“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 \u00a0 OSHRC DOCKET NO. 13013 W. J. BARNEY CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February18, 1976ORDERVACATING DIRECTION FOR REVIEW?BEFOREBARNAKO, Chairman; MORAN and CLEARY, Commissioners.BYTHE COMMISSIONTheorder for review issued in this case is hereby vacated for the reasons assignedin Francisco Tower Service, BNA ?? O.S.H.C. ??, CCH E.S.H.C. para. ___(No. 4845, 1976).?FORTHE COMMISSION:?WilliamS. McLaughlinExecutiveSecretaryDated:FEB 18, 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 byrespondent?s notice of contest. Consequently, there is no final order as tothose contested issues and they continue to pend before the Commissionundecided.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.[Textof Annex I follows]MORAN, Commissioner, Dissenting:This order is without force or effectsince it neither affirms, modifies nor vacates the citation or proposedpenalty. Consequently, there is no final order, and the issues in dispute inthis case continue to pend before the Commission undecided. Until a final orderhas issued, there is no requirement that an alleged violation be abated nor canthe Secretary of Labor collect any monetary penalties.29 U.S.C. ? 659(c)establishes the procedure for adjudicating alleged violations of theOccupational Safety and Health Act of 1970 (29 U.S.C. ? 651 et seq., hereafterthe Act) when a cited employer contests the citation or penalty proposal, asthe respondent in this case has done. Once the employer, within the time periodprescribed, ?notifies the Secretary that he intends to contest,? the Commission?shall afford an opportunity for a hearing.? That has been done in this case.However, the statute goes on to provide as follows:?The Commissionshall thereafter issue an order, based on findings of fact, affirming,modifying or vacating the Secretary?s citation or proposed penalty, ordirecting other appropriate relief, and such order shall become final thirtydays after its issuance.? (Emphasis supplied.)\u00a0?That has not been done in this case. Nofinal action has been taken on the citations or proposed penalties.The above-citedprovision of law is the only statutory authorization for the issuance of ordersgiving final disposition to a citation or proposed penalty which has beencontested in accordance with ? 659. Since the respondent in this case didcontest this enforcement action under that section of law?and the Commissionhas not yet acted upon the Secretary?s citation?the matters raised by respondent?snotice of contest remain undecided.Section 666(d)specifies that a respondent shall not be required to abate the allegedviolation until the Commission acts on the citation. It provides that theperiod for correcting a violation ?shall not begin to run until the date of thefinal order of the Commission.? (Emphasis supplied.)Penalties, ofcourse, cannot be collected by the Secretary of Labor unless he can demonstratethat any dispute over their amount has been adjudicated in accordance with law.Where an order such as this takes no action on the ?Secretary?s citation orproposed penalties,? a respondent will be legally entitled to decline anyrequest by the Secretary for payment. Should that happen and the Secretary thenproceed in court to collect payment he would be unable to prevail since hecould not show any disposition of the ?Secretary?s citation or proposedpenalties.?Another section ofthe Act is even more specific in this regard. ? 660(b) allows the Secretary ofLabor to obtain enforcement of any ?final order? of the Commission if he filesa petition therefor in the appropriate court of appeals provided that noadversely affected party has filed a petition for review within 60 days of theCommission?s ? 659(c) order. This section goes on to provide that ?theCommission?s finding of fact and order shall be conclusive in connection withany [such] petition for enforcement.? Here, since the Commission has made nofindings of fact itself?and has not adopted the Judge?s findings of fact?no petitionfor enforcement would lie even if this ?Order Vacating Direction for Review?could qualify as a ? 659(c) final order.Nor is any appeal ofthis ?order? permitted. The only Commission order which can be appealed is ?. .. an order of the Commission issued under subsection (c) of section 659 . . ..?29 U.S.C. ? 660(a).Furthermore, inappeals as well as enforcement petitions, the Act provides that there must beCommission findings of fact. In this regard ? 660(a) provides that?The findings ofthe Commission with respect to questions of fact, if supported by substantialevidence on the record considered as a whole, shall be conclusive.??Messrs. Barnako andCleary have here declined to make any findings with respect to questions offact?nor have they adopted the findings with respect to questions of fact whichwere made by the Judge below. Consequently, this ?Order Vacating Direction forReview? prevents both the Secretary of Labor from filing an appeal or apetition for enforcement and any other ?adversely affected or aggrieved? partyfrom obtaining a review in the Court of Appeals because of two reasons: (1)there is no ? 659(c) order, and (2) there are no findings of fact.A case fordisposition by this Commission arises when a cited employer contests thecomplainant?s enforcement action within the time prescribed. 29 U.S.C. ? 659. Atrial is held on the issues raised by the parties at a subsequent date beforeone of this Commission?s Administrative Law Judges (a position which, at thetime this statute was enacted, was known as ?hearing examiner?). 29 U.S.C. ?661(i). That section of the law then goes on to provide that:?The report of thehearing examiner shall become the final order of the Commission within thirtydays after such report . . . unless within such period any Commissionmember has directed that such report shall be reviewed by the Commission.?(Emphasis supplied.)?This is the onlystatutory provision giving finality to an Administrative Law Judge?s decision.[1] Such a decision cannot?become the final order of the Commission? if any Commission member directsthat ?such report shall be reviewed by the Commission? within the timeprescribed. See Secretary v. Gurney Industries, Inc., 6 OSAHRC 634,637?641 (1973).There is no disputeover the fact that one member of the Commission, acting pursuant to theabove-stated statutory provision, directed that the Commission review theJudge?s decision in this case. The Commission, however, has failed to act uponthat decision. It has not reviewed the Judge?s report. This ?order? does notaddress itself to the Judge?s findings in any way. It simply purports to vacatethe direction for review. Furthermore, the majority neither asserts, suggests,nor implies that the ?order? herewith entered has the effect of adopting thedecision below.The full text of thedirection for review is stated in the Commission order except for the firstparagraph thereof which provides the following:?Pursuant to theauthority contained in 29 U.S.C. ? 