Taylor Diving & Salvage Co., Inc. v. U.S. Dept. of Labor, 77-2875

• Decision Date: 16 July 1979
• Docket Number: No. 77-2875,77-2875
• Parties: 7 O.S.H. Cas.(BNA) 1507, 1979 O.S.H.D. (CCH) P 23,698 TAYLOR DIVING & SALVAGE CO., INC., et al., Petitioners, v. U. S. DEPARTMENT OF LABOR, F. Ray Marshall, Secretary of Labor, and Eula Bingham, Assistant Secretary of Labor for Occupational Safety and Health, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 622

599 F.2d 622

7 O.S.H. Cas.(BNA) 1507, 1979 O.S.H.D. (CCH) P 23,698

TAYLOR DIVING & SALVAGE CO., INC., et al., Petitioners, v. U. S. DEPARTMENT OF LABOR, F. Ray Marshall, Secretary of

Labor, and Eula Bingham, Assistant Secretary of

Labor for Occupational Safety and

Health, Respondents.

No. 77-2875.

United States Court of Appeals, Fifth Circuit.

July 16, 1979.

Stanley R. Strauss, Michael J. Bartlett, Dixie L. Atwater, Washington, D. C., Michael J. Molony, Jr., New Orleans, La., for petitioner.

W. Scott Railton, Washington, D. C., for Chamber of Commerce, amici curiae.

W. William Ament, Reston, Va., for Occupational Safety & Health Group, Organization Resources Counselors, Inc., amici curiae.

Nathaniel I. Spiller, Edward A. Klein, Atty., Dept. of Labor, Washington, D. C., for respondents.

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before JONES, AINSWORTH and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

In this case we examine the validity of three provisions of the commercial diving health standard ¹ promulgated by the Occupational Safety and Health Administration of the Department of Labor (OSHA), pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C.A. §§ 651-678 (1975) (the Act). The petitioning companies, all members of the petitioning Association of Diving Contractors (ADC) who are engaged in commercial diving operations in waters in and adjacent to the United States, attack the medical examination procedure and cost allocation required by § 1910.411 of the diving standard and the employee-access-to-records provision in § 1910.440(b)(2) of the regulation. Sections 1910.411 and 1910.440(b)(2) are set out in full in an appendix to this opinion. Section 1910.411 places upon employers the obligation to determine that divers who are, or are likely to be, exposed to hyperbaric conditions are medically fit to perform assigned tasks in a safe and healthful manner. Employers are required to provide each such employee with a comprehensive medical examination prior to initial hyperbaric exposure with the employer, unless an equivalent evaluation has been made within the preceding year, and yearly thereafter. The mandatory medical examination is the first step of what may, at the employee's option, develop into a three-tiered medical assessment procedure, all levels of which must be financed by the employer. If the examining physician selected by the employer determines that the examinee is medically unfit to engage in diving activities, the examinee has the option of seeking the opinion of a second physician. If the opinion of the second physician differs from that of the initial examining physician, then a third opinion must be secured from a physician selected by the first two physicians. In such circumstances, the opinion of the third physician dictates the employer's final determination of the diver's medical fitness. That is, if the third physician finds the applicant medically fit for exposure to hyperbaric conditions, the employer must accept the applicant as medically qualified and would be barred by OSHA from declining to employ him on such grounds.

Because OSHA is without authority to so restrict the medical fitness determinations of employers, the petitions for review are granted with respect to § 1910.411.

Section 1910.440(b)(2) is challenged only with regard to the manner of its promulgation, in that the Secretary of Labor is claimed to have failed to meet the notice requirements of the Act prior to enacting that provision of the standard. The petitioners' challenge is without merit, however, and the petitions for review are denied with respect to § 1910.440(b)(2).

I.

The petitioners first claim that the Secretary of Labor exceeded his statutory authority in promulgating § 1910.411, the medical requirements provisions of the standard. Basically, the petitioners object to § 1910.411 because it gives an employee the right to appeal an initial determination of medical unfitness for diving to a second, and possibly third, doctor until the first examining doctor's evaluation is either concurred in by the second doctor or overruled by the third. Also, the employer is required to pay for all medical examinations accorded under § 1910.411.

