Port Chester Electric Construction Company, Incorporated

Read the official release (oshrc.gov)

Plain-English summary

The Commission vacated its direction for review in the Port Chester Electric case by referring to Francisco Tower Service. The attached judge's decision involved two electrical employees working near an unguarded elevator shaft opening with a 65- to 70-foot drop, and an employee using acetylene equipment without a nearby fire extinguisher. The judge found the shaft-opening violation serious and the extinguisher violation nonserious. He concluded that Port Chester's lack of its own safety and training program prevented it from exercising reasonable diligence. The judge affirmed both citations and assessed penalties of $500 and $40. The Commission's short operative order did not analyze or expressly adopt those merits rulings.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.500(b)(1) and 1926.150(c)(1)(vi)
• Outcome: The Commission vacated the direction for review; the attached judge's decision had affirmed both items and assessed $540 in total penalties.
• Key point: The operative Commission order ended review without addressing the judge's conclusion that an employer's absent safety program supported constructive knowledge.

Full text (OSHRC public release)

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EN-US
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 12153

PORT CHESTER ELECTRIC
CONSTRUCTION COMPANY, INCORPORATED

���������������������������������������������
Respondent.

February 13, 1976

�

ORDER VACATING
DIRECTION FOR REVIEW

�

Before BARNAKO, Chairman; MORAN and
CLEARY, Commissioners.

BY THE COMMISSION:

The order for review
issued in this case 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).

�

FOR THE COMMISSION:

�

William S. McLaughlin

Executive Secretary

Dated: FEB 13, 1976

�

MORAN, Commissioner, Dissenting:

With this �order�
Messrs. Barnako and Cleary continue their illegal scheme of depriving a duly
appointed and qualified member of this Commission from exercising his statutory
right to cause decisions of Administrative Law Judges to be reviewed. 29 U.S.C.
� 661(i). They do this by adoption of this �Order Vacating Direction For
Review.�

Not only does this
order illegally deprive a member of this Commission of a statutory right but it
has no force or effect upon the parties to this case since it neither affirms,
modifies nor vacates the matters placed in issue by respondent�s notice of
contest. Consequently, there is no final order as to those contested issues and
they continue to pend before the Commission undecided.

When duly contested,
there is no requirement that an alleged violation be abated nor can the
Secretary of Labor collect any monetary penalties�or rely on this case to prove
a prior violation�until a final order is issued. 29 U.S.C. � 659(c).

I discussed these
matters at greater length, including the reasons why my colleagues are
proceeding in this unusual manner, in Secretary v. Francisco Tower Service ,
OSAHRC Docket No. 4845, February 6, 1976, which I attach hereto as Annex I and
incorporate by reference herein.

� [Annex I text follows]

MORAN, Commissioner, Dissenting:

This order is without force or effect
since it neither affirms, modifies nor vacates the citation or proposed
penalty. Consequently, there is no final order, and the issues in dispute in
this case continue to pend before the Commission undecided. Until a final order
has issued, there is no requirement that an alleged violation be abated nor can
the Secretary of Labor collect any monetary penalties.

29 U.S.C. � 659(c)
establishes the procedure for adjudicating alleged violations of the
Occupational Safety and Health Act of 1970 (29 U.S.C. � 651 et seq., hereafter
the Act) when a cited employer contests the citation or penalty proposal, as
the respondent in this case has done. Once the employer, within the time period
prescribed, �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 on findings of fact, affirming,
modifying or vacating the Secretary�s citation or proposed penalty , or
directing other appropriate relief, and such order shall become final thirty
days after its issuance.� (Emphasis supplied.)

� That has not been done in this case. No
final action has been taken on the citations or proposed penalties.

The above-cited
provision of law is the only statutory authorization for the issuance of orders
giving final disposition to a citation or proposed penalty which has been
contested in accordance with � 659. Since the respondent in this case did
contest this enforcement action under that section of law�and the Commission
has not yet acted upon the Secretary�s citation�the matters raised by
respondent�s notice of contest remain undecided.

Section 666(d)
specifies that a respondent shall not be required to abate the alleged
violation until the Commission acts on the citation. It provides that the
period for correcting a violation �shall not begin to run until the date of the
final order of the Commission.� (Emphasis supplied.)

Penalties, of
course, cannot be collected by the Secretary of Labor unless he can demonstrate
that 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 or
proposed penalties,� a respondent will be legally entitled to decline any
request by the Secretary for payment. Should that happen and the Secretary then
proceed in court to collect payment he would be unable to prevail since he
could not show any disposition of the �Secretary�s citation or proposed
penalties.�

Another section of
the Act is even more specific in this regard. � 660(b) allows the Secretary of
Labor to obtain enforcement of any �final order� of the Commission if he files
a petition therefor in the appropriate court of appeals provided that no
adversely affected party has filed a petition for review within 60 days of the
Commission�s � 659(c) order. This section goes on to provide that �the
Commission�s finding of fact and order shall be conclusive in connection with
any [such] petition for enforcement.� Here, since the Commission has made no
findings of fact itself�and has not adopted the Judge�s findings of fact�no
petition for enforcement would lie even if this �Order Vacating Direction for
Review� could qualify as a � 659(c) final order.

Nor is any appeal of
this �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, in
appeals as well as enforcement petitions, the Act provides that there must be
Commission findings of fact. In this regard � 660(a) provides that

�The findings of
the Commission with respect to questions of fact, if supported by substantial
evidence on the record considered as a whole, shall be conclusive.�

�

Messrs. Barnako and
Cleary have here declined to make any findings with respect to questions of
fact�nor have they adopted the findings with respect to questions of fact which
were made by the Judge below. Consequently, this �Order Vacating Direction for
Review� prevents both the Secretary of Labor from filing an appeal or a
petition for enforcement and any other �adversely affected or aggrieved� party
from 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 for
disposition by this Commission arises when a cited employer contests the
complainant�s enforcement action within the time prescribed. 29 U.S.C. � 659. A
trial is held on the issues raised by the parties at a subsequent date before
one of this Commission�s Administrative Law Judges (a position which, at the
time this statute was enacted, was known as �hearing examiner�). 29 U.S.C. �
661(i). That section of the law then goes on to provide that:

�The report of the
hearing examiner shall become the final order of the Commission within thirty
days after such report . . . unless within such period any Commission
member has directed that such report shall be reviewed by the Commission.�
(Emphasis supplied.)

�

This is the only
statutory provision giving finality to an Administrative Law Judge�s decision. [10]
Such a decision cannot �become the final order of the Commission� if any
Commission member directs that �such report shall be reviewed by the
Commission� within the time prescribed. See Secretary v. Gurney Industries,
Inc ., 6 OSAHRC 634, 637�641 (1973).

