Petition — American Textile Mfrs. Institute, Inc. v. Donovan

IN THE

Supreme Court of the United States .

OCTOBER TERM 1979

MN via ee RZ) = [ 4A 2 g

AMERICAN TEXTILE MANUFACTURERS

INSTITUTE, INC., MILLIKEN & COMPANY :

ARKWRIGHT MILLS, SPARTAN MILLS, BLAIR

MILLS, INC., HERMITAGE, INC., DAN RIVER, INC.,

CONE MILLS CORPORATION, MAYFAIR MILLS,

SPRINGS MILLS, INC., RIEGEL TEXTILE

CORPORATION, FIELDCREST MILLS, INC., anp

WEST POINT-PEPPERELL, INC.,

Petitioners,

VV,

RAY MARSHALL, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

ROBERT H. Bork JOHN S. BATTLE, Jr.

142 Huntington Street ROBERT E. PAYNE

New Haven, Connecticut 06511 THOMAS W. McCANDLISH

Counsel for American Textile McGuire, Woods & Battle

Manufacturers Institute, Inc. 1400 Ross Building

Richmond, Virginia 23219

GreEGorY B. TOBIN Counsel for American Textile

OGLETREE, DEAKINS, SMOAK, Manufacturers Institute, Inc.

STEWART & EDWARDS and for

3920 First National Bank Tower Fieldcrest Mills, Inc. .

Atlanta, Georgia 30303

Counsel for American Textile

Manufacturers Institute, Inc.

(Counsel list continued on inside cover)

aE

ses SCinnnnnrannnemnnnns

ROBERT T. THOMPSON

Gary S. KLEIN

Thompson, Mann & Hutson

The Daniei Building—Suite 2222

Greenville, S. C. 29602

Counsel for Milliken and

Company

THOMAS A. EVINS

CLYDE H. HAMILTON

Butler, Means, Evins & Browne

P. O. Box 451

Spartanburg, S. C. 29304

Counsel for Arkwright Mills

JOSEPH K. MAppox, Jr.

P. O. Box 5784

Spartanburg, S. C. 29304

Counsel for Spartan Mills

ROBERT T. THOMPSON

Gary S. KLEIN

Thompson, Mann & Hutson

The Daniel Building—Suite 2222

Greenville, S. C. 29602

Counsel for Blair Mills, Inc.

ROBERT T. THOMPSON

Gary S. KLEIN

Thompson, Mann & Hutson

The Daniel Building—Suite 2222

Greenville, S. C. 29602

Counsel for Hermitage, Inc.

ROGER L. TUTTLE

2291 Memorial Drive

Danville, Virginia 24541

Counsel for Dan River, Inc.

SAMUEL K, ABRAMS

BRIAN E. MORAN

Baker & Hostetler

1776 K Street, N.W.

Suite 900

Washington, D. C. 20006

Counsel for Cone Mills

Corporation

H. J. Eva, III

NEIL W. KOONCE

Cone Mills Corporation

1201 Maple Street

Greensboro, N. C. 27405

Counsel for Cone Mills

Corporation

THOMAS A. EvINS

CLYDE H. HAMILTON

Butler, Means, Evins & Browne

P. O. Box 451

Spartanburg, S. C. 29304

Counsel for Mayfair Mills

DAN M. Byprp, Jr.

J. SPRATT WHITE

P. O. Box 70

Fort Mill, S. C. 29715

Counsel for Springs Mills, Inc.

FRED M. RICHARDSON

Lovic A. BRooKs, Jr.

CHARLES A. EDWARDS

Constangy, Brooks & Smith

1900 Peachtree Center Building

230 Peachtree Street, N.W.

Atlanta, Georgia 30303

Counsel for Riegel Textile

Corporation

RICHARD H. MONK, Jr.

C. POWERS DORSETT

West Point-Pepperell, Inc.

P. O. Box 71

West Point, Georgia 31833

Counsel for West Point-

Pepperell, Inc.

INDEX

Page

MTU UUM BUM sk vw nen cadccnacnecc, ii

Sa a a Sn ie 2

hip tail 44 seed bev cee. ack eee

I EU ss oui cs vacabdavacocccc.. 2

STATUTES AND REGULATIONS INVOLVED .......... 3

NIE UES cv vnc accdweseve ce 4

A. The Statutory Framework ....................0005-. 4

B. The Cotton Dust Standard ......................... 5

C. The Economic Evidence And The Decision That The

Standard Is Economically Feasible ................... 7

D. The Standard Of Review Applied By The Court Of Ap-

peals To Sustain Economic Feasibility And The Four Year

ie) £55 beh ou ees ns ak oS bkca cu ci 10

REASONS FOR GRANTING THIS PETITION ............ 13

1. There Is A Conflict’Among The Circuits As To The Show-

ing OSHA Must Make To Establish That Its Standards Are

ee 14

2. There Is A Conflict Between The Circuits As To Whether

OSHA Must Demonstrate The Existence Of A Reasonable

Relation Between The Costs Of A Standard And The Bene-

fits Expected From It And As To Whether OSHA Must

Demonstrate A Reasonable Necessity For The Standard .. 20

3. This Case Presents The Important Question Of The Proper

Role Of The Reviewing Court Under The Substantial Evi-

dence Standard Of Review ..........0... 0... cc ccceee 21

4. The Wage Guarantee Provision Exceeds OSHA’s Statutory

DS Dien bs PK wnkig aictuis chad wS4 oc kcdnkk 5 25

NES SN ee 30

TABLE OF AUTHORITIES

Cases

Page

AFL-CIO v. Brennan, 530 F.2d 109, (3d Cir. 1975)....... 14, 16

AFL-CIO v. Marshall No. 78-1562, D.D.C. ............. Passim

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495

Ce oe Lok Ok ps ha OA koe ba eae ee kb na oe 19

American Petroleum Institute v. OSHA, 581 F.24 493 (5th Cir.

1978) cert. granted sub nom, Marshall v. American Petroleum

srateete;, 449 TS. SUG CISTR) so as ba 6s CA eA een 14, 15, 20

American Iron & Steel Institute v. OSHA, 577 F.2d 825 (3d

Cir. 1978), petitions for cert. pending, Nos. 78-918, 78-919. 16, 21

Associated Industries v. Dept. of Labor, 487 F.2d 342 (2d Cir.

i BS PPP re Tey See Ret ene Boe ELIE Mipar Bann ee 21

Crowe v, Beso, Fas WG, BA LI9S2) os. ik oc i cass 24

Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976) ...... pe

Florida Peach Growers Assn. V. Dept. of Labor, 489 F.2d 120,

Cs SPE 638 Caw edi sds GRA ECE R aks vk ek 15, 20

Greater Boston Television Corp. v. FCC, 143 U.S. App. D.C.

se ee UO io 5 5 hae eA bes avin Ch ened 21

Industrial Union Dept. v. Hodgson, 162 U.S. App. D.C. 331, 499

rE TR Fc ido Dar Peak od aco ke bk bn ee OR Eka 12, 14

International Harvester v. Ruckelshaus, 155 U.S. App. D.C. 411,

eee OR COPD ee Sa cc bela abece wneree an 12, 21, 22

National Cable Television Assn. v. United States, 415 U.S. 336

SE Dick A shih AAods OS ie wr aawabnaas +A) vaedaee 18

National Labor Relations Bd. v. Baptist Hospital, Inc., 99 S.Ct.

EE ED sled oa ers ae ed Kee Bed AE ROA # RAO ae 11

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) ........ 19

Portland Cement Assoc. v. Ruckelshaus, 158 U.S. App. D.C. 308,

ae ae OO OOD Cees Ko wee dae kd oe heh one 21

RMI Co. v. Secretary of Labor, 594 F.2d 566 (6th Cir.

yg BRE Pete a AURA ER Sa Sa ENT aD ETSY lk: Et aa a Ea Bre 14, 16

SEC v. Chenery Corp., 332 U.S. 194 (1947) ............4.. 9

Turner Co. v. Secretary of Labor, 561 F.2d 82 (7th Cir.

