleary have here declined to make any findings with respect toquestions of fact?nor have they adopted the findings with respect to questionsof fact which were made by the Judge below. Consequently, this ?Order VacatingDirection for Review? prevents both the Secretary of Labor from filing anappeal or a petition for enforcement and any other ?adversely affected oraggrieved? party from obtaining a review in the Court of Appeals because of tworeasons: (1) there is no ? 659(c) order, and (2) there are no findings of fact.Acase for disposition by this Commission arises when a cited employer conteststhe complainant?s enforcement action within the time prescribed. 29 U.S.C. ?659. A trial is held on the issues raised by the parties at a subsequent datebefore one of this Commission?s Administrative Law Judges (a position which, atthe time 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 Commission memberhas directed that such report shall be reviewed by the Commission.? (Emphasissupplied.)?Thisis the only statutory provision giving finality to an Administrative LawJudge?s decision. [14]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).Thereis no dispute over the fact that one member of the Commission, acting pursuantto the above-stated statutory provision, directed that the Commission reviewthe Judge?s decision in this case. The Commission, however, has failed to actupon that decision. It has not reviewed the Judge?s report. This ?order? doesnot address itself to the Judge?s findings in any way. It simply purports tovacate the direction for review. Furthermore, the majority neither asserts,suggests, nor implies that the ?order? herewith entered has the effect ofadopting the decision below.Thefull text of the direction for review is stated in the Commission order exceptfor the first paragraph 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.??Mycolleagues, in effect, find that this direction for review is ineffectivebecause of vagueness. It does not, they say, present an ?issue? foradjudication by the Commission under the Act. A simple reading of theabove-quoted first paragraph thereof, however, disproves that assertion. Reviewis directed ?of the decision of the Judge.? The direction puts the Judge?sdecision in issue. It is not limited to any portion thereof, nor indeed isthere any statute, regulation, rule, practice or decision which requires a memberof this Commission to specify particular ?issues? in such directions or toprevent a member from directing review of the entire decision of the Judge ifthat be his disposition. However, even if the direction for review specifiedparticular ?issues,? the Commission?s review of the Judge?s decision in such acase would not be limited to the issues so specified in the direction forreview. This point was made clear in Accu-namics, Inc. v. OSAHRC, 515 F.2d828, 834 (5th Cir. 1975).[15]Theaction taken by Messrs. Barnako and Cleary in this case is nothing less than anunabashed attempt to deprive a member of this Commission of a statutory rightto have a particular decision reviewed.Congresscreated this agency for the single purpose of ?carrying out adjudicatoryfunctions under the Act.? 29 U.S.C. ? 651(b)(3). It provided that it shouldoperate as a bi-level tribunal consisting of Administrative Law Judges whopreside at trials and make the initial decisions, with review thereof by thethree members of the Commission sitting as a panel to review such decisions andissue final orders. 29 U.S.C. ?? 659(c), 661(a), 661(d), and 661(i). It furtherprovided that each of the three members?. . . shall 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 of members of the Commission shall be six years. . ..?TheAct makes only one exception to the provision that the Commission members shalloperate as a collegial tribunal in carrying out its adjudicatory functionsunder the Act. In ? 661(i) it clearly grants to ?any? single member the powerto require that an Administrative Law Judge?s decision shall be reviewed by thetribunal.Withthis order, however, Messrs. Barnako and Cleary have combined to deprive a dulyappointed and qualified member of the Commission of this statutory grant ofauthority. They have abrogated to themselves the authority which the Act gaveto someone else. They have done this to impede the free flow of ideas whichinevitably springs from the collegial process. Nevertheless, even if theirpurpose could be truthfully regarded as sound public policy, it could not belegally accomplished because rulings articulated in Commission decisions?nomatter how beneficial?cannot rise beyond the Congressional delegation in theenabling legislation. The fixing of a definite power in a statute?that of anindividual member to cause the Judge?s decision to be reviewed by the membersof the Commission?is enough to establish the legislative intent that the poweris not to be curtailed or restricted. What Congress has given cannot be takenaway by members of this Commission. The Supreme Court stated it this way in Humphrey?sExecutor v. U. S., 295 U.S. 602 (1935):?Thesound application of a principle which makes one master in his own houseprecludes him from imposing his control in the house of another who is masterthere.??Inthe Justinian Code, this rule was expressed more succinctly: ?Delegata potestasnon potest delegari,? which Henry Campbell Black translates as ?a delegatedpower cannot be delegated.?