Docket No. 77-4386

MOBIL OIL CORPORATION

OSHRC Docket No. 77-4386

Occupational Safety and Health Review Commission

August 6, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

Gordon P. Selfridge, for the employer

Joseph P. Altier, Petroleum Trades Employees Union, for the employees

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner:

A decision of Administrative Law Judge Edward V. Alfieri is before the Commission for review pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Judge Alfieri approved a settlement agreement between the Secretary of Labor ("the Secretary") and Mobil Oil Corporation ("Mobil Oil" or "the Company") without considering the objections raised by the affected employees through their authorized employee representative, the Petroleum Trades and Employees Union, Local 419 ("the P.T.E.U." or "the Union"). The judge concluded that the P.T.E.U. lacked standing to challenge the sufficiency of the abatement plan included in the settlement agreement. The Commission reverses the judge's decision, declines to approve settlement agreement, and remands the case for further proceedings.

On November 30, 1977, the Secretary issued a citation [*2] to Mobil Oil alleging a serious violation of section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), n1 at the company's petroleum tank storage facility on Staten Island, New York. The citation concerned the required method used by the bulk plant men to perform manual gauging and sampling of petroleum stored in floating roof tanks. Specifically, the allegations were that these employees were required "to descend onto the roof of said tank(s) without any tests being taken of the potentially toxic/combustible atmospheres into which they are required to enter" and "to perform their task alone when the floating roof(s) were ten (10) feet or more below the tank(s) shell." Lack of adequate training was also alleged. Immediate abatement was required and a $540 penalty was proposed.

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n1 This section provides that "[e]ach employer . . . shall furnish to each of has employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

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Mobil Oil contested the citation and proposed penalty and a hearing was scheduled before Judge Alfieri. However, prior to the hearing the judge learned that the Secretary and Mobil Oil had settled the case. He therefore canceled the hearing and directed the parties to file their agreement.

Before the parties responded, the P.T.E.U. elected party status on behalf of the affected employees. The judge ordered service of all documents on the P.T.E.U. Shortly thereafter, the Secretary notified Mobil Oil that the settlement agreement would not be filed and that the settlement negotiations should continue. The Secretary stated that his reconsideration of the proposed abatement plan included in the agreement revealed that it did not best provide for employee safety because the plan was based on outdated material.

Mobil Oil objected but also continued settlement negotiations. As a result, the Secretary and Mobil Oil reached a second agreement and, on May 18, 1978, the Secretary sent a copy of this agreement to Mobil Oil for signature and service on affected employees. On May 25, 1978, a general objection to the settlement was filed with the judge by the P.T.E.U. The Union [*4] also requested "a formal hearing so that we can press our viewpoint on this matter as we have not participated in any discussions because of no notice to us." In view of this response, Judge Alfieri held a prehearing conference for all parties on May 31, 1978. At the hearing the Secretary and Mobil Oil submitted a signed copy of the second settlement agreement. The judge then scheduled a hearing for June 6, 1978, on whether he should approve the settlement agreement.

The proposed abatement plan incorporated into the second settlement agreement pertains to gauging procedures for floating roof tanks during two defined times: "detector alarm conditions" and the time after detector alarm conditions ("less critical period"). Detector alarm conditions exist while the floating roof of the tank is being refloated and for four hours thereafter. During this time, Mobil Oil is required, among other things, to have immediately available at the tank gauging platform a second person to maintain visual contact with the gauger on the floating roof performing manual gauging and sampling of petroleum. During the less critical period, Mobil Oil is required only to have available at the terminal [*5] a second person to maintain radio contact with the gauger while he performs his tasks, first when he arrives at the top of the tank and then every ten minutes thereafter. If at any time the second person cannot make contact with the gauger, then he must proceed immediately to the tank after alerting a third backup person.

