Bloomfield Mechanical Contracting, Inc. v. Occupational Safety and Health Review Com'n

• Decision Date: 11 August 1975
• Docket Number: No. 74-1485,74-1485
• Citation: 519 F.2d 1257
• Parties: 3 O.S.H. Cas.(BNA) 1403, 1975-1976 O.S.H.D. ( 19,917 BLOOMFIELD MECHANICAL CONTRACTING, INC., and Bloomfield-Blumin, a joint venture, Petitioners, v. The OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Peter J. Brennan, Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Third Circuit

Page 1257

519 F.2d 1257

3 O.S.H. Cas.(BNA) 1403, 1975-1976 O.S.H.D. ( 19,917

BLOOMFIELD MECHANICAL CONTRACTING, INC., and Bloomfield-Blumin, a joint venture, Petitioners, v. The OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Peter J. Brennan, Secretary of Labor, Respondents.

No. 74-1485.

United States Court of Appeals Third Circuit.

Argued Feb. 28, 1975.

Decided Aug. 11, 1975.

Lum, Biunno & Tompkins, Newark, N. J., for petitioners; Ronald H. De Maria, Dominick A. Mazzagetti, David A. Birch, Newark, N. J., on the brief.

Rex Lee, Asst. Atty. Gen., Stephen F. Eilperin, Neil H. Koslowe, Attys. Civ. Div., Appellate Section, Dept. of Justice, Washington, D. C., for respondent, Peter J. Brennan, Secretary of Labor.

Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Bloomfield Mechanical Contracting, Inc. and Bloomfield-Blumin Joint Venture petition pursuant to § 11(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(a), to review and set aside a final order of the Occupational Safety and Health Commission affirming citations and proposed penalties issued by the Secretary of Labor for violations of the Act. The fact of violation was not disputed before the Commission nor is it in dispute upon review here. The petitioners challenge the Commission action on account of procedural deficiencies which they contend deprived it of jurisdiction, and because of alleged constitutional deficiencies in OSHA.

Upon review of the final order and decision, we remand to the Commission for further consideration of the procedural challenges raised by the joint venture. In addition, we hold that no order should have been entered against Bloomfield Mechanical Contracting, Inc. We also find that the constitutional challenges to OSHA, to the extent that either petitioner has standing to raise them, are controlled by the en banc decision of this court in Frank Irey, Jr., Inc. v. Occupational Safety and Health Review Commission, No. 73-1765 (3d Cir., July 24, 1975), or are insubstantial. Thus we affirm the Commission's order to the extent that it rejects the joint venture's constitutional challenges.

I. THE PROCEDURAL CHALLENGES.

On May 1, 1972 Bloomfield Mechanical Contracting, Inc., a New Jersey plumbing contractor, entered into a joint venture with Blumin & Associates, Inc., a New York plumbing contractor. The joint venture was named "Bloomfield-Blumin Joint Venture." For purposes of convenience we will hereafter refer to Bloomfield Mechanical Contracting, Inc. as "Bloomfield," to Blumin & Associates, Inc. as "Blumin," and to Bloomfield-Blumin Joint Venture as "the joint venture." On the same day as the joint venture agreement was executed, the joint venture entered into a plumbing installation contract with Valentine Electric Company, a subcontractor at the construction site of the Castleton Park Apartments in Staten Island. (App. at 69a).

On November 21, 1972 an inspector from the Occupational Safety and Health Administration of the Department of Labor visited the Castleton Park site and found two serious and two non-serious violations of OSHA safety regulations. 29 CFR §§ 1926.500(b)(1) & (d)(1); 29 CFR § 1926.25(a); 29 CFR § 1926.500(e)(1) (iii). As a result of the inspection, on December 19, 1972 the Secretary of Labor issued citations and a notification of proposed penalties in the name of Bloomfield, and mailed them to Bloomfield in care of its President, Anthony Deland. §§ 9(a), 10(a), 29 U.S.C. §§ 658(a), 659(a). (App. at 3a-8a). On December 26, 1972, Deland, on behalf of Bloomfield, acknowledged receipt of the citations and notification and advised the Occupational Safety and Health Administration that Bloomfield intended to contest them. (App. at 9a).

