Marshall v. Sun Petroleum Products Co.

LOUIS H. POLLAK, District Judge,

concurring in part and dissenting in part.

With the bulk of the court’s exposition of the Occupational Safety and Health Act, as it applies to the facts of this tortuous administrative proceeding, I am in accord: I agree that the objections filed by Oil Workers Local 8-901 to the settlement agreement entered into by the Secretary of Labor and Sun Oil vested in the administrative law judge, and thereafter in the Occupational Safety and Health Review Commission, jurisdiction to review the settlement agreement. And I agree that the Commission’s affirmance — by the divided vote of the two participating Commissioners — of the administrative law judge’s rejection of the Oil Workers’ challenge to the settlement agreement, was a Commission decision appealable to this court. I also agree that the Commission is only a nominal party to this appeal, having no standing to appear here to defend its decision. Moreover, I agree that prior to final Commission action the Secretary had authority to withdraw from a settlement agreement which he had found, on reconsideration, would not sufficiently promote the purposes of the underlying legislation.

But I disagree with the court’s rejection of “the union’s contention that affected employees have a right to be heard [in employer-initiated proceedings before an administrative law judge and the Commission] on matters other than the reasonableness of the abatement period.” P. 1186. Since the court’s position on this issue can be expected to have significant impact on the scope, and hence the content, of Commission adjudication, I think it appropriate to explain my views on this issue and on certain closely related issues.

A.

Section 10(c) of the Act is the key to the entitlement of employees, or of a union representing employees, to participate in hearings before the Commission. Section 10(c) provides in its entirety as follows:

If an employer notifies the Secretary that he intends to contest a citation issued under section 658(a) of this title or notification issued under subsection (a) or (b) of this section, or if, within fifteen working days of the issuance of a citation under section 658(a) of this title, any employee or representative of employees files a notice with the Secretary alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing (in accordance with Section 554 of Title 5 but without regard to subsection (a)(3) of such section). The Commission shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary’s citation or proposed pen*1189alty, or directing other appropriate relief, and such order shall become final thirty days after its issuance. Upon a showing by an employer of a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control, the Secretary, after an opportunity for a hearing as provided in this subsection, shall issue an order affirming or modifying the abatement requirements in such citation. The rules of procedure prescribed by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this subsection.

29 U.S.C. § 659(c)

It is apparent that the first sentence of Section 10(c) contemplates two types of hearings. The first type of hearing contemplated by Section 10(c)’s first sentence is one triggered by an employer who notifies the Secretary of an intention to contest a citation; in that hearing, employees (or a union thereof) are authorized “to participate as parties” by virtue of the last sentence of Section 10(c). The second type of hearing contemplated by Section 10(c)’s first sentence is one triggered by employees (or a union thereof) who notify the Secretary of their contention “that the period of time fixed in the citation for the abatement of the violation is unreasonable.”

Manifestly, the second type of hearing— that initiated by employees (or a union) — is tied firmly to the limited agenda set by the statute: the reasonableness of the abatement period.1 International Union, United Auto, etc., v. United States Occupational Safety & Health Review Com., 557 F.2d 607 (7th Cir. 1977). But nothing in the text of the statute confines employee/union participation “as parties” in the first type of hearing — that initiated by an employer contesting a citation — to questions relating to the reasonableness of the abatement period.2 And, indeed, such a limitation would seem anomalous: Typically, an employer contests the Secretary’s citation because the employer disputes the Secretary’s finding of a violation — a finding which in many cases flows from an employee or union complaint which the Secretary is by statute required to inquire into. And it would, indeed, be odd if the words of Section 10(c) precluded employees from pursuing at the adjudicative phase of OSHA enforcement the interests the Act encourages them to monitor at the investigative phase.3

*1190The anomalous limitation not expressed in the text of Section 10(c) is supplied, so the court insists, by the report of the Senate Committee on Labor and Public Welfare. It is of course true, as the court notes, that the Committee’s report recites that Section 10(c) “gives an employee or representative of employees a right, whenever he believes that the period of time provided in a citation for abatement of a violation is unreasonably long, to challenge the citation on that ground.” But the report says more. The entire relevant passage, including the language relied on by the court, shows the Committee’s understanding that an employee/union challenge to the length of the proposed abatement period is but one of two modes of employee/union participation in Commission proceedings — two distinct modes linked by the conjunctive “also.”