661(i), the undersigned hereby directsreview of the decision of the Judge in the above-entitled case.?My colleagues, ineffect, find that this direction for review is ineffective because ofvagueness. It does not, they say, present an ?issue? for adjudication by theCommission under the Act. A simple reading of the above-quoted first paragraphthereof, however, disproves that assertion. Review is directed ?of the decisionof the Judge.? The direction puts the Judge?s decision in issue. It is notlimited to any portion thereof, nor indeed is there any statute, regulation,rule, practice or decision which requires a member of this Commission tospecify particular ?issues? in such directions or to prevent a member fromdirecting review of the entire decision of the Judge if that be hisdisposition. However, even if the direction for review specified particular?issues,? the Commission?s review of the Judge?s decision in such a case wouldnot be limited to the issues so specified in the direction for review. Thispoint was made clear in Accu-namics, Inc. v. OSAHRC, 515 F.2d 828, 834(5th Cir. 1975).[2]The action taken byMessrs. Barnako and Cleary in this case is nothing less than an unabashedattempt to deprive a member of this Commission of a statutory right to have aparticular decision reviewed.Congress createdthis agency for the single purpose of ?carrying out adjudicatory functionsunder the Act.? 29 U.S.C. ? 651(b)(3). It provided that it should operate as abi-level tribunal consisting of Administrative Law Judges who preside at trialsand make the initial decisions, with review thereof by the three members of theCommission sitting as a panel to review such decisions and issue final orders.29 U.S.C. ?? 659(c), 661(a), 661(d), and 661(i). It further provided that eachof the three members?. . . shall beappointed by the President, by and with the advice and consent of the Senate,from among persons who by reason of training, education, or experience arequalified to carry out the functions of the Commission under this Act.? 29U.S.C. ? 661(a).?? 661(b) provides that the ?terms ofmembers of the Commission shall be six years . . ..?The Act makes onlyone exception to the provision that the Commission members shall operate as acollegial tribunal in carrying out its adjudicatory functions under the Act. In? 661(i) it clearly grants to ?any? single member the power to require that anAdministrative Law Judge?s decision shall be reviewed by the tribunal.With this order,however, Messrs. Barnako and Cleary have combined to deprive a duly appointedand qualified member of the Commission of this statutory grant of authority.They have abrogated to themselves the authority which the Act gave to someoneelse. They have done this to impede the free flow of ideas which inevitablysprings from the collegial process. Nevertheless, even if their purpose couldbe truthfully regarded as sound public policy, it could not be legallyaccomplished because rulings articulated in Commission decisions?no matter howbeneficial?cannot rise beyond the Congressional delegation in the enablinglegislation. The fixing of a definite power in a statute?that of an individualmember to cause the Judge?s decision to be reviewed by the members of theCommission?is enough to establish the legislative intent that the power is notto be curtailed or restricted. What Congress has given cannot be taken away bymembers of this Commission. The Supreme Court stated it this way in Humphrey?sExecutor v. U. S., 295 U.S. 602 (1935):?The soundapplication of a principle which makes one master in his own house precludeshim from imposing his control in the house of another who is master there.??In the JustinianCode, this rule was expressed more succinctly: ?Delegata potestas non potestdelegari,? which Henry Campbell Black translates as ?a delegated power cannotbe delegated.?[3] This longstanding rule oflaw, however, has not deterred Mr. Barnako and Mr. Cleary from delegating tothemselves what Congress has delegated to me.Congressdeliberately chose to establish this Commission with three members, and thePresident, by his selection of persons of diverse backgrounds to constitute theoriginal membership, fully implemented that collegial purpose.[4] It was generally assumedthat the tribunal would be truly impartial if its decisions included input frompersons whose past experience had 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 asserted earlierthat the reason for this deprivation of my statutory right to cause theCommission to review a decision of an Administrative Law Judge was to ?impedethe free flow of ideas.? At this point I will undertake to relate some reasonswhich lead me to this conclusion.The action taken bymy colleagues in this case is a continuation of a policy which began shortlyafter Mr. Barnako took office on August 1, 1975. It has been detailed in thepublic press. See, for example, The Washington Star, November 27, 1975 articleentitled ?Press Releases on Failures Helped Demote Chief of Health Unit,? a copyof which is attached hereto as Appendix A. The matter was summarized by the St.Louis Labor Tribune in a January 22, 1976 editorial entitled ?(Don?t) Let TheSunshine In? which is quoted herewith without elaboration:?An OSHAofficial?s attempts to let a little sunshine in on his record led to hisreplacement as captain of the Administration?s Review Commission and eventuallyto virtual exclusion from the business conducted by his fellow commissioners.?Robert D. Moran isstill on the team (his term runs until 1977), but in the meantime he isn?t eveninvited into the huddles anymore.?Appointed firstchairman of the commission in April 1971, Moran established a practice ofpublishing news releases (about five a week) on the wins and losses of hisReview Commission on ?significant cases.??This pristineinnocence was not acceptable to his bosses at the Labor Department whocautioned him to keep his mouth shut in late ?73, nor to the superchief over atthe White House, who last August 5, replaced him as Chairman of the Commission.?He was replaced bya man called Frank R. Barnako, a lawyer for Bethlehem Steel, who immediatelydiscontinued the news releases and reduced the dissemination of informationabout the Commission?s activities to a bare minimum.?But, Moran, hismind sated with the ideals of the ?Freedom of Information Act,? stubbornlypersisted in his attempts to keep the public informed on the disposition ofcases which came before the Review Commission.?This, in turn, ledBarnako, et. al., to illegally exclude Moran from the deliberations of theCommission and to conduct business without permitting him to participate. Moranfiled suit citing 16 cases in which the Commission denied a review of anadministrative law judge?s decision on an OSHA complaint without informingMoran of its action.?Foul, cried Moranand marched off to the United States District Court in Washington, D.C.declaring his rights as a public official have been abrogated and demandingthat they be restored by the courts and appropriate damages be assessed againstthe defendants.?The Labor Tribuneapplauds Robert D. Moran, a man who won?t be muffled, and wishes him well inhis litigation.???The Hartford Couranttook a somewhat similar view in a December 4, 1975 editorial ?OSHA Needs MoreLight? quoted in part as follows:13a?When it enacted the Occupational Safety and Health Act of1970, Congress enacted a law with which it is uncommonly difficult to comply.The OSHA hierarchy is making it more difficult, even as Congress tries tocorrect its mistakes.?* * * Frank R. Barnako, newly-appointed chairman of theOSHA Review Commission, has directed that commission decisions will no longerbe published either as news releases or formal reports?both have been done 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? concludedwith this statement:?To most people, the OSHRC decisions will hardly makeexciting reading, but they ought to be available to those who may beinterested.?