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National Roofing Contractors Association v. Brennan

decided: April 30, 1974.


Petition for Review of an Order of the Secretary of Labor.

Kiley, Senior Circuit Judge, and Pell and Sprecher, Circuit Judges. Pell, Circuit Judge, dissenting.

Author: Kiley

KILEY, Senior Circuit Judge.

Petitioners,*fn1 representatives of employers in the roofing industry, filed their petition in this court, pursuant to 29 U.S.C. § 655(f),*fn2 to set aside a safety standard promulgated by respondent Secretary, acting by virtue of § 6(a) and (b) of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 651 et seq., to protect workers on sloping roofs of buildings. We deny the petition.

OSHA is the "first comprehensive effort by the federal government to regulate safety and health conditions in the workplace."*fn3 In enacting OSHA Congress stated that the purpose is "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." 29 U.S.C. § 651(b).

The Secretary was authorized in OSHA, § 651(b) (3), to set mandatory standards for safety and health of employees. In promulgating the standard before us he followed the statutory procedures in § 655(b). Briefly stated, those procedures are as follows: When the Secretary receives or develops information upon which he determines a standard is needed, he may request recommendations from an advisory committee appointed by him. He then submits his proposal and the information he has received or developed to the committee. Upon receiving the committee's recommendations, he publishes the proposed standard and affords interested persons an opportunity to submit written data or comments.

Should objections be made to the proposal, and upon a request for a hearing, the Secretary is to publish in the Federal Register a notice specifying the proposal and set a time and place for a hearing. After the hearing he "shall" promulgate, or determine not to promulgate, the standard.


Petitioners contend that the standard is void because the composition of the advisory committee appointed by the Secretary did not comply with the requirement of § 656(b) that the committee be representative of employers as well as employees and public representatives.


Section 656(b) provides that any advisory committee appointed by the Secretary shall consist of not more than fifteen members and must include one or more designees of the Secretary of Health, Education and Welfare (HEW); "an equal number of person qualified by experience and affiliation" to present the view of employers and employees; one or more representatives of state safety and health agencies; and "such other persons as the Secretary may appoint who are qualified by knowledge and experience . . . including one or more representatives of professional organizations of technicians or professionals specializing in occupational safety or health . . ."; but the number of professionals appointed cannot exceed the number appointed as representatives of HEW and state agencies.

Petitioners argue that no roofing industry member was appointed and that general contractors on the committee do not adequately represent them.

The Secretary, before the effective date of OSHA, had exercised his authority under the Contract Work Hours and Safety Standards Act of 1969, 40 U.S.C. § 333 et seq. (CWHSSA) by appointing a nine-man advisory committee to make recommendations for a safety standard to protect employees working on sloping roofs. After enactment of OSHA he enlarged the committee to the new requirements of fifteen members.

It is not sufficient to charge that because a roofing subcontractor is not appointed to the committee, petitioners are ipso facto prejudiced. There is nothing to show that, although roofing contractors may be the group most affected by the standards, general contractors in conjunction with worker representatives and the other representatives are not competent to determine suitable safety standards for employees working on sloping roofs. The testimony does not show that the general contractors prejudiced petitioners' position at the hearing. On the contrary, on this record the interest of the petitioners and the general contractors are plainly the same: general contractors must absorb the cost of safety devices required by the standard and they may be liable for subcontractor violations.*fn4

Absent a showing of "specific prejudice" suffered by petitioners, we see no substance in the contention urged by petitioners that failure to appoint a representative of the roofing industry violated § 656(b). United States v. Pierce Auto Lines, 327 U.S. 515, 527-529, 90 L. Ed. 821, 66 S. Ct. 687 (1946).


Petitioners argue also that the CWHSSA and OSHA advisory committees were improperly composed.*fn5 We consider this argument frivolous.

As his affidavit before us states, CWHSSA member MacCollum was not appointed as an employer representative as petitioner erroneously contends, but as a public member. And, contrary to petitioner's claim, OSHA committee member Anania, an acting chief of the National Institute of Occupational Safety and Health, was a proper HEW designee. Finally, there is no merit in the claim that the CWHSSA committee had an unequal number of employer and employee representatives. Petitioners' contention that Mr. Burks was a public member is contradicted by a Department of Labor release announcing his appointment as a "management representative."

We hold that the standard before us is not void for failure of the Secretary to meet the requirements of 29 U.S.C. § 656(b) of OSHA in composing the advisory committee which recommended the standard. None of the cases referred ...

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