If the employer decides to contest a citation or notification, or proposed assessment of penalty, the Secretary must afford an opportunity for a formal hearing under the Administrative Procedure Act. Based upon the hearing record the Secretary shall issue an order confirming, denying, or modifying the citation, notification, or proposed penalty assessment. The procedural rules prescribed by the Secretary for the conduct of such hearings must make provision for affected employees or other representatives to participate as parties.
Section 10(c) also gives an employee or representative of employees a right, whenever he believes that the period of time provided in a citation for abatement of a violation is unreasonably long, to challenge the citation on that ground. Such challenges must be filed within 15 days of the issuance of the citation, and an opportunity for a hearing must be provided in similar fashion to hearings when an employer contests. The employer is to be given an opportunity to participate as a party.4 (Emphasis added.)

This very litigation illustrates the anomaly generated by confining the employee/union role in employer-initiated proceedings to a challenge to the reasonableness of the abatement period. Local 8-901’s difficulty *1191with the remedy incorporated in the settlement agreement was not that its effective date was remote. To the contrary, the settlement agreement contemplated that the remedy would go into effect at once. The problem, as Local 8-901 saw it, was that the remedy agreed upon by Sun and the Secretary would be totally inefficacious — in that monitoring potential fire hazards at the refinery would be placed in the hands of employees whom the union deemed to be inadequately trained to fulfill their critically important tasks. By not permitting the union to pursue these issues, the administrative law judge seems to have guaranteed that the hearing on the settlement agreement would be an antiseptic ritual leading to perfunctory approval. At all events, the very shortcomings in the agreed remedy which the administrative law judge would not let the union probe were those which led the Secretary, more than a year later, to withdraw his assent from the settlement agreement.

The court appears to acknowledge that Local 8-901’s timely request for party status conferred on the administrative law judge, and ultimately on the Commission itself, jurisdiction to entertain the union’s objections on all matters with respect to which it had an interest under the Act. My difference with the eourt is that I take a more spacious view of the interest assertable by the union in an employer-initiated proceeding. Before the administrative law judge, the union objected that the settlement proposed by Sun and the Secretary was inconsistent with the purposes of the Act in that it would fail to abate the cited condition. Since I find that this was a subject well within the scope of the union’s permissible concerns, I would hold that the union was entitled not only to have its objections considered, but also to support those objections through the presentation of evidence in a hearing before the administrative law judge.5

*1192B.

Although the court imposes limits I do not subscribe to on the scope of employee/union party status in a proceeding initiated by the employer’s contest of a citation issued by the Secretary, the court acknowledges that employee/union assertion of party status gives the administrative law judge and the Commission a revisory jurisdiction — at least to the extent of passing on properly raised union challenges— which cannot be ousted by a subsequent settlement agreement between the Secretary and the employer. At the same time, the court announces that in the absence of employee/union assertion of party status the commission jurisdiction which attaches when an employer files a notice of contest evaporates at such time as the Secretary and the employer enter into a settlement agreement.

Much can be said for the position announced by the court — -a position which assumes that in the absence of objection from an interested party there is no reason for the Commission to second-guess the judgment of the Secretary that a particular settlement agreement will promote the purposes of the Act. On the other hand, there are counter-arguments which suggest the utility of an independent check on the Secretary’s discretion. Such counter-arguments seem to be reflected in the Commission’s rule in force when this settlement agreement was entered into, which contemplated that all settlement agreements arrived at after the Commission’s jurisdiction attached would be submitted to the Commission for approval.6 And the revised rule now in force, endorsed by the Secretary prior to its adoption by the Commission on December 5, 1979, recites that, “A settlement proposal shall be approved [by the administrative law judge or the Commission] when it is consistent with the provisions and objectives of the Act.”7

Where the balance of wisdom — and, to the extent detectable, of statutory instruction — lies on this issue, I have no settled view. More to the point, I do not regard it as necessary to resolve the issue in the context of this case, since in this instance I would hold that, because Local 8-901 had elected party status and had raised a cognizable objection to the settlement proposal, the Commission remained seized of the jurisdiction it had acquired before the settlement agreement was entered into — at least until the Secretary undertook to withdraw from the settlement agreement.

*1193c.

I concur in the court’s holding that the Secretary, in the exercise of his duty to enforce the Act, is entitled to withdraw from a settlement agreement with an employer which he concludes does not protect the safety and health of employees with the efficacy called for by the Act. I also concur in the court’s view that the Secretary’s occasional exercise of the authority to withdraw from an agreement solemnly entered into should be tempered by the need to protect the employer from loss occasioned by the employer’s detrimental reliance on the agreement the Secretary proposes to jettison. Accordingly, inasmuch as prior to the unfolding of this very litigation Sun would presumably have had no ground for anticipating that the Secretary would turn out to have not only the disposition but also the authority to change his official mind. I concur in holding that the Secretary must go back to the status quo ante if he persists in his announced withdrawal from the Sun settlement. But the result dictated by the equities here may not necessarily apply in future instances of withdrawal, should there be any: for today’s holding now makes it patent that OSHA settlement agreements are not proof against Secretarial second thoughts. Wherefore, I would reserve to another day, when an answer is insistently called for, the question whether a return to the status quo ante is required of, or even open to, the Secretary in all situations in which he concludes that an OSHA settlement agreement was improvidently entered into.