On January 10, 1973 the Secretary filed with the Commission a formal complaint against Bloomfield alleging the violations and requesting affirmance of the citations and proposed penalties. § 10(c), 29 U.S.C. § 659(c). (App. at 10a-14a). Bloomfield answered the complaint on January 24, 1973. The answer admitted that it was engaged in construction activities at Castleton Park, but denied that it was responsible for the violations which it attributed to others over whom it had no control. It also challenged the Act on various constitutional grounds. The answer made no specific reference to the joint venture. (App. at 15a-19a). Three months later, on April 6, 1973, when the Commission assigned the case to an administrative law judge for hearing, counsel for Bloomfield for the first time advised the Secretary and the Commission that the workmen performing the plumbing work at the Castleton Park site were not employed by Bloomfield, but by the joint venture. (App. at 20a). Bloomfield moved to file an amended answer withdrawing its admission that it was engaged in construction at the site. (App. at 21a-26a). The administrative law judge granted this motion without objection by the Secretary. Bloomfield then moved to dismiss the Secretary's complaint on the ground that it was not an employer at the site.

At a hearing on May 3, 1973 the administrative law judge ruled that Bloomfield was the party to be served for the joint venture (App. at 106a, and granted the Secretary's motion to amend the complaint by adding the joint venture as a party respondent. (App. at 99a, 103a). On June 6, 1973 the Secretary filed an amended complaint naming as respondents Bloomfield individually and doing business as a joint venture, and the joint venture individually. (App. at 29a-34a). However, on June 7, 1973 the administrative law judge apparently had second thoughts about the previous ruling, for he notified the parties that it would be modified to the extent that a special hearing would be held solely on the question of jurisdiction. (Government's Addendum to Brief at 1b). At the conclusion of this hearing, which was held on July 18, 1973 the administrative law judge ruled:

"I adhere to my original ruling with one exception.

Instead of adding the party of the joint venture, I the name should be changed to that other joint venture.

Now do I hear a motion to that effect?" (App. at 119a-20a).

The Secretary so moved, and the motion was granted. The administrative law judge pointed out that "(a)ll I am doing is adhering to it (the previous ruling) and wiping out Bloomfield." (App. at 121a). Thus as of July 18, 1973 Bloomfield was out of the case or at least believed it was.

The attorney for the joint venture (who is also the attorney for Bloomfield) at this point raised procedural objections to the amended complaint which present the main issues now confronting us. He objected that the Secretary had not issued the citation in the name of the employer who allegedly violated the Act, § 9(a), 29 U.S.C. § 658(a); that the notice of proposed penalty had not been addressed to the employer who allegedly violated the Act, § 10(a), 29 U.S.C. § 659(a); and that no citation had been issued against that employer within the six month limitation period following the alleged violation. § 9(c), 29 U.S.C. § 658(c). (App. at 121a-22a). The administrative law judge overruled counsel's objections to the amendment of the complaint. (App. at 123a).

Although the July 18, 1973 rulings permitted the Secretary to file a second amended complaint he did not do so, possibly in the belief that the administrative law judge's ruling was self-executing. After further correspondence with the administrative law judge, the joint venture on August 9, 1973 filed an answer to the Secretary's June 6, 1973 amended complaint in which it admitted that it was an employer on the site, objected to the jurisdiction of the Commission on the procedural grounds referred to above, and pleaded the same constitutional objections to OSHA as had been pleaded earlier by Bloomfield. (App. at 38a-43a). Since there never was any dispute that the violations occurred, on January 7, 1974 the Secretary and the joint venture filed a stipulation establishing (1) that the employees at the site were employed by the joint venture, (2) that the violations described in the citations occurred, and (3) that if the Act were to be applied to the joint venture the classification of the violations as serious and nonserious was correct and the proposed penalties appropriate. (App. at 44a-46a). Thus the effect of the stipulation was to present for decision the joint venture's legal objections.

On January 9, 1974 the Secretary moved for an order affirming the citations and proposed penalties. § 10(c), 29 U.S.C. § 659(c). In a decision filed on February 19, 1974 the administrative law judge rejected all procedural and constitutional challenges. With respect to the procedural challenges he ruled:

"I find that either the joint venture or Bloomfield Mechanical Contracting, Inc. may be held responsible for the payment of the penalties, and the Citations are to be utilized against the records of both, Bloomfield-Blumin, the joint venture and against Bloomfield Mechanical Contracting, Inc., one of the joint adventurers, for use in future actions under the Occupational Safety and Health Act." (App. at 67a).

His order affirmed the citations and the proposed penalties against both Bloomfield and/or the joint venture. (App. at 67a). The petitioners then filed a petition for discretionary review by the Commission. When no Commissioner directed review, the administrative law judge's order became final on March 21, 1974. 29 U.S.C. § 661(i). The instant petition to review and set aside the order followed. 29 U.S.C. § 660(a).

A. The Bloomfield Petition

The government's brief makes this concession:

"Although the record is not entirely free from ambiguity on the matter (compare App. 119a-123a with App. 35a-37a), it does appear that the Commission, on the Secretary's motion, dismissed Bloomfield Mechanical as a named respondent. Therefore, the order of the Commission should have been entered only against...