SECRETARY OF LABOR,

Complainant,

v.

PAN AMERICAN WORLD AIRWAYS, INC.,
Respondent.

AIR TRANSPORT LOCAL 504,
TRANSPORT WORKERS UNION, AFL-CIO,

Authorized Employee
Representative.

OSHRC Docket No. 83-0249

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory function.  See section 10(c) of the Act, 29 U.S.C. § 659(c).

The question for decision is whether an authorized representative of affected employees may object to a method of abatement prescribed in a settlement agreement between the Secretary of Labor and an employer.  We have reexamined Commission precedent in light of several recent appellate court decisions and hold that the representative may not so object.

The Secretary issued to Pan American World Airways, Inc. ("Pan Am") a citation alleging a violation of the exit door standard at 29 C.F.R. § 1910.36 (b)(4).  The citation alleged that electromagnetic door locks installed on 24 exit doors prevented "free and unobstructed egress" from an airport building.  Pan Am had installed the electromagnetic door locks to prevent pilferage.  After Pan Am filed a notice of contest and discovery commenced, the Secretary and Pan Am agreed upon a settlement.  The settlement prescribed, among other things, modifications to the electromagnetic door lock system, instruction of employees in the operation of the new system, and the installation of panic bars on doors in two areas.  A ten-week abatement period (originally set to end on January 30, 1984) was prescribed.  Pan Am also agreed to pay a penalty and to withdraw its notice of contest.

Air Transport Local 504 of the Transport Workers Union, AFL-CIO, which had elected party status, objected to the adequacy of the abatement methods prescribed in the settlement agreement.  After holding a hearing, Administrative Law Judge Jerome C. Ditore concluded that the union had no right to object to the settlement on that ground but that it could object to the reasonableness of the abatement period.  The judge found that the union had not objected to the abatement period and therefore approved the settlement.  The union sought discretionary review, which was granted.

The question of the right of a union that has elected party status to object to the abatement methods prescribed in a settlement agreement has been considered in many Commission and appellate court opinions.  Since the Commission last considered the issue, four courts of appeals have issued decisions disapproving the Commission's holding that a union has no right to object to the adequacy of the abatement methods prescribed in the the settlement agreement.  Donovan v. OSHRC (Mobil Oil Corp.), 713 F.2d 918 (2d Cir. 1983), rev'g Mobil Oil Corp., 82 OSAHRC 45/A2, 10 BNA OSHC 1905, 1982 CCH OSHD ¶ 26,187 (No. 77-4386, 1982); Donovan v. International Union, Allied Industrial Workers (Whirlpool Corp.), 722 F.2d 1415 (8th Cir. 1983); Donovan v. United Steelworkers (Monsanto Co.), 722 F.2d 1158 (4th Cir. 1983); Donovan v. Oil, Chemical & Atomic Workers International Union (American Petrofina Co.), 718 F.2d 1341 (5th Cir. 1983)(following other circuits to prevent "administrative chaos"), cert. denied, 52 U.S.L.W. 3819 (U.S. May 14, 1984)(No. 83-1298).  These courts of appeals joined several others that had already hold or implied that unions lack such a right.  Oil, Chemical & Atomic Workers International Union v. OSHRC (American Cyanamid Co.), 671 F.2d 643, 650 & n.7 (D.C. Cir. 1982), cert. denied, 103 S.Ct. 206 (1983); Marshall v. Oil Chemical & Atomic Workers International Union (American Cyanamid Co.), 647 F.2d 383 (3d Cir. 1981), following Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir.) cert. denied, 449 U.S. 1061 (1980).  See also Marshall v. OSHRC (IMC Chemical Group), 635 F.2d 544 (6th Cir. 1980); Automobile Workers v. OSHRC (Ford Motor Co.), 557 F.2d 607 (7th Cir. 1977).  We agree with the appellate court decisions cited above and hold that a union lacks the right to object to the adequacy of the abatement methods specified in a settlement agreement between the Secretary and an employer, and that a union may object only to the reasonableness of the abatement period specified by the agreement.  All decisions to the contrary are overruled.  Inasmuch as the union has not objected to the abatement date in the settlement agreement, the judge's decision approving the agreement is affirmed.[[1]]

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  MAY 31 1984


CLEARY, Commissioner, dissenting:

Like Judge Pollak, I take a "more spacious view" of employee rights.  See Marshall v. Sun Petroleum Products Co., 622 F.2d 1176, 1191 (3d Cir.,) cert. denied, 449 U.S. 1061 (1980) (Louis H. Pollak of the United States District Court for the Eastern District of Pennsylvania sitting by designation, dissenting in part).

In my view, employees should be heard on all aspects of employer-contested citations at all stages of Review Commission proceedings, including settlement.  I stated my reasons for this view in exhaustive detail in Mobil Oil Corp., 82 OSHRC 45/A2, 10 BNA OSHC at 1920, 1982 CCH OSHD ¶ 26,187 at 33,034 (No. 77-4386, 1982), rev'd, 713 F.2d 918 (2d Cir. 1983).  Briefly, nothing in the Act, its legislative history, or basic principles of federal regulatory action justifies exclusion of employee evidence; but the most elementary principles of law militate in favor of hearing all evidence likely to throw light on issues in dispute.