PEE cts SRV ES Vc ehh ORS SET Te ede OT RA 14, 16

Page

Universal Camera Corp. v. N.L.R.B., 340 USS. 474 (1951).... 21

Whirlpool Corp. v. Marshail, 48 U.S.L.W. 4189 (February 26,

MU ee ee se iag sant. Veet 27, 28

Yakus v. United States, 321 U.S. 414 oe) ee ee oe 24

Statutory Provisions

Sect id, Le cota. peo SEAS ates rrr 2

sthdietint oo on. DR ee 7,19

Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq

NEE oo e'5's, SiGe hey her 4,5

io bu seit, oo cai: 5 eC a Aa eee aa ae 29

enn, EES eae 5

of ne 8 hones ne ged A are ee 3,4

ON so ose a he can cookin ous 4, 7, 10, 21

NN Se Gg oe tea al 2.

di Oe BS) 5) an ra ES Pe oe 27

vein ap phe Ae nn ug AREER PE ee a 27

Regulations

Pee eNO ne 4, 6, 7,27

Other Authorities

Legislative History of the Occupational Safety and Heaith Act of

sot dE T OE OC ap Ree 5

Davis, Administrative Law Treatise § 6:36 (2d Ed. 1978)..... 22

Hart & Wechsler, Federal Courts Se We SOE ook vik oc cannn 24

Jaffe, Judicial Control of Administrative Action (1965)\...... 21

iii

IN THE

Supreme Court of the United States

OCTOBER TERM 1979

PN ek as

AMERICAN TEXTILE MANUFACTURERS

INSTITUTE, INC., MILLIKEN & COMPANY ;

ARKWRIGHT MILLS, SPARTAN MILLS, BLAIR

MILLS, INC., HERMITAGE, INC., DAN RIVER, INC.,

CONE MILLS CORPORATION, MAYFAIR MILLS,

SPRINGS MILLS, INC., RIEGEL TEXTILE

CORPORATION, FIELDCREST MILLS, INC., AnD

WEST POINT-PEPPERELL, INC.,

Petitioners,

Vv.

RAY MARSHALL, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

The textile industry petitioners hereby petition for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the District of Columbia

Circuit in this case.’ ‘

* The textile industry petitioners are listed on the title page of this

Petition. The United States Court of Appeals for the District of

Columbia Circuit is hereafter referred to as th® Court of Appeals or

the District of Columbia Circuit.

2

OPINIONS BELOW

The opinion of the Court of Appeals has not yet been

reported.* The regulation in question® and the statement of

reasons which accompanied it appear at 43 Fed. Reg.

27350-99 (June 19, 1978), as amended at 43 Fed. Reg.

28473-74 (June 30, 1978), and 43 Fed. Reg. 35032-35

(August 8, 1978), and 43 Fed. Reg. 56892-94 (December

5, 1978).

JURISDICTION

The judgment of the Court of Appeals was entered on

October 24, 1979.* On November 7, 1979 the petitioners

filed a timely petition for rehearing which was denied on

January 11, 1980.° The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254(1) and 29 U.S.C. § 660(a).

QUESTIONS PRESENTED

1. (a) Whether the Court should resolve the conflict be-

tween the District of Columbia Circuit and the Fifth, Sixth

and Seventh Circuits as to the showing OSHA must make to

demonstrate that its standards are economically feasible;

(b) Whether the statutory requirement that compli-

ance with an OSHA standard must be “economically feasi-

ble” can be satisfied merely by the agency’s conclusion that

the standard will not put the affected industry out of busi-

ness; and

(c) If the only limit on OSHA’s rulemaking authority

is that each standard must not by itself put the affected in-

* See Slip Opinion, (App. 19-102).

8 (App. 1-18).

* (App. 19-102).

* (App. 103). On January 22, 1980 the Court of Appeals ordered

that the mandate be issued forthwith. (App. 106-107).

2

dustry out of business, is the Act an unconstitutional dele-

gation of legislative power.

2. Should the Court resolve the conflict between the

District of Columbia Circuit and the Fifth Circuit as to

whether the Act, construed as a cohesive whole, requires

OSHA to demonstrate that a standard is reasonably neces-

Sary and that there is some reasonable relationship between

the benefits sought to be secured from a standard and the

cost of obtaining them.

3. Whether the standard of review should continue to

require a finding of substantial evidence in support of the

agency’s conclusions, and if so, whether the reviewing court

has adequately discharged its constitutional and statutory

duties when it considers only the agency’s articulation of

conclusions and thus relieves the agency of its duty to furnish

substantial and reliable evidence in support of those con-

clusions.

4. Whether OSHA has the implied authority to require

employers to guarantee the wages and benefits of employees

who transfer to jobs warrantin g lower pay when the transfers

result frum the employees’ inability to wear respirators.

STATUTES AND REGULATIONS INVOLVED

Section 6(b) (5) of the Occupational Safety and Health

Act of 1970, 29 U.S.C. § 655(b) (5), provides:

The Secretary, in promulgating standards dealing

with toxic materials or harmful physical agents under

this subsection, shall set the standard which most ade-

quately assures, to the extent feasible, on the basis of

the best available evidence, that no employee will suffer

material impairment of health or functional Capacity

even if such employee has regular exposure to the

hazard dealt with by such standard for the period of his

working life. Development of standards under this sub-

4

section shall be based upon research, demonstrations,

experiments, and such other information as may be ap-

propriate. In addition to the attainment of the highest

degree of health and safety protection for the employee,

other considerations shall be the latest available scien-

tific data in the field, the feasibility of the standards,

and experience gained under this and other health

and safety laws. (Emphasis added).

Section 3(8) of the Act, 29 U.S.C. § 652(8), provides:

The term ‘occupational safety and health standard’

means a standard which requires conditions, or the

adoption or use of one or more practices, means,

methods, operations, or processes, reasonably necessary

or appropriate to provide safe or healthful employment

and places of employment. (Emphasis added).

Section 6(f) of the Act, 29 U.S.C. § 655(f) provides in

pertinent part:

The determinations of the Secretary shall be conclusive

if supported by substantial evidence in the record con-

sidered as a whole.

29. C.F.R. § 1910.1043 (1978)°

STATEMENT OF THE CASE

A. The Statutory Framework

The Occupational Safety and Health Act of 1970 (the

“Act” )" authorizes the Secretary of Labor (the “Secretary” ),

acting through the Occupational Safety and Health Admini-

stration (OSHA) to promulgate occupational safety and

health standards. When formulating a standard under Sec-

tion 6(b) (5)* of the Act, OSHA may lawfully require only

5 (App. 1-18).

729 US.C. § 651 et seq.

§ 29 U.S.C. § 655(b) (5).

5

such measures which are shown to be feasible and prac-

tical.°

The Act does not give the Secretary unbridled discretion

to promulgate standards without regard to the need for,

or the cost of, the standard. Instead, OSHA is authorized to

promulgate standards only if they are “reasonably necessary

or appropriate to provide safe or healthful employment and

places of employment.” 29 U.S.C. §§ 652(8), 655.

Thus, Section 6(b) (5), taken together with Section 3(8)

imposes certain limits on OSHA’s authority to regulate.

Indeed, the requirements that standards must be “feasible”

and must respond to “material impairment” were added be-

cause some Senate proponents of occupational safety and

health legislation felt that, without these limitations, OSHA’s

regulatory authority was too broad and not sufficiently cir-

cumscribed by practical limits.” Finally, Section 6(f) gives

the determinations of the Secretary finality only if supported

by “substantial evidence” in the underlying record.

B. The Cotton Dust Standard

Cotton dust is not a carcinogen.” The purported purpose

of the standard for occupational exposure to cotton dust

is to reduce the prevalence of byssinosis, a respiratory con-

dition associated with exposure to cotton dust. Two basic

characteristics of that condition must be remembered. First,

the overwhelming majority of persons exposed to cotton dust

exhibit no symptoms of byssinosis.”” Second, for those who

* Legislative History of the Occupational Safety and Health Act of

1970, 92d Congress Ist Sess. (Comm. print 1971) (herein cited as

Legislative History), remarks of Senator Dominick, p. 502.

