National Roofing Contractors Association v. Peter J. Brennan, Secretary of Labor

PELL, Circuit Judge (dissenting).

The Occupational Safety and Health Act of 1970 (OSHA), brought into being for the laudable purpose of assuring “so far as possible every working man and woman in the Nation safe and healthful working conditions,” nevertheless, in its application as manifested and its potential enforcement as implicit in the present case, presents a frightening prospect to employers who are not necessarily any less interested in the safety of their employees than the employees themselves. Accordingly, I respectfully dissent.

*1300 As an initial matter, it appears to me that the majority opinion errs in upholding a standard which followed consideration of the subject matter by an advisory committee on which there was no person “qualified by experience and affiliation” to represent the involved employers, roofing subcontractors, as the statute clearly required. (Emphasis added.)

I find it no answer to say that there were general contractors on the advisory committee and that their interests are the same as the roofing subcontractors because the general contractors must absorb the cost of safety devices. The simple fact is that, insofar as it is humanly possible to do so, both the general contractor and the subcontractor will pass along any increased costs to the ultimate consumer. 1 Since the standard adopted will affect very few commercial or industrial buildings the prime recipient of the increased costs will be the home builders. It will be they who will be “sensitive to the costs.”

I do not conceive that it was contemplated that OSHA would eliminate all accidents arising from the construction of roofs. The “so far as possible” proviso makes that clear. The only solution for an in toto eradication of such accidents would be a complete prohibition against anyone working on roofs, but I do not envisage that the veneration paid in the American dream to a roof over one’s head is to be so lightly cast aside.

At oral argument, Government counsel stated that while there are no directions anywhere in the Act for taking economic considerations in view, there are suggestions that the standards must be feasible and as a matter of fact in promulgating the standards there had been an effort to take economic considerations in view. The petitioners fail to perceive that this was accomplished in the case of the present standard and contend, correctly in my opinion, that .they were prejudiced by not having representatives of their employer group on the advisory committee.

The cost factor enters the picture in another aspect in that the Secretary argues that “section 7(b) cannot reasonably be read to require a representative from each sub-group affected by a particular standard because such an interpretation would require a new advisory committee for each separate construction safety standard.” This argument ignores the fact that on this particular standard the roofers were not a subgroup but instead were the only affected employers.

Further, the roofers can scarcely be said to be some minuscular segment of the construction syndrome. They are not the craftsmen who come to the residence under construction to deliver and install the thermostat or telephone; they play a major part in the construction. Also, they occupy a significant part in the safety picture. As the Government concedes, the Secretary established priorities for setting standards which include “a target industry program aimed at industries with injury frequency rates significantly above the all industry average.” The Secretary designated the roofing and sheet metal' industry as one of the first five such target industries, yet he put not a single representative with affiliation with the employer group on the advisory committee.

The majority opinion accepts the Government position that the petitioners cannot raise the present issue absent a showing of specific prejudice, citing *1301 United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 527-529 , 66 S.Ct. 687 , 90 L.Ed. 821 (1946).

In Pierce, two Interstate Commerce Commission proceedings were held on separate applications by the appellants and appellees for certificates of public convenience and necessity and necessity for the same route of operation. Two hearings were held, to which each of the litigants were parties. The hearings were held at substantially the same time and place, and each party was represented at each and given full opportunity to present evidence and cross-examine all witnesses. Much of the evidence was applicable to both applications. The error urged and found to be nonprejudicial and thus not a basis for reversal was the Commission’s apparent consideration of both records together in deciding each application.

It appears clear in the words of the Court that no prejudice or harm whatsoever could have resulted to either party from this “highly technical objection that the Commission in the final state of forming its judgment, could not in either case take account of what had been done in the other, notwithstanding the closely related character and objects of the applications and the prior proceedings. The contention in its farthest reach amounts to a legal version of the scriptural injunction against letting one’s right hand know what one’s left hand may be doing.” 327 U.S. at 529 .

