Donovan v. International Union, Allied Indus. Workers of America and Its Local 370, 82-2265

• Decision Date: 13 December 1983
• Docket Number: No. 82-2265,82-2265
• Parties: 11 O.S.H. Cas.(BNA) 1737, 1984 O.S.H.D. (CCH) P 26,747 Raymond J. DONOVAN, Secretary of Labor, Petitioner, v. INTERNATIONAL UNION, ALLIED INDUSTRIAL WORKERS OF AMERICA AND ITS LOCAL 370, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1415

722 F.2d 1415

11 O.S.H. Cas.(BNA) 1737, 1984 O.S.H.D. (CCH)

P 26,747

Raymond J. DONOVAN, Secretary of Labor, Petitioner, v. INTERNATIONAL UNION, ALLIED INDUSTRIAL WORKERS OF AMERICA AND ITS LOCAL 370, Respondent.

No. 82-2265.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 13, 1983.

Decided Dec. 13, 1983.

Matthew R. Robbins, Goldberg, Previant, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee, Wis., for the Intern. Union, Allied Industrial Workers of America and its Local 370.

T. Timothy Ryan, Jr., Sol. of Labor, Karen I. Ward, Associate Sol. for Special Appellate and Supreme Court Litigation, Allen H. Feldman for Appellate Litigation, Charles I. Hadden, U.S. Dept. of Labor, Washington, D.C., for Raymond J. Donovan, Secretary of Labor.

Before BRIGHT, ARNOLD, and FAGG, Circuit Judges.

BRIGHT, Circuit Judge.

The Secretary of Labor appeals from an order of the Occupational Safety and Health Review Commission (Commission) reversing an administrative law judge's (ALJ's) approval of the Secretary's settlement of an occupational safety and health citation and remanding the case to an ALJ for consideration of objections by the respondent Union to the settlement. Following precedent in two other circuits, Donovan v. OSHRC, 713 F.2d 918 (2d Cir.1983); and Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980), we vacate the Commission's order and reinstate the settlement.

I. Background.

Whirlpool Corporation manufactures home appliances at a plant in Fort Smith, Arkansas. In July 1978, a compliance officer of the Occupational Safety and Health Administration (OSHA) conducted an inspection of the Fort Smith plant. The inspection led to the Secretary's issuance of a citation against Whirlpool, on August 2, 1978, for violations of 29 U.S.C. Sec. 654(a)(2). ¹ The citation alleged that Whirlpool had exposed employees at the Fort Smith plant to impermissibly high levels of carbon monoxide. The citation characterized the violation as "serious," proposed a penalty of $800, and required abatement of the violation by August 30.

Whirlpool gave the Secretary timely notice of its intent to contest the citations and the proposed penalty. ² Ordinarily, such notice would trigger a hearing before a Commission ALJ, but in this case the Secretary and Whirlpool agreed to a settlement before any hearing was held. The settlement provided that the Secretary would change the characterization of the violation from "serious" to "other" than serious, and reduce the proposed penalty from $800 to $0. Whirlpool, for its part, agreed to abate the carbon monoxide hazard by installing, within 60 days of approval of the settlement, catalytic converters on 23 forklift trucks and plexiglass wind deflectors on 15 forklift trucks, and to notify affected employees of the settlement by posting a copy of the settlement agreement. A Commission ALJ approved the settlement on June 11, 1979.

On July 10, 1979, the International Union and Local 370 of the Allied Industrial Workers of America (the "Union") petitioned the Commission for discretionary review of the ALJ's order approving the settlement. The Union, which represents employees at the Fort Smith plant, objected only to the change in the characterization of the violation from "serious" to "other," and to the concomitant reduction of the penalty. Commissioner Cottine granted review.