?° Legislative History, pp. 169, 197, 242, 480.

** Slip Opinion, p. 18, n. 35 (App. 36).

** See, e.g.: “Byssinosis: A Study of 10133 Textile Workers,”

Imbus. Exhibit 6, No. 18 (App. 108); Supplement to Whitworth’s

statement, Exhibit 42b (App. 124); Statement of Dr. Charles F.

Martin, Exhibit 46, (App. 126).

6

do exhibit symptoms, the condition begins as a mild, rever-

sible one which can become chronic and irreversible only

after years of additional exposure.

The standard sets exposure limits for the amount of cot-

ton dust per cubic meter of air which may permissibly be

present in the workroom.” For the cotton textile manufac-

turing industry, the standard establishes permissible expos-

ure limits of 0.2 milligrams of lint-free respirable cotton dust

per cubic meter of air (0.2 mg/m‘) in “yarn manufacturing”

operations. The exposure limit is 0.75 mg/m’ in “slashing

and weaving” operations. These limits are slightly higher

than the concentration of microscopic particulate matter in

the ambient air of the average urban and suburban area.”®

The standard requires employers to achieve the permis-

sible exposure limits within four years solely through the

installation of engineering or work practice controls, unless

the employer carries an affirmative burden of establishing

that such controls are not “feasible” in his operations, in

which case respirators may be used.** Additionally, the

standard imposes numerous ancillary requirements for em-

ployee exposure monitoring, medical surveillance, work

practices, respirators, training and warning signs.’’ One such

provision, the wage guarantee provision, provides that em-

ployees who are unable to wear respirators may transfer

jobs and that employers must continue their wages and

** See, e.g., Exhibit 2, 41 Fed. Reg. 56500 (1976) (App. 137),

43 Fed. Reg. 27354.

429 C.F.R. § 1910.1043(c). “Lint-free respirable cotton dust”

means particles of “cotton dust” not visible to the human eye, with

a diameter of approximately 15 microns or less. (App. 2).

8 43 Fed. Reg. 27359 (1978).

16 43 Fed. Reg. 27385 (1978).

729 C.F.R. § 1910.1043(d), (e), (f), (g), (h), (i), (j), (k),

(1) (App. 3-17). This standard replaces one which has been in effect

since 1971 and which set an exposure limit of 1.0 mg/m‘.

7

benefits at their previous rate even if their new job warrants

a lower wage rate.”*

OSHA promulgated the standard on June 19, 1978.

Petitions for review of the standard were filed in the Fourth,

Fifth, Sixth, Seventh and District of Columbia Circuits. Pur-

suant to 28 U.S.C. § 2112(a), all petitions were trans-

ferred to and consolidated in the District of Columbia Cir-

cuit. The basis of that court’s jurisdiction was 29 U.S.C.

§ 655(f).

In the court below, petitioners challenged the entire stan-

dard as invalid principally for the reasons that:

(1) Compliance with it was noi economically fea-

sible;

(2) Compliance with the standard was not techno-

logically feasible and could not be achieved within the

four year period set by the standard; and

(3) OSHA failed to demonstrate that the standard

was reasonably necessary to protect against material

impairment of health and refused even to consider

whether the benefits sought to be secured from the

standard were justified by the enormous cost of attempt-

ing to achieve them.

Petitioners also challenged the wage guarantee provision

as beyond OSHA’s statutory authority.

C. The Economic Evidence And The Decision That The

Standard Is Economically Feasible

OSHA stated that the cost of complying with its cotton

dust standard would be $550 million for the textile industry.

There is no evidence anywhere in the record that cost of

complying with the severe standard actually promulgated

will be anywhere near that low.

*§ 29 C.F.R. § 1910.1043(f)(2)(v) (App. 8-9).

8

Fairly summarized, the record establishes the following

with respect to the economic consequences of imposing this

standard. First, OSHA’s economic feasibility contractor, the

Research Triangle Institute (RTI), estimated that it would

cost the textile industry $1.112 billion just to satisfy the

exposure limit set by the standard for yarn manufacturing

operations.” Second, Hocutt and Thomas, leading experts

in the supply of dust control and related equipment esti-

mated the capital cost of the exposure limits proposed by in-

dustry to be $250 million.* Third, Hocutt and Thomas

calculated capital costs of $550 million for certain other as-

sumed exposure limits which differed from those proposed

by industry but which were still materially less stringent than

the limit OSHA actually promulgated.” Finally, the industry

showed that, even though compliance was not technologi-

cally feasible, the cost of attempting to comply with the

standard OSHA promulgated will approach, and perhaps

exceed, $2.7 billion, a sum which OSHA admits is not eco-

nomically feasible.*

Even though OSHA promulgated more stringent, and sub-

** RTI estimated capital costs of $984.4 million for a 0.2 mg/m*

limi for the operations of opening through spinning and $127.7 mil-

lion for a 0.2 mg/m‘ limit for the operations of twisting through warp-

ing [Ex. 6, No. 76, pp. I-15, V-28 (App. 139, 140)]. 43 Fed. Reg.

27371 (1978). The total estimate for a 0.2mg/m* limit in yarn

manufacturing is thus $1.112 billion. This does not include any cost

for satisfying the limits set for slashing and ——2

*° Those limits were 0.5 mg/m* for yarn manufacturing operatioas

and 1.0 mg/m‘ for slashing and weaving operations. Ex. 60, Att. 1;

Ex. 62, Att. 1 (App. 154, 156).

** Those limits were 0.2 mg/m® in the operations from openin

through roving, 0.5 mg/m in spinning through warping and 1.

mg/m* in slashing and weaving. Ex. 60, Att. 1; Ex. 62, Att. 1 (App.

154, 156).

* As originally proposed, the standard would set a 0.2 mg/m°*

exposure limit for all textile operations. RTI estimated this would

cost $2.7 billion. In its briefs in the Court of Appeals, OSHA ad-

mitted that this was not economically feasible.

9

stantially more costly, exposure limits, it inexplicably used

the $550 million estimate, made for a far different standard,

as its estimate for the cost of its much more severe standard.

No evidence linked the $550 million figure with the standard

to which OSHA attached it. Nonetheless, it was this figure

on which OSHA based its finding that, even though the

Standard would likely result in an undefined number of

plant closures, it would not put the entire industry out of

business. On that basis alone, OSHA concluded that the

standard was economically feasible.”*

The record also establishes that there is an equally effec-

tive, but considerably less expensive, alternative to the

standard OSHA promulgated. The alternative, which would

cost the textile industry in excess of $250 million, has been

demonstrated to provide benefits at least as effective as

those which OSHA seeks to secure from imposing the ex-

posure limits set by the standard.** No matter which figure is

* Industry challenged OSHA’s use of the $550 million cost esti-

mate, but the Court of Appeals sustained OSHA’s decision to use

this figure on the basis of a rationale expressed by OSHA’s counsel

in its briefs and not expressed by the agency, that the equipment

Hocutt and Thomas assumed would be installed and an unspecified

“little more” would achieve the stringent limits OSHA set. Slip

Opinion, p. 47, n. 136. (App. 65). The court cited OSHA’s brief on

appeal as the only support for this critical finding. Reliance on this

post hoc rationale is mistaken not only because it is factually er-

roneous but also because it is not part of the agency action under

review. SEC v. Chenery Corp., 332 U.S. 194 (1947).

* Based on a 1970-71 study of 2000 employees in one company

(the Merchant Study), OSHA predicts that its standard will result

in a byssinosis prevalence rate of 12%. 43 Fed. Reg. 27355 (1978)

Based on several more recent studies of more than 28,000 employees

in five companies, the industry showed that its alternative li ely

would produce a prevalence rate of between 1% and 6%, obviously

much lower than that predicted by the Merchant Study. Ex. 42, 42b,

46 and 47 (App. 157, 124, 126, 172). The industry alternative

included a combination of medical surveillance, less stringent ex-

posure limits than those set by OSHA, selective respirator use and

removal from exposure as medically appropriate.

