Petition for Review of an Order of the Occupational Safety and Health Commission.
Seitz, Chief Judge, and Aldisert and Garth, Circuit Judges. Seitz, Chief 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*fn1 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,*fn2 nor the subject of review by the full Commission at the direction of a single member, 29 U.S.C. § 661(i).*fn3 We answer the question in the negative and, therefore, grant the motion of the Secretary of Labor to dismiss the petition for review.
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),*fn4 which requires a railing or its equivalent around "every 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.
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 for carrying out adjudicatory functions under [the Act]." Ibid. § 651(b). Congress further declared that "the 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 ...