Brennan v. Winters Battery Mfg. Co.

• Decision Date: 24 May 1976
• Docket Number: No. 75--1367,75--1367
• Parties: , 3 O.S.H. Cas.(BNA) 1775, 1975-1976 O.S.H.D. ( 20,244 Peter J. BRENNAN, Secretary of Labor, Petitioner, v. WINTERS BATTERY MANUFACTURING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 317

531 F.2d 317

34 A.L.R.Fed. 69, 3 O.S.H. Cas.(BNA) 1775,

1975-1976 O.S.H.D. ( 20,244

Peter J. BRENNAN, Secretary of Labor, Petitioner, v. WINTERS BATTERY MANUFACTURING COMPANY, Respondent.

No. 75--1367.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 6, 1975.

Decided Dec. 18, 1975.

Certiorari Denied May 24, 1976.

See 96 S.Ct. 2202.

Michael H. Levin, Counsel for App. Litigation, Washington, D.C., Judith Burghardt, Alexandria, Va., for petitioner.

Lee Norman, Roland M. Lowell, Buck & Baker, Nashville, Tenn., for respondent.

Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.

PHILLIPS, Chief Judge.

For the first time this court is called upon to interpret an act of Congress which provides that our Clerk, 'unless otherwise ordered by the court,' shall enter 'forthwith' a decree enforcing an order of an administrative agency. The agency is the Occupational Safety and Health Review Commission (OSHRC). The statute, 29 U.S.C. § 660(b), is a part of the Occupational Safety and Health Act of 1970 (OSHA).

The Secretary of Labor filed a petition with the Clerk of this court for the summary enforcement of an OSHA order. The respondent, Winters Battery Manufacturing Company, filed an opposing answer. The Chief Judge of the court prepared an order of enforcement and directed that it be signed and entered by the Clerk. This order, dated July 2, 1975, is as follows:

This case is submitted on the petition of the Secretary of Labor for summary enforcement of a final order of the Occupational Safety and Health Review Commission.

The petition for summary enforcement avers that respondent never contested the citation, the notification of proposed penalties, or the accompanying abatement requirements. Respondent does not contend that it filed any notification of intent to contest within fifteen working days after the issuance of the citation.

The petition further avers that, after due notification and extension of time, the respondent failed to abate certain of the violation which were the subject of the original citation. Respondent does not contend that it notified the Secretary within fifteen working days from the receipt of the notification that it wished to contest any part of the notification or proposed assessment of non-abatement penalty.

In the absence of such notification within fifteen working days, the statute expressly provides that the citation, assessments, the notification of failure to abate and non-abatement penalties are deemed the final orders of the Commission and 'not subject to review by any court or agency.' 29 U.S.C. § 659(a) and (b).

No timely petition for review having been filed in this court pursuant to 29 U.S.C. § 660(a), 'the Commission's finding of fact and order shall be conclusive in connection with (this) petition of enforcement.' 29 U.S.C. § 660(b).

For these reasons, and not having been otherwise ordered by the court, it is hereby ORDERED that the orders of the Commission be enforced. 29 U.S.C. § 660(b).

ENTERED BY ORDER OF THE COURT.

by /s/ GRACE KELLER

Grace Keller

Chief Deputy

The respondent thereupon filed a petition for rehearing en banc. No judge moved for en banc reconsideration, Fed.R.App.P. 35, and the petition for rehearing was scheduled for oral argument before this panel on October 6, 1975.

We deny the petition for rehearing for the reasons stated in this opinion.

1) The Facts

Winters Battery is a Tennessee Corporation whose principal business is the manufacture and sale of automobile batteries. On January 17, 1973, an authorized representative of the Secretary of Labor inspected the Winters Battery factory and determined that one serious and seven non-serious OSHA violations were present. On February 12, 1973, Winters Battery was notified of these violations in writing and given a reasonable time for abatement as provided by 29 U.S.C. § 658(a).

The notice included the following warning as to the time limits in which respondent could preserve its rights to a hearing and review:

You will soon be notified by certified mail whether or not a proposed penalty will be assessed as a result of the cited violation(s). You have the right to contest the citation(s), the proposed penalties, or both, before the Occupational Safety and Health Review Commission. The Review Commission is an independent quasi-judicial agency with authority to issue decisions regarding citations and proposed penalties. If you do contest, you must so notify the Area Director within 15 working days after receipt of the certified mail notice regarding proposed penalties. If you fail to contest within the 15 working day period, the citation and the proposed assessment of penalties shall be deemed to be a final order not subject to review by any court or agency.

