Petition for Writ of Certiorari — Winters Battery Manufacturing Co. v. Usery

Supreme Court brief1976

Ask Donna

What actually matters in this document.

Text

Pa Sh pidueee ee

7 SREY

TABLE OF CONTENTS

og 8 Bs ea a a a er

ae ee ee eee

QUBSTIONS PRESENTED .......cc20006

CONSTITUTIONAL PROVISIONS INVOLVED ...

STATUTORY PROVISIONS INVOLVED ......

STATEMENT OF THE CASE ...........

REASONS FOR ALLOWING THE WRIT......

1. Important New Questions .........

is Te ss vk a t hw Ks —

ee eee ee

2. Power of Supervision ........ee.e-

A. Nature of Penalties and Forfeiture . .

SB. Welwer of Rime . 6 sce sees

Ae 6 < s k ewe ke oe ow ws

APPENDIX A — Orders of Occupational Safety

and Health Administration

Order of Sixth Circuit Court of

Appeals, Filed 7/2/75 ......

Order of Sixth Circuit Court of

Appeals, Filed 8/4/75 ......

Opinion of Sixth Circuit Court of

Appeals, Decided and filed

ey . See a

Order Staying Mandate, Filed

Fol. ee ee

APPENDIX B — Statutory Provisions Involved:

ee UBG, OU 64 64 es so

iL. meeecurrree

Page

oawonwao unm F&F, NY DH &

—

me bd

-—- — —

nN we

See Oe wk ew eo ee 47

a 48

fo ee a 50

ee a 52

APPENDIX C — Decision of Occupational Safety

and Health Review Commission . 54

AUTHORITIES CITED

Cases:

Boyd v. United States,

a en Se ee & ee S 14, 15

Carnley v. Cochran,

ee 15

Erie R. Co. v. Tompkins,

ee ee 15

Frank Irey, Jr., Inc. v. OSHRC,

ee ee 15

Johnson v. Zerbst,

a 15

Mapp v. Ohio,

a aah rene 4 ob a oe soe ew 8 we eo 14

McLean Trucking Co. v. OSHC,

BR 9

Secretary of Labor v. The Hydrate Battery Corp.,

ieee, epee Po. ZENE. wc tt tt 3, 6, 13

Swift v. Tyson,

TR ee ee 15

Warden v. Hayden,

ee a 14

Yakus v. United States,

ee 9, ll

mroocn TUCO OCH

Constitutional Provisions:

Fourth Amendment .....e-e+sseeeecece

Pifth AmemGMent «ct ce eee wo esate

Simth Ameemmmment 1. ww te eee ree en

Seventh Amendment ....cscccsccerves

Statutes:

Occupational Safety and Health Act of 1970,

Public Law 91-596:

§2(b)(1), 84 Stat. 1590, 29 U.S.C.

a ee

§ 3(3)(5), 84 Stat. 1591, 29 U.S.C.

CO he ee a Gre gg

§5, 84 Stat. 1593, 29 U.S.C. §654 ...

§ 9a), 84 Stat. 1601, 29 U.S.C. §658 ..

§10a)(b)(c), 84 Stat. 1601, 29 U.S.C.

i ea aw a

§11(a\(b), 84 Stat. 1602, 29 U, S.C.

or eal rg yy

§17(b)(c)(j), 84 Stat. 1606- 07, 29 U.S.C.

§660b)(clj) . 2. eee fey rae

Law Review:

Charney, ''The Need for Constitutional Pro-

tections for Defendants in Civil Penalty

Cases," 59 Cornell L. Rev. 478(1974) ....

3, 4, 12,15

3, 4,12, 15

3, 4, 12, 15

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

NO.

WINTERS BATTERY MANUFACTURING

COMPANY,

Petitioner,

Vv.

W. J. USERY, JR., Secretary of Labor,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals has not yet been re-

ported as of this writing. Copies of the relevant orders

of the Occupational Safety and Health Administration and

the orders and opinion of the Court of Appeals are set out

in Appendix A hereto.

JURISDICTION

(i) The Clerk's original order of summary enforce-

ment of the citations made the orders of the Occupational

Safety and Health Review by operation of law the statute

was dated and entered July 2, 1975.

(ii) The Court of Appeals’ order directing oral argu-

ment on the petitioner's petition for rehearing was dated

and entered August 4, 1975. The opinion and order deny-

ing the petition for rehearing was dated and entered De-

cember 18, 1975. An order granting a stay of mandate

pending filing of this petition was dated and entered Janu-

ary 14, 1976,

(iii) This Court has jurisdiction pursuant to 28 U.S.C.

§ 12541).

QUESTIONS PRESENTED

1. Whether a small manufacturer not represented by

counsel and not warned of the importance of counsel in a

citation of alleged Occupational Safety and Health Act vio-

lations and notification of proposed penalties pursuant to

29 U.S.C. §§ 658 and 65%a) and (b) was deprived of its

liberty and property without due process of law by the pro-

visions of 29 U.S.C. § 659(a) and (b) making such citations

and notices final and unreviewable orders of the Occupa-

tional Safety and Health Review Commission unless the

employer contests them within 15 working days, while

29 U.S.C. § 66a) provides for review of all other orders

of the commission and 29 U.S.C, § 660(b) allows the Sec-

retary’ to seek enforcement without time limitation and

without any review of the appropriateness of enforcement.

The word "Secretary" will refer throughout this petition to the present

respondent and/or to his predecessors in office as Secretary of Labor during

the pendency of the administrative and court proceedings.

CALERA LAT RE LETTE EE

rat ih ain ce A ¥ en

RLEED THF OUGH

2. Whether the penalties imposed under 29 U.S.C.

§ 666(b) and (c) are criminal in nature so as to require

observance of the safeguards against warrantless searches

and seizures under the Fourth Amendment, the freedom

from compelled self-incrimination under the Fifth Amend-

ment, and the right of jury trial, counsel and confrontation

of witnesses under the Sixth Amendment.

3. Whether, even if the penalties be deemed civil as

designated in 29 U.S.C, § 666, they can be imposed by

an administrative tribunal or otherwise without a jury

trial or appeal as guaranteed by the Seventh Amendment,

or without any impartial hearing consistent with due proc-

ess of law under the Fifth Amendment,

4. Whether the Secretary's citation shows on its face

that the single "serious" citation for allegedly excessive

exposure to lead was not based upon substantial evidence

within the rule laid down by the Occupational Safety and

Health Review Commission itself in Secretary of Labor

v. The Hydrate Battery Corporation, OSHRC Docket No.

2311.

5. Whether the Court of Appeals erred in sustaining

administrative orders that fail to show on their faces the

facts conferring jurisdiction on the commission by the

provisions of 29 U.S.C. § 652(3) and (5).

6. Whether the Court of Appeals erred in failing to

consider as relevant to the petition for enforcement mat-

ters appearing in the certified record before it showing

that the petitioner's engineering adviser, who had repre-

sented the petitioner in dealing with the Secretary's repre -

sentatives, had been taking good faith steps to abate the

complaints on a voluntary basis in conformity with the

Congressional purpose of encouraging employers to re-

duce occupational hazards, see 29 U.S.C. § 651(b)(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitution of the United States provides:

"The right of the people to be secure in their per -

sons, houses, papers, and effects, against unreason-

able searches and seizures, shall not be violated, and

no warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly describ-

ing the place to be searched, and the persons or things

to be seized."

—Amendment IV

"No person. . . shall be compelled in any criminal

case to be a witness against himself, nor be deprived

of life, liberty, or property without due process of

—Amendment V

"In all criminal prosecutions, the accused shall en-

joy the right to speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be confronted

with the witnesses against him. . . and to have the as-

sistance of Counsel for his defense."

—Amendment VI

"In suits at common law, where the value in contro -

versy shall exceed twenty dollars, the right of trial by

jury shall be preserved, and no fact tried by a jury,

shall be otherwise reexamined in any Court of the United

States, than according to the rules of the common law.

—Amendment VII

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are those of the Oc-

cupational Safety and Health Act, Public Law 91-596,

Dec. 29, 1970, § 2(b)(1), 84 Stat. 1590; § 3(3) and (5),

84 Stat. 1591; § 5, 84 Stat. 1593; § 9a), 84 Stat. 1601;

§ 10(a)(b) and (c), 84 Stat. 1601; § 11(a) and (b), 84 Stat.

1602; § 17(by(c) and (j), 84 Stat. 1606-07; as codified

29 U.S.C. §§ 651(b)(1); 652(3) and (5); 654; 658; 659(a)

(b) and (c); 660(a) and (b); and 666(b)(c) and (j).

Pertinent portions of these statutes as codified are set

out in Appendix B hereto.

STATEMENT OF THE CASE

The petitioner is a small manufacturer of electrical

storage batteries. The genesis of the proceedings lead-

ing to this petition was an inspection of its plant in Nash-

ville, Tennessee, by representatives of the Secretary pur -

suant to the Occupational Safety and Health Act of 1970,

particularly 29 U.S.C, § 657. On the basis of this in-

spection, the Secretary issued on February 12, 1973, a

citation alleging seven "non-serious" and one "serious"

violation of the Act and notice of proposed monetary pen-

alties totaling $650 for the "non-serious" violations and

$750 for the "serious" violation. [See Appendix A, pp. 18-

23, infra. |

The allegedly serious violation consisted of an allega-

tion of findings of eight-hour weighted average concentra -

tion of lead at certain employee stations within the plant

amounting to less than 1 milligram per cubic meter but

did not allege any facts showing that such concentration

constituted the existence of "a substantial probability that

death or serious physical harm could result" within the

aemeinied Ana Es Aare SEAR APD a nc li aba stb bil sc

standard of 29 U.S.C. § 666(j) as interpreted by the Occu-

pational Safety and Health Review Commission in Secre-

tary of Labor v. The Hydrate Battery Corporation, OSHRC

Docket No. 2311 [copy appended hereto for the convenience

of the Court as Appendix C]}.

The citation likewise failed to disclose facts showing

that the petitioner was an employer "engaged in a busi -

ness affecting the commerce who has employees" within

the meaning of 29 U.S.C. § 652(a)(3) and (5).

The notice of proposed penalties failed to disclose the

standards used or reasons for the amount of forreitures

proposed.

The petitioner attempted in good faith to cooperate with

the Secretary's representatives by employing an engineer

to represent it with them and to work out corrections for

their complaints. It did not hire a lawyer for advice or

seek to contest or question the citation. The petitioner

and its engineer succeeded in correcting promptly all but

one of the "non-serious" items complained of, but ran

into practical difficulties in its efforts to correct one

"serious" complaint and one of the "non-serious" com -

plaints. The engineer filed petitions for extensions of

time to correct these problems, reciting in detail the ef-

forts made and difficulties encountered in making the cor-

rections. Some of these petitions were granted without

opposition and for obviously good reason, but the first

objection to the length of time requested was sustained by

the Review Commission without giving reasons. Within

two weeks after the expiration of the last extension and

two days after Christmas, 1973, the Secretary's repre-

sentatives conducted another inspection and gave notice

January 22, 1974, of additional penalties for failure to

abate the remaining alleged violations. [See Appendix A,

infra, Pp. .]

26) SEA ROLLE IAL ELS ELL OLIN LE! AEE EES

The certified record is silent as to proceedings after

that date until April 7, 1975, when the Secretary filed a

petition for summary enforcement of its citations and

notices, considered as final orders of the Review Com-

mission, alleging jurisdiction of the Clerk of the Court

of Appeals pursuant to 29 U.S.C. § 66(b).

The petitioner then retained a lawyer, who filed a re-

sponse to the petition, challenging the propriety of an en-

forcement order on various grounds. On July 2, 1975,

the Clerk of the Court of Appeals entered an order of

summary enforcement.

The petitioner then filed a timely petition for rehear -

ing raising a number of constitutional issues as well as

calling attention to factual matters on the face of the

record as certified by the Secretary's representative.

