OSHRC Docket No. 10340

Occupational Safety and Health Review Commission

May 16, 1977


Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, USDOL

Vincent L. Sgrosso, Southern Bell Telephone and Telegraph Company, for the employer

Peter Grossman, Safety Coordinator, CWA Local 3121, for the employees




MORAN, Commissioner: An order of Review Commission Judge Charles K. Chaplin, dated December 16, 1974, which granted complainant's "Notice of Dismissal," is before this Commission for review pursuant to 29 U.S.C. 661(i). Review was directed on the following issue:

"Whether dismissal of the citation and complaint is the appropriate remedy under the facts of this case?"

For reasons that follow, we answer that question in the affirmative and affirm the Judge's order.

Complainant stated in his "Notice of Dismissal" that the ground therefor was "that the available evidence is insufficient to prove the violation as alleged." In his review brief complainant contends "that the standard under which respondent was cited [29 C.F.R. 1926.956(b)(1)] was to be used solely in manholes containing electric utility lines." n1 The brief of the Communications Workers of [*2] America, the authorized employee representative, disagrees and contends "that telephone lines and equipment do constitute 'electrical transmission and distribution lines" as defined in subpart V of [29 C.F.R. Part 1926] and Section 1926.950 thereof."

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n1 That standard provides:

"(b) Work in manholes. (1) While work is being performed in manholes, an employee shall be available in the immediate vicinity to render emergency assistance as may be required. This shall not preclude the employee in the immediate vicinity from occasionally entering a manhole to provide assistance, other than emergency. This requirement does not preclude a qualified employee, working alone, from entering for brief periods of time, a manhole where energized cables or equipment are in service, for the purpose of inspection, housekeeping, taking readings, or similar work if such work can be performed safely."

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We agree with the complainant's contention regarding the applicability of 29 C.F.R. 1926.956(b)(1). That standard is part of subpart [*3] V which is entitled "Power Transmission and Distribution." The use of the word "power" clearly indicates that the subpart applies to the transmission and distribution of electricity. n2 Furthermore, after considering the context of subpart V as a whole, we conclude that the standards therein were not intended to apply to telecommunications activities. n3

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n2 See Secretary v. Yorba Linda Electric, Inc., 7 OSAHRC 311, 313 (1974) (concurring opinion).

n3 This position is further supported by the fact that subsequent to the inspection in this case the complainant adopted occupational safety and health standards covering the telecommunications industry. See 29 C.F.R. 1910.268. Since this matter was initiated prior to the adoption of the telecommunications standards and since there the circumstances are not continuous in nature, we need not decide whether the telecommunications standards apply to the facts in this matter.

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The union also contends in the alternative that the citation should be amended to allege [*4] a violation of 29 U.S.C. 654(a)(1), the so-called general duty clause. Complainant indicates that he has no basis for proceeding to trial under the general duty clause. It is not exactly clear what relief the union desires. Whether the union seeks an order to require complainant to continue the prosecution of the case or whether it desires to assume that role makes no difference, however, because either action would be improper as contrary to the prosecutorial authority bestowed on the Secretary of Labor under the Occupational Safety and Health Act of 1970.

The rights of employees or their representatives to participate as parties to hearings under the Act is set out in 29 U.S.C. 659(c) which provides that:

"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, [*5] 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." (Emphasis added.)

In Secretary v. Local 588, United Auto Workers, OSAHRC Docket No. 2786, May 25, 1976, we concluded [*6] that an employee contest of an abatement period under this section is limited to the reasonableness of the abatement period and does not extend to the sufficiency of the abatement plan submitted by the employer. Although we adhere to that holding, we recognize that it did not directly address the question before us in the instant case.