There is no dispute
over the fact that one member of the Commission, acting pursuant to the
above-stated statutory provision, directed that the Commission review the
Judge�s decision in this case. The Commission, however, has failed to act upon
that decision. It has not reviewed the Judge�s report. This �order� does not
address itself to the Judge�s findings in any way. It simply purports to vacate
the direction for review. Furthermore, the majority neither asserts, suggests,
nor implies that the �order� herewith entered has the effect of adopting the
decision below.

The full text of the
direction for review is stated in the Commission order except for the first
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 the above-entitled case.�

My colleagues, in
effect, find that this direction for review is ineffective because of
vagueness. It does not, they say, present an �issue� for adjudication by the
Commission under the Act. A simple reading of the above-quoted first paragraph
thereof, however, disproves that assertion. Review is directed �of the decision
of the Judge.� The direction puts the Judge�s decision in issue. It is not
limited to any portion thereof, nor indeed is there any statute, regulation,
rule, practice or decision which requires a member of this Commission to
specify particular �issues� in such directions or to prevent a member from
directing review of the entire decision of the Judge if that be his
disposition. However, even if the direction for review specified particular
�issues,� the Commission�s review of the Judge�s decision in such a case would
not be limited to the issues so specified in the direction for review. This
point was made clear in Accu-namics, Inc. v. OSAHRC , 515 F.2d 828, 834
(5th Cir. 1975). [11]

The action taken by
Messrs. Barnako and Cleary in this case is nothing less than an unabashed
attempt to deprive a member of this Commission of a statutory right to have a
particular decision reviewed.

Congress created
this agency for the single purpose of �carrying out adjudicatory functions
under the Act.� 29 U.S.C. � 651(b)(3). It provided that it should operate as a
bi-level tribunal consisting of Administrative Law Judges who preside at trials
and make the initial decisions, with review thereof by the three members of the
Commission 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 each
of the three members

�. . . shall be
appointed by the President, by and with the advice and consent of the Senate,
from among persons who by reason of training, education, or experience are
qualified to carry out the functions of the Commission 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 makes only
one exception to the provision that the Commission members shall operate as a
collegial 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 an
Administrative Law Judge�s decision shall be reviewed by the tribunal.

With this order,
however, Messrs. Barnako and Cleary have combined to deprive a duly appointed
and qualified member of the Commission of this statutory grant of authority.
They have abrogated to themselves the authority which the Act gave to someone
else. They have done this to impede the free flow of ideas which inevitably
springs from the collegial process. Nevertheless, even if their purpose could
be truthfully regarded as sound public policy, it could not be legally
accomplished because rulings articulated in Commission decisions�no matter how
beneficial�cannot rise beyond the Congressional delegation in the enabling
legislation. The fixing of a definite power in a statute�that of an individual
member to cause the Judge�s decision to be reviewed by the members of the
Commission�is enough to establish the legislative intent that the power is not
to be curtailed or restricted. What Congress has given cannot be taken away by
members of this Commission. The Supreme Court stated it this way in Humphrey�s
Executor v. U. S., 295 U.S. 602 (1935):

�The sound application
of a principle which makes one master in his own house precludes him from
imposing his control in the house of another who is master there.�

�

In the Justinian
Code, this rule was expressed more succinctly: �Delegata potestas non potest
delegari,� which Henry Campbell Black translates as �a delegated power cannot
be delegated.� [12] This longstanding rule of
law, however, has not deterred Mr. Barnako and Mr. Cleary from delegating to
themselves what Congress has delegated to me.

Congress
deliberately chose to establish this Commission with three members, and the
President, by his selection of persons of diverse backgrounds to constitute the
original membership, fully implemented that collegial purpose. [13]
It was generally assumed that the tribunal would be truly impartial if its
decisions included input from persons whose past experience had been in the
business and organized labor communities with an additional member who came
from neither�much in the same manner as a tripartite labor arbitration panel. It
was not intended�not even contemplated�that two of the members would combine to
impose a gag rule on the remaining member�thereby frustrating the purpose of
having three different in-puts into all Commission decisions. Certainly from
the language of the Act cited supra, the establishment of a three member
tribunal, and the President�s action in constituting it as he did, it can
fairly be concluded that each member was to be free to exercise his individual
judgment without the leave or hindrance of any other member or any combination
of other members.

I asserted earlier
that the reason for this deprivation of my statutory right to cause the
Commission to review a decision of an Administrative Law Judge was to �impede
the free flow of ideas.� At this point I will undertake to relate some reasons
which lead me to this conclusion.

The action taken by
my colleagues in this case is a continuation of a policy which began shortly
after Mr. Barnako took office on August 1, 1975. It has been detailed in the
public press. See, for example, The Washington Star, November 27, 1975 article
entitled �Press Releases on Failures Helped Demote Chief of Health Unit,� a
copy of 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 The Sunshine In� which is quoted herewith without elaboration:

�An OSHA
official�s attempts to let a little sunshine in on his record led to his
replacement as captain of the Administration�s Review Commission and eventually
to virtual exclusion from the business conducted by his fellow commissioners.

�

Robert D. Moran is
still on the team (his term runs until 1977), but in the meantime he isn�t even
invited into the huddles anymore.

�

Appointed first
chairman of the commission in April 1971, Moran established a practice of
publishing news releases (about five a week) on the wins and losses of his
Review Commission on �significant cases.�

�

This pristine
innocence was not acceptable to his bosses at the Labor Department who
cautioned him to keep his mouth shut in late �73, nor to the superchief over at
the White House, who last August 5, replaced him as Chairman of the Commission.

�

He was replaced by
a man called Frank R. Barnako, a lawyer for Bethlehem Steel, who immediately
discontinued the news releases and reduced the dissemination of information
about the Commission�s activities to a bare minimum.

�

But, Moran, his
mind sated with the ideals of the �Freedom of Information Act,� stubbornly
persisted in his attempts to keep the public informed on the disposition of
cases which came before the Review Commission.

�

This, in turn, led
Barnako, et. al., to illegally exclude Moran from the deliberations of the
Commission and to conduct business without permitting him to participate. Moran
filed suit citing 16 cases in which the Commission denied a review of an
administrative law judge�s decision on an OSHA complaint without informing
Moran of its action.

�

Foul, cried Moran
and marched off to the United States District Court in Washington, D.C.
declaring his rights as a public official have been abrogated and demanding
that they be restored by the courts and appropriate damages be assessed against
the defendants.