[16] This long-standing ruleof law, 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.[17] It was generally assumedthat the tribunal would be truly impartial if its decisions included input frompersons whose past experience has been in the business and organized laborcommunities with an additional member who came from neither?much in the samemanner as a tripartite labor arbitration panel. It was not intended?not evencontemplated?that two of the members would combine to impose a gag rule on theremaining member?thereby frustrating the purpose of having three differentin-puts into all Commission decisions. Certainly from the language of the Actcited supra, the establishment of a three-member tribunal, and the President?saction in constituting it as he did, it can fairly be concluded that eachmember was to be free to exercise his individual judgment without the leave orhindrance of any other member or any combination of other members.Iasserted earlier that the reason for this deprivation of my statutory right tocause the Commission to review a decision of an Administrative Law Judge was to?impede the free flow of ideas.? At this point I will undertake to relate somereasons which lead me to this conclusion.Theaction taken by my colleagues in this case is a continuation of a policy whichbegan shortly after Mr. Barnako took office on August 1, 1975. It has beendetailed in the public press. See, for example, The Washington Star, November27, 1975 article entitled ?Press Releases on Failures Helped Demote Chief ofHealth Unit,? a copy of which is attached hereto as Appendix A. The matter wassummarized by the St. Louis Labor Tribune in a January 22, 1976 editorialentitled ?(Don?t) Let The Sunshine In? which is quoted herewith withoutelaboration:?An 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.?RobertD. Moran is still on the team (his term runs until 1977), but in the meantimehe isn?t even invited into the huddles anymore.Appointedfirst chairman 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.?Thispristine innocence 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.Hewas replaced by a man called Frank R. Barnako, a lawyer for Bethlehem Steel,who immediately discontinued the news releases and reduced the dissemination ofinformation about the Commission?s activities to a bare minimum.But,Moran, his mind sated with the ideals of the ?Freedom of Information Act,?stubbornly persisted in his attempts to keep the public informed on thedisposition of cases which came before the Review Commission.This,in turn, led Barnako, et. al., to illegally exclude Moran from thedeliberations of the Commission and to conduct business without permitting himto participate. Moran filed suit citing 16 cases in which the Commission denieda review of an administrative law judge?s decision on an OSHA complaint withoutinforming Moran of its action.Foul,cried Moran and marched off to the United States District Court in Washington,D.C. declaring his rights as a public official have been abrogated anddemanding that they be restored by the courts and appropriate damages beassessed against the defendants.??????????? The Labor Tribune applauds Robert D. Moran, a man whowon?t be muffled, and wishes him well in his litigation.?TheHartford Courant took a somewhat similar view in a December 4, 1975 editorial?OSHA Needs More Light? quoted in part as follows:[18]?When it enactedthe Occupational Safety and Health Act of 1970, Congress enacted a law withwhich it is uncommonly difficult to comply. The OSHA hierarchy is making itmore difficult, even as Congress tries to correct its mistakes.?* * * Frank R.Barnako, newly-appointed chairman of the OSHA Review Commission, has directedthat commission decisions will no longer be published either as news releasesor formal reports?both have been done in the past.?The ReviewCommission is the ?supreme court? of a vast quasi-judicial system establishedto interpret OSHA regulations. Publication of its precedent-setting decisions,usually in business and technical journals, can offer useful guidance toconfused employers.?Mr. Barnako shouldreverse his no-news decision . . ..??ADecember 4, 1975, editorial in the Honolulu Star-Bulletin entitled ?Too MuchOpenness? concluded with this statement:?To most people,the OSHRC decisions will hardly make exciting reading, but they ought to beavailable to those who may be interested.?