On August 4, 1975, the Court of Appeals entered an

order setting the petition for rehearing for oral argument

on October 6, 1975. After briefing and oral argument,

a panel of the Court handed down an opinion December 18,

1975 holding that:

1. ‘We decline to allow the Clerk of this court to be-

come a rubber stamp for OSHA or any other agency. No

person should be subjected to the contempt jurisdiction of

this court unless he has violated an order or decree ap-

proved by the court and entered at the direction of the

court,” and that as thus interpreted, there is no constitu-

tional infirmity in 29 U.S.C. § 660(b) with respect to the

Clerk's duties.

2. The statute provided the petitioner an opportunity

for a due process hearing before an Administrative Law

Judge and the Commission, and the right to judicial re-

view but that it "forfeited that right by failing to give noti -

fication of contest within fifteen working days."

3. That the petitioner's other constitutional conten -

tions would be rejected.

There was no mention of non-constitutional objections

based on the certified record.

A timely petition for stay of mandate was granted Janu-

ary 14, 1975.

The Court of Appeals had jurisdiction to review the

matter pursuant to 29 U.S.C. § 660(b).

REASONS FOR ALLOWING THE WRIT

1. The Court of Appeals has decided several impor-

tant questions of federal administrative and constitutional

law that have not been, but should be, settled by this Court.

A. Due Process

The peculiarly harsh forfeitures of constitutional rights

and property reserved only for cooperative and non-

litigious employers by the Occupational Safety and Health

Act, 29 U.S.C. § 65%a) and (b) present an anomaly unlike

anything present counsel has found in any prior decision

of this Court.

A small employer who employs an engineer and tries

to satisfy the Secretary's agents as soon as they descend

upon him can, by his cooperation, forfeit all his constitu-

tional and legal rights if the statute be read literally.

Conversely, a contumacious employer, particularly a

large employer who hires counsel experienced in guard-

ing against the pitfalls involved in dealing with bureau -

cratic procedures, can work his way up through a vast

panoply of administrative and judicial defenses specifi -

cally provided by the same statute.

Furthermore, the Secretary has even greater latitude

than the contumacious employer, with no time limit on his

right to seek judicial enforcement.

The Court of Appeals ameliorated this statutory plan

only in the minor respect of holding that judicial review

to some extent would be available upon the Secretary's

petition for enforcement, but the opinion shows that the

extent of review would nevertheless be extremely limited.

Indeed, in the case at bar it reviewed only the constitu -

tional questions presented and overruled all but two of

these summarily. It avoided a direct declaration of un-

constitutionality of the provision for a mere Clerk's order

of enforcement as provided by the statute by interpreting

the statute to mean that the Clerk's order of enforcement

could be entered only after a panel of the Court had con-

sidered the Secretary's petition and directed the entry of

such an order.

The question of the due process issue raised upon the

15-day forfeiture provision was considered a serious one,

but the petitioner's contention was overruled on authority

of an approved quotation from McLean Trucking Co. v.

Occupational Safety and Health Commission, 503 F.2d 8,

11 (4th Cir. 1974), which in turn quoted and relied upon

Yakus v. United States, 321 U.S. 414, 433 (1944).

Petitioner respectfully contends that neither McLean

nor Yakus is good authority for the point. McLean, in

fact, had contested the citation against it and had had the

series of hearings that are provided for litigious employers,

including full review by a United States Court of Appeals.

And the Court in the portion of the McLean opinion quoted

by the Court below decided only that issuing citations and

proposed penalties without a prior hearing did not violate

due process, and not that there should be no review after

fifteen days. In addition, McLean specifically placed

emphasis on availability of judicial review without con-

sidering the adequacy of the time period.

Yakus did, of course, uphold a harsh limitation on

challenges to the validity of administrative action, but it

acted during wartime under a statute enacted by Congress

pursuant to its concept of its constitutional war powers.

Furthermore, the majority of the Court emphasized its

own concept of the exigencies and economics of the war -

time emergency. As such, nothing in the Yakus decision

should be taken as a precedent for sustaining peacetime

statutory forfeitures enacted under the power to regulate

commerce. Indeed, this Court would be justified in over-

ruling Yakus in its entirety even if precisely the same

questions arose again in a wartime setting on precisely

the same language, by adopting the better reasoning of the

dissenting opinions, 321 U.S. at 448 and 460, or even by

taking judicial notice of the historical fact that the economic

assumptions underlying the statute and the opinion were

wrong and proved to be useless in practice even in wartime.

But Yakus need not be overruled in the present peace-

time setting. Indeed, it is enough to point out that the

forfeiture period considered in that case was two months,

whereas the period here challenged is only 15 working days,

which amounts to two to three weeks, depending on the

number of workdays in a week at a given employer's place

of business.

The Court of Appeals recognized that it could be argued

that 15 days was too short a time, but held that was a mat-

ter for the judgment of Congress. But the reasoning is

fallacious in that it delegates to Congress the judicial ques-

tion of what time period would comport with due process

by giving an adequate opportunity for a person desirous

of abiding by the statute to discover the need for adjudica-

tion under the particular facts of a given case.

Furthermore, it overlooks the complete forfeiture of

all defenses that goes with an effort to cooperate rather

than to litigate, and it overlooks the denial even of an

opportunity to resist a petition for enforcement either on

the basis of evidence not known to the employer within the

15 days or even on the basis of affirmative facts appear -

ing on the face of the record certified by the Secretary

himself.

It is easy enough to say that a party has enough of a

remedy if statutory review of the order is available

and if he does not choose to employ that procedure he

should be foreclosed from raising elsewhere the ques -

tions that could have been raised in that proceeding.’

But to make this easy assumption is at once to decide

the rock-bottom issue and, in my opinion, one this

Court has not determined heretofore with effects upon

the criminal process like those produced in this case."

— Yakus v. United States,

supra, 321 U.S. at 471 (dis-

senting opinion)

Furthermore, even if the short period and the differen -

tial mistreatment of the most cooperative employers could

somehow be squared with constitutional due process stand-

ards, the Court is faced with an interpretation of the stat-

ute by the Court below that will have the necessary effect

of defeating one of the primary purposes of the statute as

stated by Congress: to assure safe working conditions

"(1) by encouraging employers and employees in their

efforts to reduce the number of occupational safety and

health hazards."

Once he understood the pitfalls of this statute and of

bureaucratic procedures generally, no employer in his

right mind would hire an engineer to cooperate rather

than a lawyer to litigate.

B. Scope of Review

It may be assumed, without conceding, that an adminis-

trative procedure that assesses a penalty may depart from

the procedural standards for both criminal and civil pro-

ceedings under the Fourth, Fifth, Sixth and Seventh Amend-

ments to the Constitution of the United States in the first

instance.

It may even be assumed for present purposes, again

without conceding, that an Article III court may be limited

to a review of the record as made in the summary admin-

istrative proceedings.

But assuming all that, it does not follow that the Court

is excused from examining every defect that may be found

in that record, however it may have come before it.

In this case, the case was brought before the Court of

Appeals by the Secretary's petition for enforcement. This

petition was accompanied by a certified record that failed

to show all the proceedings below or to show the evidence

on which the Secretary's representatives had acted.

However, it was apparent from the face of that record:

(1) That the lead level constituting the allegedly seri -

ous violation was not such as to justify judicial notice that

it was, in fact, a serious violation within the scope of the

Act. There were not even conclusory findings that this

level of airborne lead constituted a “substantial probability

that death or serious physical harm could result from" it

within the meaning of 29 U.S.C. §666(j).

BLEED THROUGH

(2) There was a total absence of any allegations of

facts or even conclusions in statutory language to show

that the Occupational Safety and Health Commission had

jurisdiction of this employer within the meaning of 29

U.S.C. § 652(3) and (5).

The Court of Appeals found, in effect, that upon the

Secretary's petition, constitutional questions could be con-

sidered. Certainly a jurisdictional question could be

considered.

Surely the injunctive and contempt powers of a court

should not be granted where it is apparent that either a

constitutional or jurisdictional defect rendered the order

sought to be enforced void or voidable, or where essential

findings are missing from the record. If the defects are

correctible a remand for determination of the necessary

facts and their inclusion in the record would be appropriate.

If a remand for these purposes would be appropriate,

it follows that a remand would also be proper for deter -

mination of the probability of death or serious physical

harm from a condition described in essentially meaning-

less statistics on alleged airborne lead, unsupported by

any expert or even lay explanation of their significance.

This is particularly true in view of the Review Commis-

sion's own rules on this very problem where a much fuller

record was available. See Secretary of Labor v. The

Hydrate Battery Corporation, Appendix C.

2. The Court of Appeals has so far sanctioned admin-

istrative departures from constitutionally required stand-

ards as to call for an exercise of this Court's power of

supervision.

A. Nature of Penalties and Forfeitures

That a fine is a penalty or forfeiture of property will

hardly be contested. Whether or not it is denominated

civil or criminal in nature, a procedure to impose a pen-

alty or forfeiture is a proceeding in which the constitutional

protections of the Fourth, Fifth and Sixth Amendments

apply, unless Boyd v. United States, 116U.S, 616, 630

(1886), was an erroneous exposition of constitutional law

in its entirety despite the large volume of search and

seizure law that has been built on its authority. See,

e.g., Mapp v. Ohio, 367 U.S. 643 (1961); ef. Warden v.

Hayden, 387 U.S, 294 (1967).

In Boyd, the case presented was an action, civil in

nature, seeking forfeiture of alleged contraband. Through-

out the opinion, the Court repeatedly coupled criminal and

forfeiture proceedings as subject to the same constitutional

protections. For example:

"Breaking into a house and opening boxes and drawers

are circumstances of aggravation; but any forcible and

compulsory extortion of a man's own testimony or of

his private papers to be used as evidence to convict

him of crime or to forfeit his goods is within the con-

demnation of that judgment [Entick v. Carrigton, 19

How. St. Trials 1029 (K.B. 1765)]. In this regard the

Fourth and Fifth Amendments run almost into each

other."

— Boyd v. United States, supra,

116 U.S. at 630 (1886)

Bun 9 ag IK GEL SERS GAEL NE EI NS yD SME

RLEED THF OUGH

Nevertheless, in later opinions, the federal courts

have approved administrative penalties. See the cases

cited on this point in Frank Irey, Jr., Inc. v. Occupational

Safety and Health Review Commission, 519 F.2d 1200,

1204 (3rd Cir. 1975).

The petitioner submits that Boyd expresses the correct

rule and that those subject to penalties under the Occupa -

tional Safety and Health Act should be subject to the same

protections as defendants in criminal cases. The con-

trary rule has crept into the law and been expanded very

slowly beginning long after the relevant constitutional pro -

visions were adopted. Like the jurisdictional and consti -

tutional error of Swift v. Tyson, 16 Pet. 1 (1842), this is

a constitutional error "'which no lapse of time or respect -

able array of opinion should make [this Court] hesitate to

correct.'" Evie R. Co. v. Tompkins, 304 U.S. 64, 79

(1938).

See on this growing problem: Charney, ‘The Need for

Constitutional Protections for Defendants in Civil Penalty

Cases,'’ 59 Cornell L. Rev. 478 (1974).

Even if the penalties be deemed civil so as to be im-

mune from the protections of the Fourth, Fifth and Sixth

Amendments, the Seventh Amendment remains, and it

should apply to an action at law, even if it is under a Con-

gressional statute rather than under an Act of Parliament

incorporated in American common law. See the dissent -

ing opinion of Gibbons, J., in the Frunk Irey case, supra.

B. Waiver of Rights

In Carley v. Cochran, 369 U.S. 506, 514 (1962), this

Court quoted Johnson v. Zerbst, 304 U.S. 458, 464 (1938),

as follows:

"It has been pointed out that "courts indulge every

reasonable presumption against waiver" of fundamental

constitutional rights and that we ‘do not presume acqui -

escence in the loss of fundamental rights."""

And the Court there went on, specifically discussing the

right to counsel, to say:

"Presuming waiver from a silent record is impermis-

sible. The record must show, or there must be an

allegation and evidence which show, that an accused

was offered counsel but intelligently and understand -

ingly rejected the offer. Anything less is not waiver."

