OPINION OF THE COURT
GIBBONS, Circuit Judge.
This case presents the issue of the proper scope of review of an adjudicatory final order of the Occupational Safety and Health Review Commission when the Secretary of Labor petitions for review or enforcement pursuant to § 11(b), 29 U.S.C. § 660(b) of the Occupational Safety and Health Act of 1970. Pub.L. 91-596, 1970 U.S.Code Cong. and Admin.News, p. 5177, 29 U.S.C. § 651 (The Act). The order in question reversed a decision by the Administrative Law Judge holding that Hanovia Lamp Division, Canrad Precision Industries, had on August 6, 1971 committed a serious violation of § 5 of the Act, 29 U.S.C. § 654(a). That subsection obliges each employer to furnish to each of his employees employment and a place of employment which are free from recognized hazards likely to cause them death or serious physical harm. Section 5(b) of the Act mandates that each employer shall comply with occupational safety and health standards promulgated under the Act. Thus the Act imposes on employers both a duty to provide employment free from recognized hazards (the general duty clause) and a duty to comply with specific standards promulgated by rule. Only the general duty clause is in issue in this case. Section 17 of the Act, 29 U.S.C. § 666, provides for civil penalties for violations of a § 5 duty. Civil penalties for serious violations are mandatory. 29 U.S.C. § 666(b). Penalties for violations determined to be not of a serious nature are discretionary. 29 U.S.C. § 666(c). Serious violations are defined as those where:
Section 9 of the Act, 29 U.S.C. § 658, authorizes the Secretary of Labor or his authorized representative to issue a written citation to any employer believed to have violated any duty prescribed by § 5. By Section 10, 29 U.S.C. § 659, the Secretary is authorized following the issuance of a § 9 citation, to notify the employer of the penalty proposed to be assessed. The employer may acquiesce in the proposed assessment or, pursuant to § 10(c), 29 U.S.C. § 659(c) notify the Secretary that he intends to contest the
Section 11 of the Act provides for judicial review of a § 10(c) order by a petition to the United States Court of Appeals for the circuit in which the violation is alleged to have occurred or where the employer has its principal office. The petitioner may be either a person adversely affected or aggrieved by a § 10(c) order, 29 U.S.C. § 660(a), or the Secretary, 29 U.S.C. § 660(b). On a Secretary's petition "the provisions of subsection (a) of this section  shall govern such proceedings to the extent applicable." 29 U.S.C. § 660(b). Thus whether the petitioner is the Secretary or a person adversely affected or aggrieved, this court is bound by the provisions of § 11(a) including the sentence:
In this case the employer contested the Secretary's citation for a serious violation throughout the administrative proceedings, but it has filed no response to the Secretary's petition for review. The Commission has, however, responded in defense of its order, and the litigation is obviously a part of the ongoing conflict between the Commission and the Secretary as to their respective roles in the enforcement of the Act. See, e. g., Brennan v. Occupational Safety & Health Review Commission (Pearl Steel Erection Company), 488 F.2d 337 (5th Cir. 1973); Brennan v. Occupational Safety & Health Review Commission (Brent Towing Co., Inc.), 481 F.2d 619 (5th Cir. 1973). Unlike the Brent Towing case, however, the employer here has not withdrawn its contest of the Secretary's citation. Thus we conclude that there is a continuing case or controversy warranting judicial review even though Hanovia has not responded to the petition for review.
