“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11552 TEXAS WINDOW CLEANING COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 February 17, 1976?ORDERVACATING DIRECTION FOR REVIEW?BEFOREBARNAKO, Chairman; MORAN and CLEARY, Commissioners.BYTHE COMMISSION:The order for review issued in thiscase is hereby vacated for the reasons assigned in Francisco Tower Service,BNA ?? O.S.H.C. ??, CCH E.S.H.G. para. ___ (No. 4845, 1976).?FORTHE COMMISSION:?WilliamS. McLaughlinExecutiveSecretaryDated:FEB 17, 1976?MORAN,Commissioner, Dissenting:With this ?order? Messrs. Barnako andCleary continue their illegal scheme of depriving a duly appointed andqualified member of this Commission from exercising his statutory right to causedecisions of Administrative Law Judges to be reviewed. 29 U.S.C. ? 661(i). Theydo this by adoption of this ?Order Vacating Direction For Review.?Not only does this order illegallydeprive a member of this Commission of a statutory right but it has no force oreffect upon the parties to this case since it neither affirms, modifies norvacates the matters placed in issue by respondent?s notice of contest.Consequently, there is no final order as to those contested issues and they continueto pend before the Commission undecided.When duly contested, there is no requirementthat an alleged violation be abated nor can the Secretary of Labor collect anymonetary penalties?or rely on this case to prove a prior violation?until afinal order is issued. 29 U.S.C. ? 659(c).I discussed these matters at greaterlength, including the reasons why my colleagues are proceeding in this unusualmanner, in Secretary v. Francisco Tower Service, OSAHRC Docket No. 4845,February 6, 1976, which I attach hereto as Annex I and incorporate by referenceherein.[Text of Annex Ifollows]MORAN,Commissioner, Dissenting:This order is withoutforce or 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.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 Commission shall thereafter issue an order, based onfindings of fact, affirming, modifying or vacating the Secretary?s citation orproposed penalty, or directing other appropriate relief, and such order shallbecome final thirty days after its issuance. (Emphasis supplied.)?That has notbeen done in this case. No final action has been taken on the citations orproposed 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 the final order ofthe 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 sectionof the Act is even more specific in this regard. ? 660(b) allows the Secretaryof Labor to obtain enforcement of any ?final order? of the Commission if hefiles a 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 anyappeal of this ?order? permitted. The only Commission order which can beappealed 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 of the Commission with respect to questions offact, if supported by substantial evidence on the record considered as a whole,shall be conclusive.??Messrs. Barnakoand Cleary 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 the hearing examiner shall become the finalorder of the Commission within thirty days after such report . . . unlesswithin such period any Commission member has directed that such report shall bereviewed by the Commission.? (Emphasis supplied.)?This is theonly statutory provision giving finality to an Administrative Law Judge?sdecision. [1] Sucha decision cannot ?become the final order of the Commission? if any Commissionmember directs that ?such report shall be reviewed by the Commission? withinthe time prescribed. See Secretary v. Gurney Industries, Inc., 6 OSAHRC634, 637?641 (1973).There is nodispute over 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 textof the direction for review is stated in the Commission order except for thefirst paragraph thereof which provides the following:?Pursuant to the authority contained in 29 U.S.C. ? 661(i),the undersigned hereby directs review of the decision of the Judge in theabove-entitled case.??My colleagues,in effect, 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).[2]The actiontaken 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 be appointed by the President, by and with theadvice and consent of the Senate, from among persons who by reason of training,education, or experience are qualified to carry out the functions of theCommission under this Act.? 29 U.S.C. ? 661(a).?? 661(b)provides that the ?terms of members of the Commission shall be six years . …?The Act makesonly one exception to the provision that the Commission members shall operateas a collegial tribunal in carrying out its adjudicatory functions under theAct. In ? 661(i) it clearly grants to ?any? single member the power to requirethat an Administrative Law Judge?s decision shall be reviewed by the tribunal.With thisorder, 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):?The sound application of a principlewhich makes one master in his own house precludes him from imposing his controlin the house of another who is master there.??In theJustinian Code, this rule was expressed more succinctly: ?Delegata potestas nonpotest delegari,? which Henry Campbell Black translates as ?a delegated powercannot be delegated.?[3] Thislong-standing rule of law, however, has not deterred Mr. Barnako and Mr. Clearyfrom delegating to themselves what Congress has delegated to me.Congress deliberatelychose to establish this Commission with three members, and the President, byhis selection of persons of diverse backgrounds to constitute the originalmembership, fully implemented that collegial purpose.