At the hearing, the P.T.E.U. argued that the proposed abatement plan is insufficient because of the provision for ten-minute radio contact between the gauger and a second person during the less critical period. The Union asserts that the gauger's safety requires an immediately available second person maintaining visual contact with the gauger at all times. In response, Judge Alfieri stated that this objection could not be heard. Noting Commission precedent, n2 the judge stated that the Commission had interpreted section 10(c) of the Act, 29 U.S.C. § 659(c), to limit employees' objections in Commission proceedings to the reasonableness of the abatement period. The judge specified that objections to the sufficiency of the abatement plan must be tied to an objection to the abatement time. Because immediate abatement is required in this case, the Union conceded [*6] that its objection could not be framed in terms of an objection to the abatement time. The Secretary and Mobil Oil at this point asserted that, in view of their agreement that the abatement plan was sufficient and the Union's lack of standing to object to the sufficiency of the settlement agreement, the agreement should be approved. Accordingly, Judge Alfieri denied further hearing on the Union's objections.

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n2 United Automobile Workers, Local 588 (Ford Moter Co.), 76 OSAHRC 58/B8, 4 BNA OSHC 1243, 1976-77 CCH OSHD P20,737 (No. 2786, 1976), aff'd, 557 F.2d 607 (7th Cir. 1977); Southern Bell Telephone & Telegraph Co., 77 OSAHRC 83/D1, 5 BNA OSHC 1405, 1977-78 CCH OSHD P21,840 (No. 10340, 1977).

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In his decision issued on July 6, 1978, Judge Alfieri affirmed his rulings at the hearing. He therefore approved the settlement without consideration of the P.T.E.U.'s objections. Consistent with the agreement, he affirmed the citation and assessed a $400 penalty.

The P.T.E.U. filed a letter objecting to [*7] the judge's order and I directed review of the case. n3 The P.T.E.U. argues on review that the Commission's interpretation of section 10(c) of the Act, on which the judge relied, is unduly narrow in light of the plain language of the last sentence of the section: "[t]he 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." The P.T.E.U. further argues that the Commission's interpretation limiting employee challenges to the abatement time is inconsistent with the purpose and objectives of the Act. According to the Union, the result of the narrow interpretation is to exclude the Act's beneficiaries, the employees, from any meaningful role in achieving appropriate abatement of workplace hazards.

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n3 In its letter, the Union stated that it would file a petition for review and indicated the grounds on which it objected to the judge's order. I regarded the letter as a petition for review and directed review on the issues raised by the Union, stating the following specific issues:

1) Whether the judge erred in concluding that the Authorized Employee Representative may not challenge the sufficiency of abatement in terms of the reasonableness of the abatement period under 29 U.S.C. § 659(c).

2) Whether the Judge erred in approving the settlement agreement filed by the Secretary and the Respondent without considering the objections raised by the Authorized Employee Representative.

3) Whether the settlement agreement approved by the Judge is consistent with the provisions and objectives of the Act.

Mobil Oil contends that the P.T.E.U.'s petition for discretionary review and the direction for review are both invalid However, Commission Rule 91a(d), 29 C.F.R. § 2200.91a(d), now redesignated Rule 92(d), 29 C.F.R. § 2200.92(d), provides:

At any time within 30 days after the filling of a decision of a judge, a case may also be directed for review by a member [of the Commission] upon his own motion upon any ground that could be raised by a party, but the issues would normally be limited to novel questions of law or policy or questions involving conflict in Administrative Law Judges' decisions. Any direction for review shall state the issued with particularity. Except in extraordinary circumstances, the Commission's power to review is limited to issues of law or fact raised by the parties in the proceddings below.

Because a Commission member can on his own motion direct review of any issues that could be raised by a party, Mobil Oil's arguments as to why the P.T.E.U.'s petition for reivew is defective need not be considered. As long as the direction for review is independently valid, the issues set forth in it are before the Commission for review regardless of a defect in the petition.

Clearly the direction for review is valid. Contrary to Mobil Oil's contention, the issues stated in the direction for review apprise the parties of the issues the Commission intends to review. These issues are inherent in the objections of the P.T.E.U. raised in the proceedings below, and they present substantial questions of law. The direction for review is therefore consistent with Rule 92(d).

