Donovan v. United Transp. Union

• Decision Date: 20 November 1984
• Docket Number: Nos. 82-3771,82-3773,s. 82-3771
• Parties: 12 O.S.H. Cas.(BNA) 1057, 1984-1985 O.S.H.D. ( 27,123 Raymond J. DONOVAN, Secretary of Labor (82-3771), and Cuyahoga Valley Railway Company (82-3773), Petitioners, v. UNITED TRANSPORTATION UNION and Occupational Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 340

748 F.2d 340

12 O.S.H. Cas.(BNA) 1057, 1984-1985 O.S.H.D. ( 27,123

Raymond J. DONOVAN, Secretary of Labor (82-3771), and Cuyahoga Valley Railway Company (82-3773), Petitioners, v. UNITED TRANSPORTATION UNION and Occupational Safety and Health Review Commission, Respondents.

Nos. 82-3771, 82-3773.

United States Court of Appeals,

Sixth Circuit.

Argued Dec. 8, 1983.

Decided Nov. 20, 1984.

Shelley D. Hayes, T. Timothy Ryan, Jr., Frank A. White, Dennis K. Kade, Robert D. McGillicuddy (argued), U.S. Dept. of Labor, Washington, D.C., for petitioners in No. 82-3771.

Thomas H. Barnard (argued), Squire, Sanders & Dempsey, Cleveland, Ohio, for petitioners in No. 82-3773.

Ray Darling, Occupational Safety and Health Review Com'n, Washington, D.C., C. Richard Grieser, Grieser, Schafer, Blumensteil & Slane, Richard Huhn (argued), Columbus, Ohio, for respondents in No. 82-3771.

Ray Darling, Occupational Safety and Health, Review Com'n, Washington, D.C., Office of the Solicitor, U.S. Dept. of Labor, Washington, D.C., for respondents in No. 82-3773.

Richard Huhn (argued), Grieser, Schafer, Blumenstiel & Slane, Columbus, Ohio, for United Transp. Union.

Before MARTIN and JONES, Circuit Judges, and PECK, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

This is an appeal from a decision of the Occupational Safety and Health Review Commission (Commission) which set aside a 1976 Decision and Order of Administrative Law Judge Erwin L. Stuller (the ALJ). We affirm.

I.

The facts of this case are undisputed. On February 27, 1976, the Occupational Safety and Health Administration (OSHA) issued a citation alleging that the Cuyahoga Valley Railway Company (Cuyahoga) violated Section 5(a)(1) of the Occupational Safety and Health Act (Act), 29 U.S.C. Sec. 654(a)(1) (The "General Duty Clause") by failing to provide instructions and failing to enforce the rules governing the coupling and/or uncoupling of ingot buggy cars with tools. The citation also stated that Cuyahoga failed to insure that an adequate clearance was maintained between ingot buggy stools to permit employees to work safely between the buggies. Cuyahoga filed a Notice of Contest to the Citation on March 22, 1976.

On April 13, 1976, the Secretary of Labor (Secretary) filed a formal complaint against Cuyahoga. On April 19, 1976, the Union filed a motion and was granted leave to intervene and elect party status. On May 13, 1976, Cuyahoga filed its answer to the Secretary's complaint and it filed an amended answer on May 18, 1976. A hearing was scheduled for August 24, 1976 before the ALJ.

At the hearing, the Secretary moved to vacate the citation due to lack of jurisdiction over the cited condition. The Secretary believed that the Federal Railway Administration (FRA) had jurisdiction pursuant to 49 C.F.R. Part 217. Consequently, he felt OSHA should give way to the FRA's jurisdiction pursuant to Section 4(b)(1) of the Act, 29 U.S.C. Sec. 653(b)(1).

The Union objected to the Secretary's claim that he lacked jurisdiction and asserted that the working condition was not covered by the FRA. The ALJ took the case under advisement and stated that a written statement of the Union would be made part of the record. The ALJ did not, however, specify any time requirement as to when the Union should have its objections filed.

On September 1, 1976, an attorney representing the Union wrote to the ALJ informing him that "unless advised to the contrary," the Union would file its brief "at the earliest possible date." The ALJ vacated the Secretary's citation on September 28, 1976 without any further notification to the parties and without considering the Union's objections which were set forth in its brief that the ALJ received on September 29, 1976.

Cuyahoga contends that Rule 37 of the Commission's Rules of Procedure provides a ten-day time limit for filing objections, that the Union failed to meet that time limit, and that the ALJ properly issued its decision on September 28, 1976 without further notification to the parties because some thirty-five days had elapsed since the hearing.