[4] 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.I assertedearlier that 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 actiontaken by my colleagues in this case is a continuation of a policy which beganshortly after Mr. Barnako took office on August 1, 1975. It has been detailedin the public press. See, for example, The Washington Star, November 27, 1975article entitled ?Press Releases on Failures Helped Demote Chief of HealthUnit,? 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 OSHA official?s attempts to let a little sunshine in onhis record led to his replacement as captain of the Administration?s ReviewCommission and eventually to virtual exclusion from the business conducted byhis fellow commissioners.?Robert D. Moranis still on the team (his term runs until 1977), but in the meantime he isn?teven invited 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 replacedby a 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,led Barnako, 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, criedMoran and 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 Tribune applauds Robert D.Moran, a man who won?t be muffled, and wishes him well in his litigation.?The HartfordCourant took a somewhat similar view in a December 4, 1975 editorial ?OSHANeeds More Light? quoted in part as follows:[5]?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 the OSHAReview Commission, has directed that commission decisions will no longer bepublished either as news releases or formal reports?both have been done in thepast.?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?concluded with 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 thatthis policy of impeding the free flow of ideas is directed only at the views ofone member in particular can be amply demonstrated by the unresolved cases onthe dockets of this Commission. During the period June 1, 1974, throughNovember 30, 1975, there were directions for review filed by the three membersin a total of 593 cases (most of them by Mr. Cleary). In 268 of these there wasno petition for review by any party.14 In none of these cases(except those directions issued by me) has either Mr. Barnako or Mr. Clearyproposed an order vacating the direction for review. Nor has either ofthem?with respect to such directions for review?taken the position that they dohere:?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 tothe instant case, the majority opinion states that ?. . . it has not been, noris it now, before us on its merits.? But, by their double-standard reasoning,all the directions for review filed by Mr. Cleary and former CommissionerVanNamee where no party has petitioned for review are before us on theirmerits.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 forreview asked only ?[w]hether the Administrative Law Judge committed reversibleerror.? In Secretary v. John T. Clark & Son of Boston, Inc., OSAHRCDocket No. 10554, the direction for review asked only whether theAdministrative Law Judge erred in vacating the citation alleging non-compliancewith the standard at 29 C.F.R. 1918.105(a).? There is, of course, no differencewhatsoever between a sua sponte direction for review questioning whether thejudge erred in his decision and one like that here under consideration whichsimply directed the judge?s decision for review so that its findings of factand conclusions of law could be reviewed by the members.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 is my belief that a similar?procedure? would have been employed in many additional cases were it not for myinitiation on November 25, 1975?the day I learned of these ?orders??of aPetition in the U.S. District Court for the District of Columbia to put a stopto it. This matter is also mentioned in the newspaper articles referred to supra.The very factthat 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.I note thefollowing language 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 thereis a very 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 thispurpose 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.It would beremiss of 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 aquestion on this Commission?s backlog which was addressed to me during hearingsconducted by the Senate Committee on Appropriations on June 25, 1974. Ianswered 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 timeformer Commissioner Alan Burch?s term expired in April 1973, there was abacklog 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.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 backlog continuesto grow and cases are sitting before us for one and a half to two years withoutfinal decision.In all honesty, I see no prospect for reducing this backlogduring fiscal year 1975 unless there are membership or legislative changes. Onthe contrary, I fully expect to see it increase. At this time next year it willexceed 600 cases if the existing situation continues.? Senate Hearings Beforethe Committee on Appropriations, Departments of Labor, Health, Education, andWelfare, and Related Agencies Appropriations, H.R. 15580, 93d Congress, 2dSession, 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 thatthe above discussion indicates how quick my colleagues have been in the recentpast to reject the ?unnecessary delay of the proceedings? of this Commission.Candor enjoinsme to concede that part of the reason for the recent increase in the backlogresults from the high number of Judge?s decisions which I have directed forreview in the past few months. It is obvious from the comments in the majorityopinion that my colleagues do not agree with me that many of those cases oughtto be reviewed by the Commission. They are, of course, perfectly within theirrights in taking this view. However, that being so, there is no reason whythese cases should remain in the backlog. They could affirm any Judge?sdecision I directed for review within thirty days of my action.17Neither 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.18There are othermatters 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 action here should not be interpreted as barringsua sponte orders of review by members of the Commission.??The clearimport of this 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, itis ?