[*8]

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On review, the Secretary and Mobil Oil support the judge's decision. Both argue that the decision comports with established Commission precedent, and Mobil Oil extensively argues that the precedent is fully consistent with the Act's purpose and objectives. Briefly stated, Mobil Oil's reasoning is that strictly clear and narrow limitations on the employees' role in the enforcement proceedings are necessary to preserve the Secretary's authority to enforce the Act in a manner that is consistent with the varying demands of the public interest. Both parties additionally argue that their settlement agreement should be approved because the abatement plan included in it effectuates the Act's goal of abatement of workplace hazards.

This opinion addresses these issues in terms of the statutory right of party status conferred by section 10(c) of the Act (Part III) and the settlement agreement offered for Commission approval (Part IV). It is concluded that the Act independently creates a right to contest the citation distinct from the absolute right afforded employees to participate in Commission proceedings [*9] (Parts III A & B) and that the Commission adopted appropriate rules of procedure implementing this statutory framework (Part III C). In addition, the statute is interpreted as a whole to confer rights on employees that are independent of, though interrelated with, the Secretary's enforcement authority (Part III D) and that the Commission majority erred in United States Steel Corp., 77 OSAHRC 12/C3, 4 BNA OSHC 2001, 1976-77 CCH OSHD P21,463 (No. 2975, 1977), by limiting employee party status to the "reasonableness of the abatement period" (Part III E). In considering employee objections to a settlement agreement, a reasonable balance is struck if a settlement agreement is approved over the objections of the participating employees provided the settlement satisfies certain minimum conditions (Part IV A & B). Finally, the abatement method and abatement period are inextricably intertwined and employee objections to an abatement plan must be considered in determining whether the mini mum conditions for approval have been satisfied (Part IV C). n4

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n4 Several courts of appeals have considered these and related issues and reached contrary conclusions. See text and nn. 23, 25, 29, 34, infra. Nevertheless, the Commission adheres to its longstanding and often-stated view that an administrative agency charged with the duty of formulating uniform and orderly national law for these adjudications is not bound to acquiesce in the views of the United States courts of appeals that conflict with those of the agency. Consistent application of Commission rules of procedure is also essential to maintain the procedural regularity required for efficient administration of Commission proceedings. Certainly, the Commission gives due deference to the views of the circuits. However, the Commission is obligated to establish and follow its own precedent in carrying out its adjudicatory functions under the Act unless that precedent is reversed by the United States Supreme Court. Raybestos Friction Materials Co., 80 OSAHRC 111/E14, 9 BNA OSHC 1141, 1980 CCH OSHD P24,910 (No. 80-2793, 1980); Farmer's Export Co., 80 OSAHRC 66/A?, 8 BNA OSHC 1655, 1980 CCH OSHD P24,569 (No. 78-1708, 1980); S&H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), rev'd on other grounds, 659 F.2d 1273 (5th Cir. 1981); Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976).

[*10]

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III

Analysis of these issues necessarily begins with the language of the statute. E.g., American Textile Manufacturers Institute, Inc. v. Donovan, 101 S.Ct. 2478, 2490 (1981). In full, section 10(c) of the Act provides:

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 [*11] 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 Commission's adjudicatory jurisdiction is invoked under section 10(c) when a notice of contest is filed by either the cited employer or affected employees. The interests of a party in contesting the Secretary's citation are specified in the statute. An employer may contest the entire citation, i.e., the existence of a violation, its classification and associated penalties, and the abatement period. n5 Similarly, employees may contest the citation "alleging that the period of time fixed in the citation for the [*12] abatement of the violation is unreasonable." Both the employees' and the employer's right to initiate Commission proceedings by a notice of contest is included in the same clause. The adverse interests of the employers and the employees in relation to the Secretary's citation are the jurisdictional foundation for the adjudication that follows. See generally Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442 (1977). n6