. Indeed, even if the employer elects, pursuant to Commission Rule 20, 29 C.F.R. § 2200.20(b), to participate in this form of employee-initiated contest, this intervention cannot broaden the relatively narrow inquiry which is the focus of this species of Commission hearing.

. The fact that the Act specifically provides for employee contests on the reasonableness of the abatement period, does not, in itself, suggest any constraint on the interest of employees in regard to the existence of a violation. The Act contemplates that the Secretary’s citation be in two parts: The citation must (1) describe with particularity the nature of the violation and, (2) fix a reasonable period of abatement. 29 U.S.C. § 658(a). Employees cannot themselves be cited as violators of the Act, Atlantic & Gulf Stevedores v. OSHRC, 534 F.2d 541 (3d Cir. 1976), and it is hard to image a situation where employees would wish to object to the Secretary’s finding of a violation. (It is of course clear that employees may not invoke the Commission’s jurisdiction over the Secretary’s finding of no violation.) Thus, it is only in regard to the length of the abatement period that the Secretary’s views, as formally announced in his citation, might, in some instances, be perceived as adverse to the interest of employees. But this does not mean that employees would not have a significant interest in intervening in an employer-initiated contest in order (1) to support the Secretary’s finding of a violation, and (2) to encourage the adoption of an effective remedial plan.

. The provisions for employee input into the enforcement process which are contained in the Act, apparently comprise a cohesively structured and comprehensive legislative plan for employee participation, and are not the product of haphazard drafting. As referred to the Subcommittee on Labor, S. 2193 made no allowance for employee input. That Subcommittee added provisions for the full measure of employee participation ultimately incorporated in the final bill:

Employees who believe that a violation exists may request an inspection by giving notice to the Secretary. If the Secretary determines that there are reasonable grounds to believe a violation exists, he must conduct such inspection as soon as practicable. 29 U.S.C. § 657(f)(1). If *1190he finds no reasonable grounds for an inspection, he must notify the employees in writing. Id. Provision is made to allow a representative of the employees to accompany the Secretary or his authorized representative during the physical inspection of the workplace. 29 U.S.C. § 657(e). If, upon inspection, the Secretary believes that an employer has violated the Act, “he shall with reasonable promptness issue a citation to the employer.” 29 U.S.C. § 658(a). In those instances in which the Secretary finds no violation, the Act provides that the Secretary shall, by regulation, establish procedures for the informal review of his decision, and he must furnish to the employees requesting review a written statement of his reason for the final disposition of the case. 29 U.S.C. § 657(f)(2).

Thus, “while guarding against frivolous complaints,” Legislative History, infra note 4, at 432 (Remarks of Senator Williams), by channeling employee grievances through the impartial office of the Secretary, the Act allows employees to translate their meritorious concerns for safety into employer citations. Indeed, in cases in which the employer does not contest the citation, the employees will thus have brought their grievance to the only fruition which the Act contemplates — the final determination of a violation, a schedule for abatement, and the assessment of a penalty. 29 U.S.C. § 659(a). The court holds, however, that the employees’ interest in and contribution to the enforcement process, so elaborately protected through the initial stages, abruptly ceases at the moment the employer opposes their efforts by filing a notice of contest. It is my view that by providing employees the right to elect party status, Congress intended to ensure that the employees’ central role in the enforcement of the Act would continue in the adjudicative arena.

. Subcomm. on Labor of the Senate Comm, on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970 at 154-155 (Comm. Print 1971) [herein cited as Legislative History]. The bill referred from committee, which is addressed in the above passage, contemplated hearings within the Department of Labor; hence, the allusion in the excerpt to hearings before the Secretary. As detailed in the opinion of the court, however, the enforcement scheme was modified on the Senate floor to provide for review before an independent administrative body in the form of the Review Commission. Apart from the substitution of the Review Commission for the Secretary, procedures set forth in the final Act are, in all relevant respects, identical to those which are the subject of this Committee Report.