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.?The majorityopinion also contains a rather amusing attempt at ?bootstrapping? in thediscussion equating directions for review with a writ of certiorari. They quoteone ?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 go on?discardingthe ?quite similar? nomenclature in the process?to find that since thedirection for review does not meet the criteria for issuance of a writ ofcertiorari, it is ?not authorized by law.? This kind of ?logic? could equallybe used to prove that Messrs. Barnako and Cleary are really justices of theUnited States Supreme Court or members of the Holy Trinity.??????????? However, it is clear that WilliamFauver is neither an authority on certiorari nor does he pretend to be and noteven he?or anyone else?said that the statutory right of a member of thisCommission to cause a decision by one of this agency?s Administrative LawJudges to be reviewed by this three-member tribunal was conditioned upon thepresence of the same criteria as that which constrains a higher court in theexercise 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 confessto being 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 affirmativeprotection? to the working men and women of the nation and to perform apolicy-making function in the application of the Act as intended by Congress. Brennanv. O.S.H.R.C. and John J. Gordon Co., 492 F.2d 1027, 1032 (2d Cir. 1974);Brennan v. Gilles & Cotting, Inc. and O.S.H.R.C., 504 F.2d 1255, 1262(4th Cir. 1974).??Neither ofthese 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 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 othercited authority, the Gordon case, the Court was concerned with adecision of this Commission which barred an Administrative Law Judge from reopeninga hearing 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 thatits role [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 public interest?. . . 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 themajority is not claiming that this Commission which was given only a singlefunction to perform (?carrying out adjudicatory functions under the Act?)19has the broad scope of regulatory powers Congress granted to the Federal PowerCommission under the Federal Power Act20 and the Natural GasAct21or 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. Hodgson22 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 makingis arguably 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 the foregoingdiscussion 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 Releaseson Failures Helped Demote Chief of Health UnitBy David PikeWashington StarStaff WriterRobert D. Moranwas reasonably happy and secure for the first several years of being chairmanof the three-member Occupational Safety and Health Review Commission, afterbeing appointed when it came into existence in April 1971.Moran, a lawyerwith experience in. labor matters both in the private sector and with thegovernment, 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 inlate 1973, it started to become apparent ?that the Labor Department didn?t likeme,? Moran said yesterday. And the situation has become so bad lately, Morancharged in 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 SAIDyesterday that the situation began to deteriorate when he was called in late1973 by an undersecretary to then Labor Secretary Peter Brennan and told that?the boss doesn?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 lastyear, Moran said, he was called by a personnel aide at the White House and toldthat he shouldn?t offend the bosses at Labor and that he ?was putting himselfin a bad position.??But I saidthat I felt it was in the public interest to report what we were doing, to letthe public, the trade associations and the unions know about the law in thisarea,? Moran said.BECAUSE HEcontinued to issue the press releases, and because of some speeches he made totrade groups, 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 lastsummer, one of the other commissioners resigned and Frank R. Barnako, a lawyerfor Bethlehem 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.While inMontreal, 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 the frequent and detailed press releases, Moran said, andnow the commission merely offers a brief mention of selected cases about everythree weeks.Baranko 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 NEWsituation did not deter Moran, and it led to the suit he filed this week. ?Tocircumvent the procedure, I began using my authority as a commissioner to ordera review of 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 hissuit is a case in which he ordered a review of a judge?s ruling and in which,Moran charged, the other two commissioners and the body?s