P & Z Company, Inc. (Commission decision, February 26, 1982)

Plain-English summary

This is a two-page order that decides nothing about the case and a good deal about how the Commission uses its own review power. The Secretary alleged that P & Z violated a standard requiring covers on garbage containers, and willfully violated standards requiring scrap lumber to be cleared from work areas and passageways and requiring work areas to be illuminated. The case had already been to the Commission once, in 1977, where the judge's first decision was vacated and the case remanded with instructions to make specific findings based on the whole record and to explain his credibility evaluations. The judge issued a second decision largely adverse to the Secretary. The Secretary petitioned again, Commissioner Cleary directed review on May 12, 1978, the parties briefed the directed issues, and the Commission denied P & Z's motion to strike the petition in September 1978 and its motion for oral argument later that month.

Three and a half years later the Commission vacated the direction for review.

The majority's reasons. The issues remaining are largely factual and the case poses no unresolved legal questions. The Secretary's primary interest was apparently in establishing willfulness, and since review was directed the Commission has issued many fully considered opinions on willfulness, so revisiting it would serve little purpose, particularly on an unclear record. The violations involved conditions of low gravity. Abatement is not a concern because construction at the worksite is finished. On all of that, review is no longer provident. The authority cited is A.C. & S., Inc., the Sears Tower cases.

Cottine's dissent, and why it is the substance of the document. The dissent does not argue the merits. It argues that the majority's own precedent does not support what the majority did, and it makes the argument by reading A.C. & S. closely enough to show what the majority skipped.

In the Sears Tower matter, sixteen consolidated cases arose from 1972 inspections at the Chicago construction project. Four lacked both party interest and compelling public interest and were affirmed without review under Abbott-Sommer. One involved distinct issues, was severed under Commission Rule 10, and was later decided on the merits. The remaining eleven shared legal issues that the Commission had decided in the interval between direction and briefing, so they no longer presented novel or unsettled questions and a decision on them was no longer crucial to national policy. That is the passage the majority relies on. The dissent's point is what came next. The Commission did not simply vacate the directions for review. It gave each affected party an opportunity to object, and told them they could instead request a decision on the existing record, a remand for further proceedings, or a chance to pursue settlement. Three of the eleven objected and their cases were decided on the merits. Two others, Anning-Johnson and Inland-Ryerson, did not object.

So the dissent's rule is narrow and it is stated as a categorical claim about Commission history: in no case has the Commission declined to review specifically directed issues without either affording the affected parties an opportunity to object, concluding there was a lack of party interest, or letting the parties clarify party interest where the record was ambiguous. The cases where review was declined all turned on an absence of party interest together with no compelling public interest, and the dissent lists six of them. Here the record is complete, there has been no intervening change in law requiring supplementary evidence or argument, there is no apparent lack of party interest, and the parties were never given the chance to object.

On the majority's stated grounds the dissent is direct. The issues in this case were always factual and there were never unresolved legal questions, so nothing changed between the direction and the vacation. And the absence of legal issues is not fatal to review in any event: Rule 92(b) makes an assertion that a finding of material fact lacks preponderant support, or that a decision conflicts with Commission precedent, an appropriate ground for a member to exercise the review authority conferred by 29 U.S.C. § 661(i). A footnote allows that the absence of legal questions may defeat a finding of compelling public interest but says it does not affect party interest.

The sharpest line is the shortest: if providence is lacking in this appeal, it has been lacking since it was originally directed for review. And on the majority's observation that the record is unclear, the dissent answers that it is the role of the Commission as the adjudicatory body under the Act to resolve disputed issues, not to avoid those that may be lengthy, tedious, or not subject to easy resolution. The dissent's own characterization of the effect is that vacating review deprives the aggrieved party of his day in court.

What this leaves standing. Because the direction for review is vacated rather than the judge's decision reviewed, the judge's second decision, largely adverse to the Secretary, stands as an unreviewed judge's decision. No citation is affirmed, vacated or modified by this order, and no standard is construed. The only provision this document actually operates on is the Commission's discretionary review authority itself.