10

used as the cost of OSHA’s standard, ($.55 billion, $1.112

billion or $2.7 billion), it exceeds tremendously the cost

of the industry alternative. |

The Court of Appeals held that an OSHA standard is

economically feasible if it is not prohibitively expensive in

the sense that it will not put an entire industry out of business

and thereupon sustained this standard as economically fea-

sible.” Having adopted this extreme and unprecedented defi-

nition of economic feasibility as the only limit on OSHA’s

power to regulate, the Court of Appeals went on to hold that

OSHA is not required either to confine its standards to those

it can show to be reasonably necessary or to demonstrate,

even as a part of feasibility, that there exists any reasonable

relation between the benefits sought to be secured from a

standard and the cost of complying with it.”°

Thereby, the Court of Appeals eliminated all of the prac-

tical limitations imposed by Sections 6(b)(5) and 3(8)

of the Act, and in effect has held that so far as feasibility is

concerned, OSHA may promulgate any standard it chooses

so long as it concludes that its choice will not destroy an

entire industry.

D. The Standard Of Review Applied By The Court Of Appeals

To Sustain Economic Feasibility And Tne Four Year

Compliance Period

Section 6(f) of the Act requires that OSHA standards are

to be given finality only if they are supported by substantial

evidence on the record considered as a whole.”” The Court of

Appeals paid lip service to the substantial evidence test but,

in fact, sustained this standard by devising a novel and

patently dangerous concept of the function of the reviewing

*° Slip Opinion, pp. 49-51 (App. 67-69).

*° Slip Opinion, pp. 51-59 (App. 69-77).

7 29 U.S.C. § 655(f).

11

court. In doing so it managed to confine its responsibility

to the mere determination of whether the agency had arti-

culated adequately the basis for its actions and refused

meaningfully to assess the record as a whole.” Thus, the

Court of Appeals misapprehended or grossly misapplied the

substantial evidence test, depriving petitioners of their right

to judicial review.”

The application of this new concept of review lead to

the Court’s strained and unsupported findings on feasibility.

By accepting at face value OSHA’s determination of the

cost of compliance, it erroneously adopted cost estimates

which were clearly applicable only to a far less stringent

standard than that imposed. By accepting at face value

OSHA’s conclusion that the “industry would be able to pass

compliance costs on to consumers” it made a finding con-

trary to all the evidence on that subject. The “evidence”

cited by the Court of Appeals in support of this conclusion

was an assumption made by RTI solely for the purpose of

analyzing the effect on the industry if it could pass on the

cost of compliance to the consumers.” Significantly, the

same report recognized that if costs could not be passed on:

...in the absence of price increases, profit-after-taxes

and ROI would be very small or negative in some

cases.”

*8 This approach to review has been criticized by respected authori-

ties because it transforms the substantial evidence test from a check

on the substance of agency action to a procedural hurdle which

merely duplicates the requirement of an adequate statement of

reasons. See pp. 20-25, infra.

*° The misapprehension or gross misapplication of the substantial

evidence test is grounds for granting a petition for a writ of certiorari.

See, e.g., National Labor Relations Bd. v. Baptist Hospital, Inc.,

99 S.Ct. 2598 (1979).

** Slip Opinion, p. 49, n. 145 (App. 67); see Ex. 6, No. 76, pp.

VI-8-VI-9, VI-39 (App. 141, 144).

*? Ex. 6, No. 76, p. VI-37 (App. 143).

12

The critical and undisputed fact was that RTI simply did

not attempt to determine whether costs could be passed on

to the consumer. Had the Court of Appeals reviewed appli-

cable portions of the record even in a most cursory manner,

it certainly would not have elevated an analytical assump-

tion to the status of evidence. Moreover, other evidence dem-

onstrated that pressure from competition with cheap foreign

imports and the availability of synthetic yarns as a sub-

stitute made it likely that the costs of compliance could not

be passed along to consumers.”

The decision to sustain the four year compliance period

is another strikingly clear example of how the Court of

Appeals was led astray by its novel concept of its responsi-

bility to “review” the agency’s conclusions. Previous de-

cisions in the District of Columbia Circuit had held that the

agency must make a “reasoned prediction” from facts in the

record that compliance is feasible within the compliance

period.**

The simple fact is that no evidence in the record sup-

ported feasibility of the four year period. This is perhaps

best illustrated by OSHA’s failure to explain why it chose

four years except to state that:

[a] period of three to four years for implementation

throughout industry is eminently reasonable and achiev-

able.**

*? Ex. 6, No. 76, pp. C-35, C-48, C-52 and Tables C-20, C-25 and

C-27 (App. 145-51); Tr. 2565-71 (App. 198-201); Ex. 63 (App.

188).

** See, e.g., Industrial Union Dept. v. Hodgson, 162 U.S. App.

D.C. 331, 344, 499 F.2d 467, 480 (1974); International Harvester v.

Ruckelshaus, 155 U.S. App. D.C. 411, 425, 478 F.2d 615, 629

(1973).

** 43 Fed. Reg. 27385 (1978). Even though OSHA acknowledged

that the capability of the dust control supply industry was critical to

the time allowed for compliance, it ignored the only evidence from

those suppliers which established that it would take eleven years to

13

The Court of Appeals upheld the four year period as a rea-

sonable accommodation of “competing needs”* without

even examining the evidence in the record which addressed

the time required for compliance. However, OSHA has never

suggested that it chose the four year period as an accommo-

dation between competing needs.

Because it expressly declined to become familiar with

basic elements of the evidence, the court sustained the

critically important finding of economic feasibility on the

misfitted cost estimates and upheld a period of compliance

which has not a shred of evidence to support it.

REASONS FOR GRANTING THIS PETITION

This petition raises issues which are especially needful

of determination by the Court in this time of ever expanding

regulatory power and ever contracting economic resources

with which to respond to the regulations promulgated in

the exercise of that power. The petition calls upon the Court

to resolve two basic conflicts between the circuits on the

nature and extent of OSHA’s power to affect the allocation

of the economic resources of American industry. It also

asks the Court to correct a novel and patently dangerous

concept of the function of reviewing courts when performing

the judicial function they necessarily must perform if, as

intended by Congress, the courts are to serve as a check

on the exercise of agency power. Finally, the petition re-

quests the court to nullify OSHA’s unauthorized attempt

to guarantee wages of employees in contradiction to the ex-

pressed intent of Congress.

manufacture enough equipment to comply even with exposure limits

much less stringent than those set by the standard. Wrenn Tr. 103

(App. 195). Ex. 60, pp. 18-19 (App. 153); see also Hocutt Tr.

2514-15, 2488-89 (App. 196-198).

*® Slip Opinion, p. 76 (App. 94).

14

1. There Is A Conflict Among The Circuits As To The Showing

OSHA Must Make To Establish That Its Standards Are Eco-

nomically Feasible.

Ii is now well-settled that OSHA must demonstrate, by

substantial evidence, that compliance with the standard is

economically feasible.** The decision in this case conflicts

with decisions of the Courts of Appeals for the Fifth, Sixth

and Seventh Circuits as to the meaning of the critically im-

portant term “feasible.” *’

In this case the District of Columbia Circuit interpreted

the feasibility requirement of Section 6(b) (5) to mean that

an OSHA standard will be sustained, as economically feas-

ible, merely upon the agency’s conclusion that the standard

is not prohibitively expensive in the sense that it will not put

the entire industry out of business.** While “the actual test

for economic feasibility has yet to be fully developed,” *

three other Courts of Appeals have held that OSHA must do

much more to demonstrate economic feasibility.