executive secretaryvacated his order ?without his knowledge.?The suitcharges that since Aug. 5, when Baranko became chairman, there have been ?atleast 15 other cases? in which Moran has been overruled by the others withouttelling him. The suit added that ?plaintiff (Moran) believes that there may bemore cases which have been disposed of in the same manner … but he has beenunable to identify the same because of efforts by the defendants to keep suchinformation from plaintiff.?Named asdefendants are Branako, Commissioner Timothy F. Cleary and Executive SecretaryWilliam S. McLaughlin. Baranko was out of town late yesterday and could not bereached for comment, Inquiries to the other defendants were handled by thecommission?s public information office, which said there would be no comment?because it would not, be proper in view of the pending litigation.?AT A HEARINGearlier yesterday before U.S. District Judge June L. Green, on a request byMoran for an 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 agreementsaid that Moran will be informed of all commission actions and will be given anopportunity to participate in all decisions pending the hearing.Moran, 44, wholives in 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 upthe situation 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.?\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11552 TEXAS WINDOW CLEANING COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0DECISION AND ORDER?APPEARANCES:Ms. Jane A. Matheson, U. S.Department of Labor, Solicitor?s Office,555 Griffin Square,Suite 707, Dallas, Texas 75202,Attorney for Complainant\u00a0Lawrence H. Clore, Esq., c\/oFulbright & Jaworski,Bank of the Southwest Building,Houston, Texas 77002,Attorney for the Respondent\u00a0Martin, Judge:\u00a0Thisis a proceeding brought pursuant to section 10(c) of the Occupational Safetyand Health Act of 1970, (29 USC 651 et seq.), hereinafter referred to as theAct. Respondent seeks review of a citation for an alleged serious violationissued on December 13, 1974, and also seeks review with reference to thenotification of proposed penalty requesting a civil penalty of $500.00 for thealleged violation.Theaforementioned citation and notification of proposed penalty were issued as aresult of an inspection conducted on December 12, 1974, at respondent?sworkplace at the Memorial Hospital, 1010 Louisiana Street, Houston, Texas, atwhich location respondent?s employees were engaged in cleaning the windows.`The citationalleged that on December 12, 1974, respondent violated section 29 CFR1910.132(a) and the description of the alleged serious violation is as follows:?Personal protectiveequipment was not used where necessary by reason of hazards encountered in amanner capable of causing injury or impairment.?Employeescleaning windows on the Louisiana Street side of the Memorial Hospitalbuilding, standing on window ledges, five, six, seven, eight, and ninth floorlevels not using safety belts. Employees using rope to descend from the ninthfloor roof level to windows below.?Theaforementioned standard provides as follows:?Protectiveequipment, including personal protective equipment for eyes, face, head, and extremities,protective clothing, respiratory devices, and protective shields and barriers,shall be provided, used, and maintained in a sanitary and reliable conditionwherever it is necessary by reason of hazard of processes or environment,chemical hazards, radio-logical hazards, or mechanical irritants encountered ina manner capable of causing injury or impairment in the function of any part ofthe body through absorption, inhalation or physical contact.??Respondent,through his attorney, filed a notice of contest with the complainant?s AreaDirector in Houston, Texas, advising of his desire to contest theaforementioned citation and notification of proposed penalty. Following thefiling of a formal complaint which was answered by respondent?s counsel, thismatter was scheduled for hearing in Houston, Texas, on March 21, 1975, at whichtime complainant was represented by Ms. Jane A. Matheson, of the RegionalSolicitor?s office, Dallas, Texas, and respondent was represented by LawrenceH. Clore, Esq., Attorney at Law, Houston, Texas. No additional parties desiredto participate in this proceeding.Inthe complaint filed herein, respondent was alleged to have violated theprovisions of section 5(a)(1) of the Act on or about December 12, 1974, in thathe failed to furnish his employees a place of employment free from a recognizedhazard that was likely to cause death or serious physical harm to saidemployees. The complaint amended item 1 of the citation so as to allege aviolation of section 5(a)(1) in place of section 29 CFR 1910.132(a). The reasonassigned for this amendment was to more accurately describe the nature of thealleged violation and avoid confusion with various types of personal protectiveequipment as described in section 29 CFR 1910.132(a). The citation, as amended,describes the alleged violation as follows:?Personalprotective equipment such as life lines and safety belts were not used where ahazard of falling which was likely to cause death or serious physical harm waspresent.