On Petition For Review Of An Order Of The Occupational Safety And Health Review Commission.
Forman, Gibbons and Rosenn, Circuit Judges.
This is a petition filed pursuant to § 11(a) of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 660(a), to review an order of the Occupational Safety and Health Review Commission (the Commission) determining petitioners to be in non-serious violation of the Act's provisions. The petitioners are stevedoring companies operating in the Port of Philadelphia. They employ longshoremen. The Secretary of Labor, pursuant to statutory authority,*fn1 has adopted safety and health regulations for longshoring. Among those regulations is the so called "longshoring hardhat" standard:
"Employees shall be protected by protective hats meeting the specifications contained in the American National Standard Safety Requirements for Industrial Head Protection, Z89.1 (1969)."
29 C.F.R. § 1918.105(a)(1975).
On April 10-11, 1973 an OSHA compliance officer inspected the Camden, New Jersey docks and discovered that nearly all of petitioners' longshoremen were working without hardhats.*fn2 The Secretary cited petitioners for violation of § 5(a)(2) of OSHA, 29 U.S.C. § 654(a)(2), and proposed that civil penalties aggregating $455 be levied against the petitioners.*fn3 Each citation also ordered immediate abatement of violations. Petitioners filed notices of contest, 29 U.S.C. § 659(a), which resulted in a hearing before the Commission's Administrative Law Judge. 29 U.S.C. § 659(c).
At the hearing the OSHA compliance officer testified that on the dates of his inspections, only a very small proportion of the longshoremen were wearing hardhats, that none of the petitioners had previously been cited for a violation of the hardhat standard, and that no injuries were involved. He also testified that between 1971, when the standard was adopted, and April 1973 there had been a moratorium in the Secretary's enforcement of it, because the longshoremen's unions opposed it and the rank-and-file preferred not to wear hardhats. In 1973 the Secretary changed his enforcement policy, apparently as a result of conversations between a representative of the Department of Labor and the president of the International Longshoremen's Association.
Witnesses for the petitioners testified that stevedores in the Port of Philadelphia had, beginning in 1971, undertaken strenuous but unsuccessful efforts to obtain compliance with the standard by their longshoring employees; had furnished the required hardhats; had encouraged use of the headgear at regular safety meetings; had posted hardhat signs on their working premises; had used payroll envelope stuffers advocating hardhat wearing; and had placed hardhat safety messages on the hiring tapes. All this was to little avail, and each employer witness testified to a firm belief that wildcat strikes or walkouts would attend attempts to enforce the standard by firing employees who refused to comply. There is undisputed testimony that in another port a strike over that issue did occur.*fn4 There is, however, no testimony that these petitioners ever denied work to a longshoreman for his refusal to wear a hardhat.
The petitioners urged that the Secretary's citations and proposed penalties should be vacated because in view of the longshoremen's intransigent opposition to and their union's lukewarm support for the standard, compliance by them with the hardhat standard was not achievable. The Administrative Law Judge found the three employers in violation of 29 C.F.R. § 1918.105(a), but vacated the Secretary's proposed penalties. A petition for discretionary review was filed with the Commission pursuant to § 12(j) of the Act, 29 U.S.C. § 661(i), and review was granted.
On April 11, 1975 the Commission handed down the decision and final order which we review. The Commission voted 2-1 to affirm the Administrative Law Judge's decision finding violations and vacating proposed penalties, but each Commissioner filed a separate opinion. Commissioner Cleary announced the decision of the Commission. He rejected as "largely speculative" the petitioners' contention that they had done all they could do without causing labor strife. In addition, citing Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340 (2d Cir. 1974), he concluded that, at least when non-compliance by employees was neither unpredictable nor idiosyncratic, final responsibility for compliance with the Act's requirements rested with the employers.
Commissioner Van Namee, concurring, did not agree that the evidence of potential labor unrest was speculative. Nor did he agree that employers could under the Act be held strictly liable in all instances of technical non-compliance.*fn5 Yet he concluded that in this instance the employers would, because of the terms of their collective bargaining agreements, have a remedy under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, against a wildcat strike. Commissioner Van Namee surmised that the availability of such a remedy made the fear of a strike, or at least an effective one, "nothing more than an illusion."*fn6 He recognized, however, that the applicability of a particular safety and health standard should not turn on whether the parties to the collective bargaining agreement agreed upon a grievance-arbitration procedure that was broad enough to permit a Boys Markets injunction. Such an approach would admit of selective enforcement of OSHA safety standards. To meet this objection Commissioner Van Namee said that irrespective of the existence of a Boys Markets remedy, the Commission itself had the statutory authority to issue cease and desist orders running against employees. These orders could be enforced by injunction in the Courts of Appeals pursuant to §§ 11(a) and (b) of the Act, 29 U.S.C. §§ 660(a) and (b).