\u00a0The fact that thispolicy of impeding the free flow of ideas is directed only at the views of onemember in particular can be amply demonstrated by the unresolved cases on thedockets of this Commission. During the period June 1, 1974, through November30, 1975, there were directions for review filed by the three members in atotal of 593 cases (most of them by Mr. Cleary). In 268 of these there was nopetition for review by any party.[5] 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 to theinstant case, the majority opinion states that ?. . . it has not been, nor isit now, before us on its merits.? But, by their double-standard reasoning, allthe directions for review filed by Mr. Cleary and former Commissioner VanNameewhere no party has petitioned for review are before us on their merits.It would beimpossible to list the text of all the review-directed cases currently pendingbefore the Commission. However three of those filed by Mr. Cleary in caseswhere no petition for review was filed by any party are herewith noted. In Secretaryv. Alfred S. Austin Construction Co., OSAHRC Docket No. 4809, and Secretaryv. Fisk Oesco Joint Venture, OSAHRC Docket No. 4654, the direction for reviewasked only ?[w]hether the Administrative Law Judge committed reversible error.?In Secretary v. John T. Clark & Son of Boston, Inc., OSAHRC DocketNo. 10554, the direction for review asked only whether the Administrative LawJudge erred in vacating the citation alleging non-compliance with the standardat 29 C.F.R. 1918.105(a).? There is, of course, no difference whatsoeverbetween a sua sponte direction for review questioning whether the judge erredin his decision and one like that here under consideration which simplydirected the judge?s decision for review so that its findings of fact andconclusions of law could be reviewed by the members.Another indicationthat this action of Messrs. Barnako and Cleary is part of a continuing attemptto prevent the views of this member from being included in Commission decisionsis the 16 previous cases in which they issued an ?Order Vacating Direction forReview.? As mentioned in The Washington Star article (attached as an exhibithereto) and the above-quoted editorial in the St. Louis Labor Tribune, all 16of those ?orders? were issued by my colleagues without any notice to me thatthey were under consideration. After they had been typed, and signed by myfellow Commission members, they were not circulated to me prior to theirrelease to the parties so that my views could be appended thereto?a totaldeparture from the practice which has been in effect for every decision everissued by this Commission prior to the day Mr. Barnako became the Commission?sChairman.[6] It is my belief that asimilar ?procedure? would have been employed in many additional cases were itnot for my initiation on November 25, 1975?the day I learned of these?orders??of a Petition in the U.S. District Court for the District of Columbiato put a stop to it. This matter is also mentioned in the newspaper articlesreferred to supra.The very fact that themajority is proceeding in this case in this most unusual manner?vacating thedirection for review rather than affirming the decision of the judge?isadditional evidence that their purpose is to prevent my views on the issuesarising in this case from being included in the Commission?s decision. Theyapparently would prefer to have no decision?to have this and similar cases pendin limbo for infinity?rather than to have a decision in which I couldparticipate.I note the followinglanguage in the majority opinion:?. . . if Commissioner Moran?s orders for review werepermitted to stand, it would act as a stay of abatement and, in those instanceswhere the Secretary?s citation has been affirmed, would permit a hazardouscondition to continue unabated?a result clearly contrary to the purposes of theAct.??As noted at theoutset of this dissenting opinion, this ?Order Vacating Direction for Review?does exactly what they say would happen if my ?order for review were permittedto stand.? But, let?s further examine this quoted assertion! Where are those?instances where the Secretary?s citation has been affirmed?? Who has?affirmed? them? Surely the Commission members have not done so. If it wastheir disposition to affirm, they would have said so. On the other hand, theAct makes it crystal clear that a Judge?s decision could not affirm theSecretary?s citation if?as has happened in the case now before us?a Commissionmember has directed review thereof within thirty days of its issuance. 29U.S.C. ? 661(i). So, in their desperate attempt to prevent one member of theCommission from exercising his statutory rights, Messrs. Barnako and Clearyhave created the very monster they claim will result from my direction forreview?they ?permit a hazardous condition to continue unabated.?Of course there is avery simple and quick way to avoid this from happening. They can adopt aone-sentence order affirming the decision of the Administrative Law Judge. Thiswould avoid their concern about ?an unnecessary delay of the proceedings? andindeed could be done quite quickly and simply?a rubber stamp would serve 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 be remissof me, however, if I failed to note the hollow ring that surrounds mycolleagues? assertion that they will ?continue? to reject any ?unnecessarydelay of the proceedings.?[7] I had occasion to respond toa question on this Commission?s backlog which was addressed to me duringhearings conducted by the Senate Committee on Appropriations on June 25, 1974.I answered with the following words:?The members of the Commission have about 400 undecidedcases backed up. The reason for this is that the members are not deciding casesexpeditiously and are directing cases for review at about three times theirrate of disposition. During the first four months of 1974, the Commissionmembers decided a total of 39 cases. During that same period they directed 140cases for review.At the time formerCommissioner Alan Burch?s term expired in April 1973, there was a backlog of228 undecided cases. His replacement announced that his No. 1 priority was areduction in that backlog. However, in April 1974 there had been an increase inthe backlog of more than 60 percent?making a total of 367 undecided cases. Thenumber has gone up since then.At the timeCommissioner Cleary announced that backlog-reduction was his top priority. Iasked him to join me in a rule which would automatically affirm a Judge?sdecision if it had been called for review but had remained before theCommission for three months or more without action. He declined. I cannot geteither of the other members to put such a rule into effect or set any timelimit for action by the members of the Commission. Consequently, the 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.There was, ofcourse, a subsequent membership change when Mr. Barnako became a member inplace of Mr. Van Namee whose term expired on April 27, 1975. At the time Mr.Barnako was sworn into office on August 1, 1975, the backlog stood at 454cases. Five months later?on December 31, 1975?it had grown to 540 cases. Myfirst act upon swearing him into office was to hand him a written proposal thathe join me in a rules change which would set a time limit on actions byCommission members on review-directed cases. Mr. Cleary was given a copy ofthat proposal on the same day. No response to that proposal has yet beenmade?nor has any counter proposal been offered.I submit that theabove discussion indicates how quick my colleagues have been in the recent pastto reject the ?unnecessary delay of the proceedings? of this Commission.Candor enjoins me toconcede that part of the reason for the recent increase in the backlog resultsfrom the high number of Judge?s decisions which I have directed for review inthe past few months. It is obvious from the comments in the majority opinionthat my colleagues do not agree with me that many of those cases ought to bereviewed by the Commission. They are, of course, perfectly within their rightsin taking this view. However, that being so, there is no reason why these casesshould remain in the backlog. They could affirm any Judge?s decision I directedfor review within thirty days of my action.