\u00a0Employees cleaningwindows on the Louisiana Street side of the Memorial Hospital building stood onwindow ledges at fifth, sixth, seventh, eighth, and ninth floor levels withoutthe use of personal protective equipment.??Theonly issues involved in this case are whether respondent violated section5(a)(1) of the Act, commonly referred to as the general duty clause, whetherthe same was a serious violation within the purview of section 17(k) of theAct, and what penalty, if any, would be appropriate to assess in the event aviolation has been established.Atthe outset of the hearing it was stipulated that two of respondent?s employees,Jones and Gregory, were washing windows on the east side (Louisiana Street) ofMemorial Hospital, Houston, Texas, on the fifth, sixth, seventh, eighth, andninth floors; that they descended from the top floor by means of 3\/4 inch ropeand used no safety devices while window cleaning and while standing on a ledgeabout 20 inches wide; that the two employees are experienced window washers andtrained in safe window washing procedures; that the usual procedure forcleaning windows on the east side of the hospital is safe and would notconstitute a violation of the Act; that the windows on the east side of saidhospital did not open easily and the two employees decided not to clean themusing the usual procedures; that said employees had in their possession equipmentthat would have allowed them to clean the east windows in an alternate safemanner; that said equipment in possession of the two employees had been used bythem to safely clean all the windows at the hospital with the exception of theones on the east side; that Jones had on a previous occasion cleaned thewindows on the east side of the hospital, safety using the usual procedures;that respondent had not been previously cited for any violation of the Act;that the commission has jurisdiction over this subject matter and thatrespondent is engaged in a business affecting commerce; and finally, that theusual method for cleaning the windows on the east side of the hospital was tounlock the windows from the inside and clean both the inside and outside of thewindows from the inside of the building (these particular windows roll around).Theinspection of respondent?s work place at the hospital was triggered by atelephone call concerning an imminent danger situation. Compliance OfficerPetit went forthwith to the hospital where he observed two window cleaners onthe fifth or sixth floor working without any lifelines or safety belts. He wasof the opinion that a hazard was present because the men were washing windowswhile standing on a 20 inch wide window ledge, and also by using a rope as ameans to get down to the next level, because a slip would certainly result indeath or serious physical harm. The employees admitted to the complianceofficer that they knew that the method used by them was not in compliance withsafety regulations. The compliance officer indicated that the two employeeswere using a small powered platform (a basket of ?spider?) in cleaning thewindows on the other three sides of the building. The compliance officer foundno fault with the equipment. He quoted the employees as stating that the eastwindows of the building wouldn?t open and that the company had stated ?washthem the best way they could?.?Mr.Larry McIntyre, director of housekeeping services at the hospital, generallyagreed with the compliance officer?s testimony. He assisted the complianceofficer in getting the workers off the window ledge. It was his view thepowered equipment could have been used on the east side of the building butstated that it would have been more difficult to use because of the existenceof the roof over the walkway on the second floor level. He testified thatrespondent company had cleaned the hospital windows for many years and thatthere had never been any problems in the past and that he had never seen anyunsafe procedures used.Mr.Leon Jones, one of the window washers, has been cleaning windows for twelveyears, testified that he had worked for respondent for about a year and hadcleaned the hospital windows about three months before this incident. Whenquestioned as to whether he received any specific instructions regarding thewindows which were stuck, he replied ?he just said do them? and then we triedto figure out the best way we could do them. Mr. Jones stated that he was not aboss or supervisor and that he just worked along with Mr. Gregory. He admittedknowing that what he had done was unsafe and stated that he knew that Mr.Ehrenkrans would not have approved of his actions. He advised that Mr.Ehrenkrans stressed safety requirements in the performance of window washing.Mr.Henry Ehrenkrans, owner of the Texas Window Cleaning Company, has been inbusiness for about 30 years and has cleaned the windows at Memorial Hospitalfor some 20 years. He testified that he is familiar with the hazards involvedand the safety measures to be taken. He advised that he hires only experiencedwindow cleaners to work off of scaffolds and that he drives around to check oneach job once or twice a day to see that the scaffold is working properly. (Tr.52) He advised that the first he learned of the incident of December 12th was acall from the compliance officer. He stated that he received no call fromeither Jones or Gregory about the windows not opening. (Tr. 55) However, headvised that there was a liberal policy in effect at the hospital and that itwas understood that if any of the windows could not be opened that they wouldbe eliminated. He stated that he had never authorized any employees to cleanwindows in the manner that was employed on December 12th.Whenquestioned regarding instructions to employees in unusual situations, Mr.Ehrenkrans stated:?Well, mainly theirobligation is, first, if they have a situation that looks unsafe, is to go tothe building manager and let him know what the problem is. If