Perry, In re

• Decision Date: 29 July 1988
• Docket Number: No. 88-1475,88-1475
• Citation: 859 F.2d 1043
• Parties: , 13 O.S.H. Cas.(BNA) 1930 In re Stephen C. PERRY, et al., Petitioners. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1043

859 F.2d 1043

57 USLW 2274, 13 O.S.H. Cas.(BNA) 1930

In re Stephen C. PERRY, et al., Petitioners.

No. 88-1475.

United States Court of Appeals First Circuit.

Heard July 29, 1988.

Decided Oct. 19, 1988.

Amy R. Tabor, Cooperating Atty., Rhode Island Affiliate, American Civil Liberties Union, Pawtucket, R.I., and Edward J. Gorman, III, Asst. Gen. Counsel, United Broth. of Carpenters and Joiners of America, Washington, D.C., for petitioners.

Jeffrey A. Hennemuth with whom George R. Salem, Sol. of Labor, Allen H. Feldman, Associate Sol. for Sp. Appellate and Supreme Court Litigation, and Charles I. Hadden, Deputy Associate Sol., Washington, D.C., were on Response of the Secretary of Labor in Support of the Petition for a Writ of Mandamus and/or Prohibition for respondent Secretary of Labor.

Paul V. Lyons with whom John W. Teeter, Jr., and Foley, Hoag & Eliot, Boston, Mass., were on Response of General Dynamics Corp. in Opposition to Petition for Writ of Mandamus and/or Prohibition for respondent General Dynamics.

Scott R. McIntosh, Appellate Staff, Civil Div., Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen., Earl R. Ohman, Jr., General Counsel, Bruce Justh, Deputy General Counsel, Eugene Patrick Moran, Thomas A. Loftus, and Anthony J. Steinmeyer, Appellate Staff, Civil Div., Washington, D.C., were on Response of the Occupational Safety and Health Review Com'n to Petition for Mandamus and/or Prohibition for respondent Occupational Safety and Health Review Com'n.

Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

TORRUELLA, Circuit Judge.

We have before us a petition for Writs of Mandamus or Prohibition. ¹ Petitioners wish to be free from a protective order limiting the matters on which they may speak. In addition, they would have us order the reinstatement of one of them as a representative in the underlying proceedings, since he was ejected from the proceedings for violating the order.

The controversy before us is an offshoot of certain proceedings currently being held before an administrative law judge (ALJ). The Occupational Safety and Health Administration (OSHA) cited General Dynamics for alleged violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. Secs. 651-78 (the Act). Both General Dynamics and about 30 of its employees filed notices of contest, protesting different aspects of OSHA's enforcement actions relating to those claimed violations: the employees want quicker action, the employer none at all.

Whenever an employer or employees contest OSHA enforcement action, the proceedings are held before the Occupational Safety and Health Review Commission (the Commission). The Commission is an adjudicative body independent from OSHA. ²

Any case coming before the Commission is assigned to an ALJ, who conducts a hearing and issues a decision. Unless a Commission member directs, within 30 days, that the ALJ's decision be reviewed, the ALJ's decision becomes the Commission's final order. 29 U.S.C. Sec. 661(j) (1982). Jurisdiction over appeals from final Commission orders lies in the court of appeals for the circuit in which the alleged violation is to have occurred. 29 U.S.C. Sec. 660(a) (1982).

As the ALJ recognized, the employees obtained party status by virtue of 29 U.S.C. Sec. 659(c) ("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."). He found, in his order of October 7, 1987, and it is not disputed for purposes of this appeal, that the employees were sufficiently affected by the claimed violations to have the right to intervene. Towards the end of the order granting them party status, however, the ALJ cautioned that "[o]nce it is shown ... that employees will use this proceeding for other exploitive purposes, they will have exceeded this matter's proper bounds and a motion to exclude them will be properly taken." The ALJ later relied in part on this language when declaring that his orders had been violated.

The Act and Commission rules also give employees the right to appear through an attorney or a "representative who is not an attorney." 29 C.F.R. Sec. 2200.29(a). The petitioner employees designated Stephen Perry as their representative. Perry is not an attorney or an employee of General Dynamics. He works, rather, for the United Brotherhood of Carpenters and Joiners of America, one of the three constituent unions of the United Shipbuilding Crafts (USC) which has been trying for three years to organize General Dynamics' work force at the Quonset Point Electric Boat facility (Electric Boat). The petitioner employees' choice was apparently influenced by the fact that they also have a strong interest in seeing USC organize General Dynamics' employees at the Electric Boat facility.