The Court of Appeals in the present case recognized

that the petitioner was entitled to due process of law under

the Fifth Amendment, but added:

"It forfeited that right by failing to give notification to

contest within fifteen working days... . The control-

ling fact is that respondent had a right to a due process

hearing, which it failed to exercise. We find no depri-

vation of due process,"

This is clearly presuming waiver of a constitutional

right from a silent record, and without anything in the

certified administrative record to show that the petitioner

made that waiver intelligently and understandingly waived

that right. He was, of course, advised that the citation

would become a final order if not contested within 15 work-

ing days, but there is nothing to show that he knew what

harsh and continuing consequences would follow his fail -

ure to contest if it turned out the problem was greater

than originally thought.

Neither was there any hint in the citations or notice to

suggest to the petitioner that he ought to consult a lawyer

before stepping into the mire of automatically final orders

under this peculiar Act.

RLEED THF OUGH

CON CLUSION

The petitioner respectfully contends the Court should

hold that the Occupational Safety and Health Act is uncon-

situtional as applied to this petitioner, reverse the Court

of Appeals and either dismiss the citations and notices of

penalties or direct such further proceedings as may be

necessary to protect the constitutional rights of the

petitioner.

Respectfully submitted,

ROLAND M, LOWELL

618 Hamilton Bank Building

Nashville, Tennessee 37219

Attorney for the Petitioner

Of Counsel:

BUCK & BAKER

RLEED THROUGH

een es

~ 18

APPENDIX A

U. S. DEPARTMENT OF LABOR B

Occupational Safety and Health Administration :

16090 Mayes Street - Suite 302

Nashville, Tennessee 37203

—_

February 12, 1973

Date Issued

ie page 1 of 2

Cyration Number ___

rMPLOYER Winters Pattery Manufacturing Co-jany

(Sereer LO Culvert Street

ADDRESS ¢

(City Nashville State

ian, of control jocared at LC Culvert Strcet,

Tennesse Zip 37210

An inspection of 2 workplace under your ownership. operat

Tennessee and described as follows:

Nashville,

ine tyne batpoarics

hax been conducted, On he basis ofthe inspection aes alleged that vou have ssolaed the Occupativaal Safety and Heslth

Act of 19270, 20 USC. 631, an the following resrects

tard or etpulere Deve on hich

Boxee grees a= Pe scr pace et abba te el ateecte Ph ee

29 CER mus: se conrected

1 1904.2 A log of occupstions) injuries and Immcdiarely upe®

i}lncsses was Hot Mrintyined. receipt of cita#e*

2 1910.141(5)(3) (i) Food was storce and eaten where Irmediately upon

toxic mwtecial wat present. receipt of citatie*

3 1910.141()(3)Cii) Foud stored in toile. rom, Inmediately upon

reccipt of citrate

4 1910,107(«)(2) An open filam was eittar 10 fart of | Irmediately upg.

the spray booth, sd wa not separ | receipt of citatre™

rated by & part ‘tion.

5 1910.107(g)(7) Spraying ste of Print opiry booth Immediately upo*

; was not rept as free +. puctical receipt of citaties

’ from accurul sion of depo its of

: combustible cosidees.

' ‘ g

‘

, m

Area Director's Spnacute > E rd iy kL

: 'Geene F. Light ae

e by LS fifth 222?

The wssuunce of a citatiun does nut constitute 2s finding that a violation uf 4% Act has occurres unless there 88 ‘ollure te

sontestas provided for in toe Act ot, of contested, uiless the crtatin te alliemed bw the Ocs <pational Safewy and Healss Review

teonmis sian,

—

’

RIGHTS OF EMPLOYEES

Any euplovee or representative of employees she teteves that sey period of time fined in this citation for the correetsen a&

» ssolation 16 unvessonable has the tight to contest such cme bor eer rectinn by Gilicg a notice eub the U.S. De panment of or

athe address ste ea abawe euthin ES eurking dave ul che recey dy the emplover of norice of proposed penalty of notice thet a

panales os deony proposed ,

“Ny person shall discharge or in any manner discriminate azamst ans emprovee bey suse such employee has filed any Com:

piven on mstunured of caused ty de enstrtuced amy panerding under ot rei sted tu thes Act ot has tested ar as about to tga tl

on such proceeding of bea ause af the exercise be such employee on bebalf of himseil ot others of any sight afforded by this

Bee Neal EE Ce) CE) of the en upatemned Raters and Health Ace wt 1970, MUS. OM.

Whe tas teguires that a copy of the enclosed cstationtnd “shall be prominently posted” in ® Conspicuous piece “acor near

fash place a ssclation seferred to an ENE Citation oe cored Womust remain posted unt all wielatons ced therem we cet ~

rested. of ht Ce orang davs, shichever period ts longer

* eget vinlatians covered by ibis Citation ote those shich we met setns Cieleteons eithin the meaning of the Act bat

tee Rave 2 Siebert sone ate reiatean shin te ww cupatiansl safer and health

For~

THRO RO [cae me bh

Y-8116 5 Fg

ania wie &

. i : z

. s CITATION ? \ 1760 4

POOR COPY

ave

PRET TAIN ic MEG ERLE! LEME ELEELL SIE IO EE EAE

vee

U. S. DEPARTMENT OF LA

BOR

Occupational Safety and Health Administration

MGW Keyes w.aeen = owe é

Nashville, Tennessee 34/203

a TRC RO er

Fad -_ * -

A : Y-S116 15

; amaa toe

CITATION’ 1760 b

Citation Number 1, page 2 of 2 ’ Date Issued _ February 12, 1973

EMPLOYER winters Rottery Manufacturing “o-pany

(Sereer 10 Culvert Street ~

ADDRESS (¢ ~ f

(City “Nashville Scare Tenress+e Zip _37210

An inspection of a workplace under your ownership. vperatiun. of comrul locared at _10 Culvert Street,

Nashville, Tennessee > and described as follows:

Automotive type daticrics

has heen conducted. On the Sasis of tne amspectier -t +s alleged that ves have violated the Occupational Safety and Healt

Ace of 1970, 29 U.S.C. O51. an the folles ing respects:

. Dare on erech

' Seandard ot re 5 .

. em prove i ET Desceupeccy oo anwar ve jarnwn ome seams

-29 CFR must correcie

6 1910.93(e) Feasible sdr-inistrative or enginecer-

ing controls were not Jetermined and

implemented vhere «mplovec: were

exposed to lead in excess of the

permissible limit. June 10, 1973

? 1910.1454(a)(3) The erploye + did rot woe the pro- Immediately vpor

Vided resnicst ors Crvlection in Teceipt of -itatren

eccurdance with in-tructions and

training reccived.

Arca Director's Syrarure sgl PA

Fucene E. Licht

: 7 wp? ¥ "

vA ; a4 AL: pcitt BAL

The rssusnce of 2 citation dues not constitute a finding that a wiertvon of OF Act bay occurred unless there is a faclere te

comest as prownled fur in the Act ot, if contested waless the citation as affirmed by the Occupational Safety and Healin Rewsew

Commission. >

RIGHTS OF EMPLOYEES ; =

Any employee or representative of emvloyees whe believes that any persal of time fined in this citation for the correction of

4 vevlateon 15 unreasonacie hes the right to Conte st such time for cutecuon by filing a nonce wath the U.S. Depannen oF Laber

at the address shown above wathiy 19 working dave of the rece yt do the exployer of setice of prnporsed penalty of notice that 4

Penalte os berng proposes. j

“Ne person shall discharge of in any manner discriminate against any employee because such employee has filed any com-

plant oe instiuted or caused to be instetuted sew proceeding under of related to this Act ot has testified of 1s about to test Fy

wm such proceeding uf DeCause Of LE Crercise by such employer un Lehail of himself of others of any tight afforded by this

Ava See. ME (eM 1) of the Occupatwmal Satety and Health Ace of 1Y70, 29 U.S.C. 651.

Whe law requires that a copy of the enclosed citation(s) “shall be prominent!y posted” in a conspicuous place “at of near

each place a waslation referred ro im the catation occured." ht must remain posed wail ail violations cited therein ae cor-

tecavd, of foe 3 working deys, ehichewe: petunt os longer.

* eget vuolatnons cuwere! by Chis Catation ore those @hich are wot serious sielations euthin the meaning of the Act but

which Rave a drrect of ummediate “ci stew stop to <eupatimal setety aed mesith.

SO sre ven Fern

avec

BLEED THROUGH

Oo Kit eetormt ce parce

Ucceperione! Soler. ond Mooi Admiumiatretion »

1600 Hayes Street - Suite 302

Neshville, Tennessee 37203

CimO wO Cieetey :

y-8116 1s ;

\ ante © :

CITATION FOR SERIOUS VIOLATION* 1760 4

Date Issued _ Februsry 12, 1973 :

Citation Number _] of 1

EMPLOYER ___ Winters Battery Manufacturing Company

(Sereee 10 Culvert Sircet

ADORESS (

(City Nashville Seace Tennes-¢e Zip _37210

10 Cfivert Street,

and described a. follows

An inspection of a workplace under your ownersh:p, operation, of control located ar

Nashville, Tecacssee

puto 5! ise 2598 >a Ler ics

hes been conducted. On the desis of the inspection u as alieged tha: vou have wsolaced che Occupational Safety and Heaich

Act of 1970, 227 USC. 651, inghe following respects:

Dare om era

Seandard o regslorwoe Description of alleged vevianee alleges viola: ce

allegedly wroiated must be conrecied

hour time weighted average concen-

tration of lead in cxeess of the

limit of U.2 willigre:. per cubic

Meter given im Table © 2.

Examples of suct: ware:

1. Pasting machine- ue digs. r -0.71

milligram per cubic setter.

2. Mixing sa hine operator - O.el

milligram per cubic meter. June 10, 1973

29 CFR 1910.93(b)(1) Emplovees were exposed to an cight

Asea Director's Signerure ta 4, : i

Fugenc E. Light a

4 hide frlew¥? iP x

4 ‘

The issuance of » citation does mgt constitute a fizzing that a viol the Act has occumed ealess there is

contest as provided for in the Act ot, af conrested, unless the citation 1s aff.emed by the Occupational Safety anc b.:a:ch

Commission.

RIGHTS OF EMPLOYFES

Any employee or representative of employees why believes chat any period of time fixed ie this citatioe for the comectien of

8 violation is wnteasonabdie has the right to comes: such time for correction by filing # notice wixb the U.S. Depemmex of Leber

at the adé-ess shown abcre within 15 working days of che receipt by the employer of nocice of proposed penaley or noice wet «

penalty is being proposed.

“No person shall discharge of in any manner discriminate against any emplovee because such eaployee bas filed ary com-

pleint or insticuted of caused to be in+:.tuted any proceeding under of related vo emis Act or has testil is Sout to test Fy

10 suck proceeding of because of the exercise by such employee en behaif of himseil or others of aay sigot allorced by chis

Act.” Sec. 11 (e)(1) of the Occupatsonal Safery and Health Act of 1970, 29 U.S.C. 651.

The law requires that 2 copy of the enclosed citation(s) “shall be prominently posted™ in 8 conspicuous place “a or sear

each place a violation relesred to im che citation occured.” It must remain posted until all violations cued chereia ase car -

rected, of for } worang days, wtuchever period os longer. F

* A serious violatiza, according to the Act “sSall be deemed to exist in « place of employment if here ise suduasua

Probeb.ticw char deach of sersows physical harm ceaid result from e condition shich exssts, of fiom ore cr =2r

Sens, acchas, operations, of processes sch tave Seen elogeed of are in ese. wm sucd piace of e=>-

Pleyer Crd cot, and cos.d not eran ce exercise of reas rable diligence, knoww the presence of the ©.2 21.20.