there is norapport between them and the building manager at that time, and there is someunreasonableness on their part, they in turn call me and I, in turn, come outand inspect the situation and then get the situation covered, which is the normalprocedure.? (Tr. 57)?Mr.Ehrenkrans stated that all windows at the hospital are accessible with theequipment the men were furnished although it may be a little more difficult onthe east side. He testified that Jones had been on the hospital job previouslyand knew the proper manner of cleaning, that he was paid by the job and that hereceived the same amount of money regardless of the fact that some of thewindows could not be opened and cleaned. He agreed that the manner of cleaningwindows as occurred on December 12th was an unsafe practice and wouldconstitute a hazard.Mr.Phillip Gregory, a window cleaner with two years of experience testified thathe was familiar with the company policies and that Mr. Ehrenkrans hadinstructed him in this regard. He verified the previous testimony relative tothe efforts to get the windows open. He admitted that the way the windows werebeing cleaned was an unsafe one and that it was in violation of companypolicies. He knew that Mr. Ehrenkrans would not have approved of this type ofcleaning. He testified that he did not hear Mr. Jones say anything aboutcalling Mr. Ehrenkrans but heard him say ?something about that he had calledthe shop?I didn?t know who he talked to?. Under cross-examination Mr. Gregoryadvised that Mr. Ehrenkrans had instructed him never to stand outside on awindow ledge less than 36 inches wide without a guard railing.??????????? Respondent has contended that thecitation in this matter should be vacated because complainant did not complywith the requirements of section 9(a) of the Act in that the citation muststate with particularity the nature of the violation and must include areference to the regulation, standard or Act alleged to have been violated.While the citation alleged that respondent was in serious violation of section29 CFR 1910.132(a) the formal complaint which was prepared by the solicitor?soffice of complainant amended the citation so as to allege a serious violationof section 5(a)(1) of the Act. There is no merit to respondent?s contentionwith reference to the lack of particularity. Attention is invited to the caseof National Realty and Construction Company, Inc. v. Occupational Safety andHealth Review Commission, 489 F. 2nd 1257 (D. C. Cir. 1973) where the Courtstated:?So long as fairnotice is afforded, an issue litigated at an administrative hearing may bedecided by the hearing agency even though the formal pleadings did not squarelyraise the issue. This follows from the familiar rule that administrativeproceedings are very liberally construed and very easily amended. The rule hasparticular pertinence here, for citations under the 1970 Act are drafted bynon-legal personnel, acting with necessary dispatch. Enforcement of the Actwould be crippled if the Secretary were inflexibly held to a narrowconstruction of citations issued by his inspectors.??Basically,it is complaint?s position that respondent knew and should have known of theemployee?s method of cleaning the windows on December 12th, that he did notspecifically instruct his employees as to the proper method of cleaning thewindows on the east side when informed that they couldn?t be cleaned in theusual manner and consequently that respondent exposed his employees to arecognized hazard likely to result in death or serious physical harm. On theother hand, respondent contends that the employees? action was an isolatedoccurrence which was contrary to company policies and that the actions of theemployees on the day in question were not known to respondent and could nothave been foreseen, and further that the acts of the employees here were notpreventable.Toconstitute a violation of section 5(a)(1) of the Act the burden is upon thesecretary to show that respondent did not furnish his employees a place of employmentfree from recognized hazards likely to cause death or serious physical harm.Section 5(b) of the Act also requires employees to comply with occupationalsafety standards and regulations issued pursuant to the Act,. However, the Actdoes not impose penalties upon employees. All witnesses who testified at thehearing were of the opinion that the way the two employees were cleaning theeast windows of the hospital was unsafe and respondent?s owner admitted thattheir conduct could be considered as hazardous. Undoubtedly, a fall would haveresulted in death or serious physical harm.Aserious violation of the Act is defined in section 17(k) as one where there isa substantial probability that death or serious physical harm could result froma condition which exists, or from one or more practices, means, methods,operations, or processes which have been adopted, or are in use, in such placeof employment unless the employer did not, and could not with the exerciseof reasonable diligence, know of the presence of the violation (emphasissupplied). It is readily apparent from all of the evidence presented that deathor serious physical harm could have resulted if one of the window cleaners,working without protective equipment such as lifelines or safety belts, hadfallen from the fifth or sixth floor of the hospital. The crux of this matterboils down to the question of knowledge on the part of respondent?s owner orwhether the employees? hazardous activities on December 12th could have beenanticipated or foreseen.??????????? The