\u00a0Thefact that this policy of impeding the free flow of ideas is directed only atthe views of one member in particular can be amply demonstrated by theunresolved cases on the dockets of this Commission. During the period June 1,1974, through November 30, 1975, there were directions for review filed by thethree members in a total of 593 cases (most of them by Mr. Cleary). In 268 ofthese there was no petition for review by any party.14In 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 someappropriate reason for directing review sua sponte, the reason should be statedso the Commission may benefit from the parties? briefs on the issue.??Withrespect to the instant case, the majority opinion states that ?. . . it has notbeen, nor is it now, before us on its merits.? But, by their double-standardreasoning, all the directions for review filed by Mr. Cleary and formerCommissioner VanNamee where no party has petitioned for review are before us ontheir merits.Itwould be impossible to list the text of all the review-directed cases currentlypending before the Commission. However three of those filed by Mr. Cleary incases where no petition for review was filed by any party are herewith noted.In Secretary v. Alfred S. Austin Construction Co., OSAHRC Docket No.4809, and Secretary v. Fisk Oesco Joint Venture, OSAHRC Docket No. 4654,the direction for review asked only ?[w]hether the Administrative Law Judgecommitted reversible error.? In Secretary v. John T. Clark & Son ofBoston, Inc., OSAHRC Docket No. 10554, the direction for review asked onlywhether the Administrative Law Judge erred in vacating the citation allegingnon-compliance with the standard at 29 C.F.R. 1918.105(a).? There is, ofcourse, no difference whatsoever between a sua sponte direction for reviewquestioning whether the judge erred in his decision and one like that hereunder consideration which simply directed the judge?s decision for review sothat its findings of fact and conclusions of law could be reviewed by themembers.Anotherindication that this action of Messrs. Barnako and Cleary is part of acontinuing attempt to prevent the views of this member from being included inCommission decisions is the 16 previous cases in which they issued an ?OrderVacating Direction for Review.? As mentioned in The Washington Star article(attached as an exhibit hereto) and the above-quoted editorial in the St. LouisLabor Tribune, all 16 of those ?orders? were issued by my colleagues withoutany notice to me that they were under consideration. After they had been typed,and signed by my fellow Commission members, they were not circulated to meprior to their release to the parties so that my views could be appendedthereto?a total departure from the practice which has been in effect for everydecision ever issued by this Commission prior to the day Mr. Barnako became theCommission?s Chairman.15 It ismy 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.Thevery fact that the majority is proceeding in this case in this most unusualmanner?vacating the direction for review rather than affirming the decision ofthe judge?is additional evidence that their purpose is to prevent my views onthe issues arising in this case from being included in the Commission?sdecision. They apparently would prefer to have no decision?to have this andsimilar cases pend in limbo for infinity?rather than to have a decision inwhich I could participate.Inote the following language in the majority opinion:?. . . ifCommissioner Moran?s orders for review were permitted to stand, it would act asa stay of abatement and, in those instances where the Secretary?s citation hasbeen affirmed, would permit a hazardous condition to continue unabated?a resultclearly contrary to the purposes of the Act.??Asnoted at the outset of this dissenting opinion, this ?Order Vacating Directionfor Review? does exactly what they say would happen if my ?order for reviewwere permitted to 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 itwas their disposition to affirm, they would have said so. On the other hand,the Act 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.?Ofcourse there is a very simple and quick way to avoid this from happening. Theycan adopt a one-sentence order affirming the decision of the Administrative LawJudge. This would avoid their concern about ?an unnecessary delay of the proceedings?and indeed could be done quite quickly and simply?a rubber stamp would servethis purpose rather nicely. Certainly they will concede that this procedure Isuggest could be accomplished much more rapidly than the adoption of this?Order Vacating Direction for Review? and it would avoid all the problems I?vementioned in this opinion which result from the absence