International Union, United Auto. Aerospace and Agr. Implement Workers of America (UAW) v. U.S. Occupational Safety and Health Review Com'n

• Decision Date: 24 June 1977
• Docket Number: No. 76-1718,76-1718
• Citation: 557 F.2d 607
• Parties: 5 O.S.H. Cas.(BNA) 1525, 1977-1978 O.S.H.D. ( 21,919 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE, AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW) and its Local 588, Petitioners, v. UNITED STATES OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 607

557 F.2d 607

5 O.S.H. Cas.(BNA) 1525, 1977-1978 O.S.H.D. ( 21,919

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW) and its Local 588, Petitioners, v. UNITED STATES OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.

No. 76-1718.

United States Court of Appeals, Seventh Circuit Argued Feb. 7, 1977.

Decided June 24, 1977.

Bertram Robert Cottine, Washington, D.C., Jerome Schur, Chicago, Ill., for petitioner.

Joseph A. O'Reilly, Dearborn, Mich., for intervenor.

Allen H. Sachsel, Atty., U.S. Dept. of Justice, Civ. Div., Appellate Section, Washington, D.C., for respondent.

Before CUMMINGS, PELL and TONE, Circuit Judges.

PER CURIAM.

Pursuant to Section 11(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 660(a)), the petitioner Union ¹ sought to review an order of the Occupational Safety and Health Review Commission issued on May 25, 1976. The order directed Ford Motor Company, a party before the Commission and intervenor before this Court, to implement feasible administrative or engineering noise controls at its Chicago Heights, Illinois, metal-stamping plant within a two-year period.

On March 6, 1973, the Secretary of Labor issued a citation charging Ford with violating Section 5(a)(2) of the Act ² and the pertinent regulation thereunder. ³ Ford was given 60 days to submit an abatement plan, but this date was extended until October 15, 1973.

On April 19, 1973, the Union filed a notice of contest with the Secretary asserting that the time period for submission of the abatement plan was unreasonably long. The matter was transferred to the Commission under Section 10(c) of the Act (29 U.S.C. § 659(c)). The Department of Labor filed its response on April 26, 1973, and the Union filed its answer on May 10, 1973. In its answer, the Union maintained that the amended citation "only fixed a date for submission of a plan for abatement which was unreasonably remote in time * * *." Ford then elected party status the same day. By motion of June 4, 1973, the Department of Labor moved for an order which "further amends the amended Citation involved in the proceeding * * * by specifying (in addition to the date for submission of a plan of abatement already contained therein) the date of June 1, 1974 as the abatement date * * *, as required by 29 CFR 1910.95(b) * * *." By response dated June 13, 1973, Ford filed an objection claiming that the abatement period was too short. The motion to amend the citation was granted on June 22, 1973.

The Commission referred the contested matter to an Administrative Law Judge for evidentiary hearings which were held on February 13 and 25, 1974. On September 10, 1974, he issued a decision finding that the June 1, 1974, abatement period was unreasonably short "because the undisputed record places a minimum time limit of two years to accomplish abatement" (App. 30). He concluded that it was necessary to remand to the Secretary of Labor to fix a reasonable time for the abatement. The case then went to the Commission for review under Section 12(i) of the Act (29 U.S.C. § 661(i)).

On May 25, 1976, the Commission rendered its decision. Chairman Barnako and Commissioner Moran held that the Administrative Law Judge had correctly concluded that the June 1, 1974, time period for abatement was unreasonably short. However, they faulted him for not prescribing a reasonable abatement time himself on the basis of the evidence before him. After reviewing the evidence before the Administrative Law Judge, the majority concluded that Ford must implement "feasible administrative or engineering controls" to comply with the noise regulation (note 3 supra ). Ford was given two years to accomplish this goal from the date the Commission's order became final. "Because the clear language of the statute limits employee contests to the reasonableness of the period of time which is fixed in the citation for abatement," the majority held the sufficiency of the abatement plan could not be directly contested by the Union. (Emphasis in original.) The Commission agreed that evidence could be adduced to show the employer's abatement plan does not include all presently available feasible abatement methods or controls since such specific methods and controls and their implementation time are determinative of reasonable abatement time. However, the Commission held that such evidence in this case demonstrated the abatement period to be unreasonably brief. Dissenting Commissioner Cleary concluded that the Ford August 31 abatement plan, which had been submitted to the Administrative Law Judge on September 4, 1973, was inadequate, although the Secretary of Labor had approved it. This Commissioner also thought that the two-year period for compliance was too lengthy. We agree with the Commission's majority decision and therefore affirm.