�

The Labor Tribune
applauds Robert D. Moran, a man who won�t be muffled, and wishes him well in
his litigation.�

�

�

The Hartford Courant
took a somewhat similar view in a December 4, 1975 editorial �OSHA Needs More
Light� quoted in part as follows: 13a

�When it enacted the Occupational Safety and Health Act of
1970, Congress enacted a law with which it is uncommonly difficult to comply.
The OSHA hierarchy is making it more difficult, even as Congress tries to
correct its mistakes.

�

• • • Frank R. Barnako, newly-appointed chairman of the
      OSHA Review Commission, has directed that commission decisions will no longer
      be published either as news releases or formal reports�both have been done in
      the past.

�

The Review Commission is the �supreme court� of a vast
quasi-judicial system established to interpret OSHA regulations. Publication of
its 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 make
exciting reading, but they ought to be available to those who may be
interested.�

The fact that this
policy of impeding the free flow of ideas is directed only at the views of one
member in particular can be amply demonstrated by the unresolved cases on the
dockets of this Commission. During the period June 1, 1974, through November
30, 1975, there were directions for review filed by the three members in a
total of 593 cases (most of them by Mr. Cleary). In 268 of these there was no
petition for review by any party. [14]
In none of these cases (except those directions issued by me) has either Mr.
Barnako or Mr. Cleary proposed an order vacating the direction for review. Nor
has either of them�with respect to such directions for review�taken the
position that they do here:

�If there is some appropriate reason for directing review
sua sponte, the reason should be stated so the Commission may benefit from the
parties� briefs on the issue.�

�

With respect to the
instant case, the majority opinion states that �. . . it has not been, nor is
it now, before us on its merits.� But, by their double-standard reasoning, all
the directions for review filed by Mr. Cleary and former Commissioner VanNamee
where no party has petitioned for review are before us on their merits.

It would be
impossible to list the text of all the review-directed cases currently pending
before the Commission. However three of those filed by Mr. Cleary in cases
where no petition for review was filed by any party are herewith noted. In Secretary
v. Alfred S. Austin Construction Co. , OSAHRC Docket No. 4809, and Secretary
v. Fisk Oesco Joint Venture, OSAHRC Docket No. 4654, the direction for review
asked only �[w]hether the Administrative Law Judge committed reversible error.�
In Secretary v. John T. Clark & Son of Boston, Inc ., OSAHRC Docket
No. 10554, the direction for review asked only whether the Administrative Law
Judge erred in vacating the citation alleging non-compliance with the standard
at 29 C.F.R. 1918.105(a).� There is, of course, no difference whatsoever
between a sua sponte direction for review questioning whether the judge erred
in his decision and one like that here under consideration which simply
directed the judge�s decision for review so that its findings of fact and
conclusions of law could be reviewed by the members.

Another indication
that this action of Messrs. Barnako and Cleary is part of a continuing attempt
to prevent the views of this member from being included in Commission decisions
is the 16 previous cases in which they issued an �Order Vacating Direction for
Review.� As mentioned in The Washington Star article (attached as an exhibit
hereto) and the above-quoted editorial in the St. Louis Labor Tribune, all 16
of those �orders� were issued by my colleagues without any 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 me prior to their
release to the parties so that my views could be appended thereto�a total
departure from the practice which has been in effect for every decision ever
issued by this Commission prior to the day Mr. Barnako became the Commission�s
Chairman. [15]
It is my belief that a similar �procedure� would have been employed in many
additional cases were it not 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 Columbia to put a stop to it. This matter is also mentioned in the
newspaper articles referred to supra .

The very fact that
the majority is proceeding in this case in this most unusual manner�vacating
the direction for review rather than affirming the decision of the judge�is
additional evidence that their purpose is to prevent my views on the issues
arising in this case from being included in the Commission�s decision. They
apparently would prefer to have no decision�to have this and similar cases pend
in limbo for infinity�rather than to have a decision in which I could
participate.

I note the following
language in the majority opinion:

�. . . if Commissioner Moran�s orders for review were
permitted to stand, it would act as a stay of abatement and, in those instances
where the Secretary�s citation has been affirmed, would permit a hazardous
condition to continue unabated�a result clearly contrary to the purposes of the
Act.�

�

As noted at the
outset of this dissenting opinion, this �Order Vacating Direction for Review�
does exactly what they say would happen if my �order for review were permitted
to stand.� But, let�s further examine this quoted assertion! Where are those
�instances where the Secretary�s citation has been affirmed?� Who has
�affirmed� them? Surely the Commission members have not done so. If it was
their disposition to affirm, they would have said so. On the other hand, the
Act makes it crystal clear that a Judge�s decision could not affirm the
Secretary�s citation if�as has happened in the case now before us�a Commission
member has directed review thereof within thirty days of its issuance. 29
U.S.C. � 661(i). So, in their desperate attempt to prevent one member of the
Commission from exercising his statutory rights, Messrs. Barnako and Cleary
have created the very monster they claim will result from my direction for
review�they �permit a hazardous condition to continue unabated.�

Of course there is a
very simple and quick way to avoid this from happening. They can adopt a
one-sentence order affirming the decision of the Administrative Law Judge. This
would avoid their concern about �an unnecessary delay of the proceedings� and
indeed could be done quite quickly and simply�a rubber stamp would serve this purpose
rather nicely. Certainly they will concede that this procedure I suggest could
be accomplished much more rapidly than the adoption of this �Order Vacating
Direction for Review� and it would avoid all the problems I�ve mentioned in
this opinion which result from the absence of a final disposition of the merits
of this case.

It would be remiss
of me, however, if I failed to note the hollow ring that surrounds my
colleagues� assertion that they will �continue� to reject any �unnecessary
delay of the proceedings.� [16]
I had occasion to respond to a question on this Commission�s backlog which was
addressed to me during hearings 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 undecided
cases backed up. The reason for this is that the members are not deciding cases
expeditiously and are directing cases for review at about three times their
rate of disposition. During the first four months of 1974, the Commission
members decided a total of 39 cases. During that same period they directed 140
cases for review.

�

At the time former
Commissioner Alan Burch�s term expired in April 1973, there was a backlog of
228 undecided cases. His replacement announced that his No. 1 priority was a
reduction in that backlog. However, in April 1974 there had been an increase in
the backlog of more than 60 percent�making a total of 367 undecided cases. The
number has gone up since then.

At the time
Commissioner Cleary announced that backlog-reduction was his top priority. I
asked him to join me in a rule which would automatically affirm a Judge�s
decision if it had been called for review but had remained before the
Commission for three months or more without action. He declined. I cannot get
either of the other members to put such a rule into effect or set any time
limit for action by the members of the Commission. Consequently, the backlog
continues to grow and cases are sitting before us for one and a half to two
years without final decision.