SANSA RGA LETTE REN LE 5 RELIES BLE LIE LO LIE ELBE EAL IRE ELLE LE EE POE EE

POOR COPY

U. S. DEPARTMENT OF LABOR TesHo we | OSHA 1 We

Occuperions! Sete, on# Mectth Adminlete tan P y-8116 >

ance or

NOTIFICATION OF PROPOSED PENALTY 1760 t

JO: Winters Battery Manufacturing Company - :

1G Culvert Street

Neshville, Tennessee 37210

On the 12th day of \ February . 19 7} « Citation(s) was (were) issued to

vou in accordance sith the provisions of section Sia) of che Occupational Safety and Healch Act of 1970 (S4 Seat.

1601. 29 U.S.C. O51, et seo.) nercicaiver refered to as the Act. You sere thes rotified of cenain alleged viola-

tions of the Act, as specilred im that Ciratianis).

yOU ARE HEREBY NOTIFIED that pursuant to the frovisions of section 1Dia) of the Act, the penaltyfies)

set forth below vs/are being proposed, based on the above C tations!

SERIOUS VIOLATIONS

Ciration No. ‘ P Proposed Penal

lof 1 $ 750.00

OTHER VIOLATIONS*

Creation No. hem No. Pespuxe! Penalty

1 1° 100.00

1 i 2 90.00

i 3 None

1 4 : 90.00

1 5 a

1 a 185.00

1 ? : 185.00

«. °

* ‘Total for All Alleged Violations $ 1,009.00

"In the cose of cock “ocher violerson, * the proposed penalty cefleces © SO serceet edyestmene Goceus Gas Cansective ectran teree ecsdie

the peeved preseesbed om the Craton. Ws pertecwler elle ged erelateum os mor corrected ecthen this pened, 20 owt os etbiant Genet

et 2 percent enll be 4 fee cock cowl Neowerer, of pee coment on alleged vrelecnee = goed leum belere the Review Crete

onan, the perrad tue comrectren does set be gee te rum warrl the enue of 2 temel order by the Rewsee ( emersecen sllumicg the Coste

The peepwoed pemelty ce cachwerve of such ether adtuvonel pesslty os tay eedecqucnth ne cropesed tar leviwe to Correct © timate

Thee he erate mem pened.

Fastin (Coatiawed on reverse svde) Fees 2. -

BLEED THROUGH

li. EAC we in Pee me

Rete

nalties is to be made by certified check of money order, payable to the order of “Occupa-

The payment of pe

Lalor."” Remit to the Area Director whose address appears below.

tionel Safety and Health-

YOU ARE FURTHER NOTIFIED cher the sforeseid Citstion(s), this Notification, and the proposed assess-

meat shall be deemed to be the final order of the Occupational Safety and Health Review Commission aod not

subject to review by aay Court of agency, unless, within 15 working days from the date of recerpt of this notice,

you notify che official named below in eriting that you intend to contest the Citation or this Notification of Pro-

posed Penalty before the Review Commission. The Review Commission is an independent quasi-judicial agency

with authority to issue decisions regarding citations and proposed penalties. ,

There is mo requirement chat this Notification be posted.

sit seen -

“a

Dated at Nashville _. Tennessee this 12th day 3

ot _Februsry 9.

Ary Director e. = A oe LLP

Oc. upationa! Safetw and Health Administration

U.S. Departmen: of Labor

169 Hav.s -s-eet - Suite 302

Nashville, Te-essee 37203

SET MANS RRR ee BIRD UTS Scere

Dept ory.

1, Me

Pee ted

pen ad

YOR D

SPO Ont-ere Ferm CL rx

PACE (2)

POOR COPY

7, US DIPARTONT OF FAnOR |

Occupetwrst Satety and Heratih peer ames R 6053 37 7,

q. — |

1600 Mayes Street - Suite 302 — 1760 4

Nashville, Tennessee 37203 7 -

° ° pels ia '

a, . : = ee |

Bh eS ey Ee Re ee a ee ee oe 1

‘TO: 1

2 : ‘ ‘ |

| Winters Battery Manufacturing Company ; °

: 10 Culvert Street 1

1 Nashville, Tennessee 37210 4 >

‘

‘ ' -

i.-- we ee ~~ = + = = 7 - - - SS . :

‘ NOTIFICATION , r

OF FAILURE TO CORRECT ALLEGED VIOLATION . :

AND OF PROPOSED ADDITIONAL PENALTY °

—_ 3 =

On the 12%h day of Fehrary a:

aC ia'oa(s) wag-(were) issued to you in accordance with the promsions of section a) of the Occupational Saf ty

ane Healzh Act of 1970 (4 Stat. 1601, 29 USC. 651, et seq ), hereinafter referred to as the Act, notifying you

of certais alleged violations of the Act and the dates by which they were to be corrected.

Bas--d upon reinspection conducted on*: Decesder 27, 1973 . it is alleged that you

have failed to correct the alleged violations specified below within the times prescnbed:

« SERIOUS VIOLATIONS:

Number of 2 Proposed Total

. sB. Days Failed VJ sc Proposed Daily =~ 5D Additional Penalty

sa. Citation No.$ to Correct 4\ Additional Penalty we For Fzilure To Correct

1 10.00 56.00 560.00

¢ NONSERIOUS VIOLATIONS:

6B Number of 6C. Proposed Daily 6D. Proposed Total 6F_ P. sposed Tot

GA Ciston No @ Days Fasied WASH Additional caeme Daily Addons O6E. Previously Allowed i 40 tional Pe: alty ' ?

ere lem No.® toCorrect 7% Penalty “— Penalty a ad Abatement Credit =2# For F lure wo Correct

; 10 28.00 280.00 185.00 -" 465 90

4 - -

2. 2 oe: &.

Area Dutector — 2s pat aa it Date Jarciry 22, 19 ee

. ; tom Use te

INOTICE: Additonal bepcrtint Information On Rewer Sve) Fee Sent 9972

| 6. tis 3

RLEED THF OUGH

pee

Appendix A

[fol. 1] No. 75-1367

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

1 FILED

PETER J. BRENNEN, Secretary JUL 2 - 1975

John P. Hehman, Clerk

of Labor,

Petitioner,

Vv. 4 ORDER

WINTERS BATTERY MANUFAC -

TURING CO.,

Respondent. ;

This case is submitted on the petition of the Secretary

of Labor for summary enforcement of a final order of the

Occupational Safety and Health Review Commission.

The petition for summary enforcement avers that re-

spondent never contested the citation, the notification of

proposed penalties, or the accompanying abatement re-

quirements. Respondent does not contend that it filed

any notification of intent to contest within fifteen working

days after the issuance of the citation.

The petition further avers that, after due notification

and extensions of time, the respondent failed to abate cer -

tain of the violations which were the subject of

{fol. 2] the original citation. Respondent does not con-

tend that it notified the Secretary within fifteen

working days from the receipt of the notification that it

wished to contest any part of the notification or proposed

assessment of non-abatement penalty.

PIAS RS PEERS

POOR COPY

Appendix A

In the absence of such notification within fifteen work-

ing days, the statute expressly provides that the citation,

assessments, the notification of failure to abate and non-

abatement penalties are deemed the final orders of the

Commission and "not subject to review by any court or

agency." 29U.S.C. § 65%a) and (b).

No timely petition for review having been filed in this

court pursuant to 29 U.S.C. § 660(a), "the Commission's

findings of fact and order shall be conclusive in connec-

tion with [this] petition of enforcement." 29U.S.C.

§ 660(b).

For these reasons, and not having been otherwise

ordered by the court, it is hereby ORDERED that the

orders of the Commission be enforced. 29U.S.C.

§ 660(b).

ENTERED BY ORDER OF THE COURT.

By /s/ Grace Keller

Grace Keller

Chief Deputy

RLEED THF OUGH

Appendix A

No. 75-1367

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

AUG 4- 1975

PETER J. BRENNEN ae John P. Hehman, Clerk

SECRETARY OF LABOR,

Petitioner

_ : ORDER

WINTERS BATTERY

MANUFACTURING COMPANY,

Respondent )

No Judge in regular active service having moved for

rehearing in banc, it is ordered that the petition for re-

hearing in banc is denied.

It is further ordered that the petition for rehearing be

scheduled for oral argument before a panel of this Court

during the Fall session of the Court.

Entered by order of the Court.

John P. Hehman, Clerk

By /s/ Grace Keller

Grace Keller

Chief Deputy

OPEL EE PELE DVL LESTE IY IPN MEE SLT ILENE SOT

Appendix A

No. 75-1367

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETER J. BRENNEN, Secretary of

Labor,

Petitioner PETITION for Summary

: Enforcement of an

Vv. > Order under the Oc-

cupational Safety and

WINTERS BATTERY MANUFAC- Health Act.

TURING CO.,

Respondent.

Decided and Filed December 18, 1975.

Before PHILLIPS, Chief Judge, and PECK and LIVELY,

Circuit Judges.

PHILLIPS, Chief Judge. For the first time this court

is called upon to interpret an act of Congress which pro-

vides that our Clerk, “unless otherwise ordered by the

court," shall enter "forthwith" a decree enforcing an

order of an administrative agency. The agency is the

Occupational Safety and Health Review Commission

(OSHRC). The statute, 29 U.S.C. § 66Mb), is a part of

the Occupational Safety and Health Act of 1970 (OSHA).

The Secretary of Labor filed a petition with the Clerk

of this court for the summary enforcement of an OSHA

order. The respondent, Winters Battery Manufacturing

Company, filed an opposing answer. The Chief Judge of

RLEED THF OUGH

Appendix A

the court prepared an order of enforcement and directed

that it be signed

[2]

and entered by the Clerk. This order, dated July 2, 1975,

is as follows:

This case is submitted on the petition of the Secre-

tary of Labor for summary enforcement of a final order

of the Occupational Safety and Health Review Commission.

The petition for summary enforcement avers that re-

spondent never contested the citation, the notification

of proposed penalties, or the accompanying abatement

requirements. Respondent does not contend that it filed

any notification of intent to contest within fifteen work-

ing days after the issuance of the citation.

The petition further avers that, after due notification

and extensions of time, the respondent failed to abate

certain of the violations which were the subject of the

original citation. Respondent does not contend that it

notified the Secretary within fifteen working days from

the receipt of the notification that it wished to contest

any part of the notification or proposed assessment of

non-abatement penalty.

In the absence of such notification within fifteen work-

ing days, the statute expressly provides that the citation,

assessments, the notification of failure to abate and non-

abatement penalties are deemed the final orders of the

Commission and "not subject to review by any court or

agency."" 29U.S.C. § 65%a) and (b).

No timely petition for review having been filed in this

court pursuant to 29 U.S.C. § 66a), "the Commis-

DS aOR: 9 W ERSTE ate OEP ENA LIU SEL RH UN EA IS EAS ENON E I BiB REESE ING SSE OE TIS TELIA CRE

Appendix A

sion's finding of fact and order shall be conclusive in

connection with [this] petition of enforcement." 29

U.S.C. § 660(b).

For these reasons, and not having been otherwise

ordered by the court, it is hereby ORDERED that the

orders of the Commission be enforced. 290U.S.C.

§ 660(b).

ENTERED BY ORDER OF THE COURT.

By /s/ GRACE KELLER

Grace Keller

Chief Deputy

[3]

The respondent thereupon filed a petition for rehearing

en banc. No judge moved for en banc reconsideration,

Fed. R. App. P. 35, and the petition for rehearing was

scheduled for oral argument before this panel on October 6,

1975.

We deny the petition for rehearing for the reasons stated

in this opinion.

1) The Facts ‘

Winters Battery is a Tennessee Corporation whose

principal business is the manufacture and sale of automo-

bile batteries. On January 17, 1973, an authorized rep-

resentative of the Secretary of Labor inspected the Winters

Battery factory and determined that one serious and seven

non-serious OSHA violations were present. On Febru-

ary 12, 1973, Winters Battery was notified of these viola-

tions in writing and given a reasonable time for abatement

as provided by 29 U.S.C. § 658(a).