On the released text. The order cites the 1977 decision in this same case as "P & Z Co., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1977-78 CCH OSHD P23,413 (No. 76-413, 1977)". The docket is 76-431; "76-413" is a transposition. The dissent numbers two different footnotes n5, the first on the effect of absent legal questions and the second on the majority's "record is unclear" remark, and both are called out from the text as n5. The dissent quotes the majority as writing "the case poses no unresolved legal issues" where the majority wrote "legal questions". Three typographical defects appear as released and are reproduced without repair: "and affected party could request" for an affected party; "an apportunity to pursue a negotiated settlement"; and "Similarily, Commission Rule 92(d)". A period is missing after the Chrysler Casting parenthetical, "(No. 76-3877, 1979;".

Decision snapshot

• Outcome: Procedural. The direction for review is vacated. No citation is
  affirmed, vacated or modified, and the judge's second decision stands as an unreviewed judge's decision.
• Holding: A direction for review may be vacated as no longer provident where
  the remaining issues are largely factual, the case poses no unresolved legal questions, intervening Commission decisions have settled the question the petitioner cared about, the conditions were of low gravity, and abatement is moot because the worksite construction is complete. A.C. & S., Inc. (the Sears Tower cases); Keystone Roofing Co. v. OSHRC, 539 F.2d 960, 964 (3d Cir. 1976).
• The dissent's counter-rule: the Commission has never declined to review
  specifically directed issues without either (1) affording the affected parties an opportunity to object, (2) concluding there was a lack of party interest, or (3) permitting the parties to clarify party interest on an ambiguous record. Cottine, dissenting.
• What A.C. & S. actually did: after finding eleven consolidated cases no
  longer presented novel questions, the Commission gave each affected party the chance to object and to elect a decision on the record, a remand, or settlement. Three objected and were decided on the merits. The dissent treats that procedure as the holding, not the improvidence finding.
• Absence of legal issues: under Commission Rule 92(b), 29 C.F.R.
  § 2200.92(b), a claim that a material finding lacks preponderant support or that a decision conflicts with Commission precedent is a proper ground for review under 29 U.S.C. § 661(i). Per the dissent, the absence of legal questions may defeat compelling public interest but does not affect party interest.
• Procedural history: first Commission decision, P & Z Co. (1977), vacated
  the judge's first decision and remanded for specific findings on the whole record and an explanation of credibility evaluations. Review of the second decision was directed May 12, 1978; motions to strike and for oral argument were denied in September 1978; the direction was vacated February 26, 1982.
• The underlying allegations, never adjudicated here: a standard requiring
  covers on garbage containers, and willful violations of standards requiring clearing of scrap lumber from work areas and passageways and illumination of work areas. The order identifies them by subject only and cites no standard number, so none is listed in the standards field.
• Below: the administrative law judge's second decision, largely adverse to the
  Secretary. Left standing unreviewed.
• Panel: Rowland, Chairman, and Cleary, Commissioner, for the order; Cottine,
  Commissioner, dissenting.

Full text (OSHRC public release)

Docket No. 76-431

P & Z COMPANY, INC.

OSHRC Docket No. 76-431

Occupational Safety and Health Review Commission

February 26, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Kenneth Hellman, Coordinator for D.C. Litigation, Office of the Solicitor, U.S. Department of Labor

William H. Roberge, Jr. and Harold Gordon, for the employer

OPINION:

ORDER

BY THE COMMISSION:

This case involves allegations by the Secretary of Labor that P & Z Company, Inc., violated a standard requiring covers on garbage containers, and willfully violated standards requiring the clearing of scrap lumber from work areas and passageways, and the illumination of work areas.

The case is before us for the second time.

In P & Z Co., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1977-78 CCH OSHD P23,413 (No. 76-413, 1977), the Commission vacated the administrative law judge's first decision and remanded the case with instructions to make specific findings of fact based upon an analysis of the entire record and to explain his credibility evaluations.

After the judge issued another decision largely adverse to the Secretary, the Secretary requested that the Commission again grant review to correct alleged errors and oversights in the judge's factual findings.

Review was directed by Commissioner Cleary [*2]

under 29 U.S.C.

661(i).

Because we are now of the opinion that review is no longer provident, we vacate the direction for review.

The issues now remaining in this case are largely factual; the case poses no unresolved legal questions.