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n5 See Penn-Dixie Steel Corp. v. OSHRC, 553 F.2d 1078 (7th Cir. 1977). An employer may also limit its contest to the merits of an alleged violation or the proposed penalties. See Acme Metal, Inc., 76 OSAHRC 7/B14, 3 BNA OSHC 1932, 1975-76 CCH OSHD P20,364 (Nos. 1811 etc., 1976).

n6 Section 10(c) also authorizes hearings on employer applications to modify the abatement requirements of a citation. See generally Commission Rule 34, 29 C.F.R. § 2200.34; Gilbert Mfg. Co., 79 OSAHRC 68/A2, 7 BNA OSHC 1611, 1979 CCH OSHD P23,782 (No. 76-4719, 1979).

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After a hearing opportunity [*13] has been extended to the parties, the Commission issues an order, based on findings of fact, "affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief." n7 The form of Commission adjudication is also mandated by the applicable provisions of the Administrative Procedure Act, specifically 5 U.S.C. § 554.

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n7 As a practical matter, the Commission is the original forum for adjudicating compliance with the general duty clause of the Act and the various occupational safety and health standards promulgated by the Secretary, 29 U.S.C. § 654. See Babcock & Wilcox, Co. v. Marshall, 622 F.2d 1160 (3d Cir. 1980). The only exception is the rarely invoked jurisdiction of the district court to issue injunctive relief against imminent dangers. 29 U.S.C. § 662. See Hodgson v. Greenfield & Assoc., 1 BNA OSHC 1015 (E.D. Mich. 1972). See generally Whirlpool Corp. v. Marshall, 445 U.S. 1, 8-10 (1980).

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Distinct from the contest rights which confer Commission [*14] jurisdiction, section 10(c) concludes with a Congressional direction that the rules of procedure adopted by the Commission "shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this subsection." Not only is this clause granting intervening party status to the employees separate and distinct from the right to initiate Commission proceedings, it is not qualified by the earlier specific language limiting employee contests. In addition, the general reference to "hearings under this subsection" indicates that employee interests transcend those interests that might lead to an employee notice of contest. For example, the possible vacation of a citation for a hazardous condition vitally affects the statutory interests of employees whose lives, health and safety will be at risk if the condition persists in violation of the Act. Moreover, other employee rights under the Act are not limited to the abatement period even in the enforcement context. See 29 U.S.C. § § 657(e), (f)(1). n8 In fact, the statute directly involves employees in the entire range of administrative and judicial functions covered by the Act. [*15] See Oil, Chemical & Atomic Workers Int'l Union & Its Local 3-499 v. OSHRC (American Cyanamid Corp.), 671 F.2d 643, 647 (D.C. Cir. 1982), petition for cert. filed sub nom. American Cyanamid Corp. v. OCAW, 50 U.S.L.W. 3803 (Mar. 26, 1982) (No. 81-1784). n9 Thus, the earlier limitation of section 10(c) regarding employee contests is unique in its reference to the abatement period. Moreover, qualifying words are to be applied to words or phrases immediately preceeding and not extended to more remote words or phrases. E.g., United States v. Pritchet, 470 F.2d 455 (D.C. Cir. 1972). "By permitting employees to elect party status, and not qualifying this status with the same limits imposed on employee initiation of Commission proceedings, it is apparent that Congress intended to continue the broad scope of employee participation in the enforcement of the Act through the adjudicative stages." Oil, Chemical & Atomic Workers Int'l Union & Its Local 3-499 v. OSHRC, 671 F.2d at 648. Accordingly, the general grant of employee party status is not qualified by the earlier qualifying language associated exclusively with employee contests.

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n8 See notes 26-27, infra.

n9 In standard-setting proceedings, employees and employee representatives may petition the Secretary to promulgate occupational safety and health standards, 29 U.S.C. § 655(b)(1), may participate as "interested persons" in the rulemaking proceedings, 29 U.S.C. § 655(b)(2), must be represented on any advisory committee reviewing a standard, 29 U.S.C. § 656(a)(1) and (b), and may obtain pre-enforcement judicial review of the standard, 29 U.S.C. § 655(f). In any standard providing for medical surveillance an employee may exercise a right of disclosure. 29 U.S.C. § 655(b)(7). In addition, there must be an opportunity to observe environmental and personal monitoring and access to exposure records must be provided. 29 U.S.C. § 657(c)(3).