The citation which produced the challenged order arose from the Secretary's investigation of an incident at Hanovia's Newark, New Jersey laboratory. Hanovia tests, manufactures and sells high energy lamps and associated equipment. On August 6, 1971 Orville Galligher, a laboratory technician, electrocuted himself while conducting an experiment. The Secretary's investigation and citation followed. When Hanovia contested the citation a hearing was held before an administrative law judge pursuant to 29 U.S.C. § 661(i), who made findings that:
The Administrative Law Judge made a conclusion of law that:
Hanovia never contested that the condition described in Finding # 9 was a recognized hazard. There is expert testimony by the Secretary's compliance officer that the described condition is "a classical, fundamental, basic illustration as to what not to do, and it couldn't have been done better had you tried." (Tr. at 24). Indeed Dr. Otto Lienhard, Hanovia's Research Director in charge of lamp engineering and Mr. Galligher's supervisor, testified:
The evidence is also undisputed that Galligher, an experienced technician, had worked for Hanovia for 21 years, including 14 years with high voltage equipment, that during his entire 21 years he had an accident-free record, had worked under Lienhard's supervision for 10 years, and had never been observed by Lienhard to do anything unreliable or unsafe. The record establishes unequivocally that Hanovia did not know that Galligher had set up the test equipment in the manner described in Finding # 9. In reviewing the Administrative Law Judge's decision, Commissioner Burch wrote for the Commission:
Although neither the Commission opinion nor the Administrative Law Judge's decision refer to it, there is evidence in
The Secretary points to testimony by its compliance officer as to six steps which, had they been taken, might have prevented Mr. Galligher's electrocution. Hanovia might have (1) provided a lock-out system for the service box power source; (2) provided enclosures for energized terminals; (3) required that testing technicians work in teams of two; (4) had a supervisor frequently inspect progress of testing operations; (5) provided a detailed and comprehensive written manual for lab technicians performing electrical tests; and (6) appointed a competent person as safety manager to enforce safe practices and establish accountability for safety. (Petitioner's brief at 5). Since the evidence establishes that it was Galligher who in violation of universally recognized safety standards set up the test apparatus which produced the hazardous condition, it is difficult to see the significance of steps (1) and (2).
It is appropriate to distinguish at the outset the issue whether the Secretary, acting pursuant to § 6 of the Act, 29 U.S.C. § 655, might impose by rule, standards of continuous supervision and team work for employees in high voltage laboratories. If such a rule were challenged the enigmatic standard for judicial review of rule making under the Act set forth in § 6(f), 29 U.S.C. § 655 probably would apply. See, e. g., Dry Color Manufacturers' Association, Inc. v. Department of Labor, 486 F.2d 98 (3d Cir. 1973); Associated Industries of New York State Inc. v. United States Department of Labor, 487 F.2d 342 (2d Cir. 1973). See also Morton v. Delta Mining, Inc., 495 F.2d 38 (3d Cir. 1974). We may also distinguish the separate problem of a conflict between the Secretary and the Commission as to the proper interpretation of a safety standard, which may involve the statutory allocation of the rule making power (in the Secretary) and the adjudicatory function (in the Commission). See, e.g., Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974); Brennan v. Occupational Safety & Health Review Commission (Gerosa, Inc.), 491 F.2d 1340 (2d Cir. 1974). Citations under § 10 for violation of the general duty clause involve administrative adjudications rather than rule making, and petitions for review in general duty clause cases involve more or less traditional standards for reviewing adjudications under a statute. Section 11(a), 29 U.S.C. § 660, states that we must afford to the Commission's fact-finding the same deference as to the fact-finding of such agencies as the National Labor Relations Board. See, e.g., Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); N.L.R.B. v. Princeton Inn Company, 424 F.2d 264
The statute imposes the duty of furnishing "employment and a place of employment . . . free from recognized hazards . . . ." 29 U.S.C. § 654(a)(1). Textually this language might be construed as imposing strict liability for a serious violation on an employer for the mere existence of a "recognized hazard" such as the hazards set forth in Finding # 9. Certainly these are "recognized" by any industry utilizing high voltage electricity. But Congress apparently did not intend to impose strict liability in this sense. The purpose clause of the Act declares it to be the congressional purpose "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. § 651(b) (emphasis added). The italicized language suggests that the duty imposed by § 5(a)(1) must be a duty which is capable of achievement. Moreover the definition of serious violations in § 17(k) of the Act, 29 U.S.C. § 666(j) is qualified by the requirement that the employer "with the exercise of reasonable diligence, know of the presence of the violation." Thus we do not construe the general duty clause of § 5(a)(1) as imposing strict liability for a § 17 penalty for the results of idiosyncratic, demented, or perhaps suicidal self-exposure of employees to recognized hazards. On the other hand we agree with the Secretary that the general duty clause imposes a statutory duty to attempt to prevent hazardous conduct by employees.