Although no party to this action filed a Petition for Discretionary Review, Commissioners Moran and Cleary directed review in October, 1976. Commissioner Moran's direction did not state a specific issue, but Commissioner Cleary directed review of the following question:

Whether the Administrative Law Judge erred in vacating the citation and notification of proposed penalty based on the Secretary's determination that pursuant to Section 4(b)(1) of the Act the Secretary did not have authority to issue the citation?

On October 29, 1982, the Commission issued its decision setting aside the ALJ's order and remanded the case to the Chief Administrative Law Judge to consider the Union's objections to the Secretary's motion to vacate the citation. The Commission held that the ALJ had erred by ruling on the Secretary's motion "without receiving the Union's brief and considering the merits of its objections."

In reaching its decision, the Commission expressly relied upon its decision in Mobil Oil Corp., 10 OSHRC (BNA) 1905, CCH OSHD p 26,187 (1982). Subsequently, the hearing set by the Chief Administrative Law Judge to consider the Union's objections was stayed by the Commission pending the outcome of these proceedings.

The issues presented by this appeal, are, (1) whether the Act permits the Commission to review the Secretary's withdrawal of a citation, (2) whether the Act permits employees or their authorized representatives, who have elected party status, to object to the withdrawal of a citation once the Secretary has filed a formal complaint and there has been an employer contest, and (3) whether the Union waived any right it may have had to object to the citation by failing to submit their objections in a timely manner.

II.

Our review of the Commissioner's findings of fact is governed by 29 U.S.C. Sec. 660(a), which provides:

The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.

The standard of judicial review of legal issues is governed by the Administrative Procedure Act, 5 U.S.C. Secs. 701-706. Donovan v. Anheuser-Busch, Inc., 666 F.2d 315 (8th Cir.1981). This Court has held that adjudicatory conclusions of the Commission may be set aside when they are found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Empire-Detroit Steel Division, Detroit Steel Corp. v. OSHRC, 579 F.2d 378 (6th Cir.1978).

A. THE COMMISSION'S AUTHORITY TO REVIEW THE SECRETARY'S WITHDRAWAL OF THE CITATION.

The first issue that must be resolved in this case is whether the Commission had the authority to vacate the decision of the ALJ and remand the matter to the Chief Administrative Law Judge for further proceedings. Petitioners argue that the Secretary, as the sole prosecutor of the Act, has the power to withdraw a citation as he sees fit. Accordingly, they argue that the Commission lacks the authority to require the Chief Administrative Law Judge to consider the merits of this case. The resolution of this issue depends upon the interpretation given to this Court's decision in Marshall v. OSHRC, 635 F.2d 544 (6th Cir.1980).

In Marshall the Secretary issued a citation against IMC Chemical Group, Inc. (IMC) for alleged OSHA violations. IMC filed a notice of contest. The matter was then referred to the Solicitor of Labor to prepare a complaint for filing with the Commission. The Solicitor determined that IMC had not created a hazard to its employees and that a complaint should not be filed. The Secretary agreed with the Solicitor that the citation was not warranted, decided not to file a complaint, and filed a motion with the Commission to vacate the citation. The union representing the IMC employees wrote a letter objecting to the withdrawal of the citation. The Administrative Law Judge granted the motion of the Secretary to vacate the citation, holding that the Secretary had the absolute and unconditional right to vacate a citation prior to the filing of a complaint and answer. The Commission subsequently vacated the decision of the Administrative Law Judge and remanded the matter to him for further proceedings, holding that the affected employees or their union could proceed to prosecute the citation originally issued by the Secretary if they elected party status.

On petition for review of the Commission's decision, this Court held:

[T]he Act, by its terms, makes the Secretary the exclusive prosecutor of OSHA violations. It follows that, prior to the filing of a complaint and answer, the Secretary has the right to withdraw a contested citation.

635 F.2d at 550 (emphasis added). While this court noted that the Secretary is the exclusive prosecutor of OSHA violations, we also acknowledged the fact that the Commission is the body that adjudicates disputes arising under the Act. See also, 29 U.S.C. Sec. 651(b)(3).

The key issue in the case at bar is whether the Secretary has an absolute right to withdraw a citation subsequent to the filing of a complaint and answer. The Union contends that in a case such as this, in which a formal complaint and answer are filed with the Commission prior to the Secretary's attempt to withdraw the citation, the Secretary's role as prosecutor becomes much more limited, and the Commission's role as the adjudicative body takes over. We agree. This Court's holding in Marshall was specifically limited to cases in which a formal complaint and answer had not yet been filed. In formulating the issue in Marshall this Court stated:

(4) Prior to the filing of a complaint and answer, can the Commission refuse to permit the Secretary to withdraw a contested citation over the objection of a Union representing affected employees?

635 F.2d at 546 (emphasis added). In answering this question this Court again specifically held that ...