McLaughlin v. Union Oil Co. of California

• Decision Date: 24 February 1989
• Docket Number: 88-1832,Nos. 88-1374,s. 88-1374
• Citation: 869 F.2d 1039
• Parties: 13 O.S.H. Cas.(BNA) 2033, 1989 O.S.H.D. (CCH) P 28,453 Ann McLAUGHLIN, Secretary of Labor, Petitioner, v. UNION OIL COMPANY OF CALIFORNIA, Chicago Refinery; and Occupational Safety and Health Review Commission, Respondents. UNION OIL COMPANY OF CALIFORNIA, Petitioner, v. Ann McLAUGHLIN and Occupational Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1039

869 F.2d 1039

13 O.S.H. Cas.(BNA) 2033, 1989 O.S.H.D. (CCH)

P 28,453

Ann McLAUGHLIN, Secretary of Labor, Petitioner, v. UNION OIL COMPANY OF CALIFORNIA, Chicago Refinery; and Occupational Safety and Health Review Commission,

Respondents.

UNION OIL COMPANY OF CALIFORNIA, Petitioner, v. Ann McLAUGHLIN and Occupational Safety and Health Review

Commission, Respondents.

Nos. 88-1374, 88-1832.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 3, 1989.

Decided Feb. 24, 1989.

Barbara E. Kahl, U.S. Dept. of Labor, Washington, D.C., for petitioner.

Mark A. Lies, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for respondents.

Before CUMMINGS, POSNER and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

This case arises out of the explosion of a pressure vessel at Union Oil Company's Chicago refinery in 1984 that killed seventeen workers. OSHA conducted an investigation, and, on January 11, 1985, cited Union Oil for three "willful" violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. Secs. 651 et seq., and one "serious" one. On the basis of these citations, OSHA assessed penalties against the company totaling $31,000, the maximum possible given the violations. See 29 U.S.C. Secs. 666(a), (b). Union Oil contested the assessment and the matter was referred to the Occupational Safety and Health Review Commission, which adjudicates disputes concerning the application of the Occupational Safety and Health Act. After a hearing which lasted twenty-seven days the administrative law judge upheld most of OSHA's citations but reduced parts of two of them (they were composite citations) from willful (maximum penalty $10,000) to serious (maximum $1,000). The resulting award of penalties totaled $22,000, which was roughly two-thirds of OSHA's assessment.

Both Union Oil and OSHA asked the Commission to review the administrative law judge's decision. The Occupational Safety and Health Act provides that the decision ("report") of the administrative law judge "shall become the final order of the Commission within thirty days after such report ... unless within such period any Commission member has directed that such report shall be reviewed by the Commission." 29 U.S.C. Sec. 661(j). The Commission is supposed to have three members but it had only one at the time, Chairman Buckley, and he declined to direct review. "[U]nder normal circumstances I would direct review.... Resolution by the Commission of the 15 alleged procedural errors and 28 alleged substantive errors would be most helpful to a Circuit Court of Appeals [sic ] to which an appeal may be directed.... But these are not normal circumstances for the Commission: We have lacked a full Commission since September of 1986, over 17 months; we have lacked a quorum to take official action since April 27, 1987, over ten months.... I am no longer optimistic that the Commission vacancies will be filled in the foreseeable future." This statement was issued on the thirtieth day after the administrative law judge had submitted his decision to the Commission. Treating that decision as final by virtue of Chairman Buckley's refusal to direct review by the Commission, OSHA petitioned this court to review the portions of the decision with which OSHA disagrees. Union Oil has cross-petitioned, and we begin with its arguments.

The Commission had no quorum when it was asked to review the administrative law judge's decision, and Union Oil argues that the absence of a quorum prevented the decision from becoming final and hence appealable. See 29 U.S.C. Secs. 659(c), 660(a). The usual rule on quorums, see, e.g., FTC v. Flotill Products, Inc., 389 U.S. 179, 183, 88 S.Ct. 401, 404, 19 L.Ed.2d 398 (1967); Tagatz v. Marquette University, 861 F.2d 1040, 1042 n. * (7th Cir.1988); 28 U.S.C. Sec. 46(d), made expressly applicable to the Occupational Safety and Health Review Commission by 29 U.S.C. Sec. 661(f), is that a bare majority of the authorized membership is necessary for a quorum. Since Union Oil, although partially successful before the administrative law judge, was a bigger loser than OSHA and is therefore the principal petitioner in this court (though technically the cross-petitioner because OSHA filed its petition first), we are presented with the paradox of an appellant who is challenging the appeal court's jurisdiction. The paradox is only apparent. If the administrative law judge's decision is not final, then Union Oil is not required to comply with it, either by paying the penalties or, more important, by altering its safety practices to comply with the administrative law judge's interpretation of the Occupational Safety and Health Act and of the regulations under it. An employer who fails to abate a violation after the Commission's order upholding OSHA's citation becomes final opens himself to an additional, and much more severe, penalty--$1,000 a day until the violation is abated. See 29 U.S.C. Sec. 666(d).