of a final dispositionof the merits of this case.Itwould be remiss of me, however, if I failed to note the hollow ring thatsurrounds my colleagues? assertion that they will ?continue? to reject any?unnecessary delay of the proceedings.?16I had occasion to respond to a question on this Commission?s backlog which wasaddressed to me during hearings conducted by the Senate Committee on Appropriationson June 25, 1974. I answered with the following words:?The members ofthe Commission have about 400 undecided cases backed up. The reason for this isthat the members are not deciding cases expeditiously and are directing casesfor review at about three times their rate of disposition. During the firstfour months of 1974, the Commission members decided a total of 39 cases. Duringthat same period they directed 140 cases for review.?Atthe time former Commissioner Alan Burch?s term expired in April 1973, there wasa backlog of 228 undecided cases. His replacement announced that his No. 1priority was a reduction in that backlog. However, in April 1974 there had beenan increase in the backlog of more than 60 percent?making a total of 367 undecidedcases. The number has gone up since then.Atthe time Commissioner Cleary announced that backlog-reduction was his toppriority. I asked him to join me in a rule which would automatically affirm aJudge?s decision 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 backlog continuesto grow and cases are sitting before us for one and a half to two years withoutfinal 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 Agencies Appropriations,H.R. 15580, 93d Congress, 2d Session, at pages 4571?4572.?Therewas, of course, a subsequent membership change when Mr. Barnako became a memberin place 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.Isubmit that the above discussion indicates how quick my colleagues have been inthe recent past to reject the ?unnecessary delay of the proceedings? of thisCommission.Candorenjoins me to concede that part of the reason for the recent increase in thebacklog results from the high number of Judge?s decisions which I have directedfor review in the past few months. It is obvious from the comments in themajority opinion that my colleagues do not agree with me that many of thosecases ought to be reviewed by the Commission. They are, of course, perfectlywithin their rights in taking this view. However, that being so, there is noreason why these cases should remain in the backlog. They could affirm anyJudge?s decision I directed for review within thirty days of my action.17 Neither these cases?nor any othercases?should be permitted to languish interminably without decision. I continueto urge the adoption of a rule of procedure setting a time-limit on actions bythis Commission on review-directed cases.18Thereare other matters in the majority opinion which also merit further discussion.Afterdelivering their lecture on the evils of sua sponte directions for review,Messrs. Barnako and Cleary later state:?. . . our actionhere should not be interpreted as barring sua sponte orders of review bymembers of the Commission.??Theclear import of this is that when Mr. Moran directs review in such a manner itis ?improvident? and ?detrimental? but when Mr. Barnako and Mr. Cleary does so,it is ?in the public interest.? Somehow this brings to mind H. L. Mencken?sdefinition of a Judge as ?a law student who marks his own examination papers.?Themajority opinion also contains a rather amusing attempt at ?bootstrapping? inthe discussion equating directions for review with a writ of certiorari. Theyquote one ?commentator? (William Fauver, a Department of InteriorAdministrative Law Judge) as noting that petitions (not directions) for?discretionary review? are ?quite similar? to the procedure at law known ascertiorari. They then go on?discarding the ?quite similar? nomenclature in theprocess?to find that since the direction for review does not meet the criteriafor issuance of a writ of certiorari, it is ?not authorized by law.? This kindof ?logic? could equally be used to prove that Messrs. Barnako and Cleary arereally justices of the United States Supreme Court or members of the HolyTrinity.??????????? However, it is clear that William Fauver is neither anauthority on certiorari nor does he pretend to be and not even he?or anyoneelse?said that the statutory right of a member of this Commission to cause adecision by one of this agency?s Administrative Law Judges to be reviewed bythis three-member tribunal was conditioned upon the presence of the samecriteria as that which constrains a higher court in the exercise of its powerto cause a lower court to send up its decisions for examination. If anyone wereto attempt to establish this principle I submit that they would find itimpossible to equate with the common law writ of certiorari what the majorityin this case concedes to be a ?short clause, fewer than twenty words . . .