RLEED THF OUGH

Appendix A

The notice included the following warning as to the time |

limits in which respondent could preserve its rights to a

hearing and review:

You will soon be notified by certified mail whether

or not a proposed penalty will be assessed as a result

of the cited violation(s). You have the right to contest

the citation(s), the proposed penalties, or both, before

the Occupational Safety and Health Review Commission.

The Review Commission is an independent quasi-judicial

agency with authority to issue decisions regarding cita -

tions and proposed penalties. If you do contest, you

must so notify the Area Director within 15 working days

after receipt of the certified mail notice regarding pro -

posed penalties. If you fail to contest within the 15

working day period, the citation and the proposed as -

sessment of penalties shall be deemed to be a final

order not subject to review by any court or agency.

[4]

On the same date respondent was notified of a proposed

penalty in the amount of $1,400. This notice contained

the following warning:

YOU ARE FURTHER NOTIFIED that the aforesaid

Citation(s), this Notification, and the proposed assess-

ment shall be deemed to be the final order of the Occu-

pational Safety and Health Review Commission and not

subject to review by any court or agency, unless, within

15 working days from the date of receipt of the notice,

you notify the official named below in writing that you

intend to contest the Citation or this Notification of Pro-

posed Penalty before the Review Commission. The Re-

view Commission is an independent quasi-judicial agency

with authority to issue decisions regarding citations and

proposed penalties.

AOL LINED ALA SAP BEN INS ETT IOAN EST POOLE RR I

FLAN PER RAGS I LO LT INO PGI A IE IR

Appendix A

Respondent filed no expression of intention to contest

either the citation or the notification of proposed penalty.

On May 39, 1973, Winters filed a written request for a

six month extension of the abatement period. The Secre-

tary did not object and the compliance date was extended

until November 10, 1973. On November 5, 1973, Winters

sought a second extension of the abatement period until

May 10, 1974. The Secretary refused to grant the re-

quested extension, but allowed Winters until December L5,

1973, to comply with the order. Another inspection took

place on December 27, 1973, and it was determined that

one serious and two nonserious violations had not been

abated. On January 22, 1974, the Secretary issued a

notice of failure to abate and proposed penalties totaling

$1,025. Again Winters failed to give notice, within fif-

teen working days from receipt of notification, of intent

to contest as required under § 659(a). On February 27,

1974, Winters sought and was granted another six month

extension of the abatement period until September 1, 1974.

On September 3, 1974, another inspection of the Winters

plant revealed that one serious and one nonserious

[5]

violation had not been abated. On April 7, 1975, pursuant

to § 66(b), the Secretary filed with the Clerk of this court

a petition for summary enforcement. On April 16, 1975,

the respondent filed an answer, to which the Secretary re-

sponded on May 6, 1975.

The above -quoted order of enforcement thereupon was

entered on July 2, 1975. It is re-emphasized that this

order was prepared by the Chief Judge of the court and was

entered by the Clerk at the direction of the Chief Judge.

tt ——— a oe a eee ae eS

LEZEN TOM EL DINE IRL Ta ROM

Appendix A

2) Function of the Clerk

Respondent challenges the constitutionality of the stat -

ute on numerous grounds which will be discussed later in

this opinion. Specifically challenged is the provision of

29 U.S.C. § 660(b)’ which states that the Clerk "unless

otherwise ordered by the court" shall enter "forthwith"

an order of enforcement. Respondent asserts that em -

powering the Clerk to enter summary orders of enforce-

ment, without being so instructed by the court, is an un -

constitutional delegation of judicial power.

[6]

The Secretary of Labor undertakes to defend this statu -

tory provision by an argument which we find to be untena-

ble: ''The Clerk's action in lending the court's enforce -

ment powers to the Secretary is purely ministerial in

lip) The Secretary may also obtain review or enforcement of any final

order of the Commission by filing a petition for such relief in the United

States court of appeals for the circuit in which the alleged violation oc-

curred or in which the employer has its principal office, and the provisions

of subsection (a) of this section shall govern such proceedings to the extent

applicable. If no petition for review, as provided in subsection (a) of this

section, is filed within sixty days after service of the Commission's order,

the Commission's findings of fact and order shall be conclusive in connec-

tion with any petition for enforcement which is filed by the Secretary after

the expiration of such sixty-day period, In any such case, as well as in

the case of a noncontested citation or notification by the Secretary which

has become a final order of the Commission under subsection (a) or (b) of

section 659 of this title, the clerk of the court, unless otherwise ordered by

the court, shall forthwith enter a decree enforcing the order and shall trans-

mit a copy of such decree to the Secretary and the employer named in the

petition. In any contempt proceeding brought to enforce a decree of a

court of appeals entered pursuant to this subsection or subsection (a) of this

section, the court of appeals may assess the penalties provided in section

666 of this title, in addition to invoking any other available remedies.

Appendix A

nature." We reject this contention. An order enforcing

a decision of an administrative agency is a judicial, not

ministerial, action. Enforcement by judicial decree pro-

vides a basis for contempt proceedings in this court in

event of non-compliance. See, e.g., N.L.R.B. v.

Decaturville Sportswear Co., Inc., 518 F.2d 788 (6th Cir.

1975); Local 98 United Ass'n. of Journeymen, etc. v.

N.L.R.B., 497 F.2d 60 (6th Cir. 1974); N-L-R.B. v.

Local Union No. 80, Sheet Metal Wkrs.' Int. Ass'n, 491

F.2d 1017 (6th Cir. 1974); N.L.R.B. v. United Mine

Workers of America, 393 F.2d 265 (6th Cir. 1968), ce7t.

denied, 393 U.S. 841 (1968); N.L.R.B. v. Lynaire, Inc.,

380 F.2d 286 (6th Cir. 1967).

Section 660(b) contains the following language with re-

spect to contempt proceedings:

In any contempt proceeding brought to enforce a de-

cree of a court of appeals entered pursuant to this sub-

section or subsection (a) of this section, the court of

appeals may assess the penalties provided in section

666 of this title, in addition to invoking any other avail -

able remedies.

The Secretary contends that a petition for summary en-

forcement under the quoted parts of § 660(b) (see n. 1) is

“not a petition for enforcement of the kind which opens up

issues to judicial scrutiny," but is “rather a request for

a decree enforcing outstanding, final and essentially self-

executing Commission orders." It is urged that if a timely

answer is not filed to the Secretary's petition for summary

enforcement, the Clerk should "forthwith" enter the re-

quested decree, apparently without any direction from the

court.

Appendix A

We decline to allow the Clerk of this court to become a

rubber stamp for OSHA or any other agency. No person

[7]

should be subjected to the contempt jurisdiction of this

court unless he has violated an order or decree approved

by the court and entered at the direction of the court.

So as to remove any doubt as to the procedure to be fol -

lowed in future OSHA cases, we direct that the Clerk of

this court shall not be authorized or permitted to sign and

enter orders of enforcement under § 660(b) except upon ex-

press authorization and direction by a panel of the court.

Each petition for enforcement shall be referred to a panel

of the court for disposition. The panel will decide whether

the proposed order is final and unreviewable and whether

summary enforcement should be granted. Orders in

OSHA cases will set forth the names of the judges consti -

tuting the panel which has adjudicated the matter. Orders

signed by the Clerk will not contain the words “not having

been otherwise ordered by the court," but shall conclude

with the words "Entered by order of the court." The pro -

cedure herein outlined will be followed in all OSHA cases.

In administering § 66((b), the Clerk is not empowered

to enter summary orders of enforcement without first hav-

ing been so directed by the court.

When thus interpreted and administered, there is no

constitutional infirmity in this section.

The Secretary further contends:

5. We further note that our interpretation of the

pertinent summary enforcement language is supported

by the Act and its legislative history. Section 11(b)

itself states that “The Commission's findings of fact

ee Lad

“ree

MSF Re re RR, ae es Sener “orm

Appendix A

and order shall be conclusive” in any petition for en-

forcement filed by the Secretary after sixty days from

that order —a provision which facially includes settle -

ment agreements incorporated in final Commission or -

ders and indicates there should be very little if anything

to litigate in such enforcement proceedings. Moreover,

the Act in general is designed to insure expeditious

abatement

[8]

by self-executing orders which automatically become

final and substantively unreviewable unless the aggrieved

employer timely takes subsequent statutory steps. Thus,

citations and notifications of failure to abate become

final and unreviewable unless contested within 15 work-

ing days, 29 U.S.C. 65%a) and (b); decisions of the

Commission's administrative law judges become final

unless the Commission directs review within 30 days,

29 U.S.C. 661(i), 660(a); and Commission orders be-

come final and unreviewable unless appealed within 60

days, 29 U.S.C. 660(a). A judicial enforcement pro-

ceeding which accepts this finality is the necessary

complement to realization of the Congressional goal of

swift abatement of occupational hazards. E.g., Leg.

Hist. 194-195, 463, 470. (Leg. Hist." references

are to Committee Print, LEGISLATIVE HISTORY OF

THE OCCUPATIONAL SAFETY AND HEALTH ACT OF

1970, 92d Cong. Ist Sess. (June 1971)) Absent of a

specific statutorily-prescribed procedure for such peti -

tions, it accordingly falls to the Secretary and the Courts

to fashion a proceeding which effectuates the Congres -

sional intent. Cf. Brennan v. OSHRC and Kesler &

Sons Const'n. Co., 515 F.2d 553 (10th Cir. 1975).

That intent would clearly not be effectuated by permit-

RILEED THRE OUGH

Appendix A

ting or requiring full-scale substantive briefing and

argument on every summary enforcement petition

which is answered—a result which would make the

time limits on employer petitions, 29 U.S.C. 66a),

and the section's conclusiveness language largely

meaningless.

6. The legislative history of 29 U.S.C. 660(b) ad-

ditionally supports our interpretation that summary

enforcement petitions are routinely to result in swiftly -

issued decrees rather than time-consuming formal ap-

pellate proceedings. The Senate bill as reported and

passed contained a substantively identical provision

which was repeatedly described, in express contra-

distinction to the normal review authorized by 29

U.S.C, 660(a), as enabling “the Secretary to obtain

an automatic court enforcement order when no review

[of the Commission's

[9]

order by the employer] has been requested within such

60 day period.” Leg. Hist. 155, 260, 386, 462-463,

557. (The Senate Report also noted that "In the case

of such petitions . . . the clerk of the court of appeals

would enter a decree enforcing the order of the [Com-

mission]... ." Leg. His. 1974. (Emphasis added.) )

The reported House bill contained a provision which

was closely analogous to standard NLRB petitions for

enforcement and simply provided that "The Secretary

shall have power, upon issuance of anorder .. . to

petition any * * * court * * * for appropriate relief,"

i.e., enforcement. Leg. Hist. 837, 854, 871. The

House-passed Steiger amendment was even more limited,

providing that "The Secretary may also obtain judicial

review or enforcement of a decision of the Commission"

AER E ET RUIN. lige tear»

Appendix A

within sixty days but not after. Leg. Hist. 1102, 1112.

The Conference Committee rejected the House language

and adopted the Senate version practically verbatim,

stating that "The Senate bill, but not the House amend -

ment, permitted un[appealed] orders of the Commission

to be entered as orders of the Court of Appeals," Leg.

Hist. 1167, 1192—a rejection which appears wholly

unnecessary if it believed petitions for summary en-

forcement no different than enforcement petitions of

the NLRB.

The procedure we have adopted as outlined above will

enable this court to effect the statutory intent of prompt

abatement of safety hazards by disposing of § 660(b) peti -

tions with reasonable dispatch, where an employer has

failed to comply with OSHA orders which have become

final and not subject to review under the terms of the stat -

ute. Ifthe panel determines that the OSHA decision is

final and not subject to review and, therefore, further

briefing or oral argument is not required, the Clerk may

be instructed to sign and enter an order of summary en-

forcement. If an answer to the petition is filed raising

issues that are substantial or which have not been decided

previously by the court, the Secretary may be directed by

the court to make a substantive response. If

[10]

the finality of the OSHA orders is disputed and the panel

cannot resolve to its satisfaction on the basis of the rec-

ord the issue of the propriety of summary enforcement,

further briefing and oral argument, where found to be

necessary, may be directed. This procedure will enable

the court to consider contested petitions for summary en-

forcement in the detail required by particular cases,

where OSHA orders are subject to review; yet grant sum -

Re RSET SPRINT NETL LRT LES ISIE ET ELIE LED NIT I 4

Ss a_S er at -

RLEED THF OUGH

Appendix A

mary enforcement with reasonable promptness in uncon-

tested cases or where OSHA orders are found to have be-

come final and not subject to review.