As indicated in the above quotation, 29 U.S.C. 659(c) provides for a hearing in only two instances. n4 The first is when an employer decides to contest a citation. The second is when an employee or employees' representative alleges that the abatement date is unreasonable. The last sentence of the subsection provides: "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 section." This sentence stands alone and seems to apply to both methods of obtaining a hearing. See Commission Rule 20(a), 29 C.F.R. 2200.20(a), which does not limit the party status of an affected employee to cases involving an employee contest of an abatement period. Hence, if the employer contests a citation, the union can become a [*7] party to the hearing, but if the employer does not contest, the only way the union can become a party to a hearing is if it contests the abatement period. Since in this case the union has become a party in a proceeding initiated by the employer's notice of contest, its party status is, in effect, what might best be termed vicarious. If the Secretary had never cited the respondent, the respondent would never have contested the citation and, if it had never contested, the union would not have been a party to the hearing. Since the Secretary now claims that the issuance of the citation was improper, it is clear that the union, who would not even be a party but for the erroneous citation, does not now have standing to object to the Secretary's withdrawal of the citation.

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n4 Chairman Barnako notes that the following discussion only pertains to situations in which a notice of contest to a citation is filed. Provision for a hearing is also made in 29 U.S.C. 659(c) when an employer petitions for modification of an abatement period.

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Only the Secretary of Labor is empowered by the Act to issue a citation, and the issuance thereof is left entirely to his discretion as citations are to be issued when the Secretary or his authorized representative "believes" that an employer has violated the Act. 29 U.S.C. 653(a). This and other sections of the Act show that Congress intended to exclusively bestow all enforcement powers under the Act upon the Secretary.

Although the Act authorizes any employees or representative of employees to "request" an inspection of their employer's worksite if it is believed that a violation of a safety or health standard threatens physical harm or presents an imminent danger, the Secretary need not make an inspection unless he determines that such an alleged violation or danger exists. 29 U.S.C. 657(f)(1). This provision does not afford employees the right of self-help or judicial review in the event the Secretary does not make an inspection as the result of an employee complaint. If employees cannot force an inspection, they cannot take over the inspection authority, and it therefore seems clear that they cannot force the Secretary to prosecute or take over the [*9] prosecution themselves.

Furthermore, only the Secretary can seek enforcement of the Commission's orders, either through a petition for enforcement in a court of appeals (29 U.S.C. 660(b)), or by issuing a notification of failure to abate. 29 U.S.C. 659(b). The Secretary may also compromise, mitigate, or settle any penalty assessed under the Act. 29 U.S.C. 655(e). See Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278 (9th Cir. 1974).

Congress has provided in 29 U.S.C. 659(c) that employees and their representatives can only contest the reasonableness of the abatement period. The contesting of any other part of a citation is only permitted by the employer. We construe the limitation on employee contests as indicating that Congress intended to preclude employees and their representatives from usurping the Secretary's prosecutorial discretion in all other situations. Therefore, we conclude that they have no standing to object to the Secretary's actions in withdrawing a citation in a case.

Accordingly, the Judge's decision is affirmed.



CLEARY, Commissioner, Dissenting:

I dissent from the majority's holding that a union representing affected employees [*10] of a cited employer has no standing to object to a motion by the Secretary of Labor to withdraw a citation. This is the most recent in a disturbing line of cases restricting the procedural rights of employees in Commission proceedings. See United Automobile Workers, Local 588 (Ford Motor Co.), 4 BNA OSHC 1243, 1976-77 CCH OSHD para. 20,737 (No. 2786, 1976), petition for review filed, No. 76-1718, 7th Cir., July 23, 1976; and United States Steel Corp., 4 BNA OSHC 2001, 1976-77 CCH OSHD para. 21,463 (No. 2975 etc., 1977).


On September 8, 1974, respondent Southern Bell Telephone & Telegraph Company (hereinafter "Southern Bell"), received from the Occupational Safety and Health Administration a citation alleging a failure to comply with 29 CFR 1926.956(b)(1) in that it had allegedly "failed to provide an employee in the immediate vicinity to render emergency assistance while repair work is being performed by another inside [a] manhole." After the respondent filed a timely notice of contest, and the Solicitor filed a complaint, Southern Bell filed an answer which contended in part that the cited standard was not applicable.