In National Realty & C. Co. Inc. v. Occupational Safety & Health Review Commission, 489 F.2d 1257 (D.C.Cir. 1973) Judge Skelly Wright addresses the extent of an employer's obligation under the general duty clause to prevent such conduct. Recognizing that it is impossible to eliminate totally all hazardous conduct by employees, he recognizes, as well, that the employer has a duty at least to suppress such conduct in foreseeable instances. We borrow his language:
In National Realty the District of Columbia Circuit reversed the Commission's decision and order finding a serious violation in equipment riding on a construction site because the Secretary had not established by evidence what additional feasible safety steps the employer might have taken, and the record, therefore, lacked substantial evidence of the violation. Thus the court interpreted the general duty clause, as a matter of law, as imposing the duty of adopting demonstrably feasible measures for materially reducing the likelihood of a particular employee misconduct. It then reviewed the record for substantial evidence that there were such measures, and found none. Since the Secretary had not carried his burden the Commission order was reversed.
This case differs from National Realty in two respects. In National Realty the Commission had upheld the Secretary's citation whereas here it was vacated. In National Realty there was no evidence bearing upon the existence of feasible measures for reducing the employee misconduct in question. Here there is testimony by the Secretary's expert that the employer could have had two technicians in attendance during the test, and that Galligher's supervisor could have examined the progress of the test more frequently. The Administrative Law Judge attached significance to this testimony, making a finding (Finding # 16) of a serious hazard that "Galligher was left to work alone, without proper supervision." The Commission did not, however, accept this finding.
As to the degree of supervision, there is evidence that Galligher was in fact supervised by Lienhard, a competent supervisor, at least daily, and that such supervision had in the past sufficed to preserve Galligher's accident free record and his regular compliance with industry standards for the avoidance of electrical hazards. The Secretary's expert, while suggesting closer supervision, made no showing as to the appropriateness of any more frequent supervision than daily. He did suggest that the laboratory set-up for every test be first inspected by a supervisor before being energized, but he offered no testimony as to the feasibility of such a step when periodic or routine tests are conducted by experienced technicians. Thus we conclude that the Commission's rejection of the Secretary's contention respecting closer supervision is supported by substantial evidence on the record as a whole.
The Commission opinion does not deal with the suggestion by the Secretary's expert that Galligher should not have been left to work alone. If this suggestion were made without any testimony supporting its feasibility we would be inclined to hold, as did Judge Wright in National Realty, that the Secretary had simply not met his burden. But there is direct testimony by the expert:
This, we think, is some evidence that the two-person requirement for high voltage testing is a feasible measure for materially reducing the likelihood of employee disregard of recognized electrical hazards. The Commission, unfortunately, did not deal with this phase of the case at all, and we think that in the first instance, the question of whether the Secretary has met his burden should be answered by the Commission. Since the
Under the statutory framework the Secretary is charged with enforcement, the Commission with adjudication, and this court with judicial review. At the adjudicatory stage an administrative law judge conducts a hearing and makes a determination embodied in a report. That report becomes a final order of the Commission unless within 30 days a Commission member directs that it shall be reviewed by the Commission. 29 U.S.C. § 661(i). Such a direction was made in this case. This court is not authorized to review reports of an administrative law judge which have not become final orders of the Commission. 29 U.S.C. § 660(a), (b). We do not deem it appropriate in such a statutory framework to substitute our review of the administrative law judge's decision with respect to the two-person requirement for that of the Commission. This is not a case, such as Brennan v. Occupational Safety & Health Review Commission (John J. Gordon Co.), 492 F.2d 1027 (2d Cir. 1974), where on the record only one factual conclusion is possible, and a reversal of the administrative law judge may be set aside as an abuse of discretion. Moreover, since the amount of the penalty is a matter within the Commission's discretion, assuming a serious violation such discretion should be exercised by the Commission in the first instance. See Brennan v. Occupational Safety & Health Review Commission (Interstate Glass Co.), supra, 487 F.2d at 440.
Because the Commission simply did not deal with a significant issue in the case, its decision and order will be vacated and the case will be remanded for further proceedings.