3) The Statutory Provisions

Before considering the other constitutional issues, it

is necessary to summarize briefly the provisions of the

statute,

The Occupational Health and Safety Act of 1970 was en-

acted with the ambitious purpose "to provide for the gen -

eral welfare and to assure as far as possible to every

working man and woman in the Nation safe and healthful

working conditions and to preserve our human resources."

29U.S.C. §651(b). The act is applicable to businesses

affecting interstate commerce. 29U.S.C. § 651(b)(3).

Pursuant to § 657, inspections are made by the Secretary

of Labor to detect violations of the act and the applicable

administrative regulations. Upon discovery of such a

violation, a citation may be issued under § 658, which may

contain monetary abatement penalties as authorized by

§ 666. The employer then has fifteen working days from

the receipt of notice to challenge the citation or proposed

assessment of a penalty. Otherwise the orders become

final and unreviewable by any court or agency. § 659%a).

If the Secretary has reason to believe that an employer

has failed to correct a violation for which a citation has

been issued, within the period permitted for its correction,

the Secretary is required to notify the employer by certi-

fied mail of

(11)

such failure and of the penalty proposed to be assessed

under § 666. The employer has fifteen working days

. ee weit SN OT gt

PACES SS San i a EMCEE ie TTR gO i a ae eR SA aL a iO ee ae alg

ee poe ee — ane

Appendix A

within which to contest the Secretary's notification or the

proposed assessment of penalty. If the employer fails

to give such notification within fifteen working days, the

notification and assessment is deemed to be a final order

of the Commission and “not subject to review by any court

or agency.” § 65%b).

If the employer exercises his right to contest, the Com -

mission affords an opportunity for a hearing under § 65%(c).

The hearing is conducted by an Administrative Law Judge,

§ 661(i), and may be reviewed by the Commission. Any

person adversely affected or aggrieved by an order of the

Commission may obtain a review in the Court of Appeals

by filing a petition within sixty days following the issuance

of the final order of the Commission. § 660(a).

The legislative history of the statute was summarized

as follows in Brennan v. OSHRC. 487 F.2d 438, 439 (8th

Cir. 1973):

The Act was adopted in 1970 and became effective

on April 28, 1971. The bill as passed is a compro-

mise between two competing bills that were submitted

both to the House and to the Senate. One bill was

administration -backed and the other was strongly sup-

ported by organized labor. Although the difference in

the two bills primarily involved whether both rule-

making and enforcement powers should be located in

the same agency, it is clear that both sides favored a

bill which would establish a comprehensive program

that would substantially reduce the large number of

job-related deaths, injuries and health hazards which

have existed. It is estimated that 4.1 million businesses

and 57 million employees are affected.

—

eI een THE OUGH

Appendix A

The Act provides for the development of a “laundry -

list" of violations. Companies are subject to periodic

compliance inspections which are carried out at random

[12]

either upon complaint or upon the inspector's own ini-

tiative. Advance notice of an inspection is prohibited,

and violators of this provision are subject to criminal

sanctions. Violations may be either of standards

promulgated by the Secretary or of the "general duty"

provision, a catch-all provision intended to supplement

the standards formulated by the Secretary.

A violation is "serious" if there is a possibility of

an accident and a substantial probability that death or

serious physical injury would result. Under the Act,

a penalty may be imposed of up to $1,000 for a non-

serious violation. Upon receiving notice from the

Secretary of the citations and proposed penalties, the

employer has 15 days to contest either the citation or

the proposed penalty or both by notifying the Secretary

who transmits the information to the Commission. The

Commission is an independent adjudicatory agency

established under the Act, 29 U.S.C. § 661. The Com-

mission is authorized to conduct hearings under § 65%c),

which hearings are conducted under § 5 of the Adminis-

trative Procedure Act, 5 U.S.C. § 554. (Footnotes

omitted.)

The record in the present case demonstrates conclu-

sively that the respondent, Winters, failed to give notice

to the Secretary that it wished to contest the citation and

proposed notice of penalty, within fifteen working days

from the receipt thereof. Notice to Winters of the cita-

tion and proposed assessment of penalty is documented on

7 —

Appendix A

the record by certified mail receipts signed by Winters

through a representative whose authority is not questioned.

Therefore, under the provisions of the statute, the notifi-

cation and assessment is deemed to be a final order of the

Commission and “not subject to review by any court or

agency." § 65%a) and (b).

Respondent contends that the record does not show sub-

stantial evidence of serious violations. This court will

not pass on this issue, because we have determined in this

case that the OSHA decision is final and not subject to re-

view under the provisions of the statute.

[13]

4) The Due Process Question

The most serious constitutional question raised by re-

spondent is that it has been denied due process of law by

the OSHA order which became final and unreviewable on

its merits by the Commission or by this court because

notification of contest was not filed within fifteen working

days from the time respondent received notice of the cita-

tion and proposed penalty.

We agree with the decision in McLean Trucking Co. v.

OSHRC, 503 F.2d 8, 11 (4th Cir. 1974), in which the court

said:

McLean also contends that the Act denies it proce-

dural due process by permitting the Secretary to issue

citations with proposed penalties without giving employ-

ers an opportunity to be heard. It should be noted,

however, that it is only where the employer fails to

contest the citation that it becomes final and unreview-

able. 29U.S.C. § 65%a). Ifthe employer contests

the citation, the Commission is required to conduct a

RLEED THROUGH

te OR ea oe

Appendix A

hearing and thereafter "issue an order, based on find-

ings of fact, affirming, modifying, or vacating the

Secretary's citation or proposed penalty * * *." 29

U.S.C. § 659%(c). "Such a procedure, so long as it

affords to those affected a reasonable opportunity to

be heard and present evidence, does not offend against

due process."" Yakus v. United States, 321 U.S. 414,

433, 64S. Ct. 660, 671, 88 L. Ed. 834 (1944).

Under the provisions of the Act, respondent had an op-

portunity for a due process hearing before an Administra -

tive Law Judge and the Commission, and the right to judi-

cial review before this court. It forfeited that right by

failing to give notification to contest within fifteen working

days. Although it may be argued with logic that the time

period is too short, this is a matter for determination by

Congress. Yakus v. United States, 321 U.S. 414, 433

(1944). The con-

[14]

trolling fact is that respondent had a right to a due proc-

ess hearing, which it failed to exercise. We find no dep-

rivation of due process.

5) Stay Pending Review

Respondent further contends that the statute is uncon-

stitutional because the OSHA sanctions would continue to

run pending action on a petition to review. This conten-

tion is erroneous. The statute expressly provides that

the Court of Appeals ''shall have power to grant such

temporary relief or restraining order as it deems just

and proper.” § 660(a). Stay orders by Courts of Appeals

also are authorized by 28 U.S.C. § 2349 and Fed. R. App.

Ca APA ORES ELS NL LE TERING SNS: SER LEER ENTER PELE SLES CLM TE TENET ER

Appendix A

P. 18. The regulations contain a provision for stay of a

final order by the Commission?

6) Other Constitutional Contentions

Respondent makes numerous other attacks upon the con-

stitutionality of the Act, including the following:

(1) The penalties imposed by statute are criminal.

Therefore, constitutional safeguards should have been

provided, including: the Sixth Amendment right to coun-

sel, the Fifth Amendment right against self-incrimination,

and the Fourth Amendment right against unreasonable

searches and seizures;

(2) The statute violates the equal protection clause of

the Fourteenth Amendment in that the Secretary has access

to enforcement powers of the Court of Appeals but respond-

ent is denied judicial review unless timely contest has been

made in the administrative proceedings;

[15]

(3) Congress has (a) exceeded its delegated powers

under the Constitution and (b) invaded the powers reserved

to the States under the Tenth Amendment;

(4) OSHA denies citizens the right to jury trial in civil

cases as guaranteed by the Seventh Amendment; and

2§ 2202.92 Stay of final order.

(a) Any party aggrieved by a final order of the Commission may, while

the matter is within the jurisdiction of the Commission, file a motion for a

stay.

(b) Such motion shall set forth the reasons a stay is sought and the length

of the stay requested.

such longer or shorter period as it deems appropriate.

RLEED THRPOUGH

Appendix A

(5) The right to review is "chilled" in that there is

no automatic stay of the abatement penalty period during

review.

We agree with the decisions of other Circuits in reject-

ing these contentions. See, Lake Butler Apparel Co. v.

Secretary of Labor, ___ F.2d ___ (No. 73-3518, 5th Cir.,

Sept. 15, 1975); Sheenan Co. v. OSHRC, 520 F.2d 1036

(Sth Cir. 1975); Bloomfield M. Cont. Inc. v. OSHRC, 519

F.2d 1257 (3d Cir. 1975); Irey v. OSHRC, 519 F.2d 1200

(3d Cir. 1975); Atlas Roofing Co. v. OSHRC, 518 F.2d

990 (Sth Cir. 1975); Beall Const. Co. v. OSHRC, 507 F.

2d 1041 (8th Cir. 1974); McLean Trucking Co. v. OSHRC,

503 F.2d 8 (4th Cir. 1974); American Smelting Co. v.

OSHRC, 501 F.2d 504 (8th Cir. 1974).

The petition for rehearing is denied. No costs are

assessed, Each party will bear its own costs in this

court.

— i ARERES REE SRW AIL SS NLP RING AOE DELL LITA. TNO IAA IG POET Bel Se IR MEK LARNER LESTE RIEL SRN! RRC IIS TI NS

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NO. 75-1367 FILED

JAN 14 1976

John P. Hehman, Clerk

PETER J. BRENNAN, SECRETARY OF LABOR,

Petitioner,

Vv.

WINTERS BATTERY MANUFACTURING COMPANY,

Respondent.

BEFORE: PHILLIPS, Chief Judge, PECK and LIVELY,

Circuit Judges.

ORDER STAYING MANDATE

ORDERED, That motion to stay mandate herein pend-

ing application to the Supreme Court for writ of certiorari

is hereby granted and the mandate is stayed for thirty days

from this date; provided that, if within such thirty days,

the applicant shall file with the Clerk of this Court the cer -

tificate of the Clerk of the Supreme Court that the certiorari

petition, record, and brief have been filed, the stay shall

continue until the final disposition of the case by the Supreme

Court. Unless this condition is complied with within such

thirty days or any extension thereof made by the Court or

any judge thereof, or if the condition is complied with, then

upon the filing of copy of an order denying the writ applied

for, the mandate shall issue.

ENTERED BY ORDER OF THE COURT.

/s/ John P. Hehman

Clerk

APPENDIX B

Statutory Provisions Involved

TITLE 29, UNITED STATES CODE

* * *

§651. Congressional statement of findings and

declaration of purpose and policy

(b) The Congress declares it to be its purpose and

policy . . . to assure so far as possible every working

man and woman in the Nation safe and healthful working

conditions and to preserve our human resources —

(1) by encouraging employers and employees in

their efforts to reduce the number of occupational

safety and health hazards at their places of employ-

ment, and to stimulate employers and employees to

institute new and to perfect existing programs for pro-

viding safe and healthful working conditions... .

§ 652. Definitions

For the purposes of this chapter —

(3) The term “commerce” means trade, traffic,

commerce, transportation, or communication among

the several States, or between a State and any place

outside thereof, or within the District of Columbia, or

a possession of the United States (other than the Trust

Territory of the Pacific islands), or betweem points

— ” pees

Appendix B

in the same State but through a point outside thereof.

(5) The term “employer” means a person engaged

in a business effecting commerce who has employers,

but does not include the United States or any State or

political subdivision of a State.