In its brief before us, [*11] Southern Bell represents that an informal conference was then held between local OSHA and Southern Bell officials. The Solicitor represents that after the citation had been issued, it was found that the cited manholes were being used exclusively for telephone communications and were not jointly used with electric utilities. According to the Solicitor, a consultation with the OSHA Regional Support Office indicated that the cited standard was therefore inapplicable.

On November 25, 1974, the Solicitor filed with the Commission a document styled a "Notice of Dismissal." The "Notice" purported to dismiss unilaterally the complaint and withdraw the underlying citation. The reason given was that "the available evidence is insufficient to prove the violation as alleged." Chief Administrative Law Judge Chaplin treated the document as a motion, and on December 16, 1974 ordered that it be granted. On December 23, 1974, the Commission received from Local 3121 of the Communications Workers of America, AFL-CIO, the representative of affected employees, a letter dated December 18, 1974, opposing the "Notice of Dismissal" on the grounds that the manhole in question contained communication lines [*12] that transmitted electrical energy of varying voltage through equipment such as load coils and carrier amplifiers. Inasmuch as the Judge's decision had already been received by the Commission, I treated the letter as a petition for discretionary review of the Judge's decision and on January 15, 1975, I directed review under section 12(j) of the Act. Submissions were invited on whether dismissal of the citation and complaint was the appropriate remedy on the facts of this case.

Unfortunately, the briefs of the parties do not comprehensively address all the issues, partly because a new standard which is indisputably applicable to the class of operations involved here, 29 CFR 1910.268, became effective after the employee representative's brief was filed but before the briefs of the Solicitor and Southern Bell were filed. Also, in his brief, the Solicitor expressly declined to address any issue except the applicability of the cited standard, and stated that he would not express any opinion on the rights of employees to compel the prosecution of the case by the Solicitor because "[t]his issue is presently being reviewed by the Secretary's Solicitor. . . ." n5

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n5 The direction for review in this case was accompanied by an order dated January 15, 1975 from the Executive Secretary of the Commission which stated that briefs were due within 30 days, or February 14, 1975. On February 14, 1975, the day that briefs were due, the Solicitor filed a "Motion for Extension of Time to File Brief," which requested a forty day (40) day extension, to and including March 24, 1975, in which to file his brief. The motion was granted. On March 25, 1975, a day after the first extended period expired, the Solicitor filed a "Motion for Further Extension of Time to File Brief," which requested an additional thirty (30) day period, to and including April 25, 1975, in which to file his brief. This motion was granted. On April 28, 1975, three days after the second extended period had expired, the Solicitor filed a "Motion for Further Extension of Time to File Brief," which requested a seventeen (17) day extension, to and including May 12, 1975, in which to file his brief. Like the previous two motions, this motion cited "the current large caseload facing the Solicitor's Office," but added that the Labor Department had just moved into a new building and that "the Secretary is presently reviewing the policy position he will be using in response to the issue directed for review." This third motion, too, was granted. Finally, on May 12, 1975, the last day of the extended briefing period, the Solicitor filed his brief. As noted in the text, the Solicitor had still not formulated his position on this matter at the end of this four-month period.


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The first issue before us is whether the Solicitor may unilaterally dismiss his complaint and vacate his citation. As noted above, Judge Chaplin treated the Solicitor's "Notice of Dismissal" as a motion. This was undoubtedly correct. n6

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n6 The Solicitor seems to agree that his previous attempt to terminate unilaterally this case cannot stand, for he has addressed the merits of his view and has defended it as correct.