An authorized employee representative may also request a health hazard evaluation by the National Institute for Occupational Safety and Health. 29 U.S.C. § 669(a)(6). Moreover, employees and employee organizations are entitled to the dissemination of information collected by NIOSH in its research, demonstrations and experiments, 29 U.S.C. § 669(d), and training and consultation shall be provided to assist in the recognition and prevention of occupational injuries and illnesses, 29 U.S.C. § 670(c).

[*17]

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Section 10(c) is unambiguous in its direction to afford employees or their representatives an opportunity to participate as parties in all Commission hearings. Congress did not leave the employees' participatory right to the discretion of agency rulemaking n10 or the vagaries of intervention under the Administrative Procedure Act, 5 U.S.C. § 554(c)(3) n11. Instead, Congress employed the legal term "party" expecting that the Commission would give the term its legal meaning. See Bradley v. United States, 410 U.S. 605 (1973); Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911). In contrast to an amicus curiae, n12 a "party" is an active participant in the litigation to the full extent required for its complete determination. See Clark v. Barnard, 108 U.S. 436, 448 (1883); United States v. Associated Milk Products, Inc., 394 F.Supp. 29, 41 (W.D. Mo. 1975). In the context of an employer contest the Secretary is properly considered a plaintiff and the employer a defendant within the framework of the Commission Rules and the Federal Rules of Civil Procedure. Compare [*18] 29 C.F.R. § 2200.33(a)(b)(1981) with Fed. R. Civ. P. 3, 7(a), 12(a). n13 In a controversy between the Secretary and the employer, the employees are authorized to elect party status. 29 U.S.C. § 659(c); 29 C.F.R. § 2200.20(a). The statutory status of employees is identical to the absolute intervention afforded interested parties before other federal agencies and the courts. See Brotherhood of Railroad Trainmen v. Baltimore & Ohio Railroad, 331 U.S. 519 (1947) (absolute right to intervene under Interstate Commerce Act, which provides that representatives of employees of a carrier "may intervene and be heard in any proceeding under this Act affecting such employees"): cf. Interstate Broadcasting Co. v. United States, 286 F.2d 539 (D.C. Cir. 1960) (party in interest in broadcast license entitled to intervene in FCC proceeding as a matter of right); United States v. Ketchikan Pulp Co., 430 F. Supp. 83 (D. Alaska 1977) (citizen intervention of right in government enforcement action under Federal Water Pollution Control Act); 28 U.S.C. § 2323 (parties in interest are intervenors of right in judicial enforcement of ICC order). n14

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n10 See, e.g., International Union, UAW, Local 283 v. Scofield, 382 U.S. 205, 219 n. 14 (1965). Scofield dealt with the statutory scheme for adjudicating unfair labor practice charges under section 10 of the National Labor Relations Act, 29 U.S.C. § 160, which parallels sections 9 and 10 of the Occupational Safety and Health Act, 29 U.S.C. § § 658, 659. In NLRB proceedings, the charging party is afforded "formal recognition":

. . . he participates in the hearings as a "party"; he may call witnesses and cross-examine others, may file exceptions to any order of the trial examiner, and may file a petition for reconsideration to a Board order, 28 Fed. Reg. 7973 (1963), as amended, 29 CFR § 102.46 (1965). Of course, if the Board dismisses the complaint, he can obtain review as a person aggrieved, which serves the "public interest" by guaranteeing that the Board interpretation of the relevant provisions accords with the intent of Congress.