[8]Neither these cases?nor any other cases?should be permitted to languishinterminably without decision. I continue to urge the adoption of a rule ofprocedure setting a time-limit on actions by this Commission on review-directedcases.[9]There are othermatters in the majority opinion which also merit further discussion.After deliveringtheir lecture on the evils of sua sponte directions for review, Messrs. Barnakoand Cleary later state:?. . . our action here should not be interpreted as barringsua sponte orders of review by members of the Commission.??The clear import ofthis is that when Mr. Moran directs review in such a manner it is ?improvident?and ?detrimental? but when Mr. Barnako and Mr. Cleary does so, it is ?in thepublic interest.? Somehow this brings to mind H. L. Mencken?s definition of aJudge as ?a law student who marks his own examination papers.?The majority opinionalso contains a rather amusing attempt at ?bootstrapping? in the discussionequating directions for review with a writ of certiorari. They quote one?commentator? (William Fauver, a Department of Interior Administrative LawJudge) as noting that petitions (not directions) for ?discretionary review? are?quite similar? to the procedure at law known as certiorari. They then goon?discarding the ?quite similar? nomenclature in the process?to find thatsince the direction for review does not meet the criteria for issuance of awrit of certiorari, it is ?not authorized by law.? This kind of ?logic? couldequally be used to prove that Messrs. Barnako and Cleary are really justices ofthe United States Supreme Court or members of the Holy Trinity.However, it is clearthat William Fauver is neither an authority on certiorari nor does he pretendto be and not even he?or anyone else?said that the statutory right of a memberof this Commission to cause a decision by one of this agency?s AdministrativeLaw Judges to be reviewed by this three-member tribunal was conditioned uponthe presence of the same criteria as that which constrains a higher court 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 confess tobeing mystified by the reference in the majority opinion to ?section 8(a) ofthe APA? and the assertion that the direction for review issued in this case?is contrary to the intent? of that section. The Administrative Procedure Actwas codified as part of Title 5, United States Code, some ten years ago (seepublic law 89?554, 80 Stat. 378) so the provision of law to which reference ismade is 5 U.S.C. ? 557(b). I took cognizance of this provision in note 11 supraand the accompanying text. Briefly, this provision of law merely provides thatwhen a direction for review of a Judge?s initial decision has been issued theCommission then has the same power to act as did the Judge?except where theauthority ordering the review specifically limits the scope thereof. Theexception, of course, has no application in the matter now before us becausethe entire decision below was directed to be reviewed.The concludingportion of the majority opinion in this case contains another instance whereMessrs. Barnako and Cleary assume power never given to them. I quote them asfollows:?Indeed, the Courts have kept us mindful of ourresponsibility in the public interest to provide ?active and affirmativeprotection? to the working men and women of the nation and to perform apolicymaking 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); Brennanv. Gilles & Cotting, Inc. and O.S.H.R.C., 504 F.2d 1255, 1262 (4th Cir.1974).??Neither of thesecases support the broad assertion for which they are cited. They don?t evencome close. In the latter-cited case, at page 1262, the Court noted that theSecretary of Labor was seeking to overturn a ruling of this Commission that aprime contractor was not jointly liable with one of its subcontractors for asafety infraction. The Secretary argued that the Commission had no right todetermine this issue for the issue concerned only enforcement-policy on jointcontractor liability, a matter which ?should be committed to his discretion,not that of the Commission.? The Court rejected that argument with thefollowing statement:?To accept the Secretary?s position would mean that theCommission would be little more than a specialized jury charged only with factfinding. But, as we read the statute, the Commission was designed to have apolicy role and its discretion therefore includes some questions of law.???. . . Congress intended that this agency would have thenormal complement of adjudicatory powers possessed by traditionaladministrative agencies . . ..?\u00a0There is nothing inthis case which supports the quotation from the Barnako-Cleary opinion forwhich it is cited.In the other citedauthority, the Gordon case, the Court was concerned with a decision ofthis Commission which barred an Administrative Law Judge from reopening ahearing on his own motion in order to take evidence on jurisdiction under theCommerce Clause. The Court reversed the Commission and held that the Judgeacted properly. It then added the following comments concerning the reopeningaction of the Judge (at 1032):?The action of the Administrative Law Judge was in linewith Judge Hays? well-known admonition to the Federal Power Commission that itsrole [the FPC?s role] as representative of the public interest . . ..?(Emphasis supplied.)?The Court thenquotes what Judge Hays said about the Federal Power Commission in ScenicHudson Preservation Conf. v. F.P.C., 354 F.2d 608, 620 (2d Cir., 1965).Picking up where I left off in the Gordon case, the Court continues thatthe Federal Power Commission?s role as representative of the publicinterest?. . . does not permit it to act as an umpire blandlycalling balls and strikes for adversaries appearing before it; the right of thepublic must receive active and affirmative protection at the hands of the[Federal Power] Commission.? ?Surely the majority is not claimingthat this Commission which was given only a single function to perform(?carrying out adjudicatory functions under the Act?)