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In section 12(g) of the Act, Congress provided that unless the Commission adopted different rules, the Federal Rules of Civil Procedure would apply to our proceedings. Although the Commission has adopted some procedural rules, because it has adopted no rule governing this matter, the Federal Rules apply here. Commission Rule 2(b), 29 CFR 2200.2(b). Fed. R. Civ. P. 41(a) provides that an action may be unliaterally dismissed by the complaining party only where a notice of dismissal is filed before the adverse party [*15] has not yet served his answer or a motion for summary judgment, or where a stipulation of dismissal has been signed by all parties who have appeared. Inasmuch as an answer has been served here, and no stipulation of dismissal has been filed by all parties, the Solicitor's "Notice of Dismissal" is ineffective. Instead, under Rule 41(a)(2), the action cannot be dismissed at the Solicitor's instance except upon the order of the Commission and upon such terms as the Commission deems proper. This principle has long been settled. Brown & Kerr, Inc., 1 BNA OSHC 1363, 1973-74 CCH OSHD para. 16,819 (No. 3055, 1973); International Terminal Operating Co., Inc., 2 BNA OSHC 1167, 1974-75 CCH OSHD para. 18,440 (No. 2340, 1974). Its application by the Commission reflects our view that the Commission has a duty to assure so far as possible that where the Solicitor elects not to litigate an issue, the public interest nevertheless receives active and affirmative protection by the Commission's order. Sigman Meat Co., Inc., 1 BNA OSHC 1708, 1709 n.2, 1973-74 CCH OSHD para. 17,783 (No. 251, 1974).

Similarly, it is not enough to dispose of this case by holding, as Southern Bell would [*16] have us do, that because the employer and the Solicitor agree that the submissions to date do not support the finding of a violation, the Commission must dismiss the action. As noted above, the Commission need not accept blindly the Solicitor's view of a case because it coincides with that of a cited employer. See, e.g., Enfield's Tree Service, Inc., 5 BNA OSHC 1142 n.2, 1977-78 CCH OSHD para. 21,607 (No. 9118, 1977); Sigman Meat Co., Inc., supra. Also, the Commission cannot grant the motion without permitting all parties, including the affected employee-parties to be heard on its merits. 5 U.S.C. 554(c), former section 5(b) of the Administrative Procedure Act (made applicable to our proceedings by section 10(c) of the Act).

In apparent recognition of these principles, the majority correctly proceeds to resolve the merits of the applicability question raised by this case. I agree with the conclusion that the cited standard was not applicable to the condition alleged in the citation and complaint, although I do not agree that the subsequent adoption of 29 CFR 1910.268 "further support[s]" the majority's position. See United Telephone of the Carolinas, [*17] Inc., 4 BNA OSHC 1644, 1976-77 CCH OSHD para. 21,043 (No. 4210, 1976). n7

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n7 Inasmuch as the cited standard was not specifically applicable during the inspection, and no other standard appears to have been specifically applicable, I note that Southern Bell's work practices at that time would appear to have been governed by section 5(a)(1) of the Act. Also, I agree with the Solicitor and Southern Bell that the new standard at 29 CFR 1910.268 is specifically applicable to Southern Bell's manhole safety practices. The majority makes no findings on this last point because it does not know whether Southern Bell's manhole practices are continuous in nature. Although this analysis is not unsound, it is incomplete in that it forcloses for no apparent reason the application of the new standard if it should be alleged, or if the Commission should be informed, that Southern Bells' work practices have not materially changed.

Accordingly, it would be proper to consider the applicability of section 5(a)(1) at the time of the inspection in this case, or if the affected employees desire, for application of 29 CFR 1910.268 if it is alleged that Southern Bell's manhole safety practices have not materially changed. As noted above, the brief of the affected employee's representative was not filed until after the new standard become effective. The application of the specifically applicable standard is desirable if the Commission is to enter an abatement order here.


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Having gone this far, the majority does not address the question of hether the application of section 5(a)(1) to this case is necessary to protect the public interest in an adjudication on the merits. n8 This is error.

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n8 This constitutes a failure to comply with an elementary principle of administrative law. Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1264-1266 (4th Cir. 1974); see N.L.R.B. v. Metropolitan Life Ins. Co., 380 U.S. 438, 442-443 (1965).

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The majority's reasoning is unpersuasive and incomplete. The chain of reasoning is that if the Secretary had never cited the respondent, the union would not have been a party to the hearing. n9 Therefore, it is concluded that "[s]ince the Secretary now claims that the issuance of the citation was improper, it is clear that the union, who would not even be a party but for the erroneous citation, does not now have standing to object to the Secretary's withdrawal [*19] of the citation." This, of course, begs the very question upon which the union wishes to be heard: whether the citation was indeed erroneously issued. n10

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n9 To no apparent purpose, the majority also reaffirms its decision in United Automobile Workers, Local 588 (Ford Motor Co.), supra. I agree that the decision is inapposite, and therefore note that while it does illustrate the trend of Commission decisions involving employee procedural rights, it does not deserve the prominence that it has been accorded here. See note 12, infra.

n10 This reasoning also seems to assume erroneously that the Solicitor may unilaterally withdraw the citation and seems to overlook that citations can be amended so that the case proceeds under a correct legal theory.

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The majority then stresses the fact that only the Secretary of Labor or his authorized representative has been authorized to issue citations to employers or propose penalties. It concludes that the issuance of citations "is left entirely to [the Secretary's] discretion" [*20] and that this and other sections of the Act "show that Congress intended to exclusively bestow all enforcement powers . . . upon the Secretary." While it is true that only the Secretary has been authorized to issue citations, it is not quite clear that the matter is left wholly to his discretion. Section 9(a) of the Act states that the Secretary "shall" issue a citation to the employer -- not that he "may" issue a citation. In any event, it does not follow from this grant of authority that once a citation has been issued, only the Solicitor may present evidence and litigate contentions that violations of the Act have occurred. See e.g., Sugar Cane Growers Cooperative of Florida, 4 BNA OSHC 1320, 1976-77 CCH OSHD para. 20,795 (No. 7673, 1976) in which a representative of affected employees presented evidence in support of the Solicitor's position. Moreover, the relief sought by the union here would in no sense be inconsistent with the Secretary's broad enforcement powers. After all, the Solicitor has stated only that he has not found evidence to support affirmance of the citation under section 5(a)(1) n11, not that the prosecution of the case on that theory would detract [*21] from the Secretary's primary enforcement role, or would be contrary to the public interest.

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n11 This contention was not made before the Administrative Law Judge, and appears for the first time in the Solicitor's brief on review.

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The majority then seeks refuge in the finding that only the Secretary may conduct an inspection. While it is true that employees moy not "take over the inspection authority," this does not necessarily mean that they may not prosecute the case once an inspection has been made by the proper authority, a citation issued, and a contest initiated. The results of the inspection should be available to the employees as a matter of routine discovery.

Finally, the majority finds some significance in its view that under section 11(b) "only the Secretary can seek enforcement of the Commission's orders . . . ." Again, this is inapposite. In section 10(c), the Congress directed this Commission to give employees a full opportunity to participate as parties before the Commission in hearings held "under [*22] this subsection." Section 11(a), gives employees the right, as persons (a term broader than "parties") "adversely affected or aggrieved by an order of the Commission issued under subsection (c) of section 10" to seek judicial review of our order in a United States court of appeals. See e.g., Richard Godwin v. O.S.H.R.C. and Lew Mares Enterprises, 540 F.2d 1013 (9th Cir. 1976). The question of whether employees have additional rights under sections other than section 10(c) has no bearing on their explicit party status granted by section 10(c) for hearings held under section 10(c).

I also disagree with the Commission's reliance on the Secretary's authority to compromise, mitigate, or settle any penalty assessed under the Act. This is not a settlement case. The Secretary does not regard it as such. Even if it were, the rights of an interested party who has not joined in a settlement is not affected by this provision. Moreover, if affected employees were permitted to litigate the case and if they obtained an abatement order, the Solicitor would still be authorized to settle, mitigate, or compromise any accompanying penalty, although the affected employee-party would [*23] be entitled, as they would even if they had not prosecuted the case, to a hearing on their objections to the settlement, or compromise. Thus, the Secretary's powers in this regard would remain unimpaired.

Finally, I would note briefly that the penultimate paragraph of the majority's opinion, summarizing its view of the general role of employee-parties under the Act, states that under section 10(c) of the Act "employees and their representatives car contest only the reasonableness of the abatement period." This overlooks several possibilities. The Commission as not yet addressed the question of whether affected employees may contest the abatement requirements of a citation if a resulting abatement order would create greater dangers for them. See e.g., Industrial Steel Erectors, Inc., 1 BNA OSHC 1497, 1973-74 CCH OSHD para. 17,136 (No. 703, 1974). Also, we have permitted employees in a contested case to apply to the Commission for a consultation order to help implement the Commission's abatement order. General Electric Co., 3 BNA OSHC 1031, 1974-75 CCH OSHD para. 19,567 (No. 2739, 1975), rev'd in part on other points, 540 F.2d 67 (2d Cir. 1976). In future [*24] contested cases we may have occasion, upon the application of affected employees, to order that the costs of abatement be borne by the employer. See e.g., the concurring opinion in The Budd Company, 1 BNA OSHC 1548, 1973-74 CCH OSHD para. 17,387 (Nos. 199 & 215, 1974) (discussing the cost provisions of 29 CFR 1910.1001(j) and 1910.1003(g)). The majority opinion, if taken literally, would apparently foreclose the application by employees for orders from this Commission enforcing the allocation of cost provision of section 6(b)(7) of the Act. What these situations add up to is the majority of the Commission implying that the legal rights of employees must fail for lack of a remedy. A legal right without a remedy is an anomaly in the law. The courts themselves will look far to supply an adequate remedy. Laughlin v. Riddle Aviation Co., 205 F.2d 948 (5th Cir. 1953). Given the statutory purpose of protecting the safety of employees, we should do no less.


I would hold that a remedy does exist.

I start, as do my colleagues, with the provision of section 10(c) of the Act. In pertinent part, that section provides that "the rules of procedure prescribed by [*25] the Commission shall provide affected employees an opportunity to participate as parties to hearings under this subsection." n12

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n12 This case does not arise under the provision of section 10(c) for the contest by employees of the abatement period fixed by a citation, and therefore the majority's holding in United Automobile Workers, supra, does not govern the union's right. Instead, this case arises out of a contest of a citation by an employer under section 10(a) of the Act.

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This provision is clear enough on its face. Because the Commission must, in cases governed by this provision, provide a formal hearing in accordance with 5 U.S.C. 556 and 557, it is plain that we must permit all parties to present their cases by either oral or documentary evidence. 5 U.S.C. 556(d). Congress expressly designated affected employees as a class of persons who are entitled to party status, and it therefore is indisputable that they are entitled as a matter of right to present evidence. See e.g., Gurney Industries, [*26] Inc., 1 BNA OSHC 1219, 1971-73 CCH OSHD para. 15,685 (No. 722, 1973).

Thss may be cast in sharp relief when one compares the enforcement of OSHA with that of the LMRA. There is no provision in OSHA comparable to section 3(d), 29 U.S.C. 153(d), of the LMRA, 29 U.S.C. 151 et seq., which grants broad powers on the issuance of complaints to the General Counsel of the National Labor Relations Board. n13 These powers are so broad that parties to Labor Board proceedings litigating in tandem with the General Counsel may not introduce evidence on legal theories not agreed to by the General Counsel, nor may the Board amend pleadings to conform the evidence to legal theories not agreed to by the General Counsel. n14 The basis for this line of authority is that the General Counsel has been granted by the Congress unreviewable discretion to issue or not issue complaints in unfair labor practice cases. n15

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n13 That section reads in pertinent part of follows:

"[The General Counsel of the Board] shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board . . . ."

n14 See e.g., Winn-Dixie Stores, Inc., 224 NLRB No. 190, 92 LRRM 1625 (1976).

n15 The statutory sheme of the L.M.R.A. has been cogently described by the Supreme Court:

. . . Under the Labor Management Relations Act of 1947, 29 U.S.C. 151 et seq., the process of adjudicating unfair labor practices cases begins with the filing by a private party of a "charge," 29 U.S.C. 153(d) and 160(b); 29 CFR 101.2; Auto Workers v. Scofield, 382 U.S. 205, 219, 60 LRRM 2479; NLRB v. Indiana and Michigan Electric Co., 318 U.S. 9, 17-18, 11 LRRM 763. Although Congress has designated the Board as the principal body which adjudicates the unfair labor practice case based on such charge, 29 U.S.C. 160, the Board may adjudicate only upon the filing of a "complaint"; and Congress has delegated to the Office of General Counsel "acting for the Board" the unreviewable authority to determine whether a complaint shall be filed. 29 U.S.C. 153(d); Vaca v. Sipes, 386, 171, 182, 64 LRRM 2369. In those cases in which he decides that a complaint shall issue, the General Counsel becomes an advocate before the Board in support of the complaint. In those cases in which he decides not to issue a complaint, no proceeding before the Board occurs at all. The practical effect of this administrative scheme is that a party believing himself the victime of an unfair labor practice can obtain neither adjudication nor remedy under the labor statute without first persuading the Office of General Counsel that his claim is sufficiently meritorious to warrant Board consideration.

N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 89 LRRM 2001, 2003 (1975). 29 U.S.C. 160(b) provides that:

"Whenever it is charged that any person is engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue . . . a complaint stating the charges in that respect . . . ."


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Under OSHA, however, the Secretary of Labor has less authority. Unlike the General Counsel, he is not fully at liberty to issue or not issue the initiating papers, for section 9(a) of the Act provides that he "shall" issue a citation whenever he believes that a violation has occurred. n16 Moreover, even if we assume that the Secretary has some of the broad powers explicitly granted to the General Counsel, it should be noted that even the General Counsel cannot ride roughshod over the procedural rights of parties to the proceeding. He may not always enter into settlements unilaterally and deprive parties such as unions of an opportunity for a hearing on their objections to a settlement. n17

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n16 The statute does not provide that his belief be supported by any particular quantum of evidence or that a citation be supported by an accurate belief that a violation has occurred. All that is necessary to support the issuance of a citation is the Secretary's belief. See e.g., Reynolds Metals Co., 3 BNA OSHC 1749, 1975-76 CCH OSHD para. 20,214 (No. 4385, 1975). Thus, the citation remains validly issued whether or not the Secretary changes his belief after contest has been filed.

n17 International Union of Electrical, Radio & Machine Workers, AFL-CIO v. N.L.R.B., 289 F.2d 757, 46 LRRM 2534 (D.C. Cir. 1960); I.L.G.W.U. Local 415-475 v. N.L.R.B. (Arosa Knitting Corp.), 501 F.2d 823, 86 LRRM 2851 (D.C. Cir. 1974); Textile Workers of America, AFL-CIO v. N.L.R.B., 294 F.2d 738, 48 LRRM 2718 (D.C. Cir. 1961); N.L.R.B. v. Oil, Chemical & Atomic Workers Int'l. Union, AFL-CIO, 476 F.2d 1031, 82 LRRM 3159 (1st Cir. 1973).


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I am therefore of the view that the case should be remanded to the Administrative Law Judge for a hearing on the merits, and with instructions to permit the representative of affected employees to present evidence on all material issues. I emphasize, however, that my opinion is limited to the concrete facts of the case, and I find it unnecessary to consider more generally affected employee's procedural lights. As noted above, the parties' real dispute is whether persuasive evidence of a violation has been gathered. The Solicitor has not suggested that this case raises the question of whether continued prosecution of the case by employees would impair the execution of his general enforcement policies.