[containing] the only mention of this statutory power in the entire Act.?Imust confess to being mystified by the reference in the majority opinion to?section 8(a) of the APA? and the assertion that the direction for reviewissued in this case ?is contrary to the intent? of that section. TheAdministrative Procedure Act was codified as part of Title 5, United StatesCode, some ten years ago (see public law 89?554, 80 Stat. 378) so the provisionof law to which reference is made is 5 U.S.C. ? 557(b). I took cognizance ofthis provision in note 11 supra and the accompanying text. Briefly, thisprovision of law merely provides that when a direction for review of a Judge?sinitial decision has been issued the Commission then has the same power to actas did the Judge?except where the authority ordering the review specificallylimits the scope thereof. The exception, of course, has no application in thematter now before us because the entire decision below was directed to bereviewed.Theconcluding portion of the majority opinion in this case contains anotherinstance where Messrs. Barnako and Cleary assume power never given to them. Iquote them as follows:?Indeed, theCourts have kept us mindful of our responsibility in the public interest toprovide ?active and affirmative protection? to the working men and women of thenation and to perform a policy-making function in the application of the Act asintended by Congress. Brennan v. O.S.H.R.C. and John J. Gordon Co., 492F.2d 1027, 1032 (2d Cir. 1974); Brennan v. Gilles & Cotting, Inc. andO.S.H.R.C., 504 F.2d 1255, 1262 (4th Cir. 1974).??Neitherof these cases support the broad assertion for which they are cited. They don?teven come close. In the latter-cited case, at page 1262, the Court noted thatthe Secretary of Labor was seeking to overturn a ruling of this Commission thata prime contractor was not jointly liable with one of its subcontractors for asafety infraction. The Secretary argued that the Commission had no right todetermine this issue for the issue concerned only enforcement-policy on jointcontractor liability, a matter which ?should be committed to his discretion,not that of the Commission.? The Court rejected that argument with thefollowing statement:?To accept theSecretary?s position would mean that the Commission would be little more than aspecialized jury charged only with fact finding. But, as we read the statute,the Commission was designed to have a policy role and its discretion thereforeincludes some questions of law.???. . . Congressintended that this agency would have the normal complement of adjudicatorypowers possessed by traditional administrative agencies . . ..?\u00a0There is nothing in thiscase which supports the quotation from the Barnako-Cleary opinion for which itis cited.Inthe other cited authority, the Gordon case, the Court was concerned witha decision of this Commission which barred an Administrative Law Judge fromreopening a hearing on his own motion in order to take evidence on jurisdictionunder the Commerce Clause. The Court reversed the Commission and held that theJudge acted properly. It then added the following comments concerning the reopeningaction of the Judge (at 1032):?The action of theAdministrative Law Judge was in line with Judge Hays? well-knownadmonition to the Federal Power Commission that its role [the FPC?srole] as representative of the public interest . . ..? (Emphasis supplied.)?TheCourt then quotes 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). Pickingup where I left off in the Gordon case, the Court continues that theFederal Power Commission?s role as representative of the public interest?. . . does notpermit it to act as an umpire blandly calling balls and strikes for adversariesappearing before it; the right of the public must receive active andaffirmative protection at the hands of the [Federal Power] Commission.??Surelythe majority is not claiming that this Commission which was given only a singlefunction to perform (?carrying out adjudicatory functions under the Act?)19 has the broad scope of regulatorypowers Congress granted to the Federal Power Commission under the Federal PowerAct20 and the Natural Gas Act21 or that the quoted reference in theGordon case transposed the authority of this Commission from an adjudicatoryagency into a protector of the public interest. The Ninth Circuit specificallyrejected such a result in Dale M. Madden Construction Co., Inc. v. Hodgson22 with these words:?Unlike the NLRBand the FTC, [the Occupational Safety and Health Review Commission] has neitherprosecution nor enforcement powers. Those have been exclusively delegated tothe Secretary [of Labor].?Policymaking is arguably a by-product of the Commission?s adjudication. But the Actimposes