Oil, Chemical and Atomic Workers Intern. Union v. Occupational Safety and Health Review Com'n, 81-1687

• Citation: 217 U.S.App.D.C. 137,671 F.2d 643
• Decision Date: 26 February 1982
• Docket Number: No. 81-1687,81-1687
• Parties: , 217 U.S.App.D.C. 137, 10 O.S.H. Cas.(BNA) 1345, 1982 O.S.H.D. (CCH) P 25,938 OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, and Local 3-499, Oil, Chemical and Atomic Workers, Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 643

671 F.2d 643

65 A.L.R.Fed. 580, 217 U.S.App.D.C. 137,

10 O.S.H. Cas.(BNA) 1345,

1982 O.S.H.D. (CCH) P 25,938

OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, and Local 3-499, Oil, Chemical and Atomic Workers, Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.

No. 81-1687.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 3, 1981.

Decided Feb. 26, 1982.

On Motions of the American Cyanamid Company to Intervene and to Dismiss the Petition for Review and of Petitioners to Amend and Reform Caption.

George H. Cohen, Washington, D.C., for petitioners.

Charles F. Lettow, Washington, D.C., for American Cyanamid Company, movant for leave to intervene.

Dennis K. Kade, Washington, D.C., Associate Counsel for Appellate Litigation, Dept. of Labor, for amicus curiae Secretary of Labor.

Before WALD, MIKVA and EDWARDS, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM:

Petitioner Oil, Chemical and Atomic Workers International Union and its Local 3-499 ("OCAW") seek review of a decision of the Occupational Safety and Health Review Commission ("OSHRC" or "Commission") dismissing a citation issued by the Secretary of Labor to the American Cyanamid Company. Secretary of Labor v. American Cyanamid Company, OSHRC Docket No. 79-5762 (April 27, 1981), reported at 9 BNA OSHC 1596. American Cyanamid has moved to intervene and has moved to dismiss OCAW's petition for review, arguing that OCAW is not a proper petitioner for review under the Occupational Safety and Health Act of 1970 ("Act"), and that OSHRC is not a proper respondent. 29 U.S.C. § 660(a).

American Cyanamid's motion raises several threshold issues that must be answered before we reach the merits of the petition. Those issues are:

(1) Does the role of the Secretary as the exclusive prosecutor under the Act preclude the appeal of an OSHRC decision by OCAW, a labor union representing affected employees, when the union has participated as a party in the OSHRC proceeding?

(2) Does OCAW have the right to challenge a determination by the Secretary not to appeal a decision by the OSHRC dismissing a citation?

(3) May the OSHRC participate as an active party in the Court of Appeals on a petition for review of its decision?

(4) Is the company the proper party respondent in proceedings initiated by a petition filed by OCAW to review the OSHRC decision?

(5) Is the Secretary the proper party respondent in proceedings initiated by a petition filed by the company to review the OSHRC decisions?

We answer the first, second and third questions in the negative and the fourth and fifth questions in the affirmative. Accordingly, we sustain the OCAW's petition for review and we deny the company's motion to dismiss.

I. BACKGROUND

The facts giving rise to this litigation are not in dispute. In 1977, American Cyanamid adopted a Fetus Protection Policy and implemented it at its Willow Island, West Virginia plant. This policy precluded female employees of presumed childbearing capacity from being assigned to, bidding into, or holding any production job at that plant which involved occupational exposure to toxic substances identified as harmful to the fetus. Any female production worker who failed to provide evidence of permanent infertility by April, 1978, would have to request a transfer to one of three departments where toxic substances were not used. Only seven job openings were available to the thirty women affected by this policy. To rebut the policy's presumption of the potential childbearing capacity of menstruating women, five female production workers underwent voluntary sterilizations. These women retained their production positions. All five stated that they would not have undergone the procedure but for the company's policy which threatened their livelihood. Late in 1978, two women presumed childbearing capacity who refused to be sterilized were transferred to the utility pool with subsequent loss of pay and benefits.

