Amicus Curiae Brief — Firestone Plastics Co. v. United States Department of Labor

INDEX

Page

T. InTerREsT or THE AMICUS CURIAE .........----005 1

IL Reasons ror GRANTING THE WRIT .........-.++-+ 3

1. Tue Decision or THE Court BELOw IMPROPERLY

Limits THE Supervisory Rote or Courts OF

AppgeAts Review1nc OccupATIONAL SAFETY AND

Heattu STANDARDS PURSUANT TO THE SUBSTAN-

was, Movipecs THE 6. ccc ccecrecveosesteezes 3

9. MISAPPLICATION OF THE SUBSTANTIAL EVIDENCE

Test By THE Court BELow CONFLICTS WITH

Decisions or OTHER Courts oF APPEALS ...... 9

SUE, COMCEIINE ak cen ds Sesiacadend ceapencdiataee 12

AUTHORITIES CITED

CAsEs:

Associated Industries of New York State v. United

States Department of Labor, 487 F.2d 342 (2d Cir.

BOTRY co nhckd nap cinde dash si aeetassecebearenes 4,10

Chrysler Corporation v. Department of Transportation,

472 F.2d 659 (6th Cir. 1972) .......ececcecccees

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

Ot gt eer ery Sere. Ter ye 7

Dry Color Manufacturers Ass’n. v. Department of

Labor, 486 F.2d 98 (3d Cir. 1973) /:..-.....---.

Ethyl Corporation v. EPA, — F.2d — (Slip Op. No.

73-2205) (D.C. Cir. Jan. 28, 1975) ............--

Florida Peach Growers Ass’n. v. United States Depart-

ment of Labor, 489 F.2d 120 (5th Cir. 1974) ..... 4,9

International Harvester Company v. Ruckelshaus, 478

F.3a 615 (DA. Cir. 1078) 2.0... cccccsccecccesse 11

Industrial Union Department, AFL-CIO v. Hodgson,

499 F.2d 467 (D.C. Cir. 1974) ........cccccccees 4,9

Kotch v. Board of River Port Pilot Commissioners,

SP See Oe RED conc ven oddundecacvuevaes sews

ii Table of Authorities Continued

Page

National Roofing Contractors Association v. Brennan,

495 F.2d 1294 (7th Cir. 1974), cert. denied, — U.S.

—, 42 L.Ed. 2d 801, 95 S.Ct. 775 + SA eer 4

North Dakota State Board of Pharmacy Vv. Snyder’s

Drug Stores, Inc., 414 U.S. 156 (1978) 2 cscccsese

Synthetic Organic Chemical Manufacturers Ass’n. Vv.

Brennan, 503 F.2d 1155 (3d Cir. 1974), petition for

cert. filed, No. 74-789 (Dec. 21, 1974) ............ 11

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474

(1951)... .cececceccccccccccecccccccecceress 6, 9,11

STATUTES:

Clean Air Act, 84 Stat. 1898, 42 U.S.C. § 1857f-6e(c)

(1)(A) (1970) ..... cece cece reece cere eee eeeees

Federal Insecticide, Fungicide and Rodenticide Act,

78 Stat. 192, 7 U.S.C. § 135b(d) (1970) .......... 4

Labor Management Relations Act, 61 Stat. 148, ch. 120,

29 U.S.C. §160(e) and (f) (1970) .......---++-- 6

Natural Gas Act, 52 Stat. 831, 15 U.S.C. §7 17r(b)

(1970) cc ccccccvccccciccccccccccccvescccosess 4

Occupational Safety and Health Act of 1970, 84 Stat.

1590, 29 U.S.C. § 651, et seq. ....--- eee eeeeeeees 2

Section 6, 29 U.S.C. § 655 .........-2--0e0-- 3

Section 6(b) (5), 29 U.S.C. § 655(b)(5) ..... 7,8

Section 6(f), 29 US.C. §655(f) ........--- 3, 4,7

MISCELLANEOUS:

29 C.F.R. § 1910.4 (1974) ....- cece cece cece cece 3

116 Cong. Rec. 42206, December 17, ES whine ene ts 4

H Friendly, Benchmarks, 79, 95, 112-13 (1967) ...... 10

Schotland, Federal Judicial Review, 26 Admin.L.Rev.

