These petitions for review of an order of the Occupational Safety and Health Review Commission (commission) pose the threshold issue whether the record establishes that Austin Road Company is an employer within the meaning of 29 U.S.C. § 652(5),1 a requisite for the commission's exercise of jurisdiction. Concluding that the Secretary of Labor failed to demonstrate the applicability of the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678, and that the commission's ruling does not comport with the procedural requirements of 5 U.S.C. § 557(c),2 we grant review and deny enforcement.Facts

Austin Road Company is a Texas contractor engaged in building residential streets, storm drains, sanitary sewers, and water transmission lines. In 1974, the company received and did not contest a non-serious citation, issued under 29 C.F.R. § 1926.652(c), for its failure to slope the sides of a trench at a job site. In 1977, it was cited for a serious, repeated violation of 29 C.F.R. § 1926.652(c) for failing to slope a trench. Austin Road challenged jurisdiction and, on the merits, denied the offense. After a hearing, an Administrative Law Judge upheld the citation but reduced the monetary penalty from $1,620 to $950. On review, the commission remanded for reconsideration whether the violation was properly characterized as "repeated" in light of its intervening decision in Potlatch Corporation, 1979 CCH OSHD P 23,294. On remand, the ALJ found that the violation constituted a repeat violation, a finding affirmed by the commission. Appeals from the initial order of the commission (our docket number 78-2986) and the order after remand (our docket number 81-4050) were consolidated.

We agree with our colleagues who have previously considered the question that, in enacting the Occupational Safety and Health Act, Congress intended to exercise the full extent of the authority granted by the commerce clause of the Constitution. See, e.g., Godwin v. Occupational Safety & Health Review Comm'n, 540 F.2d 1013 (9th Cir. 1976); United States v. Dye Construction Co., 510 F.2d 78 (10th Cir. 1975); Brennan v. Occupational Safety & Health Review Comm'n, 492 F.2d 1027 (2d Cir. 1974). Accordingly, an employer comes under the aegis of the Act by merely affecting commerce; it is not necessary that the employer be engaged directly in interstate commerce. See, e.g., Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942); United States v. Wrightwood Dairy, 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (1942); United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941). See also J. Nowak, R. Rotunda, & J. Young, Handbook on Constitutional Law 151-56 (1978).

When the issue is contested, the burden of showing that the employer's activities affect interstate commerce rests upon the administrative representative involved-in the case at bar, the Secretary of Labor. The burden is, in the usual case, modest, if indeed not light. However, in the instant case, the Secretary experienced considerable difficulty with this essential element. As the ALJ noted:

Compliance Officer Gerald K. Forrester testified, inconclusively, that Austin was using a Bucyrus Erie hydraulic boom crane which he believed was made in Bucyrus, Michigan. (Tr. 28). He also testified that the sewer line was to serve a new industrial complex.

(Emphasis in original.) As recognized by the ALJ, this evidence "would hardly be sufficient to carry the Secretary's burden of proof that Austin's business affected commerce." We agree. The ALJ looked to other evidence "to satisfy the jurisdictional requirements." Specifically, the ALJ referred to the testimony of Henry M. Cornelius, manager of loss control for Austin Road, and made these observations:

Mr. Cornelius gave this picture of the corporate structure: Respondent is one of several corporations, including Austin Bridge Co., Austin Paving Co., Austin Commercial and Austin Power, which have interlocking directorates and are wholly owned by Austin Industries, a holding company, the stock of which is not publicly held. Two of this family of corporations (apparently not among those named) manufacture farm machinery in Texas and sell it outside the state. Austin Power builds power plants both within and without the state of Texas, including plants it was then building at St. Mary's, Kansas, and Gentry, Arkansas (Tr. 112-120). Cornelius said Austin Road Co. does not contract outside Texas. It builds residential streets, storm drains, sanitary sewers and water transmission lines (the latter including a line from Lake Granbury, Texas, to Texas Utilities Company's Comanche Peak nuclear power plant at Glen Rose, Texas).

From this factual redoubt, the ALJ concluded that Austin Road's "profits or losses affect the corporate well-being of its parent company, Austin Industries, and indirectly of its sister companies, including those which are engaged directly in interstate commerce." As a consequence, the ALJ continued, because "(t)his corporate conglomerate is under common ownership and control, (t)here is sufficient 'effect' on commerce to bring respondent within the ambit of the Act."3 We do not agree.

In reviewing a decision by an administrative agency, we accept all factual findings supported by substantial evidence in the record considered as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Pioneer Natural Gas Co. v. NLRB, 662 F.2d 408 (5th Cir. 1981). However, consistent with the congressional mandate contained in 5 U.S.C. § 557 and the rubric evolved in Federal Trade Comm'n v. Beatrice Foods Co., 587 F.2d 1225, 1235 (D.C.Cir.1978) (Appendix), Anglo-Canadian Shipping Co. Ltd. v. Federal Maritime Comm'n, 310 F.2d 606 (9th Cir. 1962), Saginaw Broadcasting Co. v. Federal Communications Comm'n, 68 U.S.App.D.C. 282, 96 F.2d 554, cert. denied, 305 U.S. 613, 59 S.Ct. 72, 83 L.Ed. 391 (1938), and similar cases, the accepted factual findings provide the basis for review: we need not glean the evidence, but look only to the administrative findings of fact.4

In the present case, the findings regarding Austin Road's impact on its corporate parent and siblings are not supported by the record; they are speculative and conclusionary. The conclusion that the Secretary met the jurisdictional challenge is not based upon adequate factual findings. And, although we are not obliged to examine the evidence presented before the ALJ (see note 4, supra ), our examination of the record reveals that a finding of jurisdiction cannot be made. Perhaps Austin Road's business does affect interstate commerce; but that essential fact is not established in the record before us.

The Secretary and commission invite us to take judicial notice of Austin Road's effect on interstate commerce. We decline the invitation. See 5 U.S.C. § 557(c); Fed.R.Evid. 201(b). Jurisdiction not having been first established, the order of the commission cannot stand.

Austin Road's petitions for review are GRANTED; enforcement is DENIED.

JOHN R. BROWN, Circuit Judge, concurring.

I concur fully in Judge Politz's opinion but I would add these brief comments.

The case on this meager record ought never to have been appealed to this Court. The decision to do so reflects a disturbing misunderstanding of the agency's highest legal officer on the minimal proofs (and findings) needed to sustain "jurisdictional" application of OSHA and thereby justify imposing on this Court the burden of hearing, reviewing and deciding a case of obviously no appellate merit.

Nothing has been established by all of this "legal" effort save that the Secretary's prosecutor must establish by acceptable means the minimal showing that the employer's activities bring it within the Act. Everyone knew this all along. An appeal was not necessary to remind the agency of what it already knew and which we have stated so many many times.