On the same date respondent was notified of a proposed penalty in the amount of $1,400. This notice contained the following warning:

YOU ARE FURTHER NOTIFIED that the aforesaid Citation(s), this Notification, and the proposed assessment shall be deemed to be the final order of the Occupational Safety and Health Review Commission and not subject to review by any court or agency, unless, within 15 working days from the date of receipt of this notice, you notify the official named below in writing that you intend to contest the Citation or this Notification of Proposed Penalty before the Review Commission. The Review Commission is an independent quasi-judicial agency with authority to issue decisions regarding citations and proposed penalties.

Respondent filed no expression of intention to contest either the citation or the notification of proposed penalty.

On May 30, 1973, Winters filed a written request for a six month extension of the abatement period. The Secretary did not object and the compliance date was extended until November 10, 1973. On November 5, 1973, Winters sought a second extension of the abatement period until May 10, 1974. The Secretary refused to grant the requested extension, but allowed Winters until December 15, 1973, to comply with the order. Another inspection took place on December 27, 1973, and it was determined that one serious and two nonserious violations had not been abated. On January 22, 1974, the Secretary issued a notice of failure to abate and proposed penalties totaling $1,025. Again Winters failed to give notice, within fifteen working days from receipt of notification, of intent to contest as required under § 659(a). On February 27, 1974, Winters sought and was granted another six month extension of the abatement period until September 1, 1974. On September 3, 1974, another inspection of the Winters plant revealed that one serious and one nonserious violation had not been abated. On April 7, 1975, pursuant to § 660(b), the Secretary filed with the Clerk of this court a petition for summary enforcement. On April 16, 1975, the respondent filed an answer, to which the Secretary responded on May 6, 1975.

The above-quoted order of enforcement thereupon was entered on July 2, 1975. It is re-emphasized that this order was prepared by the Chief Judge of the court and was entered by the Clerk at the direction of the Chief Judge.

2) Function of the Clerk

Respondent challenges the constitutionality of the statute on numerous grounds which will be discussed later in this opinion. Specifically challenged is the provision of 29 U.S.C. § 660(b) ¹ which states that the Clerk 'UNLESS OTHERWISE ORDERED BY THE COURT' Shall enter 'forthwith' an order of enforcement. Respondent asserts that empowering the Clerk to enter summary orders of enforcement, without being so instructed by the court, is an unconstitutional delegation of judicial power.

The Secretary of Labor undertakes to defend this statutory provision by an argument which we find to be untenable: 'The Clerk's action in lending the court's enforcement powers to the Secretary is purely ministerial in nature.' We reject this contention. An order enforcing a decision of an administrative agency is a judicial, not ministerial, action. Enforcement by judicial decree provides a basis for contempt proceedings in this court in event of non-compliance. See, e.g., N.L.R.B. v. Decaturville Sportswear Co., Inc., 518 F.2d 788 (6th Cir. 1975); Local 98 United Ass'n of Journeymen, etc. v. N.L.R.B., 497 F.2d 60 (6th Cir. 1974); N.L.R.B. v. Local Union No. 80, Sheet Metal Wkrs.' Int. Ass'n, 491 F.2d 1017 (6th Cir. 1974); N.L.R.B. v. United Mine Workers of America, 393 F.2d 265 (6th Cir. 1968), cert. denied, 393 U.S. 841, 89 S.Ct. 123, 21 L.Ed.2d 113 (1968); N.L.R.B. v. Lynair, Inc., 380 F.2d 286 (6th Cir. 1967).

Section 660(b) contains the following language with respect to contempt proceedings:

In any contempt proceeding brought to enforce a decree of a court of appeals entered pursuant to this subsection or subsection (a) of this section, the court of appeals may assess the penalties provided in section 666 of this title, in addition to invoking any other available remedies.

The Secretary contends that a petition for summary enforcement under the quoted parts of § 660(b) (see n. 1) is 'not a petition for enforcement of the kind which opens up issues to judicial scrutiny,' but is 'rather a request for a decree enforcing outstanding, final and essentially self-executing Commission orders.' It is urged that if a timely answer is not filed to the Secretary's petition for summary enforcement, the Clerk should 'forthwith' enter the requested decree, apparently without any direction from the court.

We decline to allow the Clerk of this court to become a rubber stamp for OSHA or any other agency. No person should be subjected to the contempt jurisdiction of this court unless he has violated an order or decree approved by the court and entered at the direction of the court.

So as to remove any doubt as to the procedure to be followed in future OSHA cases, we direct that the Clerk of this court shall not be authorized or permitted to sign and enter...