policy-making responsibility upon the Secretary, not the Commission . … The administrative procedure limits the Commission to adjudication.???????????? I submit that the foregoing discussion demonstrates thatthe majority is once again resorting to ?bootstrapping? in an attempt toarrogate to itself policy-making powers which it simply does not have.Iconclude this opinion (and I apologize for its length but ask indulgence on thegrounds that I am being divested herein of a very basic statutory power) withthe observation 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.?APPENDIXAPressReleases on Failures Helped Demote Chief of Health UnitByDavid PikeWashingtonStar Staff WriterRobertD. Moran was reasonably happy and secure for the first several years of beingchairman of the three-member Occupational Safety and Health Review Commission,after being appointed 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).Butthen in late 1973, it started to become apparent ?that the Labor Departmentdidn?t like me,? Moran said yesterday. And the situation has become so badlately, Moran charged in a suit filed this week in U.S. District Court, thatthe two other commissioners and the body?s executive secretary have recentlybeen making decisions without even telling him.MORANSAID yesterday that the situation began to deteriorate when he was called inlate 1973 by an undersecretary to then Labor Secretary Peter Brennan and toldthat ?the boss doesn?t like the press releases? and that ?heads could roll insuch a situation?Atissue were releases, as many as five a week, that reported decisions by thecommission?s 42 hearing judges and three commissioners on ?significant? casesinvolving alleged safety violations by employers.Thereleases reported the outcome, regardless of whether OSHA had won or lost thecase, and Moran said that OSHA was losing about half the cases and didn?t like,the publicity. Headlines on releases, such as ?Labor Department Loses Attemptto Enforce Safety Standards,? probably didn?t help, Moran recalled, but hepersisted anyway.Thenearly last year, Moran said, he was called by a personnel aide at the WhiteHouse and told that he shouldn?t offend the bosses at Labor and that he ?wasputting himself in a bad position.??ButI said that I felt it was in the public interest to report what we were doing,to let the public, the trade associations and the unions know about the law inthis area,? Moran said.BECAUSEHE continued to issue the press releases, and because of some speeches he madeto trade groups, Moran said, ?I think I was slated to be dumped as chairman inthe summer of 1974, but then President (Richard M.) Nixon resigned and thingswere held up.?Thenlast summer, one of the other commissioners resigned and Frank R. Barnako, alawyer for Bethlehem Steel, was appointed by President Ford to fill the slot.?He was sworn in by me on Aug. 1, and I went off to the American BarAssociation convention in Montreal,? Moran said.Whilein Montreal, Moran was informed that Ford had designated Baranko to be thecommission chairman and that he was now just a commissioner. ?I guess I wassort of Schlesingered out of my job,? Moran said with a chuckle, referring tothe recent shakeup at the Defense Department.??????????? On his first day as chairman, Baranko eliminated thefrequent and detailed press releases, Moran said, and now the commission merelyoffers a brief mention of selected cases about every three weeks.Barankoalso discontinued 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.?THENEW situation did not deter Moran, and it led to the suit he filed this week.?To circumvent the procedure, I began using my authority as a commissioner toorder a review of a hearing judge?s decision, because decisions of thecommission get published,? Moran said.Mostof the thousands of cases sent to the commission are resolved by the judges,whose decisions are final unless a commission review is ordered within 30 days.Moran said that once the commission reviews a ruling, he also has theopportunity to include his own comments in the review and in the publishedorder.Citedin his suit is a case in which he ordered a review of a judge?s ruling and inwhich, Moran charged, the other two commissioners and the body?s executivesecretary vacated his order ?without his knowledge.?Thesuit charges that since Aug. 5, when Baranko became chairman, there have been?at least 15 other cases? in which Moran has been overruled by the otherswithout telling him. The suit added that ?plaintiff (Moran) believes that theremay be more cases which have been disposed of in the same manner … but he hasbeen unable to identify the same because of efforts by the defendants to keepsuch information from plaintiff.?Namedas defendants are Branako, Commissioner Timothy F. Cleary and ExecutiveSecretary William S. McLaughlin. Baranko was out of town