Chairman Moran dissented. Like Commissioner Van Namee, he rejected Commissioner Cleary's assessment of the evidence concerning the likelihood of walkouts over attempts to enforce the hardhat requirement. He concluded that the employers had taken all steps required of them under the Act. He also expressed doubt as to the availability of § 301 injunctive relief.
In summary, although the Commission order affirmed the citations, there is no opinion which can be said to represent a concensus. Two Commissioners, Moran and Van Namee, agree that the record contains substantial evidence tending to show that a work stoppage will occur if the petitioners take additional steps to enforce the hardhat requirement. Commissioner Van Namee concludes, however, that the availability of relief before the Commission against spontaneous employee obduracy renders this body of evidence irrelevant. Chairman Moran evidently does not share Commissioner Van Namee's expansive view of the Commission's powers, although he did not in this case address the issue. Commissioner Cleary flatly rejects any interpretation of OSHA that would permit the Commission to issue cease and desist orders against employees. Nevertheless, he regards the threat of work stoppages posed in this instance as largely speculative. In any event, Commissioner Cleary suggests that where, as here, employee non-compliance is neither unpredictable nor idiosyncratic, the employer has an absolute statutory duty to enforce the terms of the Act.
Section 11(a) of the Act, 29 U.S.C. § 660(a), directs the reviewing court to accept "the findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole. . . ." Brennan v. OSHRC (Interstate Glass Co.), 487 F.2d 438 (8th Cir. 1973). Because there is no opinion in which a majority of the Commission joined, there is no Commission finding of fact with respect to the likelihood that enforcement of the hardhat standard would provoke a work stoppage. But two Commissioners appear to have credited the testimony of the petitioners' witnesses that such a work stoppage was likely if not inevitable. We believe that such a finding would be supported by substantial evidence on the record as a whole.*fn7 Indeed, Commissioner Cleary's rejection of the evidence as "largely speculative", if it represented a finding of the Commission, probably would have to be dismissed as unsupported by substantial record evidence. Thus we assume, for purposes of this petition for review, that the longshoremen in the Port of Philadelphia are intransigent on the hardhat issue and are likely to strike if more vigorous enforcement efforts are undertaken.
This assumption serves to focus the specific and relatively narrow issue presented by this petition, viz., whether when employee non-compliance with an occupational safety or health standard is both predictable and virtually uniform, the employer must nevertheless enforce compliance even at the risk of concerted employee work stoppages. Because any answer to this inquiry is an adjudicatory conclusion, the scope of our review is less narrowly jacketed than with factual determinations. The law of this circuit is that we may set aside such conclusions if we find them to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Brennan v. OSHRC (Hanovia Lamp Div.), 502 F.2d 946, 951 (3d Cir. 1974); Budd Co. v. OSHRC, 513 F.2d 201, 204 (3d Cir. 1975) (per curiam).
In urging us to vacate the citations, petitioners place principal reliance on our decision in the Hanovia Lamp case. There we followed the holding of the District of Columbia Circuit in National Realty & Construction Co. v. OSHRC, 160 U.S. App. D.C. 133, 489 F.2d 1257 (1973), rejecting a construction of the Act which would effectively make employers strictly liable for violations arising from employee misconduct. In Hanovia Lamp we held that an employer could be held answerable for a violation resulting from such misconduct only when "demonstrably feasible measures" existed for materially reducing its incidence. 502 F.2d at 952. In reply the Secretary correctly points out that both National Realty Construction and Hanovia Lamp involved citations for violation of the Act's general duty clause,*fn8 while this case involves a citation for violation of a specific safety standard.*fn9 It seems to be the Secretary's position that employers are to be held to a higher standard of care under specific regulations than under the general duty clause. We decline to bifurcate the statute in such a manner, and attach no significance to the proffered distinction. As the First Circuit observed in Cape & Vineyard Division of New Bedford v. OSHRC, 512 F.2d 1148 (1st Cir. 1975), the employer's task of guarding against the aberrational action of specific employees who violate specific safety standards is essentially no less difficult than under the general duty clause. Cf. Brennan v. Butler Lime & Cement Co., 520 F.2d 1011, 1017 (7th Cir. 1975). Thus the Hanovia Lamp standard governing employer responsibility applies, in our view, to 29 C.F.R. § 1918.105(a) to the same extent as to the general duty clause.
But while Hanovia Lamp, National Realty Construction and Cape & Vineyard Division supply us with the standard of liability to be applied to the facts of this case, they offer precious little insight into the question whether the petitioner stevedoring companies have breached their statutory duty of care. Those cases involved the unpredictable and unforeseeable actions of individual employees. This case involves the predictable, nearly universal actions of all the longshoremen. There is a demonstrably feasible measure which can be taken to prevent such concerted disobedience: the employer can refuse employment to those who insist on violating the standard. The discussions of strict liability in the cases referred to have no application to the ...