USC itself is not a party to the proceedings, because it has not been certified as the employees' collective bargaining representative.

General Dynamics from the start challenged the employees' right to be present at the hearings, as well as the selection of Perry as their representative. Its main objection to Perry's involvement appears to stem from his position as a leader of the USC's organization campaign at the shipyard. In its view, Perry's USC affiliation renders him incapable of being primarily concerned about addressing health and safety issues through the administrative proceedings. Instead, it argues, Perry has been using, and will continue to use, the hearings to "spearhead" USC's organizational campaign. The problem, of course, is that Perry's two areas of interest are not necessarily mutually exclusive. As long as his demeanor and behavior in the proceedings are satisfactory, any outside union activity is absolutely irrelevant to his ability to represent the employees. And neither the statute nor the regulations preclude a representative from being affiliated with a union. In fact, the employees' choice of representative is not restricted in any way at all.

What immediately concerns us is the protective order issued by the ALJ on January 12, 1988 (and, to the extent he relied on it, the order of October 7, 1987). In anticipation of some scheduled depositions, and foreseeing the uses the USC might wish to make of the information elicited thereby, General Dynamics requested that the ALJ "issue a protective order to preserve the confidentiality of information disclosed during the depositions." In response, on January 12, the ALJ issued the following order:

All information developed through this proceeding shall be used only to resolve the issues herein. Any abuse of this may terminate a party's right to participate.

The depositions, however, did not take place as scheduled. The purported deponents interposed a Fifth Amendment claim General Dynamics responded by filing a motion to exclude the employees and Stephen Perry from the proceeding. It alleged that Perry, in his capacity as USC representative, had violated the ALJ's protective order and was exploiting the proceedings for organizational purposes. The ALJ agreed, and excluded Perry from the hearings. He permitted the employees to select another representative, as long as this new representative, if he was not an employee of General Dynamics himself, was not a member of USC. Perry petitioned the Commission for discretionary interlocutory review of the ALJ's order. See 29 C.F.R. Sec. 2200.73 (1987). However, at the time of Perry's petition, there were two vacancies on the Commission, so that it had only one member, instead of three. The Commission therefore could not rule on Perry's petition, because a quorum of two is necessary for the Commission to take official action. 29 U.S.C. Sec. 661(f) (1982). Instead, Perry's petition automatically was denied when the Commission took no action within 30 days. See 29 C.F.R. Sec. 2200.73(b) (1987).

of privilege because they were advised that the case might be referred to the U.S. Attorney for a possible criminal prosecution. This possibility inflamed USC campaign rhetoric. Leaflets appeared suggesting that some of the Electric Boat managers might spend time in jail, in addition to others emphasizing and even exaggerating USC's role ³ on behalf of the employees in the proceedings. The implication, of course, was that General Dynamics could not be trusted to safeguard the employees, and that the employees should therefore turn to USC for protection.

We have no appellate jurisdiction over the Commission's denial of Perry's petition for interlocutory review. See 29 U.S.C. Secs. 659(c), 660(a) (1982) (court of appeals has jurisdiction only over appeals from final Commission orders). However, the All Writs Act authorizes courts to issue "all writs necessary or appropriate in aid of their respective jurisdictions...." 28 U.S.C. Sec. 1651 (1982). This power to issue mandamus includes "not only cases on appeal, but matters which could eventually lead to appeals." United States v. Kane, 646 F.2d 4, 9 (1st Cir.1981) (citing inter alia, LaBuy v. Howes Leather Co., 352 U.S. 249, 255, 77 S.Ct. 309, 313, 1 L.Ed.2d 290 (1957)). In this case, an appeal could lie later from a final order of the Commission in the matter presently before the ALJ. 29 U.S.C. Sec. 660(a) (1982). Accordingly, in spite of the unusual circumstance that we are entertaining a petition for a writ directly against the ALJ, rather than the Commission, it is clear that we have jurisdiction to entertain the mandamus petition and to grant relief if appropriate.

Whether we choose to exercise jurisdiction and grant relief is, of course, a different matter. See 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure Sec. 3932 n. 6 (1977) (distinguishing between having power to issue writs and exercising that power).

The first hurdle the petitioners must clear is a formidable one: a writ of mandamus is not to be used to...