[10]has the broad scope of regulatory powers Congress granted to the Federal PowerCommission under the Federal Power Act[11]and the Natural Gas Act[12] or that the quotedreference in the Gordon case transposed the authority of this Commission froman adjudicatory agency into a protector of the public interest. The NinthCircuit specifically rejected such a result in Dale M. Madden ConstructionCo., Inc. v. Hodgson[13] with these words:?Unlike the NLRB and the FTC, [the Occupational Safety andHealth Review Commission] has neither prosecution nor enforcement powers. Thosehave been exclusively delegated to the Secretary [of Labor].?Policy making isarguably a by-product of the Commission?s adjudication. But the Act imposespolicy-making responsibility upon the Secretary, not the Commission . . .. Theadministrative procedure limits the Commission to adjudication.?I submit that theforegoing discussion demonstrates that the majority is once again resorting to?bootstrapping? in an attempt to arrogate to itself policy-making powers whichit simply does not have.I conclude thisopinion (and I apologize for its length but ask indulgence on the grounds thatI am being divested herein of a very basic statutory power) with theobservation that Commission members?just as all other persons?intend thenatural consequences of their acts. Obviously Messrs. Barnako and Cleary haveno intention in this case of affirming, modifying or vacating the decisionwhich was rendered by the Administrative Law Judge. Surely they would have saidso if that was their intention. Their failure to take any action on the Judge?sdecision?or on the Secretary?s citation or penalty proposal?is what is causingthe real delay in the enforcement of this Act. This ?order? is clearly inerror.APPENDIX APress Releases onFailures HelpedDemote Chief of HealthUnitBy David PikeWashington Star StaffWriterRobert D. Moran wasreasonably happy and secure for the first several years of being chairman ofthe three-member Occupational Safety and Health Review Commission, after beingappointed when it came into existence in April 1971.??????????? Moran,a lawyer with experience in. labor matters both in the private sector and withthe government, had a six-year presidential appointment and a salary in thehigh-$30,000 range with the commission, which serves as the ?court system? forthe Labor Department?s Occupational Health and Safety Administration (OSHA).But then in late1973, it started to become apparent ?that the Labor Department didn?t like me,?Moran said yesterday. And the situation has become so bad lately, Moran chargedin a suit filed this week in U.S. District Court, that the two othercommissioners and the body?s executive secretary have recently been makingdecisions without even telling him.MORAN SAID yesterdaythat the situation began to deteriorate when he was called in late 1973 by anundersecretary to then Labor Secretary Peter Brennan and told that ?the bossdoesn?t like the press releases? and that ?heads could roll in such asituation?At issue werereleases, as many as five a week, that reported decisions by the commission?s42 hearing judges and three commissioners on ?significant? cases involvingalleged safety violations by employers.The releasesreported the outcome, regardless of whether OSHA had won or lost the case, andMoran said that OSHA was losing about half the cases and didn?t like, thepublicity. Headlines on releases, such as ?Labor Department Loses Attempt toEnforce Safety Standards,? probably didn?t help, Moran recalled, but hepersisted anyway.Then early 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 said that Ifelt it was in the public interest to report what we were doing, to let thepublic, the trade associations and the unions know about the law in this area,?Moran said.BECAUSE HE continuedto issue the press releases, and because of some speeches he made to tradegroups, Moran said, ?I think I was slated to be dumped as chairman in thesummer of 1974, but then President (Richard M.) Nixon resigned and things wereheld up.?Then last summer,one of the other commissioners resigned and Frank R. Barnako, a lawyer forBethlehem Steel, was appointed by President Ford to fill the slot. ?He wassworn in by me on Aug. 1, and I went off to the American Bar Associationconvention in Montreal,? Moran said.??????????? Whilein Montreal, Moran was informed that Ford had designated Barnako to be thecommission chairman and that he was now just a commissioner. ?I guess I wassort of Schlesingered out of my job,? Moran said with a chuckle, referring tothe recent shakeup at the Defense Department.On his first day aschairman, Barnako eliminated the frequent and detailed press releases, Moransaid, and now the commission merely offers a brief mention of selected casesabout every three weeks.Barnako alsodiscontinued the official report of the commission?s activities that wasprinted by the Government Printing Office, and the reporting is now left to theprivate journals that cover the commission, Moran said. He added that thisprocedure concerned him, ?because under the Freedom of Information Act, if youdon?t publish a decision, it can?t be used as a precedent in other cases.?The new situationdid not deter Moran, and it led to the suit he filed this week. ?To circumventthe procedure, I began using my authority as a commissioner to order a reviewof a hearing judge?s decision, because decisions of the commission getpublished,? Moran said.Most of thethousands of cases sent to the commission are resolved by the judges, whosedecisions are final unless a commission review is ordered within 30 days. Moransaid that once the commission reviews a ruling, he also has the opportunity toinclude his own comments in the review and in the published order.Cited in his suit isa case in which he ordered a review of a judge?s ruling and in which, Morancharged, the other two commissioners and the body?s executive secretary vacatedhis order ?without his knowledge.?The suit chargesthat since Aug. 5, when Barnako became chairman, there have been ?at least 15other cases? in which Moran has been overruled by the others without tellinghim. The suit added that ?plaintiff (Moran) believes that there may be morecases which have been disposed of in the same manner … but he has been unableto identify the same because of efforts by the defendants to keep suchinformation from plaintiff.?Named as defendantsare Barnako, Commissioner Timothy F. Cleary and Executive Secretary William S.McLaughlin. Barnako was out of town late yesterday and could not be reached forcomment, Inquiries to the other defendants were handled by the commission?spublic information office, which said there would be no comment ?because itwould not, be proper in view of the pending litigation.?AT A HEARING earlieryesterday before U.S. District Judge June L. Green, on a request by Moran foran emergency order blocking further such alleged abuses of his reviewauthority, Moran sat at one table, with the defendants and their lawyers seatedsternly at another. But any possible fireworks were avoided when Asst. U.S.Attorney Gil Zimmerman, representing the defendants, suggested a writtenagreement pending a full hearing on Jan. 7.The agreement saidthat Moran will be informed of all commission actions and will be given anopportunity to participate in all decisions pending the hearing.Moran, 44, who livesin Northwest Washington, said later that the situation was really quiteamicable. ?They just attempted to get away with something, and I?m showing themthat I have some recourse,? Moran said.He summed up thesituation by stating: ?It?s a power play, I think. It?s an attempt tocircumvent the public display of our views, to push through one-sided opinionswithout public scrutiny and news releases.?Asked about hisfuture on the commission in view of all the trouble, Moran replied: ?I?m fine.I?m here until April 27, 1977. I don?t intend to stay one day longer, and Inever intended to stay beyond the six years. I guess that?s why I?ve been so independentwhile I?ve been here.?