Brennan v. Occupational Safety and Health Review Com'n

• Decision Date: 14 August 1974
• Docket Number: No. 73-1131,73-1131
• Citation: 502 F.2d 946
• Parties: 2 O.S.H. Cas.(BNA) 1137, 1974-1975 O.S.H.D. ( 18,479 Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Hanovia Lamp Division, Canred Precision Industries, Respondents.
• Court: U.S. Court of Appeals — Third Circuit

Page 946

502 F.2d 946

2 O.S.H. Cas.(BNA) 1137, 1974-1975 O.S.H.D. ( 18,479

Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Hanovia

Lamp Division, Canred Precision Industries, Respondents.

No. 73-1131.

United States Court of Appeals, Third Circuit.

Argued June 13, 1974.

Decided Aug. 14, 1974.

Harlington Wood, Jr., Asst. Atty. Gen., Walter H. Fleischer, Michael H. Stein, Attys., Carla A. Hills, Asst. Atty. Gen., Stephel F. Eilperin, Atty., Dept. of Justice, Washington, D.C., for petitioner; William J. Kilberg, Solicitor of Labor, Benjamin W. Mintz, Associate Solicitor for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, Helen Schuitmaker, Atty., of counsel.

Allen H. Sachsel, Appellate Counsel, Occupational Safety and Health Review Comm., Washington, D.C., for respondents.

Before STALEY, GIBBONS and WEIS, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

This case presents the issue of the proper scope of review of an adjudicatory final order of the Occupational Safety and Health Review Commission when the Secretary of Labor petitions for review or enforcement pursuant to 11(b), 29 U.S.C. 660(b) of the Occupational Safety and Health Act of 1970. Pub.L. 91-596, 1970 U.S.Code Cong. and Admin.News, p. 5177, 29 U.S.C. 651 (The Act). The order in question reversed a decision by the Administrative Law Judge holding that Hanovia Lamp Division, Canrad Precision Industries, had on August 6, 1971 committed a serious violation of 5 of the Act, 29 U.S.C. 654(a). That subsection obliges each employer to furnish to each of his employees employment and a place of employment which are free from recognized hazards likely to cause them death or serious physical harm. Section 5(b) of the Act mandates that each employer shall comply with occupational safety and health standards promulgated under the Act. Thus the Act imposes on employers both a duty to provide employment free from recognized hazards (the general duty clause) and a duty to comply with specific standards promulgated by rule. Only the general duty clause is in issue in this case. Section 17 of the Act, 29 U.S.C. 666, provides for civil penalties for violations of a 5 duty. Civil penalties for serious violations are mandatory. 29 U.S.C. 666(b). Penalties for violations determined to be not of a serious nature are discretionary. 29 U.S.C. 666(c). Serious violations are defined as those where:

'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 suchn place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.' 29 U.S.C. 666(j).

Section 9 of the Act, 29 U.S.C. 658, authorizes the Secretary of Labor or his authorized representative to issue a written citation to any employer believed to have violated any duty prescribed by 5. By Section 10, 29 U.S.C. 659, the Secretary is authorized following the issuance of a 9 citation, to notify the employer of the penalty proposed to be assessed. The employer may acquiesce in the proposed assessment or, pursuant to 10(c), 29 U.S.C. 659(c) notify the Secretary that he intends to contest the citation. If, as in this case, the employer serves notice of a contest:

'the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing (in accordance with section 554 of Title 5 ¹ 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 . . ..' 29 U.S.C. 659(c).

Section 11 of the Act provides for judicial review of a 10(c) order by a petition to the 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. The petitioner may be either a person adversely affected or aggrieved by a 10(c) order, 29 U.S.C. 660(a), or the Secretary, 29 U.S.C. 660(b). On a Secretary's petition 'the provisions of subsection (a) of this section (11) shall govern such proceedings to the extent applicable.' 29 U.S.C. 660(b). Thus whether the petitioner is the Secretary or a person adversely affected or aggrieved, this court is bound by the provisions of 11(a) including the sentence:

'The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.' 29 U.S.C. 660(a). See also 5 U.S.C. 706(2).