See Keystone Roofing Co. v. OSHRC, 539 F.2d 960, 964 (3rd Cir. 1976). Although the Secretary's primary interest in this case was apparently to show that P & Z committed willful violations, the Commission has, since review was directed, issued many fully considered opinions on willfulness. See, e.g., Mel Jarvis Construction Co., 81 OSAHRC 89/B13, 10 BNA OSHC 1052, 1981 CCH OSHD P25,713 (No. 77-2100, 1981).

To consider again whether willfulness appears in the record would serve little purpose, particularly here, where the record is unclear.

The alleged violations involved conditions of low gravity and abatement is not a concern because construction at the worksite has been completed.

Under all these circumstances, it would no longer be provident to review this case.

See A.C. & S., Inc., 76 OSAHRC 93/A2, 4 BNA OSHC 1529, 1976-77 CCH OSHD P20,955 (No. 2229 et al., 1976).

Accordingly, the direction for review is vacated.

DISSENTBY:

[*3]

COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

The majority decision to vacate the direction for review in this case deprives the aggrieved party of his day in court and marks a serious departure from prior Commission practice.

In response to a petition for discretionary review filed by the Secretary of Labor, Commissioner Cleary directed this case for review on May 12, 1978.

On September 7, 1978, the Commission denied the Respondent's motion to strike the Secretary's petition or in the alternative to reconsider the decision to direct the case for review.

On September 29, 1978, the Commission denied the Respondent's motion for oral argument.

Three and a half years later, with no intervening change in law, no apparent lack of party interest, and after the directed issues have been briefed, the Commission has determined that review is no longer provident. In support of their result my colleagues cite A.C. & S., Inc., 76 OSAHRC 93/A2, 4 BNA OSHC 1529, 1976-77 CCH OSHD P20,955 (Nos. 2229 et al., 1976).

However, A.C. & S. provides no support for the majority action in this case.

In the past the Commission has declined to review cases where the record revealed both an [*4]

absence of party interest and no compelling public interest warranting review.

See, e.g., Middletown Volkswagen, Inc., 80 OSAHRC 50/F7, 1980 CCH OSHD P24,493 (No. 77-349, 1980) (not reported in BNA); Chrysler Casting Corp. - Fostoria Foundry, 79 OSAHRC 98/A2, 8 BNA OSHC 1088, 1979 CCH OSHD P24,035 (No. 76-3877, 1979; Cargill, Inc., 79 OSAHRC 90/A2, 7 BNA OSHC 2045, 1979 CCH OSHD P23,981 (Nos. 78-2862 & 78-2864, 1979); Structural Metals, Inc., 79 OSAHRC 43/E4, 7 BNA OSHC 1452, 1979 CCH OSHD P23,635 (No. 78-3352, 1979); Potlatch Corp., 79 OSAHRC 34/F6, 7 BNA OSHC 1370, 1979 CCH OSHD P23,549 (No. 77-3589, 1979); John R. Jurgensen Co., 79 OSAHRC 17/E4, 7 BNA OSHC 1251, 1979 CCH OSHD P23,403 (No. 77-256, 1979).

However, in no case has the Commission declined to review specifically directed issues n1 without either: (1) affording affected parties the opportunity to object, A.C. & S., Inc., supra; (2) concluding there is a lack of party interest, Trans World Airlines, Inc., 79 OSAHRC 4/D10, 7 BNA OSHC 1047, 1979 CCH OSHD P23,277 (No. 76-3506, 1979); or, (3) permitting the parties to clarify whether there is party interest in Commission review [*5]

in light of an ambiguous record on this point, Champion Construction & Engineering Co., 78 OSAHRC 102/A2, 6 BNA OSHC 2116, 1978 CCH OSHD P23,186 (No. 76-2576, 1978).

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 See also Commission Policy Statement, 41 Fed. Reg. 53014 (1976).

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

A.C. & S., Inc., supra, ("the Sears Tower cases"), involved a judge's decision in 16 consolidated cases arising out of inspections conducted in 1972 at the Sears Tower construction project in Chicago.

Of the 16 original Sears Tower cases on review, four lacked both party interest and compelling public interest and the relevant portions of the judge's decision were affirmed without review under Abbott-Sommer Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).

One case involved issues of law and fact not present in the 11 remaining cases and was severed for decisional purposes under Commission Rule 10, 29 C.F.R.