The basis of judicial review of most administrative rulings has been well stated by Judge Will in Elgin, Joliet & Eastern Ry. v. Benj. Harris & Co., 245 F.Supp. 467, 472 (N.D.Ill.1965):

“The authority of an administrative agency is delineated by the terms of the statutory grant. The responsibility for construing the statutory authority rests with the judiciary. Hence, an inquiry to determine if the agency has exceeded its statutory power is a constitutional obligation of the courts. The refusal to apply the agency ruling upon finding that the bounds laid down by Congress have been traversed is not based on eviden-tiary insufficiency or disagreement with expert judgment, but is an exercise of judicial authority to preserve the legislative scheme.” Quoted with approval in Board of Public Instruction v. Finch, 414 F.2d 1068, 1074-1075 (5th Cir. 1969).

In the present case, of course, by virtue of explicit congressional language there is a sufficiency of evidence problem as “the determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.” 29 U.S.C. § 655 (f). 2

In my opinion, the prejudice is implicit when that which the legislation required, i. e., employer-affiliated representatives, was given no recognition. In sum, it appears to me that the petitioners have put the matter correctly in arguing that “the promulgation of OSHA standards by the Secretary with an Advisory Committee on which the affected employers are not represented is ‘clearly disruptive of the legislative scheme’ [citing Board of Public Instruc *1302 tion, supra] to encourage and perfect occupational safety and health programs and practices and provide their employees with a safe and healthful working environment.”

Inasmuch as I consider the most serious vice in the present proceedings to be the nebulosity of the standard actually adopted in view of the drastic enforcement potential of OSHA, I will not tarry long on the matter of sufficiency of the evidence although it appears that what happened was that the advisory committee recommended a compromise figure which was utilized by the Secretary. I find a paucity of relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 , 59 S.Ct. 206 , 83 L.Ed. 126 (1938).

I do note the following specific matters on the sufficiency question. Of the falls from roofs which had been reported, a substantial number had nothing to do with the pitch of the roof, e. g., falls resulting when a workman backs off a roof while using power equipment or those resulting from falling through holes in the roof. 3 At first blush, I would have little sympathy with the petitioners’ arguments about the dangers created by safety belts since they apparently were not too concerned about this provision if the roof height of 20 feet had been adopted. However, this lack, if the 20 foot level were adopted, does not mean that the safety belt alternative could be safely utilized, or even that it would ever be utilized since another standard, 29 C.F.R. § 1926.104 (1972), requires the line to be anchored or secured to a structural member so ás to be capable of supporting a dead weight of 5400 pounds. The significant factor on the safety belts is that I find no evidence that other than cursory attention was given to these as a practical alternative to the catch platform.

What appears to me to be the most persuasive basis for remanding and requiring a new standard to be promulgated is not what was included but what was omitted. Evidence indicated that toeboards with safety jacks or cleats were the normal and best safety devices and could be utilized at a reasonable cost. Yet, at the public hearing in July 1972, a member of the Department of Labor Office of Solicitor observed that this was “something which at least I was not aware of, and it doesn’t seem all that unreasonable.”

In promulgating his final standard the Secretary adverted to the toeboard possibility as follows:

“At the hearing a contention was made that in certain circumstances a temporary device constructed on a sloped roof could form an economical and equally safe alternative to a catch platform. To the extent that such devices can be said to constitute secure temporary parapets, they may qualify as an acceptable means of protection. Such a solution requires no amendment to the standards as they already permit parapets as an alternative to catch platforms.”

During oral argument, Government counsel observed that the temporary parapet had been included in the standard, “although they do not make it as tidy as it was before they were included. They have been included for economic considerations to provide builders who are willing to take the risk of satisfying compliance officers by building their own safety devices a chance to do so.” (Emphasis added.)

The majority opinion also adverts to this phase of the case in a frame of reference of employers using “ingenuity in

*1303 providing less costly alternatives which could qualify.” (Emphasis added.)

It appears to me that it should be beyond dispute that no standard of conduct should be so vague and uncertain as that which has now resulted where a substantial part of the economy has the Hobson’s choice of alternatives, one being one with which they say they cannot live economically and the other being of the calculated risk or chance type.

