ON PETITION FOR REVIEW OF AN ORDER OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges
Bloomfield Mechanical Contracting, Inc. and Bloomfield-Blumin Joint Venture petition pursuant to § 11(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(a), to review and set aside a final order of the Occupational Safety and Health Commission affirming citations and proposed penalties issued by the Secretary of Labor for violations of the Act. The fact of violation was not disputed before the Commission nor is it in dispute upon review here. The petitioners challenge the Commission action on account of procedural deficiencies which they contend deprived it of jurisdiction, and because of alleged constitutional deficiencies in OSHA.
Upon review of the final order and decision, we remand to the Commission for further consideration of the procedural challenges raised by the joint venture. In addition, we hold that no order should have been entered against Bloomfield Mechanical Contracting, Inc. We also find that the constitutional challenges to OSHA, to the extent that either petitioner has standing to raise them, are controlled by the en banc decision of this court in Frank Irey, Jr., Inc. v. Occupational Safety and Health Review Commission, No. 73-1765 (3d Cir., July 24, 1975), or are insubstantial. Thus we affirm the Commission's order to the extent that it rejects the joint venture's constitutional challenges.
I. THE PROCEDURAL CHALLENGES.
On May 1, 1972 Bloomfield Mechanical Contracting, Inc., a New Jersey plumbing contractor, entered into a joint venture with Blumin & Associates, Inc., a New York plumbing contractor. The joint venture was named "Bloomfield-Blumin Joint Venture." For purposes of convenience we will hereafter refer to Bloomfield Mechanical Contracting, Inc. as "Bloomfield," to Blumin & Associates, Inc. as "Blumin," and to Bloomfield-Blumin Joint Venture as "the joint venture." On the same day as the joint venture agreement was executed, the joint venture entered into a plumbing installation contract with Valentine Electric Company, a subcontractor at the construction site of the Castleton Park Apartments in Staten Island. (App. at 69a).
On November 21, 1972 an inspector from the Occupational Safety and Health Administration of the Department of Labor visited the Castleton Park site and found two serious and two non-serious violations of OSHA safety regulations. 29 CFR §§ 1926.500(b)(1) & (d)(1); 29 CFR § 1926.25(a); 29 CFR § 1926.500(e)(1)(iii). As a result of the inspection, on December 19, 1972 the Secretary of Labor issued citations and a notification of proposed penalties in the name of Bloomfield, and mailed them to Bloomfield in care of its President, Anthony Deland. §§ 9(a), 10(a), 29 U.S.C. §§ 658(a), 659(a). (App. at 3a-8a). On December 26, 1972, Deland, on behalf of Bloomfield, acknowledged receipt of the citations and notification and advised the Occupational Safety and Health Administration that Bloomfield intended to contest them. (App. at 9a).
On January 10, 1973 the Secretary filed with the Commission a formal complaint against Bloomfield alleging the violations and requesting affirmance of the citations and proposed penalties. § 10(c), 29 U.S.C. § 659(c). (App. at 10a-14a). Bloomfield answered the complaint on January 24, 1973. The answer admitted that it was engaged in construction activities at Castleton Park, but denied that it was responsible for the violations which it attributed to others over whom it had no control. It also challenged the Act on various constitutional grounds. The answer made no specific reference to the joint venture. (App. at 15a-19a). Three months later, on April 6, 1973, when the Commission assigned the case to an administrative law judge for hearing, counsel for Bloomfield for the first time advised the Secretary and the Commission that the workmen performing the plumbing work at the Castleton Park site were not employed by Bloomfield, but by the joint venture. (App. at 20a). Bloomfield moved to file an amended answer withdrawing its admission that it was engaged in construction at the site. (App. at 21a-26a). The administrative law judge granted this motion without objection by the Secretary. Bloomfield then moved to dismiss the Secretary's complaint on the ground that it was not an employer at the site.
At a hearing on May 3, 1973 the administrative law judge ruled that Bloomfield was the party to be served for the joint venture (App. at 106a), and granted the Secretary's motion to amend the complaint by adding the joint venture as a party respondent. (App. at 99a, 103a). On June 6, 1973 the Secretary filed an amended complaint naming as respondents Bloomfield individually and doing business as a joint venture, and the joint venture individually. (App. at 29a-34a). However, on June 7, 1973 the administrative law judge apparently had second thoughts about the previous ruling, for he notified the parties that it would be modified to the extent that a special hearing would be held solely on the question of jurisdiction. (Government's Addendum to Brief at 1b). At the conclusion of this hearing, which was held on July 18, 1973 the administrative law judge ruled:
"I adhere to my original ruling with one exception.
Instead of adding the party of the joint venture, I - the name should be changed to that other joint venture.
Now do I hear a motion to that effect?" (App. ...