\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 \u00a0 OSHRC DOCKET NO. 13013 W. J. BARNEY CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0DECISION AND ORDERFier,Judge:This is a proceeding pursuant tosection 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 etseq.; hereinafter called the Act), wherein respondent contests the citation andpenalty for a nonserious repeat violation. The citation dated March 28, 1975,was based on an inspection conducted March 21st and 25th of 1975. The citationand proposed penalty were issued pursuant to sections 9(a) and 10(a) of theAct.Pursuant to section 10(c) of the Act,29 U.S.C. 659(c), respondent, through a letter dated April 18, 1975, from itsvice-president, noted its timely contest of the citation and proposed penalty.The citation for the alleged violationswere set forth as follows:NONSERIOUSVIOLATIONS[14] Standard Description of alleged Violation Abatement 29 CFR 1926.25(a) Form and scrap Lumber with protruding nails was not kept cleared from work areas on the floor of the excavation, nor from a path leading to and from the W. J. Barney Corporation offices, a path which ran above and on the south side of the excavation. \u00a0 Immediately on receipt of Citation Proposed Penalty $35 Immediately on receipt of Citation 29 CFR 1926.350(a)(9) A cylinder of compressed acetylene gas found lying on its side on the ground approximately 25 feet to the west of the Petillo Shanty, and beside the path to and from the W. J. Barney Corporation Offices, was not secured at all times in an upright position. \u00a0 \u00a0 Proposed Penalty None \u00a0 29 CFR 1926.450(a)(1) In the southwest section of the site, where a board?with splits in it at both ends?was provided between the 7th step of an 8-step stairway and the top of a retaining wall, a ladder was not used for travel between the bottom landing of the stairway and the top of the retaining wall. \u00a0 Immediately on receipt of Citation Proposed penalty None \u00a0 \u00a0SERIOUS VIOLATION[15] 29 CFR 1926.651(c) The face of the north wall of the excavation was not guarded by a shoring system, sloping of the ground, or equivalent means, although employees were exposed to the danger of moving ground. \u00a0 Immediately on receipt of Citation Proposed Penalty $600 \u00a0 \u00a0 Total Proposed Penalty $635 \u00a0 The following were stipulated by theparties:The respondent is engaged in industryaffecting interstate commerce (T. 8).[16]ISSUESThe respondent questions whether thestatute applies to it since it does not do ?work? on a construction site; itemploys no ?workmen?; has no contract with any of the prime contractors; andasserts it is a professional Corporation with no authority to correct anyviolations on the job site. In addition, the respondent denies that it hascommitted or is responsible for any of the violations.STATEMENT OF THE EVIDENCEThe thrust of respondent?s argument iscentered on the allegation that it was not an ?employer? within the meaning ofthe Act. Respondent?s contract with the owner (Dormitory Authority?New YorkState) shows that W. J. Barney Corporation was identified as ?ConstructionManager?. (Exh. J?1) Among the many responsibilities assigned to therespondent, under the contract were; ?review all plans and specifications * **; report to the owner any recommendations; * * * The Construction Manager willclosely monitor the work of each prime contractor using objective qualitycontrol standards and criteria established earlier in the specifications; * * *Regularly observe work being performed by the contractors by inspecting thesite; * * * Inspect on a daily on-going basis all work before, during and afterits installation to assure that it meets all working drawings, specificationsand shop drawing requirements * * *. (Exh. J?1)The testimony of respondent generallyconfirms the responsibilities outlined in the contract (T. 105, 106, 107, 108,187). The evidence clearly shows that the personnel of the respondent companyroutinely, and on a daily basis, are expected to ?cover? the entireconstruction site, before, during, and after the work to see that it conformsto the construction contract and plans.??????????? The respondent has asserted that thecase at hand is somewhat different than the average ?violations case? becauseit has no ?workers? at the jobsite. Concededly, the respondent?s personnel arenot ?average?. We are concerned here with professional engineers and anexecutive or supervisory structured type of corporation known as ?ConstructionManagers?.The Fifth Circuit has held that it isessentially a question of fact whether a person is an employer. ?Each case mustbe considered in light of the total situation or whole activity to determinewhether an employer?employee relationship exists? Wirtz v. Lone Star SteelCo., 405 F2 668 (5th Cir. 1968). The label ?independent contractor? willnot take the worker from the Act?s protection if the work done in its essencefollows the usual path of an ?employee?. (Rutherford Food Corp. v. McComb331 U.S. 722 (1947).The testimony showed that therespondent did have ?employees? on the jobsite (T. 111, 112). We are thusconcerned with whether the employees of the respondent are subject to theprovisions of the Act. The prior determinations on this matter have as of thiswriting, left the matter unsettled.On the other hand, it has beendetermined that since the respondent was an employer ?who performed noconstruction work, and employed no construction employees at the worksite, andwho?s primary function was to provide architectural and managerial services?,it was not an ?employer? within the meaning of the Act. Secretary v.Bertrand Goldberg Associates, ?? OSAHRC ?? DOCKET No. 1165 (under review).In another decision, the respondent contracted to perform architect-engineerservices utilizing field representatives and the owner, as to the materialsused, timed and scheduled work activities, and determined whether the work wasproceeding in accordance with the plans and specifications. The fieldrepresentatives were generally concerned with the end result but on occasionwere also concerned with work methods. The Judge decided, ?although their employeesat the worksite were not laborers or mechanics, they were employees engaged inconstruction work and thus entitled to the protection afforded by 29 CFR1910.12(a) of the Act.[17]Secretary v. Commonwealth Edison, Inland-Ryerson and Skidmore, Owings andMerrill, etc. ?? OSAHRC ?? Docket Nos. 2163, 2169, 2165. (Under Review)In still another decision, theCitations and Proposed Penalties were ordered vacated against a respondent whowas in the business of providing architectural and managerial services forowners of construction projects. As in the instant case, the respondentperformed no construction work of any nature, and supplied no constructionmaterials for its principal, the owner. The services to be rendered were inmany ways similar to those of this respondent. ?Respondent employed noconstruction employees or inspectors who carried out the duties of respondentat the construction site?. Secretary v. Bertrand Goldberg Associates ??OSAHRC ?? Docket No. 1165 (1974) (Under Review). The decision also held thatthe respondent, although it is an employer under the broad definition of theAct, is not an employer subject to the construction standards (29 CFR Part1926). In so holding, it was determined that the Secretary restricted theapplicability of the construction standards to ?laborers? and ?mechanics?.A divided Review Commission affirmed aJudge?s decision, vacating the Citations and Proposed Penalties of an ?engineerand construction manager?, where the corporation contracted with the owner of aworksite to plan, administer, inspect and observe the work of numerouscontractors thereon. The majority decision stated in