119 (1974) 22... cece eee ce cc ceececceenceeees

Wright, Court of Appeals Review of Federal Regula-

tory Agency Rulemaking, 26 Admin.L.Rev. 199

(1974) 2. cccccccccccccccscccccccccccccssosons 11

Se

Valine Ri ilies sdsitbes:

IN THE

Supreme Court of the United States

OcToBER TERM, 1974

No. 74-1185

FIRESTONE PLastics CoMPANY, a Division of

THE Firestone Tire & RupBer CoMPany,

Union CARBIDE CORPORATION

and

THE Society OF THE Puastics Inpustry, INc.

Petitioners,

v.

Unitep States DEPARTMENT OF LABOR,

Joun T. Dunvop, Secretary, U. S. Department of

Labor and Joun H. Srenper, Assistant Secretary of

Labor for Occupational Safety and Health,

and

AMERICAN FEDERATION OF LABOR AND CONGRESS OF

INDUSTRIAL ORGANIZATIONS AND INDUSTRIAL

Union Department, AFL-CIO

BRIEF AMICUS CURIAE OF THE CHAMBER OF

COMMERCE OF THE UNITED STATES OF AMERICA IN

SUPPORT OF THE PETITION FOR WRIT OF CERTIORARI

This brief amicus is filed by the Chamber of Com-

merce of the United States of America with the con-

sent of the parties as provided for in Rule 42(2) of

the Rules of this Court.*

* Consents of all parties to the Chamber’s participation have

been filed with this Court.

2

L

INTEREST OF THE AMICUS CURIAE.

The Chamber of Commerce of the United State of

America (hereinafter ‘‘Chamber’’) is a federation

consisting of a membership of over 3,700 state and

local chambers of commerce and trade and profes-

sional associations, a direct business membership in

excess of 46,000 and an underlying membership of

approximately 5,000,000 business firms and individuals.

It is the largest association of business and profes-

sional organizations in the United States.

The Chamber regularly represents the interests of

its member-employers in important matters vitally

affecting those interests. Such representation consti-

tutes a significant aspect of the Chamber’s functions.

Accordingly, the Chamber has sought to advance those

interests in a wide spectrum of litigation before this

Court.*

The Chamber files this brief, amicus curiae, to pre-

sent its views upon a case of great importance in the

administration of the Occupational Safety and Health

Act of 1970, 28 U.S.C. § 651, et seq., which has not

* E.g., Howard Johnson Company Ine. v. Detroit Local Joint

Executive Board, No. 73-631 (1974) ; Super Tire Engineering Com-

pany, Supercap Corporation and A. Robert Schaevitz v. Lloyd W.

McCorkle, et al., No. 72-1554 (1974); Marco DeFunis and Betty

DeFunis, his wife; Marco DeFunis, Jr. and Lucia DeFunis, his

wife v. Charles Odegaard, President of the University of Wash-

ington, et al., No. 73-235 (1974) ; Corning Glass Works v. Brennan,

No. 73-29; N.L.R.B. v. Bell Aerospace Company Division of Tex-

tron, Ine., No. 72-1598 (1974); Boys Markets v. Retail Clerks

Union, 398 U.S. 235 (1970) ; N.L.R.B. v. The Boeing Company, et

al., 412 U.S. 84 (1973); N.L.R.B. v. Granite State Joint Board,

409 U.S. 213 (1972); N.L.R.B. v. Burns Int’l Security Services,

Ine., 405 U.S. 272 (1972) ; N.L.R.B. v. Pittsburgh Plate Glass Co.,

404 U.S. 517 (1971); H. K. Porter Co. v. N.L.R.B., 397 U.S. 99

(1970).

ee aes

3

been considered previously by this Court. The interest

of the amicus curiae is predicated upon the far-reach-

ing significance of this case and the devastating impli-

cations of the decision below upon the proper admin-

istration of the Act by the Assistant Secretary of

Labor for Occupational Safety and Health (herein-

after ‘‘ Assistant Secretary’’). Although the instant

case raises many significant issues, this brief will be

confined to the important issues relating to the super-

visory role of the Federal Courts of Appeals in review-

ing actions of the Assistant Secretary in promulgat-

ing occupational safety and health standards.