OCAW filed a complaint about the policy with the Occupational Safety and Health Administration ("OSHA"), pursuant to 29 U.S.C. § 657(f)(1), in December, 1978. Thereafter, OSHA inspectors conducted an inspection of the Willow Island plant. As a result of this inspection, OSHA issued a citation on October 9, 1979, alleging that Cyanamid had committed a willful violation of the general duty clause, 29 U.S.C. § 654(a)(1), by implementing a policy which required women employees to be sterilized in order to be eligible to work in certain areas of the plant. Cyanamid filed a timely notice of contest, and the Secretary issued a formal complaint. On November 16, 1979, OCAW elected party status pursuant to Commission Rule 20(a), 29 C.F.R. § 2200.20, in order to participate in hearings concerning this citation before the OSHRC. Cyanamid filed its answer to the Secretary's complaint and moved for summary judgment. The Administrative Law Judge granted the company's motion and dismissed the citation on two independent grounds: (1) that the citation was barred by the Act's six-month statute of limitations; and (2) that the action of the Equal Employment Opportunity Commission precluded the Secretary's jurisdiction over the alleged hazard.

Both the union and the Secretary petitioned the full OSHRC for discretionary review of the judge's decision pursuant to section 12(j) of the Act, 29 U.S.C. § 661(i). After review was directed, the OSHRC affirmed the ruling on a third ground, finding that the citation did not allege the existence of a "hazard" within the meaning of the Act's general duty clause. Accordingly, the citation was vacated.

Pursuant to section 11 of the Act, 29 U.S.C. § 660(a), OCAW filed a timely petition for review. It named the OSHRC as a respondent. The Secretary elected not to file a petition.

II. THE RIGHT OF OCAW TO APPEAL

As an initial matter, American Cyanamid challenges the jurisdiction of this court, arguing that OCAW's petition for review fails to present a case or controversy because the statute precludes the union from being heard on matters other than the reasonableness of the abatement period. Our jurisdictional basis for reviewing any OSHRC proceeding is 29 U.S.C. § 660, which provides for appellate review of commission decisions. It states:

Any person adversely affected or aggrieved by an order of the Commission issued under subsection (c) of section 10 (29 U.S.C. § 659(c) ) may obtain a review of such order in ... the court of appeals for the District of Columbia Circuit ....

Cyanamid argues in its motion that the broad language of § 660(a) must be limited by Section 10(c) of the Act, 29 U.S.C. § 659(c). Section 10(c) is the cornerstone of the right of employees, or their authorized representatives, to participate in hearings before the OSHRC. It provides, in its entirety:

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) or (b) 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 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 (in accordance with Section 554 of Title 5 but without regard to subsection (a)(3) of such section). The Commission shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief, and such order shall become final thirty days after its issuance. Upon a showing by an employer of a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control, the Secretary, after an opportunity for a hearing as provided in this subsection, shall issue an order affirming or modifying the abatement requirements in such citation. The rules of procedure prescribed by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this subsection.

29 U.S.C. § 659(c).

The company contends that section 10(c) limits employee participation in enforcement proceedings to contesting the reasonableness of the abatement period. It reasons that this limit on the initiation of and participation in commission adjudications should be carried over to the instigation of judicial review because Congress intended that the provisions be read together as part of a "detailed statutory scheme." Whirlpool Corp. v. Marshall, 445 U.S. 1, 10, 100 S.Ct. 883, 889, 63 L.Ed.2d 154 (1980). That scheme-says the company-may most consistently be interpreted to limit the rights of employees to initiate and participate in proceedings before the commission and to appeal commission decisions to issues challenging the reasonableness of the abatement period. ¹

We reject the company's initial contention that employees have no right to be heard on matters other than the reasonableness of the abatement period. The starting point for our analysis is section 10(c) of the Act, 29 U.S.C. § 659(c). It is apparent that the first sentence of section 10(c) contemplates two types of hearings. The first is triggered by an employer who notifies the Secretary of an intention to contest a citation. In that hearing, employees are authorized to "participate as parties" by virtue of the last sentence of section 10(c). The second type of hearing is triggered by employees who notify the Secretary of their contention "that the period of time fixed in the abatement citation is unreasonable."

This second type of hearing-that initiated by employees-is tied to the agenda set by statute:...