Willamette Iron and Steel Co. v. Secretary of Labor
| Decision Date | 14 August 1979 |
| Docket Number | No. 78-1494,78-1494 |
| Citation | 604 F.2d 1177 |
| Parties | 7 O.S.H. Cas.(BNA) 1641, 1979 O.S.H.D. (CCH) P 23,797 WILLAMETTE IRON AND STEEL COMPANY, Petitioner, v. SECRETARY OF LABOR and Occupational Safety and Health Commission, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James C. Ingwersen, South San Francisco, Cal., for petitioner.
Nancy L. Southard, Atty. U. S. Dept. of Labor, Washington, D. C., for respondent.
Petition to Review a Decision of the Secretary of Labor and Occupational Safety and Health Review Commission.
Before WALLACE and SNEED, Circuit Judges, and BLUMENFELD, * District Judge.
Willamette Iron and Steel Co. (Willamette) petitions for review of an order of the Occupational Safety and Health Review Commission (Commission). Willamette attacks only the portion of the Commission order affirming the hearing officer's determination that it had committed "repeated" violations of the Occupational Safety and Health Administration regulations. We have determined that as to that issue we are without jurisdiction. Therefore, we dismiss the petition. 1
The parties stipulated to the facts. Willamette was first cited for violating the Occupational Safety and Health Administration's (OSHA) housekeeping standard, 29 C.F.R. § 1915.51(a), on December 8, 1972, while repairing the vessel NAECO at the company's Swan Island dry dock facility in Portland, Oregon. The citation, which became final when Willamette failed to contest it, 29 U.S.C. § 659(a), alleged that Willamette had failed to elevate or cover various hoses and welding leads on the vessel's weatherdeck.
On September 24, 1975, authorized representatives of the Secretary of Labor issued three further citations against Willamette for alleged violations of various OSHA regulations. The company did not contest one of these citations, and the Secretary of Labor later withdrew another by stipulation. Thus, the controversy here centers on the Secretary's third citation which was for a "repeated non-serious" violation of the housekeeping standard. This citation alleged that on September 16, 1975, a routine inspection of the vessel NEW YORKER at the Swan Island facility had revealed that the vessel's maindeck walkways and working areas were cluttered with air hoses, electrical cords, welding leads, and debris. Pursuant to stipulation, Willamette did not contest the existence of the conditions leading to the September 24 citation, but only the characterization of the violation as "repeated."
Willamette gave appropriate notice of intent to contest the citation and the Secretary of Labor filed a complaint with the Commission. After a hearing, a hearing officer concluded that the citation had been properly characterized as "repeated."
Willamette then brought a petition for discretionary review before the Commission. It raised numerous contentions in support of its argument that its violation was not repeated. The two Commission members who reviewed the case divided on this question. One felt that the violation was properly labeled "repeated"; the other disagreed. The Fifth Circuit had already decided, in Shaw Constr., Inc. v. OSHRC, 534 F.2d 1183, 1185-86 (5th Cir. 1976), that a purported affirmance of a hearing officer's decision by a divided, one-to-one vote was not final, "official" Commission action. In an effort to resolve the impasse, and perhaps with Shaw in mind, the two commissioners agreed to "affirm" the hearing officer's decision in this case regarding classification of the violation as "repeated," but to accord this portion of his ruling only the precedential value of an unreviewed hearing officer's decision. The mandate of the Commission decision was simply that the hearing officer's ruling was "affirmed."
Before us, Willamette once again argues that the hearing officer mistakenly characterized the violation as "repeated." Because we decide that we do not have jurisdiction over this issue, we do not reach the merits of this contention.
In Cox Bros., Inc. v. Secretary of Labor, 574 F.2d 465 (9th Cir. 1978), we agreed with Shaw, supra, and held that a purported affirmance of an administrative hearing officer's decision by an equally divided Commission was not official action of the Commission, reviewable by this court, because it was supported by the affirmative vote of only one member. Id. at 467. We reasoned that 29 U.S.C. § 661(e) required an affirmative vote of two Commission members before an affirmance of a hearing officer's decision could be considered reviewable official action. Id.
The parties argue, however, that the case before us is distinguishable from Cox Brothers because Both commissioners who reviewed the hearing officer's decision agreed to affirm. At first blush this appears to be true. Yet, by according the hearing officer's ruling the precedential value of an unreviewed decision, the Commission has given its action the same practical effect as the Commission's unreviewable action in Cox Brothers. The Commission cannot have it both ways. Either it affirms the hearing officer's decision and the Commission's ruling has the precedential value of a Commission ruling, or the Commission has not officially affirmed the hearing officer's decision. In both Cox Brothers and this case, the hearing officer's decision is left as the only authoritative disposition. 2
Since we are concerned with our jurisdiction, we must look to the practical effect of the two commissioners' actions. The label placed upon the determination made by the two commissioners is not alone determinative, " for it is the substance of what the Commission has purported to do and has done which is decisive," Columbia Broadcasting Sys., Inc. v. United States, 316 U.S. 407, 416, 62 S.Ct. 1194, 1200, 86 L.Ed. 1563 (1942). Because the two commissioners agreed to...
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