Donovan v. Oil, Chemical, and Atomic Workers Intern. Union and Its Local 4-23

• Decision Date: 07 November 1983
• Docket Number: No. 83-4226,83-4226
• Citation: 718 F.2d 1341
• Parties: 11 O.S.H. Cas.(BNA) 1689, 1983 O.S.H.D. (CCH) P 26,718 Raymond J. DONOVAN, Secretary of Labor, Petitioner, v. OIL, CHEMICAL, AND ATOMIC WORKERS INTERNATIONAL UNION AND ITS LOCAL 4-23, Respondent. 1
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1341

718 F.2d 1341

11 O.S.H. Cas.(BNA) 1689, 1983 O.S.H.D. (CCH)

P 26,718

Raymond J. DONOVAN, Secretary of Labor, Petitioner, v. OIL, CHEMICAL, AND ATOMIC WORKERS INTERNATIONAL UNION AND ITS LOCAL 4-23, Respondent.

No. 83-4226. ¹

United States Court of Appeals, Fifth Circuit.

Nov. 7, 1983.

Domenique Kirchner, Dennis K. Kade, Judith N. Macaluso, Dept. of Labor, Washington, D.C., for petitioner.

Robert E. Wages, Denver, Colo., for respondent.

Bennett W. Cervin, Arlene S. Holcomb, Dallas, Tex., for intervenor-petitioner American Petrofina Co. of Texas.

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before RUBIN, TATE and JOLLY, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

To further its purpose of assuring every working person "safe and healthful working conditions," Congress enacted the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 651 et seq. (1970) (the Act). The Act provides for both an enforcement arm, under the Secretary of Labor, and an adjudicatory arm, under the Occupational Safety and Health Review Commission (the Commission) established by Sec. 7(a)(1) of the Act, 29 U.S.C. Sec. 656(a)(1). The Secretary is responsible for promulgating workplace safety standards, which he enforces by inspecting employers' premises and by issuing citations and proposed penalties for violations. Employers are entitled to contest a citation at a hearing before an Administrative Law Judge of the Commission. ² The Commission, in its discretion, may then review the ALJ's order. The Act also accords employees ³ certain rights to participate in both the enforcement and adjudicatory stages of the administrative process. In this case, we must determine whether the Act permits employees to challenge the terms of a settlement agreement struck between the Secretary and the employer, once the employer has withdrawn its contest to the citation.

I.

As a result of inspections conducted in the fall of 1979, the Secretary of Labor issued four citations and notifications of proposed penalties to American Petrofina Company of Texas (the Company) for violation of safety regulations promulgated by the Secretary. In response, the Company filed notices of contest to the citations, which are prerequisites for an administrative hearing. ⁴ The citations were consolidated into two cases and set for two separate hearings before two different ALJ's. ⁵ After the employer had filed the notices of contest, but before each hearing, the Oil, Chemical, and Atomic Worker's International Union and its Local 4-23 (the Union) exercised the employees' right under Sec. 10(c) of the Act, 29 U.S.C. Sec. 659(c), to participate as parties to the proceedings. ⁶

Before the respective hearings, the Secretary and the Company agreed to settle both the cases. In return for a reduction of the citations from "serious" to "non-serious" and elimination of the penalties, the employer agreed to withdraw its notices of contest. The Union had participated in the negotiations, but refused to join the agreements on the grounds that their terms were inconsistent with the Act. ⁷ After a hearing on the first citation, the ALJ rejected the Union's objections and approved the agreement. At the second hearing, another ALJ upheld the second agreement, and refused the Union's proffer of evidence purporting to show that certain asbestos-related violations were properly characterized as serious and that the Company had failed to take appropriate corrective measures when removing asbestos.

Undaunted, the Union next sought to invoke the Commission's discretionary authority to review the ALJ's rulings. ⁸ The Commission granted the Union's petition, provoking the Secretary to file a motion to vacate the order for review. From the Commission's denial of his motion, the Secretary brings this appeal.

II.

The threshold issue is whether the Commission's denial of the Secretary's motion constitutes an appealable agency ruling. The judicial review provision of the Act allows "[a]ny person adversely affected or aggrieved by an order of the Commission issued under subsection (c) of section 659 [Sec. 10(c) of the Act] of this title" to obtain review in the courts of appeals. ⁹ Section 10(c) requires the Commission, if an employer contests a citation, to hold a hearing and "thereafter to issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief." ¹⁰ Because the Commission's order denying the Secretary's motion did not affirm, modify, or vacate the Secretary's citation or proposed penalty or order any other relief, it is not final and ordinarily would not be appealable. See Stripe-A-Zone v. OSHRC, 643 F.2d 230, 232-33 (5th Cir.1981).