2200.10, and later decided on the merits. n2 The remaining 11 cases involved common legal issues that had been decided [*6]

by the Commission after the Sears Tower cases directed for review and briefed by the parties.

Accordingly, in the Commission's view, the cases "no longer present[ed] novel or unsettled questions," and "a decision on these issues [was] no longer crucial in formulating national policy to aid in the Act's administration." 4 BNA OSHC at 1532, 1976-77 CCH OSHD P20,955 at p. 25,175. The attention of the parties was directed to relevant new case law.

In deciding that review was no longer provident the Commission noted that recently decided precedent would require supplementary presentations by the parties in order to provide full review. n3 However, the Commission did not simply vacate the orders directing review of these cases.

Rather, each affected party was afforded the opportunity to object to the vacation of the directions for review.

In addition, and affected party could request a decision on the existing record, a remand for further proceedings, or an apportunity to pursue a negotiated settlement.

Of the 11 affected respondents, three filed objections and their cases were subsequently decided on the merits. n4

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - -

[*7]

n2 Crescent Erection Co., 77 OSAHRC 145/B12, 5 BNA OSHC 1711 (No. 2159, 1977) (not reported in CCH).

n3 Under Commission Rule 93, 29 C.F.R.

2200.93, adopted on Dec. 5, 1979, 44 Fed. Reg. 70111, parties whose cases have been directed for review are issued a briefing notice "at a time reasonably in advance of the date when the case is scheduled for disposition at a Commission meeting." Under prior Commission practice briefs were to be filed within 30 days after the case was directed for review.

n4 Mayfair Const. Co., 77 OSAHRC 178/A14, 5 BNA OSHC 1877, 1977-78 CCH OSHD P22,214 (No. 2171, 1977); Illinois Bell Telephone Co., 77 OSAHRC 178/A2, 5 BNA OSHC 1884, 1977-78 CCH OSHD P22,209 (No. 2097, 1977); Skidmore, Owings, & Merrill, 78 OSAHRC 1/A2, 5 BNA OSHC 1762 1977-78 CCH OSHD P22,101 (No. 2165, 1977).

Two other respondents in the consolidated Sears Tower cases that had originally sought Commission review, Anning-Johnson Co. and Inland-Ryerson Construction Products Co., did not object to the vacation of the orders for review.

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

In contrast to the record on review [*8]

in the Sears Tower cases, the record in this case is complete.

There has been no intervening change in law that would require supplementary evidence or argument by the parties.

Finally, the parties have not been afforded an opportunity to object and thus have been denied their day in court.

The Commission states that "the issues now remaining are largely factual; the case poses no unresolved legal issues." The issues in this case always have been factual; there never have been unresolved legal questions. n5 Furthermore, an absence of legal issues is not fatal to Commission review.

Under Commission Rule 92(b), 29 C.F.R.

2200.92(b), assertions that a judge's finding of material fact is not supported by a preponderance of the evidence or a judge's decision is contrary to decisions of the Commission are appropriate grounds to be considered by Commission members in the exercise of their statutory review authority under 29 U.S.C.

661(i).

Similarily, Commission Rule 92(d), 29 C.F.R.

2200.92(d), provides that "Except in extraordinary circumstances, the Commission's power to review is limited to issues of law or fact raised by the parties in the proceedings below." (Emphasis [*9]

added.)

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n5 The absence of legal questions may be sufficient to preclude a finding of compelling public interest warranting review.

See Middletown Volkswagen, Inc., supra, 1980 CCH OSHD P24,493 at p. 29,922 n. *.

However, it does not affect party interest in review.

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

The Secretary of Labor petitioned for review.

The petition was granted by Commissioner Cleary and the parties have briefed the issues.

There is no sound reason for not deciding the issues on review. n5 If providence is lacking in this appeal, it has been lacking since it was originally directed for review.

Furthermore, fundamental fairness requires at a minimum that the parties be afforded the same opportunity to object to the lack of decision as was afforded the parties in the Sears Tower cases.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n5 The majority concludes that "whether willfulness appears in the record would serve little purpose, particularly here, where the record is unclear." The record in this case is long, and the factual issues presented are many.

However, it is the role of the Commission as the adjudicatory body under the Act to resolve disputed issues, not to avoid those that may be lengthy, tedious, or not subject to easy resolution.

[*10]

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, I dissent.