II.

REASONS FOR GRANTING THE WRIT

1, The Decision of the Court Below Improperly Limits the

Supervisory Role of Courts of Appeals Reviewing Occupa-

tional Safety and Health Standards Pursuant to the Sub-

stantial Evidence Test.

Section 6 of the Act (29 U.S.C. § 655) sets forth the

procedure for the promulgation of safety and health

standards. Provision for judicial review of standards

adopted under this procedure is found in Section 6(f)

(29 U.S.C. §655(f)). This section provides that

‘“‘!t]he determinations of the Secretary shall be con-

clusive if supported by substantial evidence in the

record considered as a whole.’’ It is settled that with

respect to ‘‘informal rulemaking”’ proceedings, such as

those conducted by the Assistant Secretary in this

ease,’ that courts of appeals are required by the statute

* The Secretary of Labor has delegated all the statutory stand-

ard-setting authority granted by Section 6 of the Act to the

Assistant Secretary of Labor for Occupational Safety and Health,

whose decisions and determinations with respect to occupational

safety and health standards are deemed final determinations of

the Secretary for the purposes of the Act’s judicial review pro-

visions (29 CFR § 1910.4 (1974) ).

4

: to apply the substantial evidence test to “‘policy”’

: determinations and decisions essentially “‘legislative’’

in character as well as factual issues resolved by the

administrative agency.’ Associated Industries of New

York State v. United States Department of Labor, 487

F.2d 342, 348-49 (2d Cir. 1973) ; Industrial Union De-

partment, AFL-CIO v. Hodgson, 499 F.2d 467, 473-75

(D.C. Cir. 1974); Florida Peach Growers Ass’n v.

United States Department of Labor, 489 F.2d 120,

127-29 (5th Cir. 1974); National Roofing Contractors

Association v. Brennan, 495 F.2d 1294, 1298-99 (7th

Cir. 1974), cert. denied, — U.S. —, 92 L.Ed.2d 801, 95

8.Ct. 775 (1975).

: \ The ‘uneasy partnership’’* between the appellate

- equrts and administrative agencies created by Con-

_ gress’ requirement that the substantial evidence stand-

: The legislative history of Section 6(f) confirms conclusively

: that the substantial evidence test is to be applied to policy and

- factual determinations made by an administrative agency. Unlike

other environmental legislation passed by Congress, which expressly

provided for less rigorous standards of review by specifically

limiting application of the test only to issues of fact, ¢.g., Federal

Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 135b(d)

(1970), Natural Gas Act, 15 U.S.C. §717r(b) (1970), this Act’s

drafters were acutely aware of the necessity for rigorous judicial

review of OSHA policy decisions primarily because no independent

standards review board was provided for as part of the adminis-

trative p ure. See remarks of Congressman Steiger, chief

House S of the bill which was eventually enacted, 116 Cong.

Ree, 42206\(December 17, 1970). As noted by Judge Friendly in

Associated Industries of New York State v. United States Depart-

ment of Labor, 487 F.2d 342, 348-49 (2d Cir. 1973), the sub-

stantial evidence test was deliberately incorporated into the statute

as an explicit tompromise between differing House and Senate bills.

* The phrase is Judge Friendly’s. See Associated Industries of

New York State v. United States Department of Labor, 487 F.2d

342, 354 (2d Cir. 1973).

5

ard of review be applied does not permit the appellate

courts completely to abdicate their responsibility for

rigorous review of agency policy determinations. Yet,

such abdication of its responsibility under the substan-

tial evidence test is precisely what the court below did.