evidence is in conflict as towhether Mr. Ehrenkrans was told of the problem of opening the windows on theeast side of the hospital. He testified that he received no call from eitherJones or Gregory regarding the problem. Mr. Jones, on the other hand, testifiedthat he called Mr. Ehrenkrans the day before and told him that some of thewindows wouldn?t open. However, he later testified that he came to work at 7:30a.m. on the 12th of December and tried to open the windows and that this was thefirst time he had tried the windows. (Tr. 42) Obviously, Mr. Jones would havehad no occasion to call anyone on the previous day since he didn?t become awareof the problem until the morning of the 12th. Also, Mr. Gregory testified thathe never heard Mr. Jones mention a call to Mr. Ehrenkrans. (Tr. 72?73)Aftercarefully weighing all of the testimony in the record and considering thedemeanor of the witnesses I am of the opinion that the statements made by Mr.Ehrenkrans are more reliable and credible than those of Mr. Jones and it isconcluded that Mr. Ehrenkrans was not contacted about the difficulty of openingthe east windows. It is apparent from all the facts developed that Jones andGregory decided among themselves to clean the east windows while standing onthe window ledge, undoubtedly because it was the easiest way to do it. Mr.Gregory stated: ?We was just talking about it, both of us was, and we justdecided that it would be the quickest way to do it because we couldn?t get thewindows open and we would have been there for days trying to get it done, allof it, and we was getting behind on it?. (Tr. 75) Both Mr. McIntyre and Mr.Ehrenkrans stated that the same equipment (the powered platform or basket)could have been used to wash the east windows but that it would have been alittle more difficult because of the roof over the walkway. Even Mr. Jonesagreed that the windows could have been done in this manner.BothMr. Jones and Mr. Gregory were experienced cleaners and Mr. Jones had washedthe hospital windows only three months before. Mr. Ehrenkrans testified thatneither employee had ever violated any safety regulations to his knowledge.Both of the employees testified that they had never washed windows in the waythat it was done on December 12th. Both admitted that their actions werecontrary to company policies and that Mr. Ehrenkrans would not have sanctionedthat type of conduct. Mr. Gregory advised that Mr. Ehrenkrans had cautioned himseveral times never to stand on ledges less than 36 inches wide without a guardrailing. The two employees were both aware of the fact that the manner theyemployed in cleaning the east windows was unsafe and in violation of companysafety policies.Mr.Ehrenkrans testified that it was mutually understood with the hospital that ifany of the windows couldn?t be opened, that they didn?t have to clean them andthat payment would still be made for the complete job. Mr. Jones was fullyaware of this understanding and while testifying recalled that on the job threemonths previously some of the windows wouldn?t open and that he was still paidfor the job. When questioned as to whether he discussed this matter with Mr.Ehrenkrans on the previous job, he stated ?they always told us if they wouldn?topen not do them?. (Tr. 38)Itseems clear from all of the evidence that the manner in which the two employeeswere cleaning windows on December 12th was an isolated event which could nothave been anticipated by their employer. Employers have a general duty to doeverything possible to prevent hazardous conduct by employees, however, it mustbe noted that Congress did not intend the general duty clause to impose strictliability. The facts in this case are similar to those in the National Realtycase, supra, where the employee, contrary to company rules and policies waskilled while riding on a front end loader. There the court stated:?A hazard consistingof conduct by employees, such as equipment riding, cannot, however, be totallyeliminated. A demented, suicidal, or willfully reckless employee may onoccasion circumvent the best conceived and most vigorously enforced safetyregime. This seeming dilemma is, however, solvable within the literal structureof the general duty clause. Congress intended to require elimination only ofpreventable hazards. It follows, we think, that Congress did not intendunpreventable hazards to be considered ?recognized? under the clause. Though ageneric form of hazardous conduct, such as equipment riding, may be?recognized?, unpreventable instances of it are not, and thus the possibilityof their occurrence at a work place is not inconsistent with the work placebeing ?free? of recognized hazards.??Attentionis also invited to a footnote in the National Realty case where Judge Wrightstated:?Where the hazardinvolved is a form of hazardous conduct by employees, an employer?s safetyprogram is in ?serious? violation of the general duty clause (1) if themisconduct involves a substantial risk of harm and is substantially probableunder the employer?s regime of safety precautions, or (2) the employer, withthe exercise of reasonable diligence, could have known that its safety programfailed the standards of the clause by failing to preclude the occurrence of thepreventable misconduct.?