part;?Respondentwas not responsible for the creation of the alleged hazards described therein,nor did it know which of the many other contractors was responsible therefor.No evidence established that respondent?s employees were exposed to the allegedhazards other than that their inspection work could have taken them into theseareas. We find this to be insufficient evidence upon which to predicate aviolation of 29 U.S.C. 654(a)(2).?A violation of this Act is notestablished unless there is evidence that employees of respondent have beenexposed to hazard as a result of non-compliance with the requirements of anoccupational safety and health standard.Not only does the evidence in this casefail to clearly establish employee exposure, it does not even permit areasonable inference to be drawn therefrom.Absent such proof, no violation of 29U.S.C. 654(a)(2) exists.? Secretary v. Bechtel Corporation, 12 OSAHRC774 (1974). Commissioner Cleary in his dissent stated;?Themajority affirms the Judge?s vacation of the citation but their decision turnson the lack of employee exposure. I disagree with both the results and reasonsin the majority?s opinion. Moreover, in reaching the question of exposure, themajority has, sub silentio, rejected the Judge?s conclusion that respondent?semployees are not subject to the Act. I agree, but I cannot agree that theseemployees were not exposed to the hazards herein.?However, theabove determination appears to demonstrate that the respondent, ?ConstructionManager? cannot prevail in its belief that the Act does not apply to it if theevidence establishes that its employees were exposed to the alleged hazards.The decision in the Bechtel case turns on the rationale that, evidence inthat case failed to establish employee exposure. (emphasis added) The factsin the above cited cases while similar are not identical. The majority opinionof the Bechtel case indicated that the citation was vacated because thepreponderance of evidence in that particular case (emphasis supplied)was not sufficient to show that the respondent?s employees were exposed to thecited violations. Thus, as Commission Cleary determined, by inuendo, therespondent?s employees are subject to the Act. A further extension and supportof this concept can be derived from the Act itself which clearly provides thatin the event of a conflict among any of the standards, the interpretationproviding the greatest protection of affected employees will be adopted. [18]\u00a0OCCUPATIONALSAFETY AND HEALTH STANDARDS?Sec.6(a) Without regard to chapter 5 of title 5, United States Code, or to theother subsections of this section, the Secretary shall, as soon as practicableduring the period beginning with the effective date of this Act and ending twoyears after such date, by rule promulgate as an occupational safety or healthstandard any national consensus standard, and any established Federal standard,unless he determines that the promulgation of such a standard would not resultin improved safety or health for specifically designated employees. In theevent of conflict among any such standards, the Secretary shall promulgate thestandard which assures the greatest protection of the safety or health of theaffected employees.?A clear example of this holding isexpressed in the regulations defining an ?Employer? and ?Employee?.[19]The obvious intent of the statute is to make every employee subject to the Act.Based on the foregoing, I am persuaded to conclude that the respondent in theinstant case is subject to the provisions of the Act.The Second Circuit recently ruled thatthe Secretary need only show that the hazard exists and was accessible to oneor more employees to establish a violation. Secretary v. UnderhillConstruction Corp., 513 F2 1032 (1975). The court further stated ?anemployer?s duty runs to ?his employees? (emphasis supplied), rather thana broader duty to keep a work area safe for any employees having access to thatarea. In addition, the Act narrowly defines ?employee? to mean an employee ofan employer who is employed in a business of his employer which affectscommerce?, 29 U.S.C. ? 652(b).?Butto draw from this a general rule that standards under the Act can be violatedonly when a cited employer?s own employees are shown to be directly exposed toa violation of a standard seems to us to be wholly unwarranted? ibid.?In the instant case, the respondent hasnot admitted the existence of the cited violations. Therefore a close look atthe facts in evidence is necessary on an item by item basis before adetermination can be made as to whether the respondent has violated thestandards as alleged. The Secretary has shown by credible evidence that therespondent?s employees were not only on the job-site at the time the citationswere issued, but that they continuously traversed the entire construction areaon an ongoing basis as required under their contract (T. 105?108, 167, 187).The Seventh Circuit Court decision of Secretaryv. Anning-Johnson Company and Workinger Electric, 516 F2 108 (1975)has been noted.The evidence presented by the Secretaryincluding photographs of the site on the date of inspection established theviolation 29 CFR 1926.25(a) and exposure thereto, by the respondent?s employees(T. 51, 54). I find that a penalty of $35.00 is appropriate under thecircumstances and it is assessed.The evidence regarding the violation of29 CFR 1926.350(a)(9) pertaining to the cylinder is vague and has not beenestablished by the evidence of record; and the violation is vacated (T. 58,59).The evidence concerning violation1926.450(a)(1) concerning the use of a board has been refuted by the testimonyand has not been established. The violation is vacated (T. 65, 66, 67).The evidence relating to 29 CFR1926.651(c) is a serious violation in which a construction worker was almostfatally injured due to a cave-in of an excavation wall. The testimony showsthat the excavation was inspected shortly before the cave-in by a New YorkState inspector (T. 125?127). There was no indication or requirement given byhim that the excavation in question was required to be shored, although adifferent section not relative hereto was cited by him for failure to do so (T.125?127, 136, 137, 154). The violation occurred at a time when a transition ofauthority from New York State to full implementation of the Federal standardsoccurred. The evidence of a violation is thus mitigated by the facts.[20]On the basis of the foregoing the evidence fails to establish that therespondent violated the above standard; and it is vacated.FINDINGS OF FACT1. The respondent is a corporationengaged in business affecting interstate commerce (T. 5, 6).2. The evidence of record shows thatthe respondent is an employer within the meaning of the Act.3. The evidence of record shows thatthe respondent?s employees are subject to the provisions of the Act.4. The evidence of record supports afinding that the respondent?s employees were exposed to the hazard of violationof 29 CFR 1926.25(a) regarding scrap lumber with protruding nails as alleged.5. The evidence of record fails to showa violation of 1926.350(a)(9) as to the respondent.6. The evidence of record fails tosupport a finding of violation of 29 CFR 1926.450(a)(1) as to the respondent.7. The evidence of record fails tosupport a finding that the respondent violated 29 CFR 1926.651(c).CONCLUSIONS OF LAW1. That this Commission hasjurisdiction over the cause (Facts 1, 2, 3).2. That the respondent on March 21, 25,1975, did violate 29 CFR 1926.25(a) (Fact 4).3. That the alleged violation of1926.350(a)(9) should be vacated (Fact 5).ORDERBased on the foregoing findings of factand conclusions of law, it is hereby ADJUDGED and ORDERED:1. Citation number one, item one, forthe alleged violation of 29 CFR 1926.651(c) of the Act is vacated.2. Citation number two, item one, forthe alleged violation of 29 CFR 1926.25(a) is affirmed and a civil penalty of $35.00is assessed.3. Citation number two, items numbertwo and three, for alleged violations of 29 CFR 1926.350(a)(9) and 29 CFR1926.450(a)(1) are vacated.