Its misapplication of the test to the determinations of

the Assistant Secretary not only violates the statutory

mandate, but if followed by other courts of appeals, will

result in almost total judicial deference to any deter-

mination characterized by the Assistant Secretary or a

court as predominantly a ‘‘policy’’ determination or

one essentially ‘‘legislative’’ in character.

In dealing with the policy choices with respect to

the health hazards of vinyl chloride monomer exposure,

the court below limited its analysis to reviewing only

that portion of the record which supported the Assist-

ant Secretary’s decision to set the permissible exposure

level of the new standard at what the court charac-

terized as ‘‘the lowest detectable level’’ (Pet. App.

18a). Finding that the evidence relied on by the As-

sistant Secretary supported his choice of policy, the

court took its analysis no further, thereby failing to

fulfill its duty under the substantial evidence test. In

its analysis, the Court refused to consider any of the

substantial record evidence which contradicts the con-

clusions reached by the Assistant Secretary.

The substantial evidence test had its genesis in the

practice of courts of appeals when reviewing decisions

of the National Labor Relations Board of sustaining

the Board’s findings if supported by any record

evidence, considered by itself and in isolation and

without regard to the possible existence of contradic-

tory evidence in the record. These appellate decisions

led to protests against ‘‘shocking injustices’? and

ny ~ oneane

OAS BOOBS dnote lt

6

intimations of judicial abdication. Mr. Justice Frank-

furter, in Universal Camera Corp. v. N.L.R.B., 340

U.S. 474 (1951), made it absolutely clear that the in-

corporation of the substantial evidence test into the

judicial review provisions of the Labor Management

Relations Act was designed to require the appellate

courts to review and analyze contradictory evidence or

evidence from which conflicting inferences could be

drawn and to determine if that evidence renders the

evidence relied upon by the agency insubstantial. It

was no longer sufficient, Mr. Justice Frankfurter rea-

soned, for courts of appeals simply to ascertain whether

any evidence in the record considered in isolation sub-

stantiated the Board’s decision. ‘‘The substantiality

of evidence must take into account whatever in the

record fairly detracts from its weight’”’ (340 U.S. at

488).

Plainly, then, the decision of the court below did not

apply the substantial evidence test, as articulated in

Universal Camera, to the determinations of the As-

sistant Secretary. The lower court failed to ‘“‘take

into account whatever in the record fairly detracts

from” the evidence presented by the Assistant Secre-

tary.

The lower court’s decision permits application of a

standard of review which only requires the Assistant

Secretary to show a minimal ‘‘rational basis’’ for the

determination made.* Moreover, the decision below

4 See Mr. Justice Frankfurter’s historical analysis of the judicial

review provisions of the Labor Management Relations Act, 29

U.S.C. §160(e) and (f) (1970), in Universal Camera Corp. v.

N.L.R.B., 340 U.S. 474, 478-79 (1951).

5 This is similar to the standard of review ordinarily applied

to legislation which only requires some rational basis for the

action taken. See, ¢.g., North Dakota State Board of Pharmacy v.

Snyder’s Drug Stores, Inc., 414 U.S. 156 (1973) ; Kotch v. Board

of River Port Pilot Commissioners, 330 U.S. 552 (1947).

7

ealls for a less searching inquiry into the considera-

tions underlying the Assistant Secretary’s action than

is required by the “‘arbitrary and capricious’’ standard

of review—a less rigorous standard than the sub-

stantial evidence test. In Ethyl Corporation v. EPA,

F.2d. (Slip Op. No. 73-2205) (D.C.Cir.

Jan. 28, 1975), the Court of Appeals applied the

‘‘arbitrary and capricious” standard to regulations is-

sued pursuant to the Clean Air Act (42 U.S.C.

§ 1857f-6e(c) (1) (A) (1970)). Yet, unlike the court

below which purported to apply the substantial

evidence test, the court in Ethyl fully analyzed the

evidence contrary to that relied on by the Adminis-

trator and found the evidence relied on so wanting in

comparison as to require invalidation of the regula-

tions (Slip Op. No. 73-2205, Opinion of Court at 49ff).