In Florida Peach Growers Assn. v. Dept. of Labor, 489

F.2d 120, 130 (Sth Cir. 1974), the court held that OSHA

must demonstrate that the standard will not cause wide-

spread business failure and consequent unemployment and

8° See, e.g., American Petroleum Institute v. OSHA, 581 F.2d 493

(Sth Cir. 1978) cert. granted sub nom, Marshall v. American Petro-

leum Institute, 440 U.S. 906 (1979); AFL-CIO v. Brennan, 530

F.2d 109, 121-22 (3d Cir. 1976); Industrial Union Dept. v. Hodg-

son, 162 U.S. App. D.C. 331, 341-42, 499 F.2d 467, 477-78 (1974).

OSHA concedes that it has this obligation. Slip Opinion, p. 35 (App.

53); 43 Fed. Reg. 27361 (1978).

** American Petroleum Institute v. OSHA, 581 F.2d 493 (Sth

Cir. 1978); RMI Co. v. Secretary of Labor, 594 F.2d 566 (6th Cir.

1979); Turner Co. v. Secretary of Labor, 561 F.2d 82 (7th Cir.

1978); AFL-CIO v. Brennan, 530 F.2d 109 (3d Cir. 1975). Al-

though RMI and Turner are enforcement cases, both courts have

defined the term feasible. See, pp. 15-16, infra.

*8 Slip Opinion, pp. 49, 51 (App. 67, 69).

°° Slip Opinion, p. 49 (App. 67).

15

held that OSHA must establish a satisfactory “.. . balance

between the protection afforded by the requirement and the

effect upon economic and market conditions in the industry.”

Id. at 132.

More recently, the Fifth Circuit invalidated a finding

of economic feasibility based merely on the conclusion that

the standard would not threaten the viability of the industry

or the national economy. American Petroleum Institute v.

OSHA, 581 F.2d 493, 503 (5th Cir. 1978). There the court

held that, at least, OSHA must demonstrate a reasonable re-

lationship between the cost of the standard and the benefits

expected from it. Jd. at 503.

The definition of economic feasibility adopted by the

District of Columbia Circuit is wholly inconsistent with

the decision of the Courts of Appeals for the Sixth and

Seventh Circuits, both of which have defined economic feasi-

bility to require a showing that the benefits of a standard are

in proportion to its costs. Although the cases before both

courts involved enforcement, rather than pre-enforcement

review, of a standard, both courts were called upon to inter-

pret the term “feasible.” The Sixth Circuit held:

But neither will controls necessarily be economically

feasible merely because the employer can easily (or

otherwise) afford them. In order to justify the expendi-

ture, there must be a reasonable assurance that there

will be an appreciable and corresponding improvement

in working conditions. . . We only insist that the Secre-

tary,...weigh the costs of compliance against the

benefits expected to be achieved thereby in order to

determine whether a proposed remedy is economically

feasible. RMI Co. v. Secretary of Labor, 594 F.2d 566,

573 (6th Cir. 1979).

The Seventh Circuit reached a similar conclusion in Turner

16

Co. v. Secretary of Labor, 561 F.2d 82, 85 (7th Cir.

1977). :

Admittedly, these three courts differ, to some extent, as

to what showing OSHA must make to prove the economic

feasibility of its standards. Nonetheless, all three require

OSHA to do more than merely conclude that the standard

will not result in the demise of the affected industry. Thus,

they conflict directly with the extreme interpretation of eco-

nomic feasibility adopted in this case by the District of Co-

lumbia Circuit. This conflict is so basic to the future applica-

tion of this Act that the Court should resolve it even if un-

convinced that any of the four decisions correctly or fully

express the proper test of economic feasibility.’

Wholly apart from the need to resolve the conflict, this

petition should be granted to settle the important issue of

what OSHA must show to prove economic feasibility. This

case demonstrates the necessity for a firmer and more

precise definition of this critically important term.

Neither affected industries nor the national economy can

afford a rule of law which says that OSHA can promulgate

a standard merely upon the conclusion that the standard

alone will not destroy the affected industry. Petitioners con-

tend that at, a minimum, OSHA must:

‘© But see, American Iron and Steel Institute v. OSHA, 577 F.2d

825 (3d Cir. 1978) (affirming the coke oven emissions standard),

petitions for cert. pending, Nos. 78-918, 78-919. Even the Third

Circuit has required that, at a minimum, OSHA must establish the

extent to which the standard would force companies in the industry

out of business and must evaluate the effect of the standard on the

industry structure and the ability of the industry to meet its com-

petition. AFL-CIO v. Brennan, 530 F.2d 123 (3d Cir. 1975).

*' Petitioners respectfully suggest below what they believe to be

a reasonable test which will permit OSHA to fulfill the objectives of

the Act within the limits imposed by Congress and without jeopardiz-

ing the future of industry.

17

(i) base its economic analysis on a reasonably ac-

curate estimate of the cost to comply with the standard

it promulgates;

(ii) show by reliable evidence—not by assumptions

—that industry can either absorb the expected compli-

ance costs or pass these costs on to consumers;

(iii) demonstrate the extent to which its standard

will force business failure especially where, as here,

OSHA admits that the standard will force an undefined

number of companies out of business and show that the

standard will not affect adversely the structure of the

industry or its ability to meet its competition; and

(iv) demonstrate that there exists a reasonable re-

lationship between the cost of its standard and the bene-

fits it is expected to yield especially where, as here, there

is available an equally effective but materially less ex-

pensive, alternative.

These elements are practical and reasonable criteria of

feasibility by any definition of the term. It is essential, in a

time of expanding and expensive regulation, that OSHA be

required to do more than conclude that a standard will not

put an entire industry out of business. There must be rea-

listic criteria to guide OSHA and the Courts of Appeals in

the allocation of the limited, and ever contracting, resources

of industry. This issue is of critical importance in this case to

the textile industry. It is equally important to the national

economy. Petitioners respectfully ask the Court to settle it.

In fact, the Court’s previous decisions appear to require

the interpretation suggested by petitioners if the Act is to

remain as a constitutionally permissible delegation of legis-

lative authority. National Cable Television Assn. v. United

States, 415 U.S. 336, 342 (1974).

Congress inserted the feasibility requirement in Section

6(b) (5) as a criterion for setting standards. Senator J avits,

18

who authored the amendment inserting the feasibility re-

quirement, explained:

As a result of this amendment the Secretary, in setting

standards, is expressly required to consider feasibility

of proposed standards. This is an improvement over the

Daniels bill, which might be interpreted to require

absolute health and safety in all cases, regardless of

feasibility, and the Administration bill, which contains

no criteria for standards at all.*

The District of Columbia Circuit has announced the rule

that a standard is feasible if it will not put an entire industry

out of business.** This interpretation makes meaningless the

criteria set by Section 6(b)(5) and confers on OSHA un-

limited legislative power to regulate the national economy.

For instance, this interpretation leaves OSHA free to

establish the criteria by which it will judge whether an

industry will survive its regulation. Also, it allows OSHA

to decide, without any criteria whatsoever, whether the

failure of one or two companies in an industry comprised

of four companies (like the automobile industry) will or

will not be an acceptable sacrifice in pursuit of OSHA’s

goals. Likewise, in a multi-company industry (like the

textile industry), OSHA is empowered to decide whether

10 or 100 or 1,000 business failures are acceptable. Indeed,

so long as OSHA leaves one company in business, it can

satisfy the test adopted by the District of Columbia Circuit.“

“S. Rep. No. 91-1282, 91st Cong., 2d Sess., at 58; Legis. Hist. at

197. We assume, without admitting, that the term feasible is an

adequate standard for the exercise of the delegated legislative power.

*8 Slip Opinion, pp. 49-51 (App. 67-69).

** Until the Court effectively resolves the conflicts between the

District of Columbia Circuit and other circuits as to the issues in this

case, the outcome of judicial review will depend more on fleetness of

foot in the race to the courthouse under 28 U.S.C. § 2112 than on

the merits of the case as measured by a uniform rule of law. For ex-

ample, in this case, petitions for review were filed in the Fourth, Fifth,

Sixth, Seventh and District of Columbia Circuits.