382 U.S. at 219 (footnotes omitted). See also Oil, Chemical & Atomic Workers Int'l Union & Its Local 3-499 v. OSHRC, 671 F.2d 643, 649 n.6 (D.C. Cir. 1982). In Scofield, the Court reserved ruling on the scope of intervention rights in the context of settlement agreements proposed during appellate review. 382 U.S. at 222 n.19. However, the Court observed that nothing in the record indicates that these proposed settlement agreements will be thwarted as a consequence of intervention. Id. Commission experience is consistent with the Court's observation. Affected employees and their representatives have elected party status on numerous occasions and have actively participated in the litigation of these Commission cases. See, e.g., American Cyanamid Co., 81 OSAHRC 49/A2, 9 BNA OSHC 1596, 1981 CCH OSHD P25,338 (No. 79-5762, 1981) (motion for summary judgment), dismissal denied sub nom. Oil Chemical & Atomic Workers Int'l Union & Its Local 3-499 v. OSHRC, 671 F.2d 643 (D.C. Cir. 1982) (employee petition for judicial review under 29 U.S.C. § 660(a)), petition for cert. filed sub nom. American Cyanamid Corp. v. OCAW, 50 U.S.L.W. 3803 (Mar. 26, 1982) (No. 81-1784); Hull Pottery Co., 82 OSAHRC 18/D9, 10 BNA OSHC 1575, 1982 CCH OSHD P25,972 (No. 78-555, 1982) (trial); Mobil Oil Corp., 82 OSAHRC 19/F4, 10 BNA OSHC 1606, CCH OSHD P (No. 80-6678,, 1982) (trial). Objections to settlement agreements are not an invariable consequence of their intervening party status. See Part IVB, infra.

n11 Compare Citizens for Allegan County v. FPC, 414 F.2d 1125 (D.C. Cir. 1969) with City of San Antonio v. C.A.B., 374 F.2d 326 (D.C. Cir. 1967).

n12 An amicus curiae is not a "party" to the litigation, International Union, UAW, Local 283 v. Scofield, 382 U.S. 205, 209 (1965), and its arguments are not considered unless urged by a party to the litigation, e.g., United Parcel Service, Inc. v. Mitchell, 101 S.Ct. 1559, 1562 n.2 (1981); Bell v. Wolfish, 441 U.S. 520, 531 n.13 (1979).

n13 In the context of traditional two-party litigation, the contesting employer and the Secretary would be described as "principal parties" because of their adverse interests. However, litigation before the Commission frequently involves three parties, each with interests potentially adverse to the other two. In this context, the simple alignments of an earlier era do not provide "the protection needed in a modern complex society." 3B Moore's Federal Practice P24.02 at p. 24-32.

n14 It is crucial to distinguish between absolute intervention (intervention of right) and permissive intervention. In absolute intervention, the status of the intervenor mandates the entry of an order granting intervention. In permissive intervention, a party's interest in the proceedings must be balanced against forum considerations, e.g., delay, before the court exercises its discretion to grant or deny intervention. Limitations on permissive intervention are not necessarily limitations on absolute intervention. As Professor Moore observed, "It would be meaningless to give him [an intervenor] an absolute right to intervene in order to protect his interest, if once in the proceeding he were barred from raising questions necessary for his own protection." 3B Moore's Federal Practice P24.16[4] at p. 24-631. See Park & Tillford, Inc. v. Schulte, 160 F.2d 984 (2d Cir. 1947). Professor Moore contrasts permissive intervention and concludes that when the issues introduced by the permissive intervenor unduly burden the proceeding, "[t]he remedy" . . . is to deny intervention, or at least to allow intervention only for limited purposes." Id. at p. 24-632. The Act precludes limitation of the absolute intervention afforded affected employees or their authorized representative.

Furthermore, the "scope" of absolute intervention is not "subordinated to the interests of the principal parties" as stated in the concurring opinion. Note 38, infra (Cleary, Comm'r, concurring). The term "subordination" has a distinct technical meaning in describing the relation between an intervenor and the original parties. Prior to the adoption of the Federal Rules of Civil Procedure, Equity Rule 37 provided:

Anyone claiming an interest in the litigation may at any time be permitted to assert his right of intervention, but the intervention shall be in subordination to, and in recognition of, the main proceeding.