\u00a0SOORDERED:SEYMOURFIERJUDGE,OSAHRCDated:October 23, 1975?NewYork, New York[1]There is a parallelprovision in the Administrative Procedure Act. 5 U.S.C. ? 557(b) provides, inpart, that ?. . . the presiding employee . . . shall initially decide the case. . .. When the presiding employee makes an initial decision, that decision thenbecomes the decision of the agency without further proceedings unlessthere is . . . review on motion of the agency within time provided by rule.?(Emphasis supplied.) [Footnote numbering taken from original.][2]The pertinent APA provision is 5 U.S.C. ? 557(b): ?On . . . review of theinitial decision, the agency has all the powers which it would have in makingthe initial decision except as it may limit the issues on notice or by rule.?[3]Black?s Law Dictionary 512 (rev. 4th ed. 1968).\u00a0[4]A March 19, 1971 announcement from the Office of the White House PressSecretary included the following:?The Presidenttoday announced his intention to nominate Robert D. Moran, James F. Van Namee,and Alan F. Burch to be members of the Occupational Safety and Health ReviewCommission . . ..?\u00a0The announcementwent on to describe these nominees in these terms:Moran??Anattorney and labor arbitrator?VanNamee??Administrator of Accident Prevention for the Westinghouse ElectricCorporation in Pittsburgh since 1961?Burch??Directorof the Department of Safety and Accident Prevention of the International Unionof Operating Engineers for the past six years?During the jointhearing conducted by the Senate Labor and Public Welfare Committee on theirconfirmation as members of the Commission reference was made to Van Namee as?representing management? and Burch as ?representing labor.?13a The fulltext of this editorial appears at page S.673 of the Congressional Record forJanuary 28, 1976 with accompanying comments by Senator Lowell Weicker, quotedpartially as follows: ?. . . the decision of the Occupational Safety and HealthReview Commission to cease publication of their rulings . . . cannot butadversely effect the fair administration of the law.?[5]In excess of 45% of all directionsfor review were issued in cases where no party petitioned for review. Contrastthis actual experience with the assertion in the majority opinion thatdirections for review are ?largely? in response to petitions for discretionaryreview filed by the parties.[6] In order to insure that Iwould be kept in the dark about the issuance of these orders a written noticehad to be given to the Executive Secretary from Mr. Barnako (who is hisimmediate superior) because the Executive Secretary would not otherwise havemailed the orders to the parties until he saw that all three members hadparticipated in these decisions. That written notice specified that I was notto be allowed to participate in those 16 decisions.[7] In this connection see mydissenting opinion in Secretary v. Trustees of Penn Central Transport Co.,OSAHRC Docket No. 5796, December 22, 1975 for a specific instance where aCommission member delayed the issuance of a decision for reasons totallyunrelated to the merits of the case under consideration.[8] When a Judge?s decision isdirected for review the Administrative Procedure Act requires that parties tothe case be given a ?reasonable opportunity? to submit briefs, exceptions, andproposed findings and conclusions to the Commission members before the membersmake their decision. 5 U.S.C. ? 557(c).\u00a0[9] If either Mr. Cleary orMr. Barnako wishes to add meaning to the lip-service they pay to the need for?speed of adjudication? (see their citations to Senator Javits? comments and to5 U.S.C. ? 555(b) in their majority opinion in this case), they could do so byjoining me in setting a deadline for the resolution of all review-directedcases. Currently, the average time for disposition of review-directed casesexceeds two years from the date an employer contests a citation to the date ofthe ? 659(c) final order. It is rapidly creeping toward the three-year mark.[10] 29 U.S.C. ? 651(b)(5)[11] 16 U.S.C. ?? 791a?825r\u00a0[12] 15 U.S.C. ?? 717?717w\u00a0[13] 502 F.2d 278, 279?280(9th Cir. 1974).[14]29 CFR ? 1926.25(a)?During the course of construction,alteration or repairs, form and scrap lumber with protruding nails, and allother debris, shall be kept cleared from work areas, passageways, and stairs,in and around buildings or other structures.\u00a029 CFR ? 1926.350(a)(9)?Compressed gas cylinders shall be secured in anupright position at all times except, if necessary, for short periods of timewhile cylinders are actually being hoisted or carried.\u00a029 CFR ? 1926.450(a)(1)?General requirements. Except where either permanentor temporary stairways or suitable ramps or runways are provided, laddersdescribed in this subpart shall be used to give safe access to all elevations.[Footnotes have been renumbered to enhance reader clarity].[15] 29 CFR 1926.651(c)?The walls and faces of allexcavations in which employees are exposed to danger from moving ground shallbe guarded by a shoring system, sloping of the ground, or some other equivalentmeans.[16]Referencekey: T. refers to pages of transcript minutes.[17]?1910.12 Construction work.(a)Standards. The standards prescribed in in Part 1926 of this chapter are adoptedas occupational safety and health standards under section 6 of the Act andshall apply, according to the provisions thereof, to every employment andplaces of employment of each of his employees engaged in construction work bycomplying with the standards prescribed in this paragraph.(b)Definition. For purposes of this section, ?construction work? means work forconstruction, alteration, and\/or repair, including painting and decorating. Seediscussion of these terms in ? 1926.13 of this title.[18]DUTIESSec.5(a) Each employer?(1)shall furnish to each of his employees employment and a place of employmentwhich are free from recognized hazards that are causing or are likely to causedeath or serious physical harm to his employees;(2)shall comply with occupational safety and health standards promulgated underthis Act.(b)Each employee shall comply with occupational safety and health standards andall rules, regulations, and orders issued pursuant to this Act which areapplicable to his own actions and conduct.[19]????????? RULES AND REGULATIONS1910.2Definitions.Asused in this part, unless the context clearly requires otherwise:(a)?Act means that Williams-Steiger Occupational Safety and Health Act of 1970 (84Stat. 1590).(c)?Employer? means a person engaged in a business affecting commerce who hasemployees, but does not include the United States or any State or politicalsubdivision of a State;(d)?Employee? means an employee of an employer who is employed in a business ofhis employer which affects commerce.[20]TheState of New York did not enact enabling legislation to establish a state plan.New York?s operating grant expired on March 31, 1975 and a transition to fullfederal enforcement of OSHA was affected as of June 30, 1975.”