Keystone Roofing Co., Inc. v. Occupational Safety and Health Review Com'n, No. 75-2010

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore SEITZ, Chief Judge, and ALDISERT and GARTH; ALDISERT; SEITZ
Citation539 F.2d 960
Parties4 O.S.H. Cas.(BNA) 1481, 1976-1977 O.S.H.D. ( 20,930 KEYSTONE ROOFING COMPANY, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent, and John T. Dunlop, Secretary of Labor, Respondent. HAROLD E. SWEENEY CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent, and John T. Dunlop, Secretary of Labor, Respondent, Keystone Roofing Company, Inc., and Harold E. Sweeney Corporation, Petitioners.
Docket NumberNo. 75-2010
Decision Date23 July 1976

Page 960

539 F.2d 960
4 O.S.H. Cas.(BNA) 1481, 1976-1977 O.S.H.D. ( 20,930
KEYSTONE ROOFING COMPANY, INC., Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent,
and
John T. Dunlop, Secretary of Labor, Respondent.
HAROLD E. SWEENEY CORPORATION, Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent,
and
John T. Dunlop, Secretary of Labor, Respondent,
Keystone Roofing Company, Inc., and Harold E. Sweeney
Corporation, Petitioners.
No. 75-2010.
United States Court of Appeals,
Third Circuit.
Argued June 8, 1976.
Decided July 23, 1976.

Page 961

Steven R. Waxman, Bolger & Picker, Philadelphia, Pa., for petitioners.

William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol., Occupational Safety and Health, Michael H. Levin, Counsel for App. Litigation, Allen H. Feldman, Asst. Counsel, Nancy L. Southard, Atty., Secretary of Labor, U. S. Dept. of Labor, Washington, D. C., for respondent.

Before SEITZ, Chief Judge, and ALDISERT and GARTH, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The question for decision is whether 29 U.S.C. § 660(a) of the Occupational Safety and Health Act of 1970 (OSHA) permits a reviewing court to consider an employer's 1 objection to an OSHA citation which was argued to the OSHA hearing examiner, but which was neither the subject of a petition to the Occupational Safety and Health Review Commission (OSHRC) for discretionary review, 29 C.F.R. § 2200.91, 2 nor the

Page 962

subject of review by the full Commission at the direction of a single member, 29 U.S.C. § 661(i). 3 We answer the question in the negative and, therefore, grant the motion of the Secretary of Labor to dismiss the petition for review.

I.

Petitioner was cited for failing to provide a perimeter guarding around a flat roof in violation of 29 C.F.R. § 1926.500(d)(1), 4 which requires a railing or its equivalent around "(e)very open-sided floor or platform 6 feet or more above adjacent floor or ground level". Before the hearing examiner, petitioner contended that the regulation applied to floors, but not to flat roofs. The examiner rejected this contention. Petitioner did not request discretionary review. The report of the examiner thereby became the final order of the Commission within 30 days, by operation of 29 U.S.C. §§ 659, 661(i). The employer then filed a petition for review in this court. The Secretary of Labor responded by filing a motion to dismiss. The Secretary contends that the employer's failure to urge its contention that a roof is not a floor before the full Commission precludes us from reviewing the administrative action. Specifically, the Secretary relies on 29 U.S.C. § 660(a), which states, inter alia : "No objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." (Emphasis added.)

To decide the issue presented, we must understand the nature, purposes and functions of the administrative machinery Congress created in enacting the Occupational Safety and Health Act. We turn now to that analysis.

II.

Congress found that "personal injuries and illnesses arising out of work situations impose(d) a substantial burden upon, and (were) a hindrance to, interstate commerce . . . ." 29 U.S.C. § 651(a). In seeking "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources", Congress "authoriz(ed) the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, and (created) an Occupational Safety and Health Review Commission

Page 963

for carrying out adjudicatory functions under (the Act)." Ibid. § 651(b). Congress further declared that "(t)he Commission shall be composed of three members who shall be appointed by the President, by and with the advice and consent of the Senate, from among persons who by reason of training, education, or experience are qualified to carry out the functions of the Commission under this chapter. The President shall designate one of the members of the Commission to serve as Chairman." Ibid. § 661(a). The Chairman was empowered to "appoint such hearing examiners and other employees as he deems necessary to assist in the performance of the Commission's functions." Ibid. § 661(d). Finally, the Commission was authorized "to make such rules as are necessary for the orderly transaction of its proceedings." Ibid. § 661(f).

Pursuant to this congressional authority, the Commission promulgated rules of procedure in 1972. See 29 C.F.R. Part 2200. If the Chairman appoints a hearing examiner to preside over a proceeding, the regulations require the examiner to prepare a decision and, thereafter, to file with the Executive Secretary of the Commission a report "consisting of (the) decision, the record in support thereof, and any petitions for discretionary review of (the) decision, or statements in opposition to such petitions . . . ." Ibid. § 2200.90(a). If no member of the Commission directs review of the decision within 30 days of the docketing of the report, the decision becomes "a final order of the Commission." Ibid. § 2200.90(b)(3). The regulations further provide that the Commission's failure to act on a petition for discretionary review shall be deemed a denial thereof. Ibid. § 2200.91(d).