In all honesty, I
see no prospect for reducing this backlog during fiscal year 1975 unless there
are membership or legislative changes. On the contrary, I fully expect to see
it increase. At this time next year it will exceed 600 cases if the existing
situation 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, of
course, a subsequent membership change when Mr. Barnako became a member in
place of Mr. Van Namee whose term expired on April 27, 1975. At the time Mr.
Barnako was sworn into office on August 1, 1975, the backlog stood at 454
cases. Five months later�on December 31, 1975�it had grown to 540 cases. My
first act upon swearing him into office was to hand him a written proposal that
he join me in a rules change which would set a time limit on actions by
Commission members on review-directed cases. Mr. Cleary was given a copy of
that proposal on the same day. No response to that proposal has yet been
made�nor has any counter proposal been offered.

I submit that the
above discussion indicates how quick my colleagues have been in the recent past
to reject the �unnecessary delay of the proceedings� of this Commission.

Candor enjoins me to
concede that part of the reason for the recent increase in the backlog results
from the high number of Judge�s decisions which I have directed for review in
the past few months. It is obvious from the comments in the majority opinion
that my colleagues do not agree with me that many of those cases ought to be
reviewed by the Commission. They are, of course, perfectly within their rights
in taking this view. However, that being so, there is no reason why these cases
should remain in the backlog. They could affirm any Judge�s decision I directed
for review within thirty days of my action. [17]
Neither these cases�nor any other cases�should be permitted to languish
interminably without decision. I continue to urge the adoption of a rule of
procedure setting a time-limit on actions by this Commission on review-directed
cases. [18]

There are other
matters in the majority opinion which also merit further discussion.

After delivering
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 barring
sua sponte orders of review by members of the Commission.�

�

The clear import 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, it is �in the
public interest.� Somehow this brings to mind H. L. Mencken�s definition of a
Judge as �a law student who marks his own examination papers.�

The majority opinion
also contains a rather amusing attempt at �bootstrapping� in the discussion
equating directions for review with a writ of certiorari. They quote one
�commentator� (William Fauver, a Department of Interior Administrative Law
Judge) as noting that petitions (not directions) for �discretionary review� are
�quite similar� to the procedure at law known as certiorari. They then go
on�discarding the �quite similar� nomenclature in the process�to find that
since the direction for review does not meet the criteria for issuance of a
writ of certiorari, it is �not authorized by law.� This kind of �logic� could
equally be used to prove that Messrs. Barnako and Cleary are really justices of
the United States Supreme Court or members of the Holy Trinity.

However, it is clear
that William Fauver is neither an authority on certiorari nor does he pretend
to be and not even he�or anyone else�said that the statutory right of a member
of this Commission to cause a decision by one of this agency�s Administrative
Law Judges to be reviewed by this three-member tribunal was conditioned upon
the presence of the same criteria as that which constrains a higher court in
the exercise of its power to cause a lower court to send up its decisions for
examination. If anyone were to attempt to establish this principle I submit
that they would find it impossible to equate with the common law writ of
certiorari what the majority in this case concedes to be a �short clause, fewer
than twenty words . . . [containing] the only mention of this statutory power
in the entire Act.�

I must confess to
being mystified by the reference in the majority opinion to �section 8(a) of
the APA� and the assertion that the direction for review issued in this case
�is contrary to the intent� of that section. The Administrative Procedure Act
was codified as part of Title 5, United States Code, some ten years ago (see
public law 89�554, 80 Stat. 378) so the provision of law to which reference is
made is 5 U.S.C. � 557(b). I took cognizance of this provision in note 11 supra
and the accompanying text. Briefly, this provision of law merely provides that
when a direction for review of a Judge�s initial decision has been issued the
Commission then has the same power to act as did the Judge�except where the
authority ordering the review specifically limits the scope thereof. The
exception, of course, has no application in the matter now before us because
the entire decision below was directed to be reviewed.

The concluding
portion of the majority opinion in this case contains another instance where
Messrs. Barnako and Cleary assume power never given to them. I quote them as
follows:

�Indeed, the Courts have kept us mindful of our
responsibility in the public interest to provide �active and affirmative protection�
to the working men and women of the nation and to perform a policymaking
function in the application of the Act as intended by Congress. Brennan v.
O.S.H.R.C. and John J. Gordon Co. , 492 F.2d 1027, 1032 (2d Cir. 1974); Brennan
v. Gilles & Cotting, Inc. and O.S.H.R.C. , 504 F.2d 1255, 1262 (4th Cir.
1974).�

�

Neither of these
cases support the broad assertion for which they are cited. They don�t even
come close. In the latter-cited case, at page 1262, the Court noted that the
Secretary of Labor was seeking to overturn a ruling of this Commission that a
prime contractor was not jointly liable with one of its subcontractors for a
safety infraction. The Secretary argued that the Commission had no right to
determine this issue for the issue concerned only enforcement-policy on joint
contractor liability, a matter which �should be committed to his discretion,
not that of the Commission.� The Court rejected that argument with the
following statement:

�To accept the Secretary�s position would mean that the
Commission would be little more than a specialized jury charged only with fact
finding. But, as we read the statute, the Commission was designed to have a
policy role and its discretion therefore includes some questions of law.�

�

�. . . Congress intended that this agency would have the
normal complement of adjudicatory powers possessed by traditional
administrative agencies . . ..�

There is nothing in
this case which supports the quotation from the Barnako-Cleary opinion for
which it is cited.

In the other cited
authority, the Gordon case, the Court was concerned with a decision of
this Commission which barred an Administrative Law Judge from reopening a
hearing on his own motion in order to take evidence on jurisdiction under the
Commerce Clause. The Court reversed the Commission and held that the Judge
acted properly. It then added the following comments concerning the reopening
action of the Judge (at 1032):

�The action of the Administrative Law Judge was in line
with Judge Hays� well-known admonition to the Federal Power Commission that its
role [the FPC�s role] as representative of the public interest . . ..�
(Emphasis supplied.)