Clearly, the substantial evidence test requires as much,

if not more, of a court of appeals when reviewing an

OSHA standard. °

Consequently, whatever analysis or standard of

review was applied by the court below, it is totally

contrary to the requirements of the Act. Section 6(f)

requires all determinations of the Assistant Secretary

to be supported by substantial evidence on the record

considered as a whole. By misapplying that test in

the instant case, the lower ccurt renders totally mean-

ingless Section 6(b)(5) of the Act. That provision

requires that standards dealing with toxic materials

and substance: o harmful physical agents be ‘**based

upon research, demonstrations, experiments, and such

6 See also, Citizens to Preserve Overton Park vy. Volpe, 401 US.

402, 415-17 (1971), where this Court required the appellate courts

to engage in a much more searching inquiry into agency action

under the ‘‘arbitrary and capricious’’ test than that in which the

court below engaged using the more stringent ‘‘substantial evi-

dence’’ test.

8

other information as may be appropriate.”’ In addi-

tion, the Assistant Secretary is also to consider ‘‘the

feasibility of the standard’’ in making determinations

regarding standards. Of what use is the development

of an extensive record before an administrative agency

if appellate courts, in the manner of the court below,

simply abdicate their responsibility and, in effect,

rubber stamp the Administrator’s actions?

The dangers inherent in such abdication by the

appellate courts of their congressionally mandated

supervisory role readily appear. A judicial rubber

stamp allows the Assistant Secretary to exercise un-

controlled discretion to promulgate occupational safety

and health standards that are without foundation in

policy or fact. This is clearly contrary to Section

6(b) (5) of the Act which requires assessment of tech-

nological and economic feasibility considerations fun-

damental to the continued existence of business enter-

prises sought to be regulated.

The development of safety and health standards is a

new role for the Labor Department, and its lack of

experience in evaluating such considerations can be

expected to produce erroneous conclusions concerning

technological and economic feasibility, or even worse,

as here, a total disregard of such matters. The sub-

stantial evidence test was incorporated into the Act’s

judicial review provisions to provide a check on just

such administrative disregard of technological and

economic considerations. Severe financial hardship

and possible ruin for the small businessman and in-

creased concentration of some industries, the necessary

result of improper standards unchecked by proper

judicial review, does not serve the best interests of the

nation and may, indeed, conflict with other national

LMA Ses Se eed eee Ee

9

goals. It is imperative, therefore, that this Court act

to correct the imbalance created by the decision of the

court below.

2. Misapplication of the Substantial Evidence Test by the

Court Below Conflicts with Decisions of Other Courts of

The critical necessity that this Court review the

decision below is further demonstrated by the fact that

other courts of appeals, when reviewing determina-

tions by the Assistant Secretary, have applied the sub-

stantial evidence test in the manner prescribed by Mr.

Justice Frankfurter in Universal Camera. There-

fore, the decision below not only violates the statute

and encourages unchecked administrative discretion,

but also conflicts with decisions of other courts of ap-

peals by failing to undertake the analysis prescribed

by Universal Camera. :

In Industrial Union Department, AFL-CIO v.

Hodgson, 499 F.2d 467 (D.C.Cir. 1974), the Court of

Appeals for the District of Columbia reviewed the

entire record and evaluated the evidence relied on by

the Assistant Secretary including that which detracted

from its weight and as a result remanded that portion,

of an asbestos exposure standard which required a

uniform effective date for all segments of the asbestos

industry. In remanding, the Court held that the As-

sistant Secretary, when promulgating the standard,

failed to articulate why he elected to ignore and, in

essence, rejected the record evidence showing inter-

industry and intra-industry differences concerning the

time needed by employers to meet the stand (499 F.2d

at 480-81.