3B Moore's Federal Practice P24.05 at p. 24-75. However, that requirement was negated with the adoption of Federal Rule 24 in 1937. Id. at PP24.05, 24.16.

Of course, every party's conduct is subject to the necessary limitations and restrictions imposed by the forum. E.g. Commission Rule 66, 29 C.F.R. § 2200.66. The final right to control the proceedings rests with the forum, not the parties. In addition, affected employees, authorized employee representatives, and employers participating in employee contests must elect party status before the hearing under Commission Rule 20. 29 C.F.R. § 2200.20. This is similar to the "timely application" requirement for intervention. Fed. R. Civ. P. 24(a), (b). See generally Note, The Tomeliness Threat to Intervention of Right, 89 Yale L.J. 586 (1980). Election at a later time is allowed only for good cause. 29 C.F.R. § 2200.20.

[*20]

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Intervention principles further aid in the interpretation of the participatory right of employee parties. See International Union, U.A.W., Local 283 v. Scofield, 382 U.S. 205 (1965). The underlying principle of intervention is that third parties are permitted to enter a controversy in order to protect interests that may be jeopardized by the litigation. In contrast to an amicus curiae, an intervening party may seek protection or affirmative relief in the pending litigation. 3B Moore's Federal Practice P24.02 at pp.24-33 to 24-34. Thus, the plaintiff's right to exclusively control its action is limited when court process would be used to the prejudice of the rights of interested third parties. Id. at P24.03 at pp.24-42, 24-46 to 24-47.

Employees have a direct and personal stake in the outcome of litigation before the Commission. In fact, the personal injuries and illnesses arising out of hazardous working conditions and the consequential burden in terms of "lost production, wage loss, medical expenses, and disability compensation payments" prompted the passage of the Act. 29 U.S.C. [*21] § 651(a); S. Rep. No. 1282, 91st Cong., 2d Sess. 2-5, 54, 61 (1970), reprinted in Subcomm. on Labor, Senate Comm. on Labor & Public Welfare, The Legislative History of the Occupational Safety and Health Act of 1970 at 142-5, 193, 200 (1971) ("Legis. History"). n15 Moreover, the affected employees have intimate contact with their working conditions, and thus may have significant information to offer regarding the alleged violations and the most appropriate form of relief. Cf. Trbovich v. United Mine Workers of America, 404 U.S. 528, 537 n.8 (1972) (interest in the formulation of post-election relief by affected employee); Brennan v. Connecticut State UAW Community Action Program Council, 60 F.R.D. 626, 630 (D. Conn. 1973) (same); United States v. Reserve Mining Co., 56 F.R.D. 408, 418-9 (D. Minn. 1972) (interest in abatement methods by environmental organization). In addition, the employees' immediate and long-term interests in a safe and healthful workplace will be determined by the Commission's order. If a violative condition is left unremedied in Commission litigation, the employees will remain exposed to the hazard. As a result, employees will be [*22] relegated to filing a new complaint with the Secretary, claiming that the conditions are hazardous notwithstanding the Commission's determination. See Marshall v. Oil, Chemical & Atomic Workers Int'l Union (IMC Chemical Group), 647 F.2d 383, 388 (3d Cir. 1981). The inefficiency of this approach is apparent -- it generates the piecemeal adjudication of workplace hazards sought to be avoided by the exclusive delegation of administrative adjudication to the Commission. See generally 29 U.S.C. § 651(b)(3). Furthermore, a new employee complaint to the Secretary charging the hazardousness of the same condition is unlikely to result in a new inspection by the Secretary or re-citation in light of the prior Commission determination. The principal parties would be identical in a later contest of the subsequent citation. Accordingly, the doctrine of res judicata would bar a new action when in a prior case the Secretary had litigated an employer's specific worksite conditions to a final order that resolved the disputed legal and factual issues. See International Harvester Co. v. OSHRC, 628 F.2d 982 (7th Cir. 1980). Collateral estoppel will apply to issues actually [*23] litigated and necessarily determined in the prior case. See Continental Can Co. v. Marshall, 603 F.2d 590 (7th Cir. 1979). As a consequence, the exclusion of the intervening employees from the original contest could well preclude any further government consideration of their complaint or subsequent enforcement action.