�

The Court then
quotes what Judge Hays said about the Federal Power Commission in Scenic
Hudson 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 that
the Federal Power Commission�s role as representative of the public
interest

�. . . does not permit it to act as an umpire blandly
calling balls and strikes for adversaries appearing before it; the right of the
public must receive active and affirmative protection at the hands of the
[Federal Power] Commission.�

�

Surely the majority is not claiming
that this Commission which was given only a single function to perform
(�carrying out adjudicatory functions under the Act�) [19]
has the broad scope of regulatory powers Congress granted to the Federal Power
Commission under the Federal Power Act [20]
and the Natural Gas Act [21]
or that the quoted reference in the Gordon case transposed the authority of
this Commission from an adjudicatory agency into a protector of the public
interest. The Ninth Circuit specifically rejected such a result in Dale M.
Madden Construction Co., Inc. v. Hodgson [22]
with these words:

�Unlike the NLRB and the FTC, [the Occupational Safety and
Health Review Commission] has neither prosecution nor enforcement powers. Those
have been exclusively delegated to the Secretary [of Labor].

�

Policy making is
arguably a by-product of the Commission�s adjudication. But the Act imposes
policy-making responsibility upon the Secretary, not the Commission . . .. The
administrative procedure limits the Commission to adjudication.�

I submit that the
foregoing discussion demonstrates that the majority is once again resorting to
�bootstrapping� in an attempt to arrogate to itself policy-making powers which
it simply does not have.

I conclude this
opinion (and I apologize for its length but ask indulgence on the grounds that
I am being divested herein of a very basic statutory power) with the
observation that Commission members�just as all other persons�intend the
natural consequences of their acts. Obviously Messrs. Barnako and Cleary have
no intention in this case of affirming, modifying or vacating the decision
which was rendered by the Administrative Law Judge. Surely they would have said
so if that was their intention. Their failure to take any action on the Judge�s
decision�or on the Secretary�s citation or penalty proposal�is what is causing
the real delay in the enforcement of this Act. This �order� is clearly in
error.

APPENDIX A

Press Releases on
Failures Helped

Demote Chief of Health
Unit

By David Pike

Washington Star Staff
Writer

Robert D. Moran was
reasonably happy and secure for the first several years of being chairman of
the three-member Occupational Safety and Health Review Commission, after being
appointed when it came into existence in April 1971.

����������� Moran,
a lawyer with experience in. labor matters both in the private sector and with
the government, had a six-year presidential appointment and a salary in the
high-$30,000 range with the commission, which serves as the �court system� for
the Labor Department�s Occupational Health and Safety Administration (OSHA).

But then in late
1973, 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 charged
in a suit filed this week in U.S. District Court, that the two other
commissioners and the body�s executive secretary have recently been making
decisions without even telling him.

MORAN SAID yesterday
that the situation began to deteriorate when he was called in late 1973 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 a
situation�

At issue were
releases, as many as five a week, that reported decisions by the commission�s
42 hearing judges and three commissioners on �significant� cases involving
alleged safety violations by employers.

The releases
reported the outcome, regardless of whether OSHA had won or lost the case, and
Moran said that OSHA was losing about half the cases and didn�t like, the
publicity. Headlines on releases, such as �Labor Department Loses Attempt to
Enforce Safety Standards,� probably didn�t help, Moran recalled, but he
persisted anyway.

Then early last year,
Moran said, he was called by a personnel aide at the White House and told that
he shouldn�t offend the bosses at Labor and that he �was putting himself in a
bad position.�

�But I said that I
felt it was in the public interest to report what we were doing, to let the
public, the trade associations and the unions know about the law in this area,�
Moran said.

BECAUSE HE continued
to issue the press releases, and because of some speeches he made to trade
groups, Moran said, �I think I was slated to be dumped as chairman in the
summer of 1974, but then President (Richard M.) Nixon resigned and things were
held up.�

Then last summer,
one of the other commissioners resigned and Frank R. Barnako, a lawyer for
Bethlehem Steel, was appointed by President Ford to fill the slot. �He was
sworn in by me on Aug. 1, and I went off to the American Bar Association
convention in Montreal,� Moran said.

����������� While
in Montreal, Moran was informed that Ford had designated Barnako to be the
commission chairman and that he was now just a commissioner. �I guess I was
sort of Schlesingered out of my job,� Moran said with a chuckle, referring to
the recent shakeup at the Defense Department.

On his first day as
chairman, Barnako eliminated the frequent and detailed press releases, Moran
said, and now the commission merely offers a brief mention of selected cases
about every three weeks.

Barnako also
discontinued the official report of the commission�s activities that was
printed by the Government Printing Office, and the reporting is now left to the
private journals that cover the commission, Moran said. He added that this
procedure concerned him, �because under the Freedom of Information Act, if you
don�t publish a decision, it can�t be used as a precedent in other cases.�

The new situation
did not deter Moran, and it led to the suit he filed this week. �To circumvent
the procedure, I began using my authority as a commissioner to order a review
of a hearing judge�s decision, because decisions of the commission get
published,� Moran said.

Most of the
thousands of cases sent to the commission are resolved by the judges, whose
decisions are final unless a commission review is ordered within 30 days. Moran
said that once the commission reviews a ruling, he also has the opportunity to
include his own comments in the review and in the published order.

Cited in his suit 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 secretary vacated
his order �without his knowledge.�

The suit charges
that since Aug. 5, when Barnako became chairman, there have been �at least 15
other cases� in which Moran has been overruled by the others without telling
him. The suit added that �plaintiff (Moran) believes that there may be more
cases which have been disposed of in the same manner ... but he has been unable
to identify the same because of efforts by the defendants to keep such
information from plaintiff.�

Named as defendants
are Barnako, Commissioner Timothy F. Cleary and Executive Secretary William S.
McLaughlin. Barnako was out of town late yesterday and could not be reached for
comment, Inquiries to the other defendants were handled by the commission�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 HEARING earlier
yesterday before U.S. District Judge June L. Green, on a request by Moran for
an emergency order blocking further such alleged abuses of his review
authority, Moran sat at one table, with the defendants and their lawyers seated
sternly at another. But any possible fireworks were avoided when Asst. U.S.
Attorney Gil Zimmerman, representing the defendants, suggested a written
agreement pending a full hearing on Jan. 7.

The agreement said
that Moran will be informed of all commission actions and will be given an
opportunity to participate in all decisions pending the hearing.

Moran, 44, who lives
in Northwest Washington, said later that the situation was really quite
amicable. �They just attempted to get away with something, and I�m showing them
that I have some recourse,� Moran said.

He summed up the
situation by stating: �It�s a power play, I think. It�s an attempt to
circumvent the public display of our views, to push through one-sided opinions
without public scrutiny and news releases.�

Asked about his
future on the commission in view of all the trouble, Moran replied: �I�m fine.
I�m here until April 27, 1977. I don�t intend to stay one day longer, and I
never intended to stay beyond the six years. I guess that�s why I�ve been so
independent while I�ve been here.�

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 12153

PORT CHESTER ELECTRIC
CONSTRUCTION COMPANY, INCORPORATED

���������������������������������������������
Respondent.

