Marshall v. Occupational Safety and Health Review Com'n

• Decision Date: 05 December 1980
• Docket Number: Nos. 79-3018,79-3041,s. 79-3018
• Citation: 635 F.2d 544
• Parties: 9 O.S.H. Cas.(BNA) 1031, 1980 O.S.H.D. (CCH) P 24,990 Ray MARSHALL, Secretary of Labor and IMC Chemical Group, Inc., Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Local 7-854, Oil, Chemical and Atomic Workers International Union, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 544

635 F.2d 544

9 O.S.H. Cas.(BNA) 1031, 1980 O.S.H.D. (CCH) P 24,990

Ray MARSHALL, Secretary of Labor and IMC Chemical Group Inc., Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Local 7-854, Oil, Chemical and Atomic Workers International Union, Respondents.

Nos. 79-3018, 79-3041.

United States Court of Appeals Sixth Circuit.

Argued Oct. 9, 1980.

Decided Dec. 5, 1980.

Richard W. McLaren, Jr., Squire, Sanders & Dempsey, Ronald L. Coleman, Cleveland, Ohio, Carin A. Clauss, Thomas L. Holzman, U. S. Dept. of Labor, Dennis K. Kade, Washington, D. C., Allen H. Feldman, Eric W. Cloud, Dennis K. Kade, Appellate Litigation Section, U. S. Dept. of Labor, Washington, D. C., for petitioners.

Robert Wages, Asst. Gen. Counsel, Oil, Chemical & Atomic Workers, International Union, Denver, Colo., Robert A. Nappi, President, Oil, Chemical & Atomic Workers, International Union Local 7-854, Ashtabula, Ohio, Ron Glancz, Al J. Daniel, Jr., Appellate Section, Civ. Div., U. S. Dept. of Justice, Washington, D. C., for respondents.

Before LIVELY, Circuit Judge, and PHILLIPS and PECK, Senior Circuit Judges.

PHILLIPS, Senior Circuit Judge.

This proceeding involves a dispute between the Secretary of Labor (the Secretary) and the Occupational Safety and Health Review Commission (the Commission) as to their respective roles in the administration of the Occupational Safety and Health Act (OSHA). ¹

The Secretary issued a citation against IMC Chemical Group Inc. (IMC) for alleged OSHA violations. IMC filed a notice to contest. The matter was referred to the Solicitor of Labor to prepare a complaint for filing with the Commission, pursuant to the Commission's Rule 33 (29 C.F.R. § 2200.33). The Solicitor determined that IMC had not created a hazard to its employees and that no complaint should be filed. The Secretary agreed with the Solicitor that the citation was unwarranted, decided not to file a complaint, and filed a motion with the Commission to vacate the citation. The Secretary's motion stated that "at the time and in the matter cited, Respondent has not created a hazard to its employees." Local 7-854 of the Oil, Chemical and Atomic Workers International Union (the Union) wrote a letter objecting to the withdrawal of the citation. In a decision quoted at note 2, the Administrative Law Judge granted the motion of the Secretary to vacate the citation, holding that the Secretary has the absolute and unconditional right to vacate a citation prior to the filing of a complaint and answer. By a vote of two-to-one, with Commissioner Barnako dissenting, the Commission vacated the decision of the Administrative Law Judge and remanded the matter to him for further proceedings, holding that when the Secretary decides not to prosecute a citation, affected employees or their Union may proceed to prosecute the citation originally issued by the Secretary if they elect party status. Petitions to review were filed by the Secretary and IMC. The two petitions were consolidated for hearing.

The consolidated petitions to review and various motions filed in this court present the following questions:

(1) May the Commission participate as an active party in the Court of Appeals in proceedings initiated by a petition filed by the Secretary to review its decision?

(2) Should the petitions be dismissed on grounds of mootness?

(3) Was the decision of the Commission a final order subject to review by this court?

(4) Prior to the filing of a complaint and answer, can the Commission refuse to permit the Secretary to withdraw a contested citation, over the objection of a Union representing affected employees?

(5) Does the role of the Secretary as prosecutor under OSHA preclude the prosecution of a citation by a labor union representing affected employees when the Secretary decides to withdraw a contested OSHA citation and not to file a complaint?

We answer the first, second and fourth questions in the negative and the third and fifth questions in the affirmative. Accordingly we sustain the petitions to review and reverse the decision of the Commission.

I

The Secretary of Labor filed a motion to remove the Commission as an active party to these proceedings. We grant this motion on authority of the legislative history of OSHA as set forth in detail in Marshall v. Sun Petroleum Products Co., 622 F.2d 1176, 1180-84 (3rd Cir. 1980). After reviewing the applicable language of the statute and the legislative history, the Third Circuit said:

We therefore conclude that the Review Commission was designed strictly as an independent adjudicator, with no rulemaking authority other than for procedural rules for hearings, no direct policy role in administering the Act, and accordingly, no right to independent representation in judicial review procedures before this court.

622 F.2d at 1184.

To like effect, the Ninth Circuit in Madden Construction Inc. v. Hodgson, 502 F.2d 278, 280 (9th Cir. 1974), said:

The Commission says that, like the National Labor Relations Board and the Federal Trade Commission, it develops public policies in its decisions which it may defend in court. The Commission's identification with those agencies is misplaced. Unlike the NLRB and the FTC, it has neither prosecution nor enforcement powers. Those have been exclusively delegated to the Secretary.

Policy making is arguably a by-product of the Commission's adjudication. But the Act imposes policy-making responsibility upon the Secretary, not the Commission. Whatever "policies" the Commission establishes are indirect. Only those established by the Secretary are entitled to enforcement and defense in court.

502 F.2d at 280.

In Brennan v. Winters Battery Manufacturing Company, 531 F.2d 317, 324 (6th Cir. 1975), cert. denied, 425 U.S. 991, 96 S.Ct. 2202, 48 L.Ed.2d 815 (1976), this court described the Commission as an "independent adjudicatory agency ... authorized to conduct hearings." The Second Circuit has noted that the Commission is assigned the "relatively limited role of administrative adjudication." General Electric Company v. Occupational Safety and Health Review Commission, 583 F.2d 61, 63, n. 3 (2d Cir. 1978). In Brennan v. Occupational Safety and Health Review Commission, 505 F.2d 869, 871 (10th Cir. 1974), the Tenth Circuit said that the Commission is "an adjudicating body with no regulatory powers."

We agree with the Third and Ninth Circuits that the statutory authority of the Commission is confined to its role as an adjudicatory agency and that it has no more right to independent representation in this court in a proceeding initiated by the Secretary to review its decision than a United States District Judge on an appeal from his decision. We respectfully decline to follow Diamond Roofing v. Occupational Safety and Health Review Commission, 528 F.2d 645, 648, n. 8 (5th Cir. 1976), and Brennan v. Gilles & Cotting Co., 504 F.2d 1255 (4th Cir. 1974), to the extent that they contain language to the contrary.

Accordingly, the motion to dismiss the Commission as a party to these proceedings is granted.

II

After petitions to review had been filed in this court by the Secretary and IMC, the Union withdrew its opposition to the motion of the Secretary to vacate the citation. Thereupon the Administrative Law Judge entered an order vacating the Secretary's citation and declaring that the case was terminated.

The Commission thereupon filed a motion to dismiss the petitions to review on grounds of mootness. Although we have dismissed the Commission as a party in this court, and hold that it had no standing to file the motion to dismiss, we conclude that it is necessary on the record in this proceeding to consider the issue of mootness. The Secretary contends that this controversy is capable of repetition yet would evade review whenever the employees or their Union withdrew their objection after the Secretary has filed a petition for review. The Secretary states that the identical issues of the Secretary's right to withdraw a citation, and the asserted right of a Union representing affected employees to prosecute a citation, are pending in other cases now held in abeyance awaiting the decision of this court in the present case. We agree with the Secretary that the controversy is not mooted because this is a question "capable of repetition yet evading review." Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1975); Marshall v. Local Union 20, International Brotherhood, 611 F.2d 645, 648 (6th Cir. 1979); Blankenship v. Secretary of HEW, 587 F.2d 329, 333 (6th Cir. 1978); Rubbermaid, Inc. v. FTC, 575 F.2d 1169, 1172 (6th Cir. 1978); Big Rivers Electric Corp. v. EPA, 523 F.2d 16, 19 (6th Cir. 1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175 (1976); Short v. Murphy, 512 F.2d 374, 376 (6th Cir. 1975).

III

The Commission also filed a motion to dismiss on the ground that its order was not final and reviewable. On the basis of the record, we conclude that we must dispose of this issue, even though the Commission did not have standing to file the motion to dismiss.

The Secretary argues that, although the petition to review is directed to an interlocutory order in the sense that no final disposition is made of the citation, the order finally disposed of a vital separable and collateral right claimed by the Secretary-the right to withdraw a citation as the sole prosecutor under OSHA. The order finally decided that the Secretary has no right to withdraw a citation nor refrain from filing an OSHA complaint, upon determining that there is insufficient evidence to proceed.

It is well settled that the concept of finality for purposes of appellate judicial review is to be given a "practical rather than a technical construction." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949). To like effect see Abbott Laboratories v. Gardner, 387 U.S. 136, 149-54, 87 S.Ct. 1507, 1515-1518, 18...