This is particularly true when we examine the present statute. Without parsing OSHA, it is fair to say that it empowers a federal government inspector to arrive unannounced, inspect a business, and summarily impose fines which can be as much as $1000 for each violation of a safety standard. The statute in application becomes frightening when it is realized that the employer who chooses to use “a temporary device constructed on a sloped roof” is in compliance or in violation dependent upon the individual inspector’s judgment as to whether the device is a parapet. Webster’s definitional “low wall or similar barrier ... to protect the edge of a roof ... or other structure” may prove challenging to the employer who is a devotee of Russian roulette but scarcely seems to equate with what the Secretary stated at the time he promulgated the standard as hereinbefore quoted.

In view of the fact that both civil and criminal penalties may be imposed under OSHA for violation of the standard, it should, to meet due process requirements, clearly warn what conduct is prohibited or required. “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453 , 59 S.Ct. 618, 619 , 83 L.Ed. 888 (1939).

In final analysis, it appears to me that because OSHA thrusts upon the Secretary the responsibility of seeing to it that every working person is provided with safe working conditions in a country with an infinite variety of occupations exposed to possible injury hazards, the Secretary is confronted with a monumental task. Mistakes in determinations during the early period of the responsibility would not only be possible but because of the widespread range of responsibility not unlikely. This would be true despite the fact that the states for some years by legislation and regulation have prescribed rules the purpose of which was to achieve safe working conditions. In addition to direct state action, safety guidelines have been provided by the American National Standards Institute. It is not surprising, and indeed is suggested by the record here, that a natural human impulse, not totally lacking in logic, would come into play by those not possessed of particularized expertise, viz., that Congress has apparently been of the opinion that federal legislation is needed in the present area not only to achieve uniformity in controlling laws but in making working conditions safer generally than they now are, so we will therefore take the present requirements, whatever they may be, and make them more stringent. It, of course, should not have necessarily followed that in any given area the existing requirements were inadequate.

In view of the multiplicity of problems and their broad range in many differing and complex contexts, it should have been particularly necessary that the advisory committees be, by virtue of the composition expressed by Congress, prepared to bring an expertise not here possessed to bear on the differing problems.

The eases are replete with references to the deference if not reverence to be accorded to administrative expertise. However, administrative expertise should partake of something more explicable and supportable than Eleusinian mysteries. The uncertainty interjected into the enforcement process by the parapet reference necessitates in my opinion setting aside and vacating the order of the Secretary and remanding for con *1304 sideration by a properly constituted advisory committee to be followed by promulgation of a new standard realizing the maximum safety of working conditions consistent with the realities of feasibility and enforceability.

. The petitioners point out that the written comments received by the Secretary of Labor suggested that the cost on a residential roofing job would be increased by anywhere from 25% to 100% or more if catch platforms are required. These letters further suggested that since most “legitimate” roofing companies would bid on this basis, homeowners would probably reject their bids and contract with “jack leg” roofers who could do the job for less because they would ignore the catch platform requirement. To this extent, of course, the roofing subcontractors are subject to a different economic impact than that of the general contractors.

. In its brief filed in this appeal, the Government argued at length that the plain words of the statute did not mean what they purported to say, in view of the informal rule-making procedures involved and the legislative history. The Secretary’s position in this respect was undercut by post-brief decisions, Associated Industries of New York State, Inc. v. United States Department of Labor, 487 F.2d 342 (2d Cir. 1973); Dry Color Mfrs. Ass’n, Inc. v. Department of Labor, 486 F.2d 98 (3d Cir. 1973); and Florida Peach Growers Ass’n, Inc. v. United States Department of Labor, 489 F.2d 120 (5th Cir. 1974).

The Secretary also presented the argument, the logic of which escapes me, that even if his “determinations” had to be supported by substantial evidence this did not mean that his “Rule” had to be so supported.

. The expertise of the advisory committee hopefully was not exemplified by the statement on the slope matter by one of the committee members: “a friend of mine said, who has done a good deal of this, he said, 4 is really not bad but he said 5, particularly if it is a little damp, he said, T would not want to be working up there without some kind of protection.’ ”