713 F.2d 918 (2nd Cir. 1983), 911, Donovan v. Occupational Safety and Health Review Com'n

Docket Nº:911, Docket 82-4171.
Citation:713 F.2d 918
Party Name:P 26,627 Raymond J. DONOVAN, Secretary of Labor, Petitioner, and Mobil Oil Corporation, Intervenor, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent, and Petroleum Trades Employees Union, Local 419, Intervenor.
Case Date:July 19, 1983
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 918

713 F.2d 918 (2nd Cir. 1983)

P 26,627

Raymond J. DONOVAN, Secretary of Labor, Petitioner,

and

Mobil Oil Corporation, Intervenor,

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent,

and

Petroleum Trades Employees Union, Local 419, Intervenor.

No. 911, Docket 82-4171.

United States Court of Appeals, Second Circuit

July 19, 1983

        Argued Feb. 17, 1982.

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        Charles I. Hadden, Atty. U.S. Dept. of Labor, Washington, D.C. (T. Timothy Ryan, Jr., Sol. of Labor, Karen I. Ward, Associate Sol. for Special Appellate and Supreme Court Litigation, Allen H. Feldman, Counsel for Appellate Litigation, Washington, D.C., of counsel), for petitioner.

        Michael W. Sculnick, New York City (Vedder, Price, Kaufman, Kammholz & Day, New York City, Stanley R. Strauss, Washington, D.C., of counsel), for intervenor-petitioner.

        George H. Cohen, Washington, D.C. (Jeremiah A. Collins, Bredhoff & Kaiser, Washington, D.C., Laurence Gold, Washington, D.C., Joseph P. Altier, Altier, Wayne & Klein, New York City, of counsel), for intervenor-respondent.

        Before VAN GRAAFEILAND and MESKILL, Circuit Judges, and TENNEY, Senior District Judge. [*]

        TENNEY, District Judge.

        The Secretary of Labor ("the Secretary") has petitioned for review of an order and

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decision of the Occupational Safety and Health Review Commission ("the Commission") that remanded a proposed settlement between the Secretary and Mobil Oil Corporation ("Mobil") to an Administrative Law Judge ("ALJ") for further review. Mobil had received a citation for creating a hazardous work condition in violation of the Occupational Safety and Health Act of 1970 ("the Act" or "OSHA"), 29 U.S.C. § 651 et seq. (1976). Both the citation and the proposed settlement called for the immediate abatement of the hazard. The Commission remanded the case in order to give Mobil's employees' representative, the Petroleum Trades Employees Union, Local 419, ("PTEU" or "the union"), an opportunity to present its objections to the methods outlined in the settlement agreement for abating the hazard. Both Mobil and PTEU have been granted intervenor status in this appeal.

        The petition for review presents three issues:

        1) Whether the Commission's order remanding the settlement to the ALJ is subject to review by this court;

        2) Whether the Commission erred in holding that an employee or employee representative has the right to a hearing on his objections to the adequacy of abatement procedures included in a settlement agreement between the Secretary and an employer; and

        3) Whether the Commission has the statutory authority to review a settlement between the Secretary and a cited employer where the affected employees have not challenged the reasonableness of the abatement period.

        For the reasons stated below we hold that the Commission's remand order is reviewable; that the Commission erred when it remanded the case to the ALJ for a hearing on the union's objections to the proposed methods of abating the hazard; and that the Commission does not have the statutory authority to review a settlement between the Secretary and a cited employer except to hear employee challenges to the reasonableness of the period of time for abating the hazardous or unsafe working condition.

        I

        On October 27, 1977 Daniel McCarthy, an employee of Mobil and a member of PTEU, died of asphyxiation while gauging the level of petroleum in a holding tank at the Port Mobil facility on Staten Island. PTEU immediately notified the Occupational Safety and Health Administration ("the Health Administration"), a branch of the Department of Labor. After an inspection by the Health Administration, the Secretary issued a citation 1 charging Mobil with a serious violation of § 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1). 2 The citation proposed immediate abatement of the hazard and assessed a $540 penalty. Pursuant to § 10(a), (c), id. at § 659(a), (c), Mobil filed a notification of its intention to contest the citation. The Commission, which has adjudicatory authority under the Act, assigned an ALJ to oversee the enforcement proceedings. In accordance with § 10(c) of the Act, PTEU, as an employee representative, petitioned for and was granted party status in the proceeding.