§654. Duties of employers and employees

(a) Each employer —

(1) shall furnish to each of his employees em -

ployment and a place of employment which are free

from recognized hazards that are causing or are likely

to cause death or serious physical harm to his employ -

ees;

(2) shall comply with occupational safety and

health standards promulgated under this chapter.

(b) Each employee shall comply with occupational

safety and health standards and all rules, regulations,

and orders issued pursuant to this chapter which are ap-

plicable to his own actions and conduct.

* * =

§658. Citations

(a) If, upon inspection or investigation, the Secretary

or his authorized representative believes that an employer

has violated a requirement of section 654 of this title, of

any standard, rule or order promulgated pursuant to sec -

tion 655 of this title, or of any regulations prescribed

pursuant to this chapter, he shall with reasonable prompt-

ness issue a citation to the employer. Each citation

Appendix B

shall be in writing and shall describe with particularity

the nature of the violation, including a reference to the

provision of the chapter, standard, rule, regulation, or

order alleged to have been violated. In addition, the

citation shall fix a reasonable time for the abatement of

the violation. The Secretary may prescribe procedures

for the issuance of a notice in lieu of a citation with re-

spect to de minimis violations ‘which have no direct or

immediate relationship to safety or health.

VON FTV MOTD

§659. Enforcement procedures

(a) If, after an inspection or investigation, the Secre-

tary issues a citation under section 658(a) of this title,

he shall, within a reasonable time after the termination

of such inspection or investigation, notify the employer

by certified mail of the penalty, if any, proposed to be

assessed under section 666 of this title and that the em-

ployer has fifteen working days within which to notify the

Secretary that he wishes to contest the citation or proposed

assessment of penalty. If, within fifteen working days

from the receipt of the notice issued by the Secretary the

employer fails to notify the Secretary that he intends to

contest the citation or proposed assessment of penalty,

and no notice is filed by any employee or representative

of employees under subsection (c) of this section within

such time, the citation and the assessment, as proposed,

shall be deemed a final order of the Commission and not

subject to review by any court or agency.

(b) If the Secretary has reason to believe that an em-

ployer has failed to correct a violation for which a cita-

tion has been issued within the period permitted for its

correction (which period shall not begin to run until the

entry of a final order by the Commission in the case of

SEY EY He onrmerepe ee SR PLR RD Sr et eee ene ee a eS ee ee ee |

Appendix B

any review proceedings under this section initiated by the

employer in good faith and not solely for delay or avoid-

ance of penalties), the Secretary shall notify the employer

by certified mail of such failure and of the penalty pro-

posed to be assessed under section 666 of this title by

reason of such failure, and that the employer has fifteen

working days within which to notify the Secretary that he

wishes to contest the Secretary's notification or the pro-

posed assessment of penalty. If, within fifteen working

days from the receipt of notification issued by the Secre-

tary, the employer fails to notify the Secretary that he in-

tends to contest the notification or proposed assessment

of penalty, the notification and assessment, as proposed,

shall be deemed a final order of the Commission and not

subject to review by any court or agency.

to contest a citation issued under section 658(a) of this

title or notification issued under subsection (a) or (b) of

this section, or it, within fifteen working days of the is-

suance of a citation under section 658(a) of this title, any

employee or representative of employees files a notice

with the Secretary alleging that the period of time fixed in

the citation for the abatement of the violation is unreason-

able, the Secretary shall immediately advise the Commis-

sion of such notification, and the Commission shall afford

an opportunity for a hearing (in accordance with section 554

of Title 5 but without regard to subsection (a)(3) of such

section). The Commission shall thereafter issue an order,

based on findings of fact, affirming, modifying, or vacating

the Secretary's citation or proposed penalty, or directing

other appropriate relief, and such order shall become

final thirty days after its issuance. Upona showing by

an employer of a good faith effort to comply with the abate-

BLEED THROUGH

— ee eer ee ee pies

50 i

Appendix B

ment requirements of a citation, and that abatement has

not been completed because of factors beyond his reason-

able control, the Secretary, after an Opportunity for a

hearing as provided in this subsection, shall issue an

order affirming or modifying the abatement requirements

in such citation. ...

§660. Judicial review

(a) Any person adversely affected or aggrieved by an

order of the Commission issued under subsection (c) of

section 659 of this title may obtain a review of such order

in any United States court of appeals for the circuit in

which the violation is alleged to have occurred or where

the employer has its principal office, or in the Court of

Appeals for the District of Columbia Circuit, by filing in

such court within sixty days following the issuance of such

order a written petition praying that the order by modified

or setaside. A copy of such petition shall be forthwith

transmitted by the clerk of the court to the Commission and

to the other parties, and thereupon the Commission shall

file in the court the record in the proceeding as provided

in section 2112 of Title 28. Upon such filing, the court

shall have jurisdiction of the proceeding and of the ques-

tion determined therein, and shall have power to grant

such temporary relief or restraining order as it deems

just and proper, and to make and enter upon the pleadings,

testimony, and proceedings set forth in such record a

decree affirming, modifying, or setting aside in whole or

in part, the order of the Commission and enforcing the

same to the extent that such order is affirmed or modified.

The commencement of proceedings under this subsection

shall not, unless ordered by the court, operate as a stay

of the order of the Commission. No objection that has

not been urged before the Commission shall be considered

Appendix B

by the court, unless the failure or neglect to urge such

objection shall be excused because of extraordinary cir-

cumstances. The findings of the Commission with re-

spect to questions of fact, if supported by substantial evi-

dence on the record considered as a whole, shall be con-

clusive. If any party shall apply to the court for leave

to adduce additional evidence and shall show to the satis-

faction of the court that such additional evidence is material

and that there were reasonable grounds for the failure to

adduce such evidence in the hearing before the Commission,

the court may order such additional evidence to be taken

before the Commission and to be made a part of the record.

The Commission may modify its findings as to the facts,

or make new findings, by reason of additional evidence

so taken and filed, and it shall file such modified or new

findings, which findings with respect to questions of fact,

if supported by substantial evidence on the record con-

sidered as a whole, shall be conclusive, and its recom-

mendations, if any, for the modification or setting aside

of its original order. Upon the filing of the record with

it, the jurisdiction of the court shall be exclusive and its

judgment and decree shall be final, except that the same

shall be subject to review by the Supreme Court of the

United States, as provided in section 1254 or Title 28.

Petitions filed under this subsection shall be heard expedi -

tiously.

(b) The Secretary may also obtain review or enforce-

ment of any final order of the Commission by filing a

petition for such relief in the United States court of ap-

peals for the circuit in which the alleged violation occurred

or in which the employer has its principal office, and the

provisions of subsection (a) of this section shall govern

such proceedings to the extent applicable. [If no petition

52 '

Appendix B

for review, as provided in subsection (a) of this section,

is filed within sixty days after service of the Commission's

order, the Commission's findings of fact and order shall

be conclusive in connection with any petition for enforce-

ment which is filed by the Secretary after the expiration

of such sixty-day period. In any such case, as well as

in the case of a noncontested citation or notification by

the Secretray which has become a final order of the Com-

mission under subsection (a) or (b) of section 659 of this

title, the clerk of the court, unless otherwise ordered by

the court, shall forthwith enter a decree enforcing the

order and shall transmit a copy of such decree to the Secre-

tary and the employer named in the petition. In any con-

tempt proceeding brought to enforce a decree of a court

of appeals entered pursuant to this subsection or subsec -

tion (a) of this section, the court of appeals may assess

the penalties provided in section 666 of this title, in addi-

tion to invoking any other available remedies.

* * *

$666. Civil and criminal penalties

(b) Any employer who has received a Citation for a

serious violation of the requirements of section 654 of

this title, of any standard, rule, or order promulgated

pursuant to section 655 of this title, or of any regulations

prescribed pursuant to this chapter, shall be assessed a

civil penalty of up to $1,000 for each such violation.

lation of the requirements of section 654 of this title, of

any standard, rule, or order promulgated pursuant to sec -

tion 655 of this title, or of regulations prescribed pursuant

to this chapter, and such violation is specifically determined

Appendix B

not to be of a serious nature, may be assessed a civil

penalty of up to $1,000 for each such violation.

(j) For purposes of this section, a serious violation

shall be deemed to exist in a place of employment if there

is a substantial probability that death or serious physical

harm could result from a condition which exists, or from

one or more practices, means, methods, operations, or

processes which have been adopted or are in use, in such

place of employment unless the employer did not, and

could not with the exercise of reasonable diligence, know

of the presence of the violation.

ee 6 ©

iy Eo casera RRS VRE WSIS EN ORDER SURAT IRIS REA REET NTE ESE SNIP MAN TE

APPENDIX C

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY

AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant

OSHRC

big DOCKET NO. 2311

THE HYDRATE BATTERY

CORPORATION,

Respondent

DECISION

Before MORAN, Chairman; VAN NAMEE and CLEARY,

Commissioners.

VAN NAMEE, Commissioner:

The only issue remaining in this case is whether Judge

William E. Brennan erred by modifying a citation for an

alleged serious violation of the Occupational Safety and

Health Act (29 U.S.C. 651 et seq. ) to other than serious

on the ground that Complainant failed to prove to a sub-

stantial probability that excessive concentrations of air

borne lead existing in Respondent's workplace would pro-

duce serious physical harm. He based his decision on

the nature of the evidence produced by the Secretary.

That evidence comprised the testimonial statements of a

1 29C.F.R, 1910. 98(b) Table G-2 prescribes a time weighted limit

value of 0,2 milligrams per cubic meter for lead and its inorganic com-

pounds,

Appendix C

(2)

chemical engineer and an analytical chemist and certain

hearsay comprising an article by one Doctor Kehoe and the

engineer's statement concerning a supposed guideline is-

sued by the National Institute for Occupational Safety and

Health.* Judge Brennan found this evidence incompetent

on the issue of the physiological effect of the levels of air

borne lead existing in Respondent's (Hydrate) workplace

on its employees.

I ordered review because of an apparent conflict with

our decision adopting Judge Brennan's report in American

Smelting and Refining Co., Dkt. 10, BNA 1 OSHC 1256,

CCH E.S.H.G. para. 16,456 (1973), pet. denied, 501 F.2d

504 (8th Cir., 1974). In view of the judge's specific rea-

sons for disposition herein I requested submissions on

whether the citation for serious violation in this case may

be affirmed by officially noticing facts not of record and I

requested that facts considered appropriate for such notice

be identified.

In reply, the Secretary argues that we may take official

notice of legislative facts including those that are of rec-

ord in other cases involving other parties. He therefore

asks us to take notice that according to scientific studies

including a NIOSH criteria document, entitled Occupational

Exposure to Inorganic Lead (1972) exposure to dangerous

levels of air borne lead causes serious physical harm.

* The guideline is not of record except as it is represented by the

testimonial statement of its content. According to that statement NIOSH

expressed an opinion that exposures above 0.6 milligrams per cubic meter

are serious.

—s rn =F 1S oA EOL)

Appendix C

[3]

We do not suppose any reasonable person can take issue

with the fact that excessive exposure to dangerous levels

of air borne lead can cause serious physical harm. But

even if we assume the fact, that does not prove the Secre-

tary's case before us.

PESTER TEED * otic LeNRay

Here, he measured the exposure of Hydrate's employees

for one eight hour period. He obtained the following re-

sults:

Employee Exposure in mg/M®2

Wright, C. 0.926

Wright, D. 0.206

Russell, G. 0.624

Morrell, D. 0.513

Saunders, R. 1.088

No evidence was adduced upon which we could conclude

that Hydrate's employees were exposed to excessive lead

concentrations for any period greater than eight hours.

On the contrary, Hydrate adduced evidence of air samples

and blood tests taken in 1967 and 1972 that militate against

a conclusion that its employees were exposed to excessive

lead on a chronic basis.