Section 10(c) of the Act controls this case. It provides in pertinent part:

"If * * * within fifteen working days of the issuance of a citation under section 9(a), any employee or representative of employees files a notice with the Secretary (of Labor) alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing * * *. 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. * * *" (29 U.S.C. § 659(c)).

Under a plain reading of Section 10(c), the Commission may review only the reasonableness of the period of time fixed in the citation for the abatement of the violation. As noted, that time had been fixed as June 1, 1974, by the Secretary of Labor and had been held unreasonable by an Administrative Law Judge of the Commission ⁴ who did not specify another abatement date. Section 11 gives this Court jurisdiction to review "the question determined" by the Commission, and the Commission's findings of fact, if supported by substantial evidence, "shall be conclusive" (29 U.S.C. § 660). ⁵

The Union contends that Ford could not challenge the unattainability of the June 1, 1974, date before the Commission because it did not file a notice of contest with the Secretary of Labor under Section 10(b) of the Act (29 U.S.C. § 659(b)). However, on May 10, 1973, Ford requested the Commission to accord it party status and was thereafter treated as a party as permitted by the Commission's rules (29 C.F.R. 2200.20(b)). On June 18, 1973, ⁶ Ford filed a response objecting to the June 1, 1974, abatement date, and on September 4, 1973, filed an abatement plan. Since this abatement date originated in the Secretary of Labor's June 4, 1973, motion to amend its citation against Ford, ⁷ Ford's June 18 objections were timely because within the "fifteen working days" fixed for contesting a citation (29 U.S.C. § 659(a)). Indeed, the citation was not amended until June 22. Even if Ford had missed that deadline, it could file a petition for modification of the abatement date at any time (29 U.S.C. § 659(c)). Finally, even in the Union's contest of the length of the June 1, 1974, abatement date, the Commission's power to consider its reasonableness permitted it to shorten or lengthen the period for abatement. Cf. California Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986, 988 (9th Cir. 1975); Brennan v. OSHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973).

The Union's principal argument is that the Commission should have considered the merits of Ford's abatement plan in this proceeding and made its own modifications in the plan. Dissenting Commissioner Cleary so held. However, the appended majority decision, which we adopt as our own, strikes the appropriate balance. As seen, Section 10(c) only permits the Commission to consider whether "the period of time fixed in the citation for the abatement of the violation is unreasonable." The Senate Report states in parallel terms that Section 10(c) gives an employee or union the right to challenge the Secretary's citation on the ground that the abatement date provided therein "is unreasonably long." 3 U.S. Code Cong. and Admin. News, 91st Cong. 2d Sess. p. 5191 (1970).

With such a statutory mandate, the Administrative Law Judge and the Commission majority decided they could consider questions respecting the means available to abate a violation in determining the reasonableness of the abatement period. Here the Commission considered Ford's August 31 plan and all the evidence before overturning the date fixed in the citation and issuing a new date. This was consonant with the statutory scheme which places the promulgation of standards with the Secretary of Labor and gives him investigatory and prosecutorial functions (29 U.S.C. §§ 655, 657, 658 and 659(a)) while only limited administrative adjudication is conferred upon the Commission (29 U.S.C. §§ 659 and 661). Brown, A Law Is Made The Legislative Process in the Occupational Safety and Health Act of 1970, 25 CCH Labor L.J. 595 (1974). Moreover, the Act provides other administrative and judicial remedies (29 U.S.C. §§ 657(f), 660(c), 662(d) and 666(d)) by which endangered employees may force the Commission to seek relief. We need not decide whether the Commission could reject an abatement plan which contains no true abatement date at all, a question left open by the Statement of Position filed with us by the Secretary. ⁸ But when an abatement date is set, the Commission's interpretation of the statute is entitled to deference. ⁹ Brennan v. OSHRC and Republic Creosoting Co.,501 F.2d 1196, 1199 (7th Cir. 1974); Usery v. Godfrey Brake and Supply Service, Inc., 545 F.2d 52, 55 (8th Cir. 1976).

The Commission's extension of the abatement date for two years from...