In this case the employer contested the Secretary's citation for a serious violation throughout the administrative proceedings, but it has filed no response to the Secretary's petition for review. The Commission has, however, responded in defense of its order, and the litigation is obviously a part of the ongoing conflict between the Commission and the Secretary as to their respective roles in the enforcement of the Act. See, e.g., Brennan v. Occupational Safety & Health Review Commission (Pearl Steel Erection Company), 488 F.2d 337 (5th Cir. 1973); Brennan v. Occupational Safety & Health Review Commission (Brent Towing Co., Inc.), 481 F.2d 619 (5th Cir. 1973). Unlike the Brent Towing case, however, the employer here has not withdrawn its contest of the Secretary's citation. Thus we conclude that there is a continuing case or controversy warranting judicial review even though Hanovia has not responded to the petition for review.

The citation which produced the challenged order arose from the Secretary's investigation of an incident at Hanovia's Newark, New Jersey laboratory. Hanovia tests, manufactures and sells high energy lamps and associated equipment. On August 6, 1971 Orville Galligher, a laboratory technician, electrocuted himself while conducting an experiment. The Secretary's investigation and citation followed. When Hanovia contested the citation a hearing was held before an administrative law judge pursuant to 29 U.S.C. 661(i), who made findings that:

'9. The (Secretary's) inspection disclosed that on August 6, 1971 the late Orville L. Galligher was working in proximity to high voltage with the cover on the service box open and wires tapped into the service box. In addition thereto, the terminals of the capacitators in the workplace referred to, were not covered and metal parts were not grounded.

. . . . ca

16. On August 6, 1971, Hanovia failed to furnish its employee, the late Orville L. Galligher, employment and a place of employment free from recognized hazards that were causing or likely to cause death or serious physical harm to its employee, when it allowed him to work in proximity to, and with, high voltage, with the cover of the service box open, with wires tapped into the service box; with the terminals of the capacitators not covered; and metal parts ungrounded, in a workplace as shown in Plaintiff's Exhibit #2; and Galligher was left to work alone, without proper supervision. 17. The respondent alleges and the Judge believes that the late Mr. Galligher personally installed those conditions that made the workplace hazardous.

. . . .

21. It would take at least 45 minutes of work for the late Mr. Galligher to have created the condition which constituted the employment hazard. In addition thereto, the materials used in creating the hazardous condition was transported from the respondent's other premises some distance away, in the stockroom at 100 Chestnut Street. He would have had to travel through the corridor and would have had to sign a requisition for the equipment used.' (Tr. at 22, 23, 24, 106, 117, 118, 119, 186. See Appendix at 26-28.)

The Administrative Law Judge made a conclusion of law that:

'5. Hanovia violated the General Duty Clause of the Act (Section 5(a)(1) thereof), by providing its late employee Galligher employment and a place of employment that contained recognized hazards that were likely to cause death or serious physical harm in a manner described in Findings #9 and #16 . . ..' (Decision of the Administrative Judge at 10. See Appendix at 31.)

Hanovia never contested that the condition described in Finding #9 was a recognized hazard. There is expert testimony by the Secretary's compliance officer that the described condition is 'a classical, fundamental, basic illustration as to what not to do, and it couldn't have been done better had you tried.' (Tr. at 24). Indeed Dr. Otto Lienhard, Hanovia's Research Director in charge of lamp engineering and Mr. Galligher's supervisor, testified:

'Q So what was your reaction to this hazardous condition?

A I was shocked, because I hadn't expected anything like that.' (Tr. at 136).

The evidence is also undisputed that Galligher, an experienced technician, had worked for Hanovia for 21 years, including 14 years with high voltage equipment, that during his entire 21 years he had an accident-free record, had worked under Lienhard's supervision for 10 years, and had never been observed by Lienhard to do anything unreliable or unsafe. The record establishes unequivocally that Hanovia did not know that Galligher had set up the test equipment in the manner described in Finding #9. In reviewing the Administrative Law Judge's decision, Commissioner Burch wrote for the Commission:

'The only question that remains is whether or not respondent could with the exercise of reasonable diligence, know of the presence of the violation. The Secretary maintains that the violation could not have taken place if the decedent had been adequately supervised. We find no merit to this argument. While close supervision may be required in some cases to avoid accidents, it is unrealistic to expect an...