General Electric Company

Plain-English summary

General Electric petitioned to modify an abatement deadline after thirteen non-serious citation items had become final orders. The judge dismissed the petition on the ground that the Commission lacked jurisdiction. The Commission reversed, holding that its rules and precedent authorize it to decide petitions for modification of abatement. Because the Secretary had also proposed additional penalties for alleged failure to abate two of the same items, the Commission consolidated that contest as Docket No. 7425. It remanded both proceedings to the judge for further action.

Decision snapshot

• Cited standard(s): Not identified in the release
• Outcome: The dismissal was reversed, the two dockets were consolidated, and the case was remanded.
• Key point: The Commission has jurisdiction to adjudicate petitions for modification of abatement.

Full text (OSHRC public release)

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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

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Complainant,

������������������������ v.

OSHRC DOCKET NOS. 3675 &
7425

GENERAL ELECTRIC COMPANY

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

ORDER
OF CONSOLIDATION AND REMAND

May 23 1974

Before VAN NAMEE
and CLEARY, Commissioners

CLEARY,
COMMISSIONER:

On
February 15, 1974, petitioner General Electric Company�s petition for
modification of abatement (OSHRC Docket No. 3675�P) was dismissed by
Administrative Law Judge Abraham Gold who ruled that the Commission lacks
jurisdiction under section 10(c) of the Occupational Safety and Health Act (29
U.S.C. � 651 et seq., hereinafter referred to as �the Act�) to consider such
petitions.

On
February 25, 1974, review of the Judge�s decision and order was directed by the
Commission pursuant to section 12(j) of the Act. The Commission, upon review of
the entire record, reverses and remands the case.

The
Judge applied a theory of jurisdiction that the Commission concluded was
erroneous in H. K. Porter, Inc ., No 1210�P (March 22, 1974). The Judge�s
decision is one of a number of recent instances in which judges have held that
the Commission has no jurisdiction over petitions for modification of abatement
periods prescribed in citations that have become final orders of the Commission
pursuant to section 10 of the Act. This holding is directly contrary to rule 34
of the Commission�s Rules of Procedure (29 CFR 2200.34, 37 Fed. Reg. 20240
(September 28, 1972)) and longstanding Commission precedent. See, e.g., Permaneer Corp ., No. 947 (July 6, 1972).

Apparently
the obvious must be stated. Administrative Law Judges must follow Commission
rules, and they also must follow precedents established by the Commission. Insurance
Agents� International Union , 119 N.L.R.B. 768, 41 L.R.R.M. 1176, 1178
(1957); Iowa Beef Packers, Inc. , 144 N.L.R.B. 615, 54 L.R.R.M. 1109,
1112 (1963). See M. Ruhlen , Manual for
Administrative Law Judges , 61 (Administrative Conference of the United
States, 1974) and cases cited therein. Therefore, the approach taken by the
Administrative Law Judges in this and similar cases is inexcusable.

Petitioner�s
requested abatement date has already passed, so the case would be moot except
for additional action taken by the Secretary. Following Judge Gold�s decision,
the Labor Department reinspected petitioner�s
facility and proposed additional penalties for an alleged failure to abate two
of the items covered in the petition. General Electric filed a timely notice of
contest, pursuant to section 10(b) of the Act, and the Commission took
jurisdiction of this new issue, Docket No. 7425. The Commission must afford an
opportunity for a hearing on this issue under section 10(c) of the Act. Under
these facts, the two proceedings should be consolidated pursuant to rule 9 of
our Rules of Procedure for determination by Judge Gold.

The
fact that there has been a reinspection and proposed additional penalties in
this case demonstrates the wisdom of the Congressional intent described in H.
K. Porter, Inc., supra , to separate the enforcement functions vested in the
Labor Department from the adjudicatory functions vested in the Commission. The
Act contains no explicit prohibition against the Secretary alleging a failure
to abate certain items while a petition for modification of abatement of those
same items is pending. Thus, if petitions for modification of abatement were
meant to be adjudicated by the Secretary, such a proceeding could be in
progress while the Secretary was appearing as a party before the Commission in
a proceeding for alleged failure to abate the same items. The Commission�s
decision in H. K. Porter, supra , avoids such an incongruous result.

ACCORDINGLY,
the Judge�s decision is reversed. On its own motion, the Commission orders that
the case be consolidated with Docket No. 7425, pursuant to rule 9 of the
Commission�s Rules of Procedure, 29 CFR 2200.9, and is remanded for further
proceedings consistent with this decision.

�

VAN NAMEE,
COMMISSIONER, concurring:

I
concur in Commissioner Cleary�s opinion except for that portion where he
indicates the case would be moot were it not for the failure to abate notice.
His conclusion assumes the absence of a real and presently existing
controversy. As this case demonstrates the controversy may still exist even
though a requested extension date has passed. It may exist because the
Secretary has the authority to issue a failure to abate notice as he has done
here. Indeed, if we do not act on the petition the Secretary is free to issue a
notice alleging daily penalties from the end of the original or previously
extended abatement period.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

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

������������������������ v.

OSHRC DOCKET NOS. 3675 &
7425

GENERAL ELECTRIC COMPANY

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

February 15,
1974

GOLD, JUDGE,
OSAHRC:

On
November 7, 1973 Petitioner filed the instant petition for modification of
abatement. On November 16, 1973 the Secretary filed a response objecting
thereto, and the matter was assigned to me on February 6, 1974.

Petitioner
was cited on April 16, 1973 for 13 non-serious violations for which penalties
totaling $135 were proposed. The cited items and proposed penalties became a
final order of the Commission pursuant to 29 U.S.C. � 659(a) upon the failure
of the employer to file a notice of contest within 15 working days of the date
of receipt of the notice of proposed penalties.

It
was not until July 9, 1973 that the employer filed a petition for modification
of abatement. That petition was granted by another Judge of this Commission, as
was a second petition, filed on August 30, 1973. The Secretary interposed no
objection to either of the earlier petitions.

Under
Section 10(c) of the Occupational Safety and Health Act, 29 U.S.C. 659(c),
after a final order of the Commission, only the Secretary of Labor (or his
delegate) is empowered to hear and decide a matter involving a petition for
modification of abatement. The pertinent statutory authority reads:

Upon a showing by an
employer of a good faith effort to comply with the abatement requirements of a
citation, and that abatement has not been completed because of factors beyond
his reasonable control, the Secretary after an opportunity for a hearing as
provided in this subsection, shall issue an order affirming or modifying the
abatement requirements in such citation.

When
the Congress referred in Section 659(c) to �a hearing as provided in this
subsection,� it could only have meant �a hearing (in accordance with section
554 of title 5, United States Code, but without regard to subsection (a)(3) of
such section).�

Since
there is no authority for the Commission to hold a hearing in this case, such
authority being vested solely in the Secretary, IT IS ORDERED that this matter
be and the same is hereby DISMISSED for lack of jurisdiction.