[6]?Theevidence herein clearly shows that respondent had experienced window cleanerson the job who were familiar with the company?s policies; that the twoemployees knew of the understanding between their employer and the hospitalthat windows which couldn?t be opened did not have to be cleaned; that onlyexperienced window cleaners were sent out on work requiring the use ofscaffolds; that the employer?s employees were specifically warned not to workon ledges less than 36 inches wide without hooks or railings; that the windowcleaners had not been known to have worked unsafely on previous jobs; and thatrespondent checked on scaffold jobs regularly, once or twice a day.Itis concluded that respondent did not fail to furnish his employees a safe workplace since it is felt that the dangerous actions of Jones and Gregory were soimplausible or unexpected that the employer could not have anticipated theiroccurrence. As stated in the National Realty case all preventable forms ofhazardous conduct must be excluded from the work place. The hazardous conducthere, however, was completely idiosyncratic or implausible and could not beeliminated from the work place except perhaps by one hundred percentsupervision. While the complaint here does not charge respondent withinadequate supervision it would appear infeasible or economically impossiblefor a foreman or supervisor to be on the job full time where men work in one ortwo-man crews as was the case here.Itmust therefore be concluded that respondent did not commit a serious violationof the Act since he is not shown to have had knowledge of the irrational actsof the window cleaners.FINDINGSAND CONCLUSIONSBasedupon the entire record the following findings and conclusions are entered:1.That respondent at all times referred to herein was engaged in a businessaffecting commerce within the meaning and intent of section 3 (5) of the Actand Review Commission has jurisdiction over the parties and subject matterherein.2.That on December 12, 1974, respondent had a work place at the Memorial Hospitalon 1010 Louisiana Street, Houston, Texas, where two employees were engaged incleaning windows.3.That on the aforementioned date respondent?s employees were observed cleaningwindows on the east side of the hospital on the fifth and sixth floors whilestanding on the window ledge without the use of safety belts or lifelines.4.That the employees in question were experienced window cleaners and werefamiliar with the company?s safety policies.5.That the employees had adequate equipment on the job to clean the windows inthe usual manner, to wit, by means of a powered platform or spider.6.That the action of the two employees in washing windows, standing on a ledge,without lifelines, safety belts or guard railings, was contrary to companypolicy, was unauthorized by the company and was a reckless act which could nothave been anticipated or foreseen by respondent.7.That on December 12, 1974, respondent was not in violation of section 5(a)(1)of the Act, the general duty clause, as alleged in the complaint which amendedthe citation for serious violation issued on December 13, 1974.ORDERBasedupon the foregoing findings and conclusions it is ordered that the citation forserious violation issued to respondent on December 13, 1974, be dismissed andthat the notification of proposed penalty be and the same is hereby vacated.?Henry F. Martin, Jr.JudgeDate: October 22, 1975[1]Thereis a parallel 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.)[2] Thepertinent APA provision is 5 U.S.C. ? 557(b): ?On .. . review of the initial decision, the agency has all the powers which itwould have in making the initial decision except as it may limit the issues onnotice or by rule.?[3] Black?s Law Dictionary 512 (rev.4th ed. 1968).\u00a0[4] AMarch 19, 1971 announcement from the Office of the White House Press Secretaryincluded the following:?ThePresident today announced his intention to nominate Robert D. Moran, James F.Van Namee, and Alan F. Burch to be members of the Occupational Safety andHealth Review Commission . . . .?The announcement went on todescribe 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 joint hearingconducted 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 Thefull text of this editorial appears at page S.673 of the Congressional Recordfor January 28, 1976 with accompanying comments by Senator Lowell Weicker,quoted partially as follows:?. . .the decision of the Occupational Safety and Health Review Commission to ceasepublication of their rulings . . . cannot but adversely effect the fairadministration of the law.?\u00a014 Inexcess of 45% of all directions for review were issued in cases where no partypetitioned for review. Contrast this actual experience with the assertion inthe majority opinion that directions for review are ?largely? in response topetitions for discretionary 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 Inthis connection see my dissenting opinion in Secretary v. Trustees of PennCentral Transport Co., OSAHRC Docket No. 5796, December 22, 1975 for a specificinstance where a Commission member delayed the issuance of a decision forreasons totally unrelated to the merits of the case under consideration.17Whena Judge?s decision is directed for review the Administrative Procedure Actrequires that parties to the case be given a ?reasonable opportunity? to submitbriefs, exceptions, and proposed findings and conclusions to the Commissionmembers before the members make their decision. 5 U.S.C. ? 557(c).18 If either Mr. Cleary or Mr.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)\u00a020 16 U.S.C. ?? 791a?825r\u00a02115U.S.C. ?? 717?717w\u00a022502F.2d 278, 279?280 (9th Cir. 1974)[6]Also see Secretary v. Georgia Power Co., 14 OSAHRC 513 (1974) and Secretaryv. Engineers Construction, Inc., OSAHRC Docket No. 3551 (20 OSAHRC ??(1975).”