late yesterday andcould not be reached for comment, Inquiries to the other defendants werehandled by the commission?s public information office, which said there wouldbe no comment ?because it would not, be proper in view of the pendinglitigation.?ATA HEARING earlier yesterday before U.S. District Judge June L. Green, on arequest by Moran for an emergency order blocking further such alleged abuses ofhis review authority, Moran sat at one table, with the defendants and theirlawyers seated sternly at another. But any possible fireworks were avoided whenAsst. U.S. Attorney Gil Zimmerman, representing the defendants, suggested awritten agreement pending a full hearing on Jan. 7.Theagreement said that Moran will be informed of all commission actions and willbe given an opportunity to participate in all decisions pending the hearing.Moran,44, who lives in Northwest Washington, said later that the situation was reallyquite amicable. ?They just attempted to get away with something, and I?mshowing them that I have some recourse,? Moran said.Hesummed up the situation by stating: ?It?s a power play, I think. It?s anattempt to circumvent the public display of our views, to push throughone-sided opinions without public scrutiny and news releases.?Askedabout his future 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 daylonger, and I never intended to stay beyond the six years. I guess that?s whyI?ve been so independent while I?ve been here.?[14]There is aparallel provision in the Administrative Procedure Act. 5 U.S.C. ? 557(b)provides, in part, that ?. . . the presiding employee . . . shall initiallydecide the case . . .. When the presiding employee makes an initial decision,that decision then becomes the decision of the agency without furtherproceedings unless where is . . . review on motion of the agency withintime provided by rule.? (Emphasis supplied.)?NB: Numbering starts at 10 in original.[15] The pertinent APAprovision is 5 U.S.C. ? 557(b): ?On . . . reviewof the initial decision, the agency has all the powers which it would have inmaking the initial decision except as it may limit the issues on notice or byrule.?[16] Black?s Law Dictionary 512 (rev.4th ed. 1968).\u00a0[17] A March 19, 1971announcement from the Office of the White House Press Secretary included thefollowing:?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 . . ..?The announcementwent on to describe these nominees in these terms:Moran??An attorneyand labor arbitrator?VanNamee??Administrator of Accident Prevention for the Westinghouse ElectricCorporation in Pittsburgh since 1961?Burch??Director ofthe Department of Safety and Accident Prevention of the International Union ofOperating 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?representing management? and Burch as ?representing labor.?13a The full text ofthis editorial appears at page S.673 of the Congressional Record for January28, 1976 with accompanying comments by Senator Lowell Weicker, quoted partiallyas follows:?. . . thedecision of the Occupational Safety and Health Review Commission to ceasepublication of their rulings . . . cannot but adversely effect the fairadministration of the law.?\u00a014 In excess of 45%of all directions 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 toinsure that I would be kept in the dark about the issuance of these orders awritten notice had to be given to the Executive Secretary from Mr. Barnako (whois his immediate superior) because the Executive Secretary would not otherwisehave mailed the orders to the parties until he saw that all three members hadparticipated in these decisions. That written notice specified that I was notto be allowed to participate in those 16 decisions.16 In thisconnection see my dissenting opinion in Secretary v. Trustees of Penn Central TransportCo., 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?sdecision is directed for review the Administrative Procedure Act requires thatparties to the case be given a ?reasonable opportunity? to submit briefs,exceptions, and proposed findings and conclusions to the Commission membersbefore the members make their decision. 5 U.S.C. ? 557(c).18 If either Mr. Cleary or Mr. Barnakowishes to add meaning to the lip-service they pay to the need for ?speed ofadjudication? (see their citations to Senator Javits? comments and to 5 U.S.C.? 555(b) in their majority opinion in this case), they could do so by joiningme in setting a deadline for the resolution of all review-directed cases.Currently, the average time for disposition of review-directed cases exceedstwo years from the date an employer contests a citation to the date of the ? 659(c)final order. It is rapidly creeping toward the three-year mark.19 29 U.S.C. ? 651(b)(5)\u00a020 16 U.S.C. ?? 791a?825r\u00a02115U.S.C. ?? 717?717w\u00a022502F.2d 278, 279?280 (9th Cir. 1974)”