The Secretary contends that the Commission's decision is nevertheless reviewable under the "collateral order" doctrine of Cohen v. Beneficial Finance Industrial Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528, 1535-37 (1949). "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 question completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351, 357 (1978) (footnote omitted). See also Moses H. Cone Memorial Hospital v. Mercury Construction Corp., --- U.S. ----, ----, 103 S.Ct. 927, 935, 74 L.Ed.2d 765, 777 (1983).

The Second Circuit recently applied this test in a case remarkably similar to the present appeal, ruling that a Commission order remanding a proposed settlement agreement to the ALJ for consideration of the union's objections to the methods of abatement satisfied all three Cohen requirements. Donovan and Mobil Oil Corp. v OSHRC and PTEU, 713 F.2d 918 (2d Cir.1983) (Mobil Oil ). Specifically, the court found that: the Commission's order conclusively determined the scope of the Secretary's authority to settle without Commission oversight or the employees' formal participation; the appeal presented an important question because it would resolve an impasse between two federal agencies, thus facilitating the Act's administration; and the issue of the Secretary's authority would not merge into a final judgment on the merits. Id. at 924-25. The third element of the Cohen test was more fully discussed by the Third Circuit in Marshall and American Cyanamid v. OCAW and OSHRC, 647 F.2d 383 (3d Cir.1981) (American Cyanamid ). The court reasoned that the Commission's order "irrevocably infringed" the Secretary's prosecutorial discretion because subsequent review of the final order would not have retroactive effect: the passage of time would obliterate the Secretary's negotiating position with the employer without accomplishing abatement. Id. at 387. See also Marshall and IMC v. OSHRC, 635 F.2d 544 (6th Cir.1980) (IMC ) (reviewing Commission order to remand case to allow employee representative to prosecute citation originally issued by the Secretary but subsequently withdrawn).

We reach the same result. Although the Commission has not yet issued a remand order, and therefore conceivably could approve the settlements, it has "conclusively determined" the disputed question. The Secretary is not arguing the validity of the settlement agreements on this appeal. Instead the issues here are the standing of the employees' representative to contest the agreement, and the Secretary's authority to conclude such an agreement shielded from review when the employer withdraws its notice of contest. By denying the Secretary's motion to vacate the review order, the Commission has, in effect, ruled on the issue of its jurisdiction to review settlement agreements and the proper scope of employee participation; those were the issues briefed by the Secretary in his motion to vacate the review order.

The Second Circuit's reasoning on the second prong of the Cohen test applies to the present case. In essence, the issues are identical and the need to settle them is evidenced by their recurrence in the various circuits. Additionally, because the arguments advanced by the parties in the present case are separable from the merits of the settlement agreement dispute, we need not consider the Union's objections to the agreements in ruling on this appeal.

Finally, we think Cohen's third requirement is satisfied. The complicated procedural history of this appeal presents a wrinkle not present in the cases discussed above. This case is a consolidation of two different hearings before the ALJ's, on two separate agreements that settled two distinct citations. At the first hearing, the ALJ considered the Union's objections and proffers of proof but, nevertheless, upheld the agreement; hence a remand is unlikely. In the second proceeding, on the other hand, the ALJ refused the Union's proffer of evidence. Should the Commission disapprove the agreements, therefore, it might remand for a hearing on the second agreement. In that event, this case would become like American Cyanamid and IAM, and the reasoning relied upon in those cases by the Third and Sixth Circuits would apply here. If, however, the Commission upheld the settlement agreements, then the issues here presented would escape review entirely because the Secretary could not appeal a victory.

This court's per curiam opinion in Stripe-A-Zone v. OSHRC, 643 F.2d 230 (5th Cir.1981) does not control the disposition of this appeal. In Stripe-A-Zone, the employer appealed a Commission order vacating the ALJ's refusal to process a second citation based on essentially the same facts as one previously withdrawn by the Secretary. The employer argued that its right not to be prosecuted twice for the same violation had been violated and therefore, although the Commission's order was not final, the...