As is typical in labor disputes (the genre to which this case belongs), the employer, Union Oil, is on the side of delay. The general reason employers resort so frequently to delaying tactics is to make the laws for the protection--actual or apparent--of workers appear impotent. The particular reasons for delay in this case are not only a desire to stave off having to change safety practices but also the fact that Union Oil is embroiled in litigation in an Illinois state court--thirty separate lawsuits we were told at argument--with manufacturers and other suppliers whom the injured workers and the survivors of the killed workers sued. The manufacturers and suppliers are seeking contribution from Union Oil toward the damages they have paid or may have to pay to the worker plaintiffs, and Union Oil is concerned about the possible impact on that litigation of a final determination in this one that it willfully violated the Occupational Safety and Health Act.

Union Oil's jurisdictional argument does not persuade us. Cf. Pennsylvania Steel Foundry & Machine Co. v. Secretary of Labor, 831 F.2d 1211, 1213-14 (3d Cir.1987); Marshall v. Sun Petroleum Products Co., 622 F.2d 1176, 1179-80 (3d Cir.1980). The statutory condition for the finality of an administrative law judge's decision is merely that no member of the Commission direct, within thirty days, that the decision be reviewed--a condition satisfied here. There is nothing in the statute concerning the reasons no member might direct review in a case. One reason might be, as here, the absence of a quorum; even more dramatic would be a case where, because the Commission had no members, no member could direct review. It might be a scandal for the President or the Senate to prevent an important federal commission from operating by failing to fill vacancies in it (we are not told who was responsible for these particular vacancies), but it would not follow that decisions by the commission's staff were unappealable. Congress wanted persons aggrieved by orders of administrative law judges of the Occupational Safety and Health Review Commission to be able to obtain judicial review even if the Commission declined--for whatever reason--to review the orders. (The worse the reason, one might suppose, the stronger the argument for judicial review of the staff decision.) Such declinations are, after all, common, even though in this case the reason was unusual. Both in Social Security disability cases and in unfair labor practice cases, appellate review within the agency (by the Appeals Council of the Social Security Administration, and by the members of the National Labor Relations Board, respectively) usually is perfunctory, so that in most such cases judicial review of the agency's order is in effect judicial review of the administrative law judge's order. See, e.g., NLRB v. Certified Grocers of Illinois, Inc., 806 F.2d 744 (7th Cir.1986). And, unlike those cases, persons aggrieved by orders issued by OSHRC's administrative law judges lack even a formal entitlement to judicial review by the Commissioners; such review is strictly discretionary.

Of course there is a difference between a case where no Commissioner thinks the administrative law judge's order worthy of review and a case that apparently meets the Commission's standards for review but the absence of a quorum persuades the remaining member that it would be futile to direct review by the Commission. And ours is the second type of case. Union Oil complains that it has been cheated of a level of review to which the statute entitles it, albeit a level of merely discretionary review--but probably discretion would have been exercised in favor of review had there been a quorum. In the unlikely event that this deprivation denied Union Oil due process of law (or some other procedural right)--despite the principle that there is no constitutional right to an appeal, even in a criminal case, see, e.g., Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983); Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973) (per curiam); United States v. Puzzanghera, 820 F.2d 25, 26 (1st Cir.1987), and despite Union Oil's failure even to argue that it has a constitutional right to anything more than a purely discretionary review of the administrative law judge's decision--the company could, but it does not, cite the violation of its rights as a ground for our setting aside the administrative law judge's order, which became the Commission's order by operation of the statute. The denial of procedural rights could be a reason the order might be invalid, but it does not deprive the order of its finality and hence appealability.

Shortly before argument we were told that a second member of the Commission had been appointed, so that the Commission now had a quorum at long last; that Union Oil had asked the Commission to reconsider Chairman Buckley's refusal to review the administrative law judge's order; and that the Commission...