Florida Peach Growers Ass’n v. United States De-

partment of Labor, 489 F.2d 120 (5th Cir. 1974), is

10

in conflict with the decision below because the court in

that case reviewed not only the evidence relied upon by

the Assistant Secretary but also the conflicting evidence

and recommendations supplied by a Standards Ad-

visory Committee and its Pesticides Subcommittee,

convened by the Assistant Secretary pursuant to Sec-

tion 7 of the Aet, and an interagency Task Group on

Occupational Exposure to Pesticides. Although the

court indicated that the contrary recommendations and

findings of the Assistant Secretary’s investigators did

not preclude him from issuing an emergency standard,

it held that the determinations of the Assistant Secre-

tary were not supported by substantial evidence, noting

that the contrary recommendations rendered insub-

stantial the evidence relied upon by the Assistant Sec-

retary (489 F.2d at 129; see also, 489 F.2d at 126-132).

In the present case the findings and recommendations

of OSHA’s own staff and independent consultants con-

tradicted the Assistant Secretary’s determination on

the health hazards of vinyl chloride monomer exposure.

This evidence should have been evaluated by the court

below in ascertaining whether the evidence relied on

by the Assistant Secretary was thereby rendered in-

substantial. This evaluation was not made.

Finally, Judge Friendly, speaking for the Second

Circuit in Associated Industries of New York State v.

United States Department of Labor, 487 F.2d 342, 351-

53 (2d Cir. 1973), applied the substantial evidence test

in a manner inconsistent and contrary to that utilized

by the panel below.’ In that case, the court vacated

7 Judge Friendly has elsewhere noted the difficulty of separating

policy making from other kinds of administrative action. H.

Friendly, Benchmarks, 79, 95, 112-13 (1967). Recent commentary

_ has noted the need for the courts exercising judicia] review ‘of

il

tke vwvopedimn’ sntty ant zhenlih standand stah-

lishing the minimum number of lavatories in indus-

trial establishments. Engaging in the analysis man-

dated by Universal Camera, Judge Friendly evaluated

the evidence contrary to that relied on by the Assistant

Secretary and ruled that in light of such detracting

evidence the policy choice made by the Assistant Sec-

retary was not supported by substantial evidence on

the record considered as a whole. *

Similarly, other courts of appeals applying the sub-

stantial evidence test to environmental legislation

other than this Act have engaged in the analysis pre-

scribed by Universal Camera. These courts, unlike the

court below, have evaluated and reviewed the evidence

relied on by an administrative agency to support a

policy decision and have determined if that evidence

was rendered insubstantial by contrary evidence de-

tracting from its weight. International Harvester

Company v. Ruckeishaus, 478 F.2d 615, 643-50 (D.C.

Cir. 1973) ; Chrysler Corporation v. United States De-

partment of Transportation, 472 F.2d 659, 671-80 (6th

Cir. 1972).

administrative action to examine closely scientific and other

technical data relied on by an administrator in promulgating stand-

ards. Schotland, Federal Judicial Review, 29 Admin.L.Rev. 119,

126-27 (1974) ; Wright, Court of Appeals Review of Federal Regu-

latory Agency Rulemaking, 26 Admin.L.Rev. 199, 209-11 (1974).

®The Court of Appeals for the Third Cireuit in Synthetic

Organic Chemical Manufacturers Ass’n v. Brennan, 503 F.2d 1155

(3d Cir. 1974), petition for cert. filed, No. 74-789 (Dee. 21, 1974),

recently also misapplied the substantial evidence test in a fashion

similar to the decision below and in substantial conflict with «

prior decision of the Third Cireuit in Dry Color Manufacturers

‘Ass'n v. United States Department of Labor, 486 F.2d 98 (3d Cir.

1973).

12

mL

CONCLUSION

For the foregoing reasons and for the reasons set

forth by the Petitioners, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

Mitton SmitH

General Counsel

Ricuarp B. BERMAN

Labor Counsel

JOHN R. SERUMGARD

Labor Relations Attorney

Chamber of Commerce of the

United States of America

1615 H Street, NW

, Washington, D. C.