We deem the distinction between acute and chronic ex-

posure to be significant. The recommendations of the

NIOSH criteria document mentioned above are predicated

on long term or chronic exposure. The record in the

American Smelting case demonstrated exposure to exces-

sive airborne lead on a chronic basis.

De Ne eee. |

Ba a

Appendix C

But here all we have is a record demonstrating exces-

sive exposure on a short term or acute basis. And there

is no evidence that such exposure will most likely result

[4]

in serious physical harm.

Accordingly, the judge's report is adopted for the rea-

sons assigned by him and for the reasons assigned herein.

It is soORDERED.

FOR THE COMMISSION:

/s/ William S. McLaughlin

WILLIAM S. McLAUGHLIN

EXECUTIVE SECRETARY

DATE: Mar 19 1975

MORAN, Chairman, Concurring:

I believe Judge Brennan correctly decided this case and

I join in the affirmance of his decision for the reasons

given therein.

[5]

CLEARY, Commissioner, DISSENTING:

I dissent. The majority ignores the well-documented

hazards of exposure to air borne lead, and overlooks the

realities of health hazard enforcement under the Act.

RLEED THROUGH

Appendix C

Judge Brennan held that the Secretary failed to prove

that the levels of air borne lead in respondent's workplace

constituted a serious violation of the Act. This decision

was based largely on the Judge's refusal to give any weight

to the Secretary's references to materials on lead issued

by the National Institute for Occupational Safety and Health

(NIOSH) and an article by Dr. Robert A. Kehoe, a recog-

nized expert on industrial lead poisoning. In addition,

the Judge refused to admit into evidence three articles on

lead offered by respondent, one of which was the article

by Dr. Kehoe. Judge Brennan termed the articles "three

grand hearsay documents, .. .not competent evidence

- + .as well as lacking sufficient relevancy and material-

ity.”

Regarding the Secretary's testimony that relied on the

NIOSH documents and Kehoe article, the Judge wrote in

his decision that they were “hearsay, which, although ad-

missible, can not be used to support a finding unless other-

wise supported by competent evidence."? The Judge's

[6]

reliance on the residuum rule was apparently adopted sub

silentio by the majority. I disagree with this holding.

The admissibility of hearsay evidence in administrative

adjudications is well recognized. Copperweld Steel Co.,

' The paradox created by the Judge's admitting the hearsay testimony,

but refusing to admit the hearsay articles introduced by respondent is not

resolved by the record or the Judge's decision. One possible explanation

is that the Judge differentiated between documentary and testimonial hear-

say. Nevertheless, assuming there is a meaningful distinction, and that

one type of hearsay should be excluded, the Judge's decision is erroneous,

See infra,

EASY Va

Appendix C

No. 5110 (February 8, 1975) (concurring opinion); 2 K.

Davis, Administrative Law Treatise § 14.08 (1958).

The only issue is whether uncorroborated hearsay alone

may support an evidentiary finding. The older cases

hold that hearsay evidence alone cannot support an evi-

dentiary finding, but that there must be a "residuum" of

“competent” evidence. See Bridges v. Wixon,326 U.S.

135 (1945); Consolidated Edison Co. v. N.L.R.B., 305

U.S. 197, 230 (1938); Carroll v. Knickerbocker Ice Co.,

218 N.Y. 435, 113 N.E. 507 (1916).

In recent years, the trend in the federal courts has

been toward an unqualified rejection of the residuum rule.

See K. Davis, Administrative Law Text § 14.08 at 281

(1972). In Richardson v. Perales, 402 U.S. 389 (1971),

the Supreme Court held that reliable and probative hear -

say testimony alone may support an evidentiary finding.

In Perales, the hearsay was in the form of written medi-

calreports. The Court "clarified" Chief Justice Hughes'

famous remark in Consolidated Edison, supra, that

“[m Jere uncorroborated hearsay or rumor does not con-

stitute substantial evidence." The Court stated:

"The contrast the Chief Justice was drawing, at

the very page cited, was not with material that would

be deemed formally inadmissible in judicial proceed-

ings but with material 'without a basis in evidence hav-

ing rational probative force.’ This was not a blanket

rejection by the Court of administrative reliance on

hearsay irrespective of reliability and probative value.

The opposite was the case."

402 U.S. at 407.

ame eameamweam amee «eam 24ae & 228 fF

het AL ntti nn line ct

OT et ten ge

Appendix C

[7]

In my view, reliable and probative hearsay along may

be sufficient to support an evidentiary finding. See Cop-

perweld Steel Co., supra (concurring opinion); B &K

Paving Co., No. 59 (September 5, 1974) (concurring

opinion).

In the present case, Judge Brennan erred by not giving

greater weight to the Secretary's testimonial evidence.

That evidence reflected expert opinion to the effect that

exposure to air borne lead in the amounts detected at

respondent's workplace could result in serious physical

harm.

The Judge also erred in refusing to admit into evidence

the written articles on lead that were offered by respond-

ent. The Kehoe article was not objected to by the Secre-

tary. The Judge was therefore bound to accept it into

evidence and accord it its natural probative weight. Cf.

Opp Cotton Mills v. Administrator of Wage & Hour Div.,

Dept. of Labor, 312 U.S. 126, 154-55 (1941). In any

event, all of the written articles could have been admitted

under the learned treatises exception to the hearsay rule.

See 6 Wigmore on Evidence §§ 1690-93 (3d ed. 1940);

McCormick's Handbook of the Law of Evidence § 321 (2d

ed. 1972). As the District of Columbia Circuit Stated in

Dolcin Corp. v. F.T.C., 219 F.2d 742, 749 (D.C. Cir.

1954), cert. denied, 348 U.S. 981 (1955): "We think

authoritative scientific writings can—and should —be

freely used by administrative agencies" (foomote omitted).

II.

In his brief before the Commission, the Secretary ar-

gues that the Commission should take official notice that

' a sepnageng Reba Tie “Sa NORE SENSE PSOE PINT ESR

SES APSR PO TERETE OFS ON REL TRIAD BIO IT ROLES NT LE ENB SERRANO eI —_ 7

aay eee on <I pee mr ee +

Appendix C

air borne lead in the quantities measured at respondent's

workplace could cause death or serious physical harm.

[8]

Even though conceding that “excessive exposure to danger -

ous levels of air borne lead can cause serious physical

harm,” the majority refused to take official notice of

recognized scientific writings that detail the seriousness

of air borne lead exposure. I disagree with this position.

I believe the Commission is compelled to take official

notice of such documents.

Official notice is more expansive than judicial notice.

In enacting the APA, Congress adopted the view:

“that ‘the permissible area of official notice be ex-

tended" so as to avoid ‘laborious proof of what is ob-

vious and notorious’... .

Attomey General's Manual on the Administrative Proce-

dure Act 79 (1947). In addition, even as to judicial no-

tice the Second Circuit in Continental Can Co., Inc. v.

United States, 272 F.2d 312, 315 (2d Cir. 1959), stated:

"In reaching their decisions, neither Courts nor ad-

ministrative bodies should ignore the realities of life

and disregard common knowledge even though such

knowledge may not have achieved a place within the

purview of judicial notice."

This is especially true of matters "which the agency be

reason of its functions is presumed to be expert, such as

technical or scientific facts within its specialized knowl-

edge." Attorney General's Manual, supra at 80.°

Agencies may take official notice of facts at any stage in a proceed-

(continued on following page)

RLEED THR OUGH

tein

Appendix C

[9]

Inhalation and ingestion of inorganic lead in excess

concentrations can lead to anemia, colic, kidney disease,

brain damage, and cardiorespiratory disorders, to name

but a few. See NIOSH, Criteria for a Recommended

Standard . . . Occupational Exposure to Inorganic Lead

at IlI-3 et seq. (1972). The Secretary's air sampling

tests indicated readings substantially above the maximun

permissible limits. These facts, together with the well

documented hazards of lead poisoning, are sufficient to

find a serious violation. Cf. American Smelting & Re-

fining Co. v. O.S.H.R.C., SOl F.2d 504 (8th Cir. 1974).

For the majority to hold differently is to "eviscerate the

import of the regulation and flout the purposes of the en-

abling legislation." Brennan v. Southern Contractors

Service &O.S.H.R.C., 492 F.2d 498, 501 (Sth Cir.

1974).

Ill. :

In connection with hearsay and official notice, it must

be noted that the majority opinion ignores the realities of

enforcement under the Act. In fiscal 1974, citations

were issued for 11,284 health violations. This number

is expected to increase dramatically in fiscal 1975 and

future years. It is unrealistic to expect that in every

hearing involving a health hazard that the Secretary will

5 ORE AO Ny oe

(Continued from preceding page)

ing—even in the final decision— but the matters thus noticed should be

specified and ‘any party shall on timely request be afforded an opportunity

to show the contrary."

Attorney General's Manual on the Administrative Procedure Act 80 (1947)

The majority's holding in this case, however, makes it unnecessary to dis-

cuss the procedure that would be available to respondent to object to the :

noticed information. ;

i ee eo ee es

i ichliteheshieliaalcatlitameitaeaeaibielisiitcaiimeidablll

Appendix C

have the testimony of an expert witness. This may be

impossible. Official notice by the Commission and the

receiving into evidence of authoritative scientific docu-

ments are the only solutions.

The use of written scientific information is strongly

urged in 6 Wigmore, supra § 1691 at 5:

"Costly litigation is the parasite of justice; and we

pay too high a price when we refuse to accept our in-

formation from a competent source ready at hand.

Moreover, there are certain matters upon which the

[10]

conclusions of two or three leaders in the scientific

world are always preeminently desirable; and it is

highly unsatisfactory that, except in the region where

they may happen to live, the opinions of world-famous

investigators should have no standing of their own.

Whether it is merely a question of relative expense,

the principle of Necessity . . . is equally satisfied;

and we should be permitted to avail ourselves of their

testimony in the printed form in which it is most con-

venient" (footnote omitted).

A greater use of official notice would also benefit pri-

vate parties such as the employer and affected employees.

IV.

During the inspection of respondent's workplace, the

Secretary measured the exposure of five of respondent's

employees to air borne lead for an eight hour period.

The tests were performed by an experienced compliance

officer and the results were determined by an expert ana-

lytical chemist. The testing procedure of using air pumps

RLEED THROUGH

Appendix C

attached to various workers was specifically approved by

the Eighth Circuit in American Smelting, supra.

The test results indicated that all five employees were

exposed to concentrations of air borne inorganic lead in f

excess of the threshold limit value (TLV) of two-tenths

milligrams of lead per cubic meter of air (.2 mg/M?)

prescribed by the standard at 29 CFR § 1910.93(b).°

(11)

In fact, one employee's exposure level was measured at

1.088 mg/M3, more than five times the allowable limit.

Cf ONLY ORE OE OF

The majority states that these tests are inconclusive

to establish a serious violation and that prolonged exposure

on a “chronic™ basis is required to prove a serious vio-

lation. The majority relies on air samples and blood

tests taken in 1967 and 1972 by the company to conclude

that the excess exposure was not chronic. The majority

makes a distinction between “chronic," or long term, and

“acute” exposure to lead. The majority is making a

distinction which may have severe consequences. |

strongly disagree. The majority is saying in effect that

workers must be exposed to the harmful effects of lead

poisoning for a prolonged period of time before the ex-

posure levels at their workplace may be considered a

serious violation. This may invite casuistry in compli-

ance with she standard.

. Although the present limit is -2 mg/M*, NIOSH has proposed that the

maximum level be set at.15 mg/M”. See NIOSH, Criteria for a Recom-

mended Standard... . Occupational Exposure to Inorganic Lead (1972).

Moreover, as noted by the Eighth Circuit in American Smelting & Refining

Co. v. O.S.H.R.C., 501 F.2d 504, 513 n. 19 (8th Cir. 1974), other

countries have set lower limits, including: Soviet Union, .01 mg/M°;

Czechoslovakia, Pol and Japan, .05 mg/M?°; and Great Britain and

Yugoslavia, .15 mg .

————— OT LP OPE I IO LE OEE LP IO EG SO TORS IEE SESE ES IIIS |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.