APPEARANCES:

Francis V. LaRuffa, Regional Solicitor

United States Department of Labor

1515 Broadway, Room 3555

New York, New York 10036

Attorney for complainant by Samuel Gorin, Esq., of counsel

M. Carl Levine, Morgulas & Foreman, Esqs.

747 Third Avenue

New York, New York 10017

Attorneys for respondent by Frederick Cohen, Esq., of
counsel

�

DECISION AND ORDER

Ditore, J.:

PRELIMINARY STATEMENT

This is a proceeding
pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29
U.S.C. � 651, et seq., hereinafter called the Act), contesting citations for
serious and nonserious violations of occupational safety and health standards,
issued by complainant against respondent under the authority vested in the
complainant by section 9(a) of the Act (29 U.S.C. �   658(a)).

The citations allege
that as a result of an inspection made from January 8, 1975 to January 15,
1975, of a workplace located at Broadway Plaza, White Plains, New York, and
described as �Construction Site�, the respondent violated section 5(a)(2) of
the Act (29 U.S.C. � 654(a)(2)), by failing to comply with occupational
safety and health standards promulgated by the Secretary by publication in the
Federal Register on June 24, 1974, (39 F.R. 22801) and codified in 29 CFR ��
1926.500(b)(1) and 1926.150(c)(1)(vi).

The descriptions of
the violations and the standards as promulgated by the Secretary are as
follows:

Citation for serious
violation of 29 CFR � 1926.500(b)(1)

�Exposure of two employees observed working on the fourth
floor of this complex, and also observed within inches of the edge of these
totally unprotected floor openings.

�

Floor openings shall be guarded by a standard railing and
toeboards or cover.�

Standard as promulgated:

�� 1926.500 . . ..

�

(b) Guarding of floor openings and floor holes. (1) Floor
openings shall be guarded by a standard railing and toeboards or cover, as
specified in paragraph (f) of this section. In general, the railing shall be
provided on all exposed sides, except at entrances to stairways.�

Citation for
nonserious violation of 29 CFR � 1926.150(c)(1)(vi)

� �A fire
extinguisher, rated not less than 10B was not provided within fifty feet of
where oxygen and acetylene bottles were being used for the hot work operation
on the third floor.�

Standard as
promulgated

� �� 1926.150(c)(1)

�

(vi) A fire extinguisher, rated not less than 10B, shall be
provided within 50 feet of wherever more than 5 gallons of flammable or
combustible liquids or 5 pounds of flammable gas are being used on the jobsite.
This requirement does not apply to the integral fuel tanks of motor vehicles.�

Pursuant to the
enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. � 659(a)),
the respondent was notified by letter dated January 22, 1975, from the area
director of the New York area, that the Occupational Safety and Health
Administration proposed to assess a $500.00 penalty for the serious violation
of 29 CFR � 1926.500(b)(1), and a $40.00 penalty for the nonserious violation
of of 29 CFR � 1926.150(c)(1)(vi). The action was heard at New York, New York, on
July 10, 1975.

ISSUES

1. Whether a
   violation of 29 CFR � 1926.500(b)(1) existed at respondent�s workplace on
   January 8, 1975.

2. If the violation
   existed, whether it was serious.

3. If it was serious
   whether respondent knew or with the exercise of reasonable diligence should
   have known of the violation.

4. If respondent
   knew and was responsible for the serious violation, whether the penalty
   proposed was reasonable and proper.

5. Whether a
   nonserious violation of 29 CFR � 1926.150(c)(1)(vi) existed at respondent�s
   workplace on January 15, 1975.

6. If the violation
   existed, whether respondent knew of, and was responsible for, the violation.

����������� 7.
If respondent was responsible for the violation whether the penalty proposed
was reasonable and proper.

STATEMENT OF THE
EVIDENCE

Respondent, Port
Chester Electric Construction Co., Inc., is incorporated in the State of New
York, and maintains an office and place of business at 354 Main Street, Port
Chester, New York. Respondent is in the electrical contracting business and
admits its business affects commerce (complaint and answer).

On January 8, 1975,
respondent was engaged in electrical work at a construction site located at
Broadway Plaza, White Plains, New York (T. 10, 61) [14] .
At the site an office building was under construction and at the time consisted
of a steel structure approximately eight floors high. The structure was oblong
in shape measuring 300 feet by 200 feet and located in the center of the
structure were four elevator shafts (T. 10�12, 62�64; Exh. R�1, T�67).

On January 8, 1975,
compliance officer John Tolmich of the Occupational Safety and Health
Administration, made an inspection of respondent�s worksite at the construction
project. Prior to the inspection, officer Tolmich held an opening conference
with the general contractor and the subcontractors including respondent�s
general superintendent Robert Virtue. After the opening conference, officer
Tolmich conducted a walk-around inspection accompanied, among others, by Mr.
Virtue (T. 12�18).

Upon arriving at the
fourth floor by means of a northside stairway, officer Tolmich observed
immediately adjacent to the left hand side of the stairway an unguarded
elevator shaft opening measuring nine feet wide and thirty feet long. Two of
respondent�s employees were standing and talking to each other within a foot or
two of the nine foot side of the unguarded shaft opening. There were metal
covers stored within a foot or two of the unguarded shaft opening. Two other
smaller unguarded floor openings were located within a ten foot radius of the
unguarded shaft opening (T. 19�23, 28, 48�49, 51�54). The distance from the
unguarded elevator shaft opening to the ground below was sixty-five to seventy
feet (T. 22).

The two employees
observed near the edge of the unguarded fourth floor shaft opening stated to
officer Tolmich in Mr. Virtue�s presence that they were working on the fourth
floor; and that they were bringing metal raceways or covers to the fourth floor
(T. 24, 25). The two employees immediately left the fourth floor area (T. 23).

Officer Tolmich made
further inspections of the jobsite on January 9th, 10th and 15th (T. 31, 32).
On January 15th, officer Tolmich observed an employee of respondent engaged in
cutting and welding work with an acetylene torch on the third floor. There were
no fire extinguishers anywhere on the third floor (T. 32, 33, 59, 60). Officer
Tolmich was told by Mr. Virtue that there were no fire extinguishers at the
jobsite and that he would order some immediately (T. 34, 60).

Based on the gravity
of the violation created by the unguarded elevator shaft opening on the fourth
floor, and the probability of death or serious harm befalling either or both of
the two employees if they accidentally fell into the unguarded shaft opening,
officer Tolmich recommended an unadjusted proposed penalty of $1,000.00, which
he reduced to $500.00 by allowing credits of 20% for food faith, 10% for size
and 20% for prior history (T. 44, 45).

