# Petition for Writ of Certiorari — Winters Battery Manufacturing Co. v. Usery > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0059%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1976 - **Citation:** 425 U.S. 991 ## 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 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 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 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 va 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 7 a 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 zi "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 22 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 a - Dated at Nashville _. Tennessee this 12th day 3 ot _Februsry 9. a3 ¥ é i & ge f 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) ia POOR COPY 23 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 . * y 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 24 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 25 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 26 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 27 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 28 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 29 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 30 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 31 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 32 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. 33 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. 34 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 35 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 36 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» 37 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 38 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 39 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 40 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 — 41 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 42 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 43 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. (c) The Commission may order such stay for the period requested or for such longer or shorter period as it deems appropriate. RLEED THRPOUGH 4 é 44 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 45 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 46 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 47 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 48 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 | 49 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. (c) If an employer notifies the Secretary that he intends 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 Sl 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. (c) Any employer who has received a Citation for a vio- 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 53 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 54 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, | 55 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) 56 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 57 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 58 Appendix C I. 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 59 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 60 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 el ' 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