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n15 See H.R. Rep. No. 1291, 91st Cong., 2d Sess. 14-16 (1970), Legis. History at 844-6; Whirlpool Corp. v. Marshall, 445 U.S. 1, 11-12 & n.16 (1980).

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Moreover, Congress created the Commission to hear and provide relief to parties appearing before it. It specifically withdrew adjudicatory responsibilities from the Secretary when it created the Commission as an independent agency. Amdt. No. 1061 to S.2193, 91st Cong., 2d Sess. (1970) (Sen. Javits), Legis. History at 381, amendment approved, 116 Cong. Rec. 37613 (1970), Legis. History at 479; H.R. Rep. No. 1765, 91st. Cong., 2d Sess. 13 (1970), Legis. History at 1166. n16 Employees were provided with an [*24] opportunity to be heard in Commission proceedings, not simply to complain to the Secretary regarding hazardous conditions. Thus, the employees' right to appear as parties before the Commission precludes returning the affected employees to the Secretary for relief that is obtainable in litigation before the Commission by the election of party status. n17 Though the employees' participation is limited to the violations alleged by the Secretary's citation and complaint, this limitation applies only to the violative conditions and not the appropriate relief to be afforded by the Commission. See Trbovich v. United Mine Workers of America, 404 U.S. at 537 & n.8; Brennan v. Connecticut State UAW Community Action Program Council, 60 F.R.D. at 630.

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n16 See H.R. 16785, 91st. Cong., 2d Sess. § 11(b)(1970), Legis. History at 954.

n17 Only penalties may be mitigated by the Secretary without resort to the Commission or the courts. See 29 U.S.C. § 655(e). Reconsideration of the Commission's final order by the Secretary's examination of the employees' evidence and arguments would in fact permit the Secretary to review an order that Congress made reviewable exclusively in the courts of appeals, 29 U.S.C. § 660(a); see Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. at 446-7.

[*25]

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Fairness and efficiency support the interpretation of section 10(c) that permits the intervening employees to participate in order to protect their statutory interest in safe and healthful working conditions. Accordingly, section 10(c) must be read to permit all parties to fully litigate the controversy initiated by the Secretary's citation so as to resolve as many of the issues as possible in one action.

In 1971, the Commission implemented the Congressional mandate of section 10(c) to provide affected employees or their representatives an opportunity to participate as parties to hearings under this subsection. n18 The interim rules specifically provided that "[i]n all proceedings brought pursuant to sections 10(a), 10(b) and 10(c) of the Act, the Secretary, the employer to whom the citation, notice of proposed penalties, or notice of failure to abate has been issued, and the affected employees or authorized employee representatives shall be deemed parties. . . ." 29 C.F.R. § 2200.5(a), 36 Fed. Reg. 17409, 17410 (Aug. 31, 1971) (Emphasis added). The equal status afforded both original and intervening [*26] parties was codified in the Commission's adoption of its permanent rule on party status in 1972. 29 C.F.R. § 2200.20, 37 Fed. Reg. 20237, 20239 (Sept. 28, 1972). This rule permitted employees to "elect" party status at any time before the commencement of the hearing. Similarly, party status was afforded to employers when employees were the contesting party. 29 C.F.R. § 2200.20(b). Thus, the specific rights of interested intervening parties were established by Rule 20 as mandated for employees by the statute and properly afforded to employers as a matter of fairness under this statutory framework for adjudication. n19

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n18 The authority to adopt rules of procedure is delegated by section 12(g) of the Act, 29 U.S.C. § 661(g).

n19 In the absence of Rules 20 and 