19

The consequence of this rule is staggering when one re-

members that OSHA is empowered to set standards for

virtually every industry in the nation. Under this rule OSHA

is empowered to decide, industry by industry, the ultimate

structure and configuration of each industry subject to the

Act so long as OSHA concludes that any one standard will

not end the existence of the industry. It was precisely this

unfettered discretion to restructure the entire economy that

made it necessary for the Court to strike the statute as un-

constitutional in A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495 (1935) and Panama Refining Co. v.

Ryan, 293 U.S. 388 (1935).

As interpreted by the District of Columbia Circuit, Section

6(b)(5) is an unconstitutional delegation of legislative

power. Perhaps a more narrow interpretation of the statute,

such as that here suggested by petitioners, will avoid the

constitutional problems. However, if the District of Colum-

bia Circuit’s interpretation is correct, petitioners submit that

the unconfined delegation to OSHA in the Act must be

stricken as unconstitutional.

2. There Is A Conflict Between The Circuits As To Whether OSHA

Must Demonstrate The Existence Of A Reasonable Relation

Between The Costs Of A Standard And The Benefits Expected

From It And As To Whether OSHA Must Demonstrate A Rea-

sonable Necessity For The Standard.

Petitioners argued below that, under the Act construed as

a cohesive whole and particularly because of Sections 3(8)

and 6(b)(5), OSHA must demonstrate that its standard is

reasonably necessary and must establish the existence of a

reasonable relationship between the cost of a standard and

the benefits expected from it. OSHA admittedly did not make

20

those showings here and, in fact, denied that it was obligated

‘todo so.*

Confronted with an almost identical situation in American

Petroleum, the Fifth Circuit set aside the benezene standard

because, inter alia, OSHA failed to show that its standard

was reasonably necessary or to establish “whether the bene-

fits expected from the standard bear a reasonable relation-

ship to the costs imposed by the standard.” *°

The District of Columbia Circuit explicitly rejected the

Fifth Circuit’s decision in American Petroleum and held that

OSHA is not required to prove reasonable necessity or to

make a “. . .determination that the costs of a standard bear

a ‘reasonable’ relationship to its benefits.”‘’ This creates

a clear conflict between these two circuits on a critical

issue inherent in the agency rulemaking process. Petitioners

respectfully submit that the conflict should be resolved in

favor of the interpretation of the Fifth Circuit.

3. This Case Presents The Important Question Of The Proper Role

Of The Reviewing Court Under The Substantial Evidence Stan-

dard Of Review.

It is clear that OSHA’s standards are valid only if sup-

ported by substantial evidence “in the record considered

as a whole.” “ In Universal Camera Corp. v. N.L.R.B., 340

U.S. 474 (1951), the Court held that, when reviewing

agency actions under the substantial evidence test, courts

*® OSHA takes the view that it need only find that the expected

benefits are likely to be “appreciable.” 43 Fed. Reg. 27379 (1978).

#6581 F.2d 493, 503 (Sth Cir. 1978), cert. granted sub nom

Marshall v. American Petroleum Institute, 440 U.S. 906 (1979),

argued orally on October 10, 1979. See also, Florida Peach Growers

Assn. v. Dept. of Labor, 489 F.2d 120, 130 (5th Cir. 1974).

‘7 Slip Opinion, p. 56 (App. 74). This conflict may be resolved

by the Court’s decision in American Petroleum.

#8 29 U.S.C. § 655(f).

21

should guard against abdication of “the conventional judicial

function.” “° Thereupon, it charged them with the duty to re-

view and analyze the evidence and to determine whether

the evidence on which the agency acted was substantial when

considered in perspective of other evidence which fairly de-

tracts from the evidence on which the agency relied.”

The substantial evidence test is considered generally to

require that the reviewing court review and analyze the

substance of agency action even in complex evidentiary mat-

ters, including questions of technology and economics." This

is especially important in applying the substantial evidence

test as defined by Universal Camera because, only by analyz-

ing the relevant evidence, can the reviewing court determine

whether the evidence on which the agency relied is sub-

stantial when considered in view of the detracting force of

other evidence.

However, in this case, the District of Columbia Circuit

defined its role in very different and much more limited

terms, taking the novel view that the reviewing court should

remain detached and apart from the evidence, especially

where it concerns questions of technology and economics.

The decision below cited the applicable precedent defining

4° 340 US. at 490.

°° 340 U.S. at 490, 487-88. This does not mean that the Court

must in the traditional sense weigh the evidence, but as will be shown

below it requires the court to analyze and evaluate the force of

technical and economic evidence.

** Universal Camera Corp. v. N.L.R.B., supra; See also, Ethyl

Corp. v. EPA, 176 U.S. App. D.C. 373, 541 F.2d 1, 67 (1976);

International Harvester v. Ruckelshaus, 55 U.S. App. D.C. 41 1, 478

F.2d 615 (D.C. Cir. 1973); Portland Cement Assoc v. Ruckelshaus,

158 U.S. App. D.C. 308, 486 F.2d 375 (1973); Greater Boston

Television Corp. v. FCC, 143 U.S. App. D.C. 383, 444 F.2d 841

(1970), cert. denied 403 U.S. 923 (1971); American Iron & Steel

Institute v. OSHA, 577 F.2d 825 (3d Cir. 1978); Associated Indus-

tries v. Dept. of Labor, 487 F.2d 342 (2d Cir. 1973). See generally,

Jaffe, Judicial Control of Administrative Action, pp. 600-613 (1965).

22

the substantial evidence test.** However, it defined in very

narrow terms the court’s role in reviewing OSHA’s techno-

logical and economic determinations:

From their stance outside of both scientific and political

debates, courts can help to ensure that decisionmakers

articulate the basis for their decisions. But once courts

step beyond that role and endeavor to judge the merits

of competing expert views, they leave the terrain they

know. Slip Opinion, p. 27, n. 66 (emphasis added).

[Citing Ethyl Corp. v. EPA, 541 F.2d 1, 67 (D.C. Cir.

1976) (Bazelon, C.J., and McGowan, J., concurring);

Internat’l Harvester Co. v. Ruckelshaus, 478 F.2d 615,

652 (D.C. Cir. 1973) (Bazelon, C.J., concurring in

result) ].

A respected commentator on administrative law has

termed this uncritical substantive review, which has been

developed in several concurring opinions of Judge Bazelon,

as the “Bazelon heterodoxy” and has condemned it as legally

inadequate. Davis, Administrative Law Treatise, § 6:36, p.

607 (2d Ed. 1978). This criticism is also reflected in the

decision in Ethyl Corp. v. EPA, 541 F.2d 1, 68-69 (D.C.

Cir. 1976) wherein Judge Leventhal observed in a concur-

ring opinion:

Taking [Judge Bazelon’s] opinion in its fair implica-

tion, as a signal to judges to abstain from any substan-

tive review, it is my view that while giving up is the

easier course, it is not legitimately open to us at present.

* * *

. .. Better no judicial review at all than a charade that

gives the imprimatur without the substance of judicial

confirmation that the agency is not acting unreasonably.

5? Slip Opinion, pp. 20-28 (App. 38-46).

58 In fact, under the Bazelon heterodoxy, the court is not required

to analyze technical or economical evidence at all. Ethyl Corp. v.

EPA, 541 F.2d 1, 67 (D.C. Cir. 1976), concurring opinion of

Bazelon, C.J.

23

Once the presumption of regularity in agency action is

challenged with a factual submission, and even to

determine whether such a challenge has been made, the

agency’s record and reasoning has to be looked at. If

there is some factual support for the challenge, there

must be either evidence or judicial notice available

explicating the agency’s result, or a remand to supply

the gap. 541 F.2d 1 at 68, 69 (Leventhal, J., concur-

ring).