        Before any hearings were conducted Mobil and the Secretary reached a proposed settlement which they submitted to the ALJ for approval pursuant to Commission Rule 100, 29 C.F.R. § 2200.100. 3 PTEU,

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claiming that the settlement would not abate the hazardous condition at the Port Mobil facility, filed a general objection with the ALJ. At a subsequent hearing to determine whether the settlement should be approved in light of the union's objections, both Mobil and the Secretary, citing United States Steel Corp., 4 O.S.H.Cas. (BNA) 2001 (1977), and UAW, 4 O.S.H.Cas. (BNA) 1243 (1976), aff'd, 557 F.2d 607 (7th Cir.1977) (per curiam), argued that employees or employee representatives may raise only objections relating to the reasonableness of the time period for the abatement of the hazard and may not challenge the abatement methods adopted in a settlement agreement.

        In United States Steel Corp., supra, the Commission held that an employee's rights as a party to an employer-initiated contest were circumscribed by the limitation imposed on employee contests in the first sentence of § 10(c). That section provides in pertinent part that

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. 4

        The Commission, citing its previous holding in UAW, supra,--that employee contests are limited to the reasonableness of the period of time fixed in the citation--concluded that the rights of intervening party

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employees are no greater than the rights of employees in employee-initiated cases.

        On the basis of United States Steel Corp. and UAW, the ALJ held that the union had no standing to object to the abatement methods and approved the settlement. The Commission, however, granted the union's request for discretionary review pursuant to § 12(i) of the Act, 29 U.S.C. § 661(i). In a two-to-one decision, the Commission overruled United States Steel Corp. and UAW, and remanded the case to the ALJ with instructions to hold further adjudicatory proceedings to determine whether the settlement should be approved in light of the union's objections to the proposed methods of abatement. Mobil Oil Corp., 10 O.S.H.Cas. (BNA) 1905 (1982).

        Commissioner Cottine, writing the lead opinion for the majority, 5 held that the last sentence of § 10(c), which directs the Commission to prescribe procedural rules providing "affected employees or representatives of affected employees an opportunity to participate as parties to hearings," indicated that Congress intended a broad scope of employee participation in enforcement proceedings before the Commission. He reasoned that since Congress used the term "parties" in § 10(c) it expected the Commission to give this term its legal meaning. He noted that the last sentence of § 10(c) was unqualified by either the Act or the Commission rule permitting employees to elect party status, 29 C.F.R. § 2200.20 (1982), 6 and that the statutory scheme provided for extensive employee involvement in the entire range of investigatory, administrative and judicial functions of the Act. Consequently, he overruled United States Steel Corp., supra, and held that an employee's rights as a party to an employer-initiated contest were not limited to presenting objections to the reasonableness of the abatement period specified in the citation. He concluded that an employee is a full party to Commission proceedings with the same rights as any other party, including the right to object to settlement agreements.

        Commissioner Cottine rejected the Secretary's argument that the Commission's consideration of the union's objections to the abatement plan constituted an impermissible interference with the Secretary's prosecutorial discretion. According to the Commissioner, that discretion is limited by the various rights granted to employees and the assignment of the adjudicatory function to the Commission. In order to fulfill the Commission's purpose and prevent the employees' right to present objections from becoming a "hollow right," the Commissioner concluded that the Commission had to review the settlement to determine whether it was consistent with the purposes and provisions of the Act. The Commission majority remanded the case to the ALJ for that purpose.

        II

        The threshold question facing the court is whether the Commission's remand order is an appealable order. 7 The order is clearly not covered by § 11(b) of the Act, 29 U.S.C. § 660(b), which permits the Secretary to obtain review of any final order of the Commission. 8 Thus, the order is reviewable

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only if it falls within the narrow collateral order exception articulated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

        In Cohen the Supreme Court held that a "small class" of interlocutory orders were appealable notwithstanding the general requirement that an appeal of a decision must await a final judgment on the merits. 337 U.S. at 546, 69 S.Ct. at 1225. More recently, the Court stated that "[t]o come within the 'small class' of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve...

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