. This approach comports with procedures applied to the settlement of cases before the National Labor Relations Board. See Marine Engineers Beneficial Assn. v. NLRB, 202 F.2d 546, 549 (3d Cir. 1953), cert. denied, 346 U.S. 819, 74 S.Ct. 32, 98 L.Ed. 345; Terminal Freight Cooperative Ass’n v. NLRB, 447 F.2d 1099, 1011 (3d Cir. 1971), cert. denied, 409 U.S. 1063, 93 S.Ct. 553, 34 L.Ed.2d 516 (1972); Leeds & Northrup Company v. NLRB, 357 F.2d 527 (3d Cir. 1966). In Marine Engineers, this court grappled with the then unfamiliar role of the charging party in Labor Board proceedings:

The difficulty in this case comes because in changing times and the evolution of administrative procedure our old analogies are not in point. The charging party in a labor case is something like a complaining witness in a criminal case. But he is certainly much more than that for a complaining witness is certainly not entitled to appeal even when an appeal is allowed for the prosecution in a criminal case. On the other hand, the charging party is not like the ordinary plaintiff in a lawsuit, who does not have to have anybody’s permission to go ahead with his action if he can pay the required fees. This is something in between.

202 F.2d at 549. The court went on to hold that the charging party in a Labor Board case had a right to be heard on settlement objections to present evidence on that issue, and to appeal an adverse ruling. Id. Other circuits are generally in accord. See George Ryan Co. v. NLRB, 609 F.2d 1249 (7th Cir. 1979); ILG-WU v. NLRB, 501 F.2d 823 (D.C.Cir.1974); NLRB v. ODCAW, 476 F.2d 1031 (1st Cir. 1973); Concrete Materials of Georgia v. NLRB, 440 F.2d 61 (5th Cir. 1971); NLRB v. Electrical Workers Local 357, 445 F.2d 1015 (9th Cir. 1971).

OSHA procedures, and those under the National Labor Relations Act are, of course, not strictly analogous. The NLRA does not, in terms, provide that the charging party can participate as a party to Board proceedings. Nor does the NLRA provide the charging party with the elaborate protections afforded employees under OSHA. Seemingly of even greater significance, in contrast with the position of the Secretary under the OSHA scheme, the General Counsel of the National Labor Relations Board enjoys the statutory discretion not to issue a complaint even if there exists a violation of the Act. Each of these distinctions would appear to suggest broader rights for employees under OSHA, than under the NLRA. But under Labor Board rules, once the General Counsel issues a complaint, “the charging party is accorded formal recognition: he participates in the hearings as a ‘party,’ ... he may call witnesses and cross-examine others, may file exceptions to any order of the trial examiner International Union, etc. v. Scofield, 382 U.S. 205, 219, 86 S.Ct. 373, 382, 15 L.Ed.2d 272 (1965). It is improbable that Congress, writing against this backdrop of the National Labor Relations Act practice, could have intended any lesser role for the complaining employees under OSHA by explicitly providing them the right “to participate as a party.”

. Commission Rule 100, 29 C.F.R. § 2200.100, in effect at the time of the proposed settlement in this case, provided in full:

Settlement
(a) Settlement is encouraged at any stage of the proceedings where such settlement is consistent with the provisions and objectives of the Act.
(b) Settlement agreements submitted by the parties shall be accompanied by an appropriate proposed order.
(c) Where parties to settlement agree upon a proposal, it shall be served upon represented and unrepresented affected employees in the manner set forth in § 2200.7. Proof of such service shall accompany the proposed settlement when submitted to the Commission or the Judge.

. The revised rule, 29 C.F.R. § 2200.100, which became effective on January 1, 1980, 44 Fed. Reg. 70,106 (1979), provides in full:

Settlement
(a) Policy. Settlement is permitted at any stage of the proceedings. Settlements submitted for consideration after the Judge’s decision has been directed for review shall be filed with the Executive Secretary. A settlement proposal shall be approved when it is consistent with the provisions and objectives of the Act.
(b) Requirements. Every settlement proposal submitted to the Judge or Commission shall include, where applicable, the following:
(1) A motion to amend or withdraw a citation, notification of proposed penalty, notice of contest, or petition for modification of abatement;
(2) A statement that payment of the penalty has been tendered or a statement of a promise to pay; and
(3) A statement that the cited condition has been abated or a statement of the date by which abatement will be accomplished.
(c) Filing; service and notice. When a settlement proposal is filed with the Judge or Commission, it shall also be served upon represented and unrepresented affected employees in the manner prescribed for notices of contest in § 2200.7. Proof of service shall accompany the settlement proposal. A settlement proposal shall not be approved until at least 10 days following service of the settlement proposal on affected employees.