The District of Columbia Circuit now has subscribed to

the Bazelon heterodoxy as the proper measure of judicial

review to be accorded this standard and indeed all subse-

quent OSHA standards. Consequently, when called upon to

review OSHA’s technical and economic findings, the District

of Columbia Circuit confined its responsibility to a determi-

nation of whether the agency adequately articulated reasons

for its findings.

This case demonstrates that such restricted judicial review

is wholly inadequate. For instance, because the court refused

to analyze the economic evidence, it sustained the finding

of economic feasibility on the basis of an assumption and

sanctioned an economic analysis made on a cost estimate

that did not reflect the cost of the standard. Likewise, the

court sustained the four year compliance period without even

considering the evidence addressed to that issue.™

These examples show that by too narrowly defining its role

the court sustained the agency’s findings on two critical

issues when there was actually no evidentiary support for

OSHA’s findings. This is because the cosmetic test adopted

by the District of Columbia Circuit required OSHA to artic-

ulate, but not to support, its findings. These examples also

show that the test applied in this case rendered illusory peti-

°¢ See, pp. 12-13, supra.

24

tioners’ entitlement to exacting judicial review of standards

which strike at the heart of their economic future.

The task of proper review may be difficult and demanding

but, unless the reviewing court examines and analyzes the

evidence to which its attention is called, the entire regu-

latory system becomes a charade in which evidence is placed

in the record only to be ignored and public participation

in rulemaking is made meaningless.”

The adoption of such a restricted standard of judicial re-

view by the District of Columbia Circuit has great practical

significance for it places a cloud over the future application

of the substantial evidence test in all administrative law

cases.”* This is especially true because the unorthodox rule

was adopted by the District of Columbia Circuit, the court

which reviews more administrative agency actions than the

rest of the Courts of Appeals combined.

Petitioners submit that the reviewing court does not neces-

sarily have to comb the entire record compiled in the rule-

making process, but it should be required to examine and

analyze the conflicting technical and economic evidence

brought to its attention by the parties on appeal, and it must

determine whether the evidence which the agency cites as

support for its actions is, in fact, substantial when considered

in perspective of other evidence which fairly detracts from

that cited by the agency. Likewise, petitioners submit that

55 Indeed, petitioners’ right to review is of constitutional propor-

tions. The Court has indicated numerous times that Congress could

not totally preclude judicial review consistently with due process.

Crowell v. Benson, 285 U.S. 23, 47 (1932); Yakus v. United States,

321 U.S. 414 (1944); See Hart & Wechsler, Federal Courts 2d Ed.

pp. 339-40 (1973). The illusory review below was in essence a

denial of review in violation of petitioners’ due process rights under

the Fifth Amendment.

5° Of course, it affected adversely the outcome of this case which is

one of critical importance to the entire textile industry.

25

the reviewing court is obligated to discern whether the

“evidence” cited by the agency is, in fact, reliable evidence—

not just assumptions or unsupported opinions. It is beyond

question that in evaluating evidence the courts have ex-

pertise far superior to that of administrative agencies.

In sum, when Congress required that OSHA standards be

reviewed under the substantial evidence test it obligated the

Courts of Appeals to accept their proper role in implement-

ing that test. Constitutionally adequate judicial review under

the standard set by Congress leaves no room for escape from

the necessity to review technical and economic evidence.

Consequently, due process is satisfied only when the review-

ing court accepts this responsibility. The District of Colum-

bia Circuit failed to provide the kind of review to which peti-

tioners are entitled and thereby deprived them of due process

of law.

4. The Wage Guarantee Provision Exceeds OSHA’s Statutory Au-

thority.

The standard provides that when a physician determines

that an employee is unable to wear a respirator the employee

shall be given the opportunity to transfer to another position

and that:

The employer shall assure an employee who is

transferred due to an inability to wear a respirator

suffers no loss of earnings or other employment rights

or benefits as a result of the transfer. 43 Fed. Reg.

27396 q (£)(2)(v) (emphasis added).

OSHA explained that:

...[TJhe goal of this provision is to minimize any ad-

26

verse economic impact on the employee by virtue of the

inability to wear a respirator.”

OSHA’s notions of economic fairness resulted in a rule

which would require employers to guarantee the wages of

these employees without any finding of actual health impair-

ment and even if the inability to wear a respirator were

wholly unrelated to cotton dust exposure. Petitioners respect-

fully submit that OSHA simply does not have the authority

under the Act to impose wage guarantees, particularly when

the goal of such provisions is economic rather than health

related.

No one contends that the Act expressly confers upon

OSHA the authority to regulate wages or other employment

benefits. As OSHA concedes:

It is true that the. ..Act contains no language which

either explicitly requires or expressly authorizes the in-

clusion of [wage guarantee provisions] in OSHA health

standards. 43 Fed. Reg. 52976 (1978).

This alone should be determinative, for when Congress has

°* 43 Fed. Reg. 27387 (1978). OSHA also stated:

It is manifestly unfair that employees who are unable to wear

respirators suffcr loss of jobs or other economic detriment be-

cause their employers have not yet achieved compliance with the

engineering control requirements of the standard, but are relying

instead on the interim and less effective device of respirators.

During the multi-year period prior to the full implementation

of engineering controls, this risk of adverse economic impact on

employees is a real one. Accordingly, we conclude that where

the employer is relying upon respirators as the means of limiting

worker exposure, his or her compliance obligation must include

the obligation to assure that employees who are unable to wear

respirators not suffer any economic detriment. Id. [Emphasis

added].

27

intended to give to an agency authority to regulate wages

and other benefits, it has done so in explicit terms.

The court below held that OSHA has implied authority

to guarantee wages. It found the authority in Section 3(8),

which it construed as impliedly authorizing OSHA to regu-

late wages and other benefits.”®

This interpretation of the Act is fundamentally at odds

with the expressed intent of Congress to withhold from

OSHA authority to regulate pay or other benefits. Whirl-

pool Corp. v. Marshall, 48 U.S.L.W. 4189 (February 26,

1980) addressed this point authoritatively:

It is also important to emphasize that what primarily

troubled Congress about the Daniels bill’s ‘strike with

pay’ provision was its requirement that employees be

paid their regular salary after having properly invoked

their-right to refuse to work under the section. It is

instructive that virtually every time the issue of an em-

ployee’s right to absent himself from hazardous work

was discussed in the legislative debates, it was in the

context of the employee’s right to continue to receive

his usual compensation.

** For example, the Federal Coal Mine Health and Safety Act of

1969, as amended by the Federal Mine Safety and Health Amend-

ments Act of 1977, authorizes miners to elect to transfer jobs for

specified health reascus and specifically provides that: “[a]ny miner

so transferred shail receive compensation for such work at not less

than the regular rate of pay received by him immediately prior to

his transfer.” 30 U.S.C. § 843(b)(3). Similarly, the Clean Air Act

Amendments of 1977 include an explicit mandate for employee

earnings protection. See 42 U.S.C. § 7410(a) (6).

°° Slip Opinion, pp. 77-80 (App. 95-98). The Court of Appeals

ignored OSHA’s statement that the goal of the provision was

€conomic fairness and constructed a health nexus for the provision

by adopting the post hoc rationale of OSHA’s counsel that the POssi-

bility of a disadvantageous transfer “may” cause the employee to

refrain from disclosing health impairment. Slip Opinion, p. 79. (App.

97). In any event, this rationale is inadequate since it is inability to

wear a respirator, not health impairment that triggers the wage guar-

antee provision. 29 C.F.R. § 1910.1043(f) (2) (v) (App. 8-9).

28

When it rejected the ‘strike with pay’ concept, there-

fore, Congress very clearly meant to reject a law un-

conditionally imposing upon employers an obligation to

continue to pay their employees their regular pay checks

when they absented themselves from work for reasons

of safety. 48 U.S.L.W. at 4193-94 (footnotes omitted).