This review of the statutory schema and the regulations promulgated thereunder leads us to several observations.

First, the role and duties of the Commission are wholly separate and distinct from those of hearing examiners. The latter are designated by the Chairman to assist the Commission. The Commission, on the other hand, is the entity charged with "carrying out adjudicatory functions" under the Act. Members of the Commission are appointed only by the President with the advice and consent of the Senate. They are selected for their training, education and experience.

Second, the decision of a hearing examiner only becomes final if the Commission decides not to review it. When granted, review may be either by a member's directing review or accepting a petition for discretionary review. The purpose behind these regulations seems clear: they enable the Commission the body charged with carrying out adjudicatory functions to make the ultimate administrative determination of whether a particular decision comports with the objectives of OSHA.

III.

The Secretary argues that because petitioner did not urge its particular objection upon the full Commission we may not entertain this petition for review. Based on the foregoing understanding of the statutory and regulatory framework, we find the Secretary's interpretation to be a reasonable one, one comporting with the underlying objectives of the Act and the adjudicatory machinery provided therein. Moreover, the language of 29 U.S.C. § 660(a) strikes us as deliberate in its purpose. Had Congress intended that objection before a hearing examiner, alone, would suffice as a condition precedent to judicial review, it could have conveyed that intent easily. For instance, the National Labor Relations Act provides that "(n)o objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." 29 U.S.C. § 160(e) (emphasis added).

Our conclusion that the Secretary's interpretation is correct also vindicates...

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17 practice notes
  • Babcock and Wilcox Co. v. Marshall, AFL-CIO and L
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 16, 1979
    ...Memorial Park, 540 F.2d 626, 628 (3 Cir. 1976) (citing Keystone Roofing Co., Inc. v. Occupational Safety & Health Rev. Comm'n., 539 F.2d 960 (3d Cir. 1976)) ("The doctrine of exhaustion of administrative remedies applies under (the Occupational Safety and Health 17 The warrant coul......
  • RMI Co. v. Secretary of Labor, U.S. Dept. of Labor, No. 78-3312
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 13, 1979
    ...20 See generally Rothstein §§ 81 & 99. 21 The Secretary cites three cases in support of his argument. Keystone Roofing Co. v. OSHRC, 539 F.2d 960, 963-64 (3d Cir. 1976); Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309 (10th Cir. 1976); Felton Const. Co. v. OSHRC, 518 F.2d 49, 50-51 (9t......
  • P. Gioioso & Sons, Inc. v. Occupational Safety and Health Review Com'n, No. 96-1807
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 13, 1997
    ...commentary accompanying this part of the regulations directs the reader to the Third Circuit's opinion in Keystone Roofing Co. v. OSHRC, 539 F.2d 960 (3d Cir.1976), for guidance. The Keystone court considered the question of whether the OSH Act "permits a reviewing court to consider an......
  • Establishment Inspection of Metal Bank of America, Inc., Matter of, No. 81-2840
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 17, 1983
    ...Co. v. Marshall, 631 F.2d 20, 22 (3d Cir.1980) (per curiam); Keystone Roofing Co. v. Occupational Safety & Health Review Commission, 539 F.2d 960 (3d Cir.1976), the claims may be renewed as of right before us if that tribunal does not resolve the issues to Metal Bank's satisfaction. Whi......
  • Request a trial to view additional results
17 cases
  • Babcock and Wilcox Co. v. Marshall, AFL-CIO and L
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 16, 1979
    ...Memorial Park, 540 F.2d 626, 628 (3 Cir. 1976) (citing Keystone Roofing Co., Inc. v. Occupational Safety & Health Rev. Comm'n., 539 F.2d 960 (3d Cir. 1976)) ("The doctrine of exhaustion of administrative remedies applies under (the Occupational Safety and Health 17 The warrant coul......
  • RMI Co. v. Secretary of Labor, U.S. Dept. of Labor, No. 78-3312
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 13, 1979
    ...20 See generally Rothstein §§ 81 & 99. 21 The Secretary cites three cases in support of his argument. Keystone Roofing Co. v. OSHRC, 539 F.2d 960, 963-64 (3d Cir. 1976); Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309 (10th Cir. 1976); Felton Const. Co. v. OSHRC, 518 F.2d 49, 50-51 (9t......
  • P. Gioioso & Sons, Inc. v. Occupational Safety and Health Review Com'n, No. 96-1807
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 13, 1997
    ...commentary accompanying this part of the regulations directs the reader to the Third Circuit's opinion in Keystone Roofing Co. v. OSHRC, 539 F.2d 960 (3d Cir.1976), for guidance. The Keystone court considered the question of whether the OSH Act "permits a reviewing court to consider an......
  • Establishment Inspection of Metal Bank of America, Inc., Matter of, No. 81-2840
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 17, 1983
    ...Co. v. Marshall, 631 F.2d 20, 22 (3d Cir.1980) (per curiam); Keystone Roofing Co. v. Occupational Safety & Health Review Commission, 539 F.2d 960 (3d Cir.1976), the claims may be renewed as of right before us if that tribunal does not resolve the issues to Metal Bank's satisfaction. Whi......
  • Request a trial to view additional results

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