The Secretary of Labor's authority to promulgate occupational safety and health standards ² derives from § 655 of the Act, 29 U.S.C.A. The Act defines an "occupational safety and health standard" as "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 29 U.S.C.A. § 652(8). Judicial review of occupational safety and health standards is authorized by 29 U.S.C.A. § 655(f), and "(t)he determinations of the Secretary shall be conclusive is supported by substantial evidence in the record considered as a whole." Another basic premise in our review of OSHA regulations is that the Secretary can only effectuate the will of Congress as expressed in the Act.

The power of an administrative officer or board to administer a federal statute and to prescribe rules and regulations to that end is not the power to make law for no such power can be delegated by Congress but the power to adopt regulations to carry into effect the will of Congress as expressed by the statute. A regulation which does not do this, but operates to create a rule out of harmony with the statute, is a mere nullity. Lynch v. Tilden Produce Co., 265 U.S. 315, 320-322, 44 S.Ct. 488, 68 L.Ed. 1034; Miller v. United States, 294 U.S. 435, 439, 440, 55 S.Ct. 440, 79 L.Ed. 977 and cases cited.

Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 134, 56 S.Ct. 397, 400, 80 L.Ed. 528 (1936). Judicial review of occupational safety and health standards must include "a review of whether the Secretary exercised his decisionmaking power within the limits imposed by Congress." American Petroleum Institute v. OSHA, 581 F.2d 493, 497 (5th Cir. 1978), Cert. granted, --- U.S. ----, 99 S.Ct. 1212, 59 L.Ed.2d 453 (1979). "The Act imposes on OSHA the obligation to enact only standards that are reasonably necessary or appropriate to provide safe or healthful workplaces. If a standard does not fit in this definition, it is not one that OSHA is authorized to enact." Id. at 502.

Our task, then, is to determine whether the medical examination procedure established by § 1910.411 is reasonably necessary or appropriate to provide safe or healthful working conditions in the commercial diving industry. In light of the Act's language and legislative history, the Secretary's admitted purpose for promulgating this standard, and the practical effect of the standard on the employer's hiring practices, we conclude that the Secretary was not authorized to enact § 1910.411.

We look first to the language of the Act, 29 U.S.C.A. §§ 651-678, and its legislative history, (1970) U.S.Code Cong. & Admin.News, p. 5177, and we see that Congress created OSHA for the sole purpose of protecting the health and safety of workers and improving physical working conditions on employment premises. Brennan v. OSHRC, 488 F.2d 337, 338 (5th Cir. 1973); See especially 29 U.S.C.A. § 651. As we noted earlier, the Secretary is authorized to promulgate only regulations which are reasonably necessary or appropriate to achieve that Congressional goal.

In promulgating § 1910.411, however, OSHA's choice of medical examination procedures was controlled by its "cognizan(ce) of the employees' countervailing rights to be protected in their choice of occupation." 42 Fed.Reg. 37,650, 37,658 (1977). In its effort "not to create, through a health and safety standard, a situation which restricts entry into a profession or allows employees to be dismissed for a cause which is less than substantial," OSHA sought to achieve a "balance between the need for a mandatory medical examination and the employee's right to a thorough medical assessment." Id. In effect, § 1910.411 imposes upon employers a mandatory job security provision. OSHA is simply not authorized to regulate job security as it has done here.

The medical examination procedure established by OSHA provides that the fitness evaluation of the third doctor in the examining process controls the medical fitness determination of the employer. Thus, even though the employer may genuinely question the medical fitness of a particular employee, due to the first doctor's conclusion of medical unfitness, the employer's determination of medical fitness is conclusively determined by the third doctor's evaluation, which may be that the employee is medically fit. Furthermore, the employer has no control over the third doctor's fitness standards, so that the employer is prevented from setting higher health standards for employees than the secondary examining doctors choose to set.

While we commend OSHA for trying to avoid doing harm with regulations, we must condemn its efforts here because § 1910.411 invalidly binds employers in their determinations of employees' medical fitness. "When adopting OSHA, Congress deliberately sought to achieve job safety while maintaining proper employee-employer relations." Marshall v. Daniel Construction Co., 563 F.2d 707, 716 (5th Cir. 1977), cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978).

The Secretary argues that consideration of and accounting for the economic impact of regulations is permissible when promulgating occupational safety and health standards. ³ We agree. Indeed, a regulation enacted in the single-minded pursuit of absolutely risk free workplaces regardless of cost or limitation of job opportunities might well be struck down; it would certainly be ill-advised. This Court has repudiated OSHA's use of such tunnel vision in an earlier opinion. See American Petroleum Institute, 581 F.2d at 502-03. Had OSHA...