Thus, Whirlpool is dispositive of OSHA’s contention that

Congress intended to confer on it authority to impose wage

guarantees on employers.” The wage guarantee provision in

this standard unconditionally imposes on employers the obli-

gation to continue unchanged an employee’s wages and other

benefits when the employee cannot wear a respirator and

thus transfers to a job requiring lesser skills and warranting

lesser wages. Clearly, if Congress refused explicitly to au-

thorize continued pay even where the employee absented

himself from work for reasons of safety, it cannot be said

impliedly to have authorized continued pay merely because

the employee cannot wear a respirator.

The intent of Congress not to give OSHA authority to

order wage guarantees is further expressed in Section

4(b) (4) of the Act:

Nothing in this Chapter shall be construed to supersede

or in any manner affect any workmen’s compensation

law or to enlarge or diminish or affect in any other man-

ner the common law or statutory rights, duties, or lia-

bilities of employers and employees under any law with

respect to injuries, diseases, or death of employees aris-

ing out of, or in the court of, employment. 29 U.S.C.

§ 653(b) (4) [emphasis added].

The wage guarantee provision requires employers to pay a

°° Whirlpool is especially applicable to the present case because

the rejected “strike with pay” provision discussed in Whirlpool would

have guaranteed wages of employees who absented themselves from

exposure to potentially toxic substances. 48 U.S.L.W. at 4192, n. 20.

29

transferred employee one hundred percent of his pre-transfer

wages and other benefits. If, as petitioners believe, there is

no nexus between material impairment of health and the

wage guarantee provision, that provision is clearly unautho-

rized. If, as the court below held, such a nexus does exist,

then the wage guarantee provision has a direct and severe

effect on state workmen’s compensation laws and thereby

contradicts the intent of Congress expressed in Section

4(b) (4) of the Act.

Thus, Section 4(b) (4) of the Act underscores the clear

message given by Congress’ rejection of the “strike with

pay” provision. Congress did not either expressly or im-

pliedly authorize OSHA to promulgate the wage guarantee

provision. It is vital that the Court set aside the provision

and thereby enforce the limits on OSHA’s delegated power.

30

CONCLUSION

For all the foregoing reasons the petition for a writ of

certiorari should be granted.

Respectfully submitted,

AMERICAN TEXTILE

MANUFACTURERS

INSTITUTE, INC.

By: /s/ ROBERT H. Bork

ROBERT H. Bork

142 Huntington Street

New Haven, Connecticut 06511

(203) 624-6027

By: /s/ GREGORY B. ToBIN

Grecory B. ToBIN

Ogletree, Deakins, Smoak,

Stewart & Edwards

3920 First National Bank Tower

Atlanta, GA 30303

(404) 588-1300

By: /s/ JOHN S. BATTLE, Jr.

JOHN S. BATTLE, Jr.

ROBERT E. PAYNE

THOMAS W. McCANDLISH

McGuire, Woods & Battle

1400 Ross Building

Richmond, VA 23219

(804) 644-4131

31

MILLIKEN AND COMPANY

By: /s/ ROBERT T. THOMPSON

ROBERT T. THOMPSON

Gary S. KLEIN

Thompson, Mann & Hutson

The Daniel Building-Suite 2222

Greenville, S. C. 29602

(803) 242-3200

ARKWRIGHT MILLS

By: /s/ THomas A. EvINs

THOMaAs A. EvINs

CLYDE H. HAMILTON

Butler, Means, Evins & Browne

P. O. Box 451

Spartanburg, S. C. 29304

(803) 582-5630

SPARTAN MILLS

By: /s/ JosepH K. Mappox, Jr.

JOSEPH K. Mappox, Jr.

P. O. Box 5784

Spartanburg, S. C. 29304

(803) 574-0211

BLAIR MILLS, INC.

By: /s/ ROBERT T. THOMPSON

ROBERT T. THOMPSON

Gary S. KLEIN

Thompson, Mann & Hutson

The Daniel Building-Suite 2222

Greenville, S. C. 29602

(803) 242-3200

ROBERT T. THOMPSON

Gary S. KLEIN

Thompson, Mann & Hutson

The Daniel Building

Suite 2222

Greenville, S. C. 29602

(803) 242-3200

ROGER L. TUTTLE

2291 Memorial Drive

Danville, VA 24541

(804) 799-7121

SAMUEL K. ABRAMS

BRIAN E. MORAN

Baker & Hostetler

1776 K Street, N.W.

Suite 900

Washington, D. C. 20006

(202) 293-6260

H. J. Eta, III

NEIL W. KOONCE

Cone Mills Corporation

1201 Maple Street

Greensboro, N. C. 27405

(919) 279-6567

THOMAS A. EvVINS

CLypE H. HAMILTON

32

HERMITAGE, INC.

By: /s/ ROBERT T. THOMPSON

DAN RIVER, INC.

By: /s/ ROGER L. TUTTLE

CONE MILLS CORPORATION

By: /s/ SAMUEL K. ABRAMS

MAYFAIR MILLS

By: /s/ THOMAS A. EvINs

Butler, Means, Evins & Browne

P. O. Box 451

Spartanburg, S. C. 29304

(803) 582-5630

33

SPRINGS MILLS, INC.

By: /s/ DAN M. Byrp, Jr.

DAN M. Byrn, Jr.

J. SPRATT WHITE

P. O. Box 70

Fort Mill, S. C. 29715

(803) 547-2901

RIEGEL TEXTILE CORPORATION

By: /s/ FRED M. RICHARDSON

FRED M. RICHARDSON

Lovic A. Brooks, Jr.

CHARLES A. EDWARDS

Constangy, Brooks & Smith

1900 Peachtree Center Building

230 Peachtree Street, N.W.

Atlanta, GA 30303

(404) 525-8622

FIELDCREST MILLS, INC.

By: /s/ JOHN S. BATTLE, Jr.

JOHN S. BATTLE, Jr.

ROBERT E. PAYNE

THOMAS W. McCAaNDLISH

McGuire, Woods & Battle

1400 Ross Building

Richmond, VA 23219

(804) 644-4131

WEST POINT-PEPPERELL, INC.

By: /s/ RICHARD H. Monk, Jr.

RICHARD H. Monk, Jr.

C. POWERS DoRSETT

West Point-Pepperell, Inc.

P. O. Box 71

West Point, GA 31833

(205) 756-7111

34

CERTIFICATE OF SERVICE

The undersigned, who certifies that he is a member of the

bar of this Court, hereby certifies that on this 14th day of

March, 1980, a copy of the foregoing Petition for a Writ of

Certiorari filed by the American Textile Manufacturers In-

stitute, Inc., Milliken & Company, Arkwright Mills, Spartan

Mills, Blair Mills, Inc., Hermitage, Inc., Dan River, Inc.,

Cone Mills Corporation, Mayfair Mills, Springs Mills, Inc.,

Riegel Textile Corporation, Fieldcrest Mills, Inc. and West

Point-Pepperell, Inc. was mailed, postage prepaid, to each

of the following persons at the addresses indicated below:

Charles M. Crump, Esq.

Apperson, Crump, Duzane & Maxwell

2610-100 North Main Building

Memphis, Tennessee 38103

Carl W. Vogt, Esq.

Fulbright & Jaworski

1150 Connecticut Avenue, N.W.

Washington, D. C. 20036

Neal P. Gillen, Esq.

1701 L Street, N.W., Suite 460

Washington, D. C. 20036

J. Albert Woll, Esq.

815 Sixteenth Street, N.W.

Washington, D. C. 20006

35

George H. Cohen, Esq.

Jeremiah A. Collins, Esq.

Bredhoff, Gottesman, Cohen & Weinberg

1000 Connecticut Avenue, N.W.

Washington, D. C. 20036

Arthur M. Goldberg, Esq.

15 Union Square

New York, New York 10003

John A. Bryson, Esq.

Allen H. Feldman, Esq.

United States Department of Labor

Room $4004

200 Constitution Avenue, N.W.

Washington, D. C. 20210

Wade H. McCree, Jr.

Solicitor General

Department of Justice

Washington, D. C. 20530

By /s/ ROBERT E. PAYNE