The Act itself specifies that employees are entitled to party status in employer-initiated proceedings.  Section 10(c), 29 U.S.C. § 659(c).  The hallmarks of party status are the right to present evidence, to be heard in opposition to all other parties, to participate fully in all aspects of the case, both substantive and procedural.  The Act itself does not define "party" more narrowly, and nothing in the legislative history supports a more limited definition.  (To the extent that the legislative history mentions employee participation in Commission proceedings at all, the quoted passages are virtually identical in language to section 10(c) itself and therefore cannot support a restrictive interpretation.  See SUBCOMMITTEE ON LABOR, SENATE COMMITTEE ON LABOR & PUBLIC WELFARE, THE LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 at 155, 414 (1971)).

Judge Pollak, in his partial dissent in Sun Petroleum, supra, reviewed the legislative history of the section as follows:

The anomalous limitation not expressed in the text of Section 10(c) is supplied, so the court insists, by the report of the Senate Committee on Labor and Public Welfare.  It is of course true, as the court notes, that the Committee's report recites that Section 10(c) "gives an employee or representative of employees a right, whenever he believes that the period of time provided in a citation for abatement of a violation is unreasonably long to challenge the citation on that ground."  But the report says more.  The entire relevant passage, including the language relied on by the court, shows the Committee's understanding that an employee /union challenge to the length of the proposed abatement period is but one of two of employee/union participation in Commission proceedings--two distinct modes linked by the conjunctive "also."

If the employer decides to contest a citation or notification, or proposed assessment of penalty, the Secretary must afford an opportunity for a formal hearing under the Administrative Procedure Act.  Based upon the hearing record the Secretary shall issue an order confirming, denying, or modifying the citation, notification, or proposed penalty assessment.  The procedural rules prescribed by the Secretary for the conduct of such hearings must make provision for affected employees or other representatives to participate as parties.

Section 10(c) also gives an employee or representative of employees a right, whenever he believes that the period of time provided in a citation for abatement of a violation is unreasonably long, to challenge the citation on that ground.  Such challenges must be filed within 15 days of the issuance of the citation, and an opportunity for a hearing must be provided in similar fashion to hearings when an employer contests.  The employer is to be given an opportunity to participate as a party.   [[4]]  (Emphasis added.)

Sun Petroleum, 622 F.2d at 1190.
Much has been made of the fact that unrestricted employee participation would interfere with the Secretary's prosecutorial discretion.  Both the Act and the legislative history show that Congress intended for employees to play a central and active role in OSHA proceedings.  For example, the Secretary must investigate employee complaints of OSHA violations, and he must inform the complaining employees of his reasons if he does not issue a citation for a serious violation or an imminent danger.  See sections 8(g), 9(a) 29 U.S.C. §§ 657(g), 658(a).  The legislative history shows that Congress recognized and attached significance to the fact that employees have valuable knowledge about their working conditions.  LEGISLATIVE HISTORY at 430, 448.  Moreover, absolute and unreviewable prosecutorial discretion is not in harmony with the Administrative Procedure Act, which has long imposed a presumption of review-ability an administrative discretionary powers.  See discussion in DAVIS, ADMINISTRATIVE LAW TEXT 518-523 (3d ed. 1972).

Set against this striking absence of support for limited employee participation is the fundamental principle that relevant, probative and material evidence should be heard unless there are important policy reasons for exclusion.

[T]he whole machinery of jurisprudence, in all its branches, is contrived for the purpose of enabling the judging power to determine on the truth or falsehood of every litigation proposition.  This is to be done by hearing and examining evidence, that is to say, hearing and examining everything that will contribute to bring the mind to the determination required.  If we refuse to hear what will, in any degree, produce this effect, we must determine on imperfect evidence; and in proportion to the importance of the matter thus refused to be heard, must evidently be the chance of making an incorrect rather than a just determination.

Livingston, INTRODUCTORY REPORT TO THE CODE OF EVIDENCE in COMPLETE WORKS OF EDWARD LIVINGSTON ON CRIMINAL JURISPRUDENCE 411, 421 (1873).

Limiting employee participation prevents the trier of fact from considering all probative, relevant and material evidence--without advancing any important policy.  Worse yet, exclusion of employee evidence undermines the purpose of the Act in direct proportion to the employees' ability to prove that a hazard exists or that an abatement plan is inadequate.

Although the Fifth Circuit Court of Appeals ultimately held, for reasons of uniformity, that employees have only limited participatory rights in employer-initiated proceedings, it first explained why, if it were writing "on a clean slate," it would hold otherwise.  Donovan v. Oil, Chemical, and Atomic Workers International Union (American Petrofina), 718 F.2d 1341 (5th Cir. 1983), cert. denied, __U.S.__ (1984).