On September 29, 1982, the Commission, by a 2-1 vote, disapproved the settlement and remanded the case with instructions to the ALJ to consider the Union's objections to the recharacterization of the violation and the reduction of the penalty. The Commission gave two reasons for rejecting the settlement: (1) the posting of the agreement did not, under Commission rules, constitute notice to the Union of the settlement; and (2) the record did not show that the Union had received notice of an amendment to the settlement agreement reducing from 15 to 14 the number of forklift trucks on which plexiglass wind deflectors were to be installed. Because the Union did not receive formal notice of the terms of the settlement and the amendment, the Commission said, it had been deprived of its rightful opportunity to raise objections to the settlement. Commission Chairman Rowland dissented, arguing that the Union had actual notice of the settlement terms, and that, in any event, it had no right under the statute to object to any provision of the settlement other than the reasonableness of the abatement time.

The Secretary appeals from the Commission's September 29 order. He urges us to adopt Commissioner Rowland's position that, regardless of any inadequacies of notice to the Union, the Union has no right to object to, nor the Commission to review, any aspect of a settlement between the Secretary and an employer where, as here, no objection has been raised to the reasonableness of the abatement time.

II. Discussion.

A. Appealability of the Commission's Order.

The Union contends that this court lacks jurisdiction to review the Commission's order, because the order, in remanding the case to the ALJ, does not finally determine the merits of the case. ³ We believe, however, that the Commission's order falls within the class of "collateral" orders reviewable under the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

In Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978), the Supreme Court defined the scope of the collateral order exception:

To come within the "small class" of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.

We think the Commission's order meets the three Coopers & Lybrand criteria. First, the order "conclusively determines" the issue before us--whether a union has a right to present objections, on issues other than the reasonableness of the abatement time, to a settlement entered into by the Secretary and an employer. Second, the issue of the Union's right to be heard, which presents an important question of statutory construction and of the respective powers of the Secretary and the Commission, is completely separate from the merits of the underlying dispute over whether the violation was "serious" and whether it warrants a civil penalty. Finally, the question of the Union's right to object to settlement will likely not be reviewable on appeal of a final judgment. If the ALJ, after hearing the Union's objections, again upholds the settlement, the Secretary will not stand aggrieved and so will not have grounds to appeal. If the ALJ disapproves the settlement, and the case goes to the Commission for a full hearing on the merits of the original citation, the Secretary will have to await a decision on the merits to appeal. But if the Secretary wins on the merits of the original citation (that is, if the violation is adjudicated "serious" and a penalty assessed), he will not be in a position to argue that Whirlpool should have the benefit of the more favorable terms of the rejected settlement. On the other hand, if the Secretary decides the case is not worth prosecuting on the merits--perhaps a reason why he was willing to settle in the first place--he will never get a final order of any kind and will never have the opportunity to raise the issue which is before the court now.

Therefore, we conclude that the Commission's remand order is reviewable here, notwithstanding that it does not finally adjudicate the merits of the Whirlpool citation. Our failure to reach the question of the Union's right to object to an OSHA settlement in these circumstances would likely leave an important issue in the administration of the Act undecided. We follow the Second, Third, and Sixth Circuits, then, and hold the remand order reviewable. See Donovan v. OSHRC, supra, 713 F.2d at 922-25; Marshall v. OCAW, 647 F.2d 383, 386-87 (3d Cir.1981); Marshall v. OSHRC, 635 F.2d 544 (6th Cir.1980). ⁴

B. Union Participation Under Sec. 659(c).

Under 29 U.S.C. Sec. 659(a), an employer has fifteen days after receipt of notice of citation or proposed penalty assessment from the Secretary to notify the Secretary of its intention to contest the citation or penalty. If the employer files no such notice, and no employee or employee representative files a section 659(c) notice, "the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency." Thus in the absence of employer objection (and of employee filing under section 659(c)), the Secretary's citation and penalty take effect without the matter ever coming before the Commission or any of its ALJs at all. That is, barring employer objection to the citation or penalty or employee objection to the reasonableness of the abatement time, the Commission lacks jurisdiction to review the Secretary's action.

The question this appeal presents concerns what happens when the employer initially does object, but later settles its dispute with the Secretary before the matter ever actually reaches the Commission. Does the Commission still have jurisdiction to review the Secretary's action (as it clearly would had the employer not withdrawn its contest by settling), and, if so, how far does its review power extend? The answer to these questions rests largely on the interpretation of section 659(c), which provides 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) * * * 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...