Based on the gravity
of the violation created by the lack of fire extinguishers on the third floor,
officer Tolmich recommended an unadjusted penalty of $170.00 which he reduced
to $40.00 after applying credits for good faith, size, prior history and
abatement (T. 43, 44).

Robert Virtue,
respondent�s general superintendent at the jobsite stated that on January 8,
1975, respondent�s two employees on the fourth floor were moving materials to
that floor (T. 64, 65, 69; Exh. R�1, material marked �X�). Mr. Virtue further
stated that when he was on the fourth floor with the compliance officer, he
observed respondent�s two employees no closer to the unguarded elevator shaft
opening than six feet; that the materials stored there were no closer to the
unguarded opening than eight feet; and that in moving the materials the two
employees did not need to approach any closer to the unguarded opening than six
to eight feet. The materials consisted of forty to fifty steel plates, 24 to 30
inches square, each weighing less than fifty pounds. It would have taken the
two employees about fifteen minutes to move the metal plates (T. 66, 68�72,
80).

The two employees
were sent to the fourth floor by one of Mr. Virtue�s foremen and to reach that
floor, the two employees had to use the north stairway which required them to
pass within four to five feet of the unguarded shaft opening. Mr. Virtue was
not aware that the shaft opening on the fourth floor was unguarded (T. 72, 77).

Mr. Virtue also
stated that on January 15, 1975, there were no fire extinguishers on the third
floor. He did know that fire extinguishers prior to January 15, 1975, were at
the site but believed they were stolen (T. 73�75).

Respondent has no
safety program of its own for its employees but relies on the safety program of
its employees� union (T. 78).

OPINION

A preponderance of
the evidence establishes, and there is no dispute, that the fourth floor
elevator shaft was unguarded in violation of 29 CFR � 1926.500(b)(1); that two
employees of respondent were working moving materials within close proximity [15]
of the unguarded shaft opening; that the moving work would have kept the two
employees in the danger area for at least fifteen minutes; that the distance
from the unguarded shaft opening to the ground below was sixty-five to seventy
feet; that an accidental fall through the opening, by one or both of the
employees would more probably than not have resulted in death or serious harm
to the employees; and that respondent maintains no safety and training program
of its own for its employees.

The crucial issue
remains of whether respondent knew or with the exercise of reasonable
diligence, should have known of the serious violation.

An employer under
the Act has the final responsibility of ensuring a safe workplace for its
employees, but this responsibility is not measured against standards of strict
liability. Secretary of Labor v. Engineers Construction, Incorporated ,
20 OSAHRC ��, Docket No. 3551 (September 29, 1975), and cases cited therein.

The Court of Appeals
in Secretary of Labor v. Butler Lime and Cement Company, et al , �� F.2d
��, 7th Cir., Docket No. 74�1963, (September 5, 1975), decision slip, p. 10,
stated with relation to an employer�s knowledge that

�. . . an employer is responsible if it knew or, with the
exercise of reasonable diligence, should have known of the existence of a
serious violation. A particular instance of �hazardous employee conduct may be
considered preventable even if no employer could have detected the conduct, or
its hazardous nature, at the moment of its occurrence, . . . [where] such
conduct might have been precluded through feasible precautions concerning
the hiring, training, and sanctioning of employees� . National Realty,
supra , 489 F.2d, 1266�67 n. 37 (emphasis added).�

�

And, at decision slip p. 11, that

�[a]n employer must take reasonable precautionary steps to
protect its employees from reasonably foreseeable recognized dangers that are
causing or are likely to cause death or serious physical injury. And
precautionary steps, of course, include the employer�s providing an adequate
safety and training program. (cases omitted)�

�

Respondent herein
has no safety and training program, much less an adequate one. There is no
evidence that respondent�s employees or its supervisory personnel, whether they
be from the ranks of labor or management, are instructed and trained as to
safety. In short, respondent does nothing concerning safety except to rely on
the employees� union for safety instructions, if any, to its members. If
respondent had maintained an adequate active safety and training program, properly
implemented with knowledgeable supervisory personnel, it would have with the
exercise of reasonable diligence, known of the serious violation herein.

Respondent failed in
its responsibility under the Act and is responsible for the serious violation.
The gravity of the violation was high. It exposed two employees to the
probability of death if an accident befell them because of the violation.
Consideration of the gravity of the violation with the other factors of 17(j)
of the Act, renders the proposed penalty of $500.00, reasonable and proper.

As to the nonserious
violation of 29 CFR � 1926.150(c)(1)(vi) for the failure to have an adequate
fire extinguisher available for an employee of respondent performing metal
cutting and welding work with acetylene gas, respondent concedes and admits the
violation (T. 82�83), but in mitigation states that fire extinguishers were
provided and were stolen (T. 83) [16] .

What has been said
above in relation to the serious violation applies to this violation. If
respondent maintained an adequate safety and training program, it would have
known that its welding employee would have to begin work without the benefit of
a fire extinguisher, and respondent would have been in a position to prevent
such work until an extinguisher was provided.

Based on the gravity
of the violation and consideration of the other factors of section 17(j) of the
Act, the proposed penalty of $40.00 is found reasonable and proper.

FINDINGS OF FACT

The credible
evidence and the record as a whole, establishes preponderant proof of the
following specific findings of fact.

1. Respondent, Port
   Chester Electric Construction Co., Inc., is incorporated in the State of New
   York, and maintains an office and place of business at 354 Main Street, Port
   Chester, New York.

2. Respondent is in
   the electrical contracting business and admits its business affects commerce.

3. On January 8,
   1975 and January 15, 1975, respondent was engaged in electrical work at a
   construction site located at Broadway Plaza, White Plains, New York.

4. On January 8,
   1975, two of respondent�s employees on the order of their foreman, were working
   on the fourth floor of the structure. They were to move electrical materials
   which consisted of forty to fifty metal covers weighing less than fifty pounds
   and measuring twenty-four to thirty square inches.

5. On January 8,
   1975, the two employees on the fourth floor were observed by a compliance
   officer within a foot or two of an unguarded elevator shaft opening which
   measured nine feet wide and thirty feet long. The electrical materials they
   were to move were stored within one to two feet of the same unguarded elevator
   shaft opening.

6. Floor openings
   are required to be guarded in accordance with 29 CFR � 1926.500(b)(1).

7. The distance from
   the unguarded shaft opening to the ground below was sixty-five to seventy feet.

8. An accidental
   fall by one or both of the two employees through the unguarded shaft opening to
   the ground below would more probably than not have resulted in death or serious
   physical harm to the employees. The violation of 29 CFR � 1926.500(b)(1) was
   serious.

9. Respondent does
   not maintain any safety and training program for any of its employees including
   its management and labor supervisory personnel.

10. There is no
    evidence that respondent knew its two employees were exposed to the serious
    hazard, but its lack of knowledge or its acquisition with reasonable diligence,
    was due to its failure to assume its responsibility of providing and
    maintaining an adequate safety and training program which would have alerted
    respondent to the danger in time to prevent its employees from being exposed to
    the hazard.

11. Respondent is
    responsible for the serious violation of 29 CFR � 1926.500(b)(1).

12. Respondent,
    concedes that on January 15, 1975, one of its employees performing metal and
    welding work with acetylene gas on the third floor of the structure under
    construction, did not have available, if needed, a fire extinguisher in
    violation of 29 CFR � 1926.150(c)(1)(vi).

13. The credible
    evidence establishes that respondent had no fire extinguishers at its worksite
    at any time prior to, and during, the January 15th inspection of the third
    floor. Respondent is responsible for this nonserious violation for the reasons
    set forth in paragraph 10, above.

CONCLUSIONS OF LAW

1. Respondent is,
   and at all times material herein was, engaged in a business affecting commerce
   within the meaning of section 3 (5) of the Act (29 U.S.C. � 652(5)).

2. The Occupational
   Safety and Health Review Commission has jurisdiction over the subject matter
   and parties to this action.

3. On January 8,
   1975, respondent was in serious violation of 29 CFR � 1926.500(d)(1) in that it
   failed to protect two of its employees from the danger of an unguarded elevator
   shaft opening located on the fourth floor of the construction project at
   Broadway Plaza, White Plains, New York.

4. Under the
   circumstances of this case with due consideration to the statutory factors of
   section 17(j) of the Act, the proposed penalty of $500.00 for the serious violation
   is reasonable and proper.

5. On January 15,
   1975, respondent was in nonserious violation of 29 CFR � 1926.150(c)(1)(vi) in
   that it failed to have available a properly rated fire extinguisher for its
   employee performing work with acetylene gas on the third floor of the
   construction project.

6. Under the
   circumstances of this case with due regard to the statutory factors of section
   17(j) of the Act, the proposed penalty of $40.00 for the nonserious violation
   is reasonable and proper.

ORDER

Due deliberation
having been had on the whole record, it is hereby

ORDERED that the
citations for a serious violation of 29 CFR � 1926.500(b)(1) and for a
nonserious violation of 29 CFR � 1926.150(c)(1)(vi), are affirmed, it is
further

ORDERED that the
notification of proposed penalty of $500.00 for the serious violation and
$40.00 for the nonserious violation, is affirmed.

�

JEROME C. DITORE

JUDGE, OSAHRC

Dated: October 23, 1975

New York, New York

[10] There is a parallel
provision in the Administrative Procedure Act. 5 U.S.C. � 557(b) provides, in
part, that �. . . the presiding employee . . . shall initially decide the case
. . .. When the presiding employee makes an initial decision, that decision
then becomes the decision of the agency without further proceedings unless
there is . . . review on motion of the agency within time provided by rule.�
(Emphasis supplied.) [Footnote numbering taken from original.]

[11]
The pertinent APA provision is 5 U.S.C. � 557(b): �On . . . review of the
initial decision, the agency has all the powers which it would have in making
the initial decision except as it may limit the issues on notice or by rule.�

[12]
Black�s Law Dictionary 512 (rev. 4th ed. 1968).

[13]
A March 19, 1971 announcement from the Office of the White House Press Secretary
included the following:

�The President
today 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 Review
Commission . . ..�

The announcement
went on to describe these nominees in these terms:

Moran��An
attorney and labor arbitrator�

Van
Namee��Administrator of Accident Prevention for the Westinghouse Electric
Corporation in Pittsburgh since 1961�

Burch��Director
of the Department of Safety and Accident Prevention of the International Union
of Operating Engineers for the past six years�

During the joint
hearing conducted by the Senate Labor and Public Welfare Committee on their
confirmation as members of the Commission reference was made to Van Namee as �representing
management� and Burch as �representing labor.�

13a The full
text of this editorial appears at page S.673 of the Congressional Record for
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 cease publication of their rulings . . . cannot but
adversely effect the fair administration of the law.�

[14] In excess of 45% of all
directions for review were issued in cases where no party petitioned for
review. Contrast this actual experience with the assertion in the majority
opinion that directions for review are �largely� in response to petitions for
discretionary review filed by the parties.

[15] In order to insure that I
would be kept in the dark about the issuance of these orders a written notice
had to be given to the Executive Secretary from Mr. Barnako (who is his
immediate superior) because the Executive Secretary would not otherwise have
mailed the orders to the parties until he saw that all three members had
participated in these decisions. That written notice specified that I was not
to be allowed to participate in those 16 decisions.

[16] In this connection see my
dissenting opinion in Secretary v. Trustees of Penn Central Transport Co. ,
OSAHRC Docket No. 5796, December 22, 1975 for a specific instance where a
Commission member delayed the issuance of a decision for reasons totally
unrelated to the merits of the case under consideration.

[17] When a Judge�s decision
is directed for review the Administrative Procedure Act requires that parties
to the case be given a �reasonable opportunity� to submit briefs, exceptions,
and proposed findings and conclusions to the Commission members 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 to
5 U.S.C. � 555(b) in their majority opinion in this case), they could do so by
joining me in setting a deadline for the resolution of all review-directed
cases. Currently, the average time for disposition of review-directed cases
exceeds two years from the date an employer contests a citation to the date of
the � 659(c) final order. It is rapidly creeping toward the three-year mark.

[19] 29 U.S.C. � 651(b)(5)

[20] 16 U.S.C. �� 791a�825r

[21] 15 U.S.C. �� 717�717w

[22] 502 F.2d 278, 279�280
(9th Cir. 1974).

[14]
Reference key: T. refers to pages of minutes of transcript.

[15] The testimony is conflicting as to where the two
employees were standing in relation to the unguarded shaft opening at the time
they were observed by the compliance officer and respondent�s representative.
Whether it was one to two feet as contended by complainant or six feet as
contended by respondent is rendered immaterial by the rationale of Secretary
of Labor v. Underhill Construction Corp ., 513 F.2d 1032, 1039 (2d Cir.,
1975) as long as the employees were in or had access to the danger zone.

[16]
The compliance officer testified he was told by Mr. Virtue that there were no
fire extinguishers at the worksite.