Assuming that "Congress used words as they are commonly used and ordinarily understood," the Fifth Circuit concluded that the word "party" connotes "persons entitled to participate fully in litigation."  Id. at 1349.  The fact that Congress explicitly limited employee participatory rights in employee-initiated proceedings seemed to the court evidence that Congress meant its unqualified assignment of party status in employer-initiated contests to be read literally.

The Secretary argued in American Petrofina that employee rights are yoked to the status of the employer's participation so that even if the employer's notice of contest opens the door to plenary employee participation, the employer's withdrawal of the notice of contest would return employees to the status of abatement date challengers only.  The court, however, concluded that employees in employer-initiated contests are analogous to intervenors in a civil lawsuit whose claims can proceed to decision even after the original parties have settled or sought dismissal.  "The weight of authority in the United States Courts of Appeals supports the principle that an intervenor can continue to litigate after dismissal of the party who originated the action."  Id. at 1351, quoting U.S. Steel v. EPA, 614 F.2d 843, 845 (3rd Cir. 1979).

The Fifth Circuit disagreed, as do I, with those courts that have limited employee participation in part on the ground that this is necessary to the Secretary's authority as prosecutor under the Act.  "Focussing solely on the prosecutorial phase of the process misses the issue in the case.  The Union's rights arise at the adjudicatory stage, the administration of which falls within the Commission's bailiwick."  Id. at 1349.

In short, the Fifth Circuit found that on balance there is more evidence favoring full employee participation in employer-initiated proceedings than against it, that Congress intended employees to be more than mere "gadflies."  "[W]e understand Congress to have attempted to erect a comprehensive structure that would allow for meaningful participation of those most personally concerned with workplace safety, -- the workers."  Id. I agree.

I am mindful of the fact that full employee involvement may cause delay in some small proportion of the cases.  But it seems to me delay for purposes of hearing all the facts is to be preferred over final orders based on incomplete evidence.  In any case, I find the Secretary's current horror of delay somewhat strange; during the first eight years of the Act, the Secretary submitted literally thousands of proposed settlements for Commission approval with no apparent ill result.  This Commission has now been in existence for almost thirteen years, but the number of cases in which the Secretary has considered it important enough to challenge Commission jurisdiction over the substance of settlements are fewer than ten.  Thus, interference with administration of the Act or the judicial process is for all practical purposes nonexistent, and at one point the Secretary had an apparent policy of seeking employee comment and cooperation in arriving at settlement agreements.  See Reynolds Metals Company, 79 OSHRC 4/A2, 7 BNA OSHC 1042, 1979 CCH OSHD ¶ 23,295 (No. 78-2485, 1979); Gardinier, Inc., and International Chemical Workers Local 439, 79 OSHRC 80/D5, 7 BNA OSHC 1738, 1979 CCH OSHD ¶ 23,892 (No. 78-3895, 1979); Kaiser Aluminum & Chemical Corporation, 78 OSHRC 103/A2, 6 BNA OSHC 2172, 1976-77 CCH OSHD ¶ 21,398 (No. 76-2293, 1978), rev'd, 647 F.2d 171 (9th Cir. 1981) (Secretary abrogated settlement agreement on employee representative objection); I.T.T. Thompson Industries, Inc., 78 OSHRC 70/D10, 6 BNA OSHC 1944, 1978 CCH OSHD ¶ 22,944 (Nos. 77-4174 and 77-4175, 1978).  I would urge the Secretary to return to this policy and encourage participation in settlements by representatives of employees in those instances where they have entered a case as a party.


The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).


FOOTNOTES:

[[1]] The union's petition for review suggests that it objected before the judge to the reasonableness of the abatement period in the settlement agreement.  The judge found otherwise, as do we.  At the hearing held by Judge Ditore on the union's objections to the settlement, the judge invited the union to state an objection to the abatement period but the union did not do so.

The union's petition also argues that the settlement agreement was not served in accordance with Commission Rule 100(c).  The settlement agreement was not served on counsel for the union, but at the hearing counsel for the union stated that he did have a copy of the settlement agreement.  The union has not claimed that any shortness of notice prevented it from formulating an objection to the abatement date.  Indeed, after the hearing, the judge waited far longer than the ten-day objection period prescribed by Commission Rule 100(c) before approving the settlement agreement.  The union's objections therefore do not provide a basis for challenging the judge's approval of the settlement.

[[4]] Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92nd Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970 at 154-155 (Comm. Print 1971) [herein cited as Legislative History].  The bill referred from committee, which is addressed in the above passage, contemplated hearings within the Department of Labor; hence, the allusion in the excerpt to hearings before the Secretary.  As detailed in the opinion of the court, however, the enforcement scheme was modified on the Senate floor to provide for review before an independent administrative body in the form of the Review Commission.  Apart from the substitution of the Review Commission for the Secretary, procedures set forth in the final Act are, in all relevant respects, identical to those which are the subject of this Committee report.