636 F.2d 464 (D.C. Cir. 1980), 78-2221, Chamber of Commerce of United States v. Occupational Safety and Health Admin.

Docket Nº:78-2221.
Citation:636 F.2d 464
Party Name:CHAMBER OF COMMERCE OF the UNITED STATES of America, Appellant, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION et al.
Case Date:July 10, 1980
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 464

636 F.2d 464 (D.C. Cir. 1980)

CHAMBER OF COMMERCE OF the UNITED STATES of America, Appellant,

v.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION et al.

No. 78-2221.

United States Court of Appeals, District of Columbia Circuit

July 10, 1980

Argued Dec. 7, 1979.

Page 465

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 77-1842).

Stephen A. Bokat, Washington, D. C., with whom Stanley T. Kaleczyc, Washington, D. C., was on the brief, for appellant.

Allen H. Feldman, Counsel, U. S. Dept. of Labor, Washington, D. C., with whom Nancy L. Southard, Asst. Counsel, Washington, D. C., was on the brief, for appellees.

Donald R. Crowell, II, Washington, D. C., was on the brief for amicus curiae, Hobart Corp. et al., urging reversal.

John A. Terry, Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellees.

Before BAZELON, Senior Circuit Judge, TAMM, Circuit Judge, and HAROLD H. GREENE, [*] U. S. District Judge for the District of Columbia.

Opinion for the court filed by Circuit Judge TAMM.

Opinion filed by Senior Circuit Judge BAZELON, concurring in the result only.

TAMM, Circuit Judge:

The Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (1976), allows a representative authorized by employees to accompany an inspector during a walkaround inspection of the employee's workplace. This case presents the issue of whether the Occupational Safety and Health Administration (Administration) must follow the notice-and-comment procedures of the Administrative Procedure Act (APA), 5 U.S.C. § 553 (1976), before declaring per se discriminatory the failure of an employer to compensate an employee representative for his walkaround time. On cross-motions for summary judgment, the district court rejected the challenges to the regulation, finding, among other things, that it was an "interpretive rule," rather than a "legislative rule," and therefore that it was exempt from the APA's notice-and-comment requirements. We reverse and remand the case to the district court with instructions to vacate the regulation and conduct any further proceedings, if necessary, not inconsistent with this opinion.

I

Concluding that work-related injuries and illnesses caused tremendous suffering, loss of production, and expense in lost wages, medical bills, and disability compensation payments, Congress enacted the Occupational Safety and Health Act of 1970 (Act), Pub.L.No.91-596, 84 Stat. 1590 (codified at 29 U.S.C. §§ 651-678 (1976)). Section 8 of the Act authorizes Administration inspectors to conduct workplace safety inspections. 29 U.S.C. § 657 (1976). Congress was especially concerned that these inspections include worker participation. 1 To ensure an opportunity for employees to communicate their safety concerns, Congress specifically required employers to permit an

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employee representative to accompany the Administration inspector as he examines the work environment. Id. § 657(e). 2 Congress also prohibited employer discrimination against an employee for the employee's exercise of his or her rights under the Act. Id. § 660(c)(1). 3

In November of 1971, the president of the Oil, Chemical and Atomic Workers Union, AFL-CIO (OCAW), filed a complaint with the Secretary of Labor alleging that the Mobil Oil Corporation's failure to pay employee representatives for their time during an Administration inspection of a Mobil refinery was a violation of the Act's antidiscrimination provision. The Assistant Secretary of Labor for Occupational Safety and Health rejected OCAW's contentions. Relying in part upon the Solicitor of Labor's opinion that walkaround time was not "hours worked" under section 3(o) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 203(o) (1976), the Assistant Secretary concluded that an employer's failure to pay employees for time spent with the Administration inspector was not per se discriminatory. The Department of Labor subsequently promulgated the Assistant Secretary's decision as part of its rules. See 38 Fed.Reg. 2681 (1973) (codified at 29 C.F.R. § 1977.21(a) (1975))(rescinded 1977).

OCAW next sought judicial relief, but the district court upheld the Assistant Secretary's interpretation of the FLSA and the Act. Affirming that decision, this court held that because walkaround time primarily benefits employees and because the walkaround is conducted beyond the employer's control, walkaround time does not constitute "hours worked" under the FLSA. Leone v. Mobil Oil Corp., 523 F.2d 1153, 1163-64 (D.C.Cir.1975). Furthermore, inasmuch as neither the terms of the Occupational Safety and Health Act of 1970 nor its legislative history offered guidance on the payment issue, we also held that payment for walkaround time was not so essential to the effectuation of the Act's provisions as to compel an inference of a payment requirement from the Act itself. Id. at 1159-61. We noted that the question of whether employers should compensate employees for their time with Administration inspectors is a policy question "properly reserved to the legislative process" and not to the courts. Id. at 1161.

In March of 1977, however, a new Assistant Secretary of Labor for Occupational Safety and Health took office. At her direction, the Administration staff and the Department Solicitor's office began a review of the walkaround pay controversy. As part of this review, the Assistant Secretary asked the Labor Department's Division of Fair Labor Standards to reevaluate its opinion that walkaround time was not "hours worked" under the FLSA.

Four months later, in an August 10, 1977 speech before the Fourteenth Biennial Convention of the OCAW, the Assistant Secretary announced for the first time that "(a)ny employer who fails to compensate employees for walkaround time will be charged with discriminating against their workers under Section 11(c) of the Act." Joint Appendix at 11. A month later the Solicitor of Labor issued a new opinion stating that an employer's failure to pay workers for walkaround time is discrimination prohibited by section 11(c)(1) of the Act, 29 U.S.C. § 660(c)(1) (1976). On September 20, without any public proceedings whatsoever,

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the Assistant Secretary promulgated what she termed an "interpretive rule and general statement of policy" declaring that "an employer's failure to pay employees for time during which they are engaged in walkaround inspections is discriminatory under section 11(c)." 42 Fed.Reg. 47344, 47344-45 (1977) (codified at 29 C.F.R. § 1977.21 (1979)). The Assistant Secretary proclaimed the new regulation to be retroactive as of the date of her OCAW speech, except for employers who first learned of the speech's contents at a later time.

On October 25, 1977, the Chamber of Commerce of the United States (Chamber) filed an action in the United States District Court for the District of Columbia challenging the validity of the new regulation and asking for declaratory and injunctive relief. Granting the Government's motion for summary judgment, the district court held that the regulation was interpretive and therefore exempt from the notice-and-comment requirements of the APA. The court concluded that the Administration did not exceed its statutory authority in issuing the new rule. The Chamber of Commerce appeals.

II

At the outset, we reject any notion that the Administrator may have concerning the "hours worked" definition of the FLSA as a justification for the new walkaround pay regulation. Our decision in Leone v. Mobil Oil Corp., 523 F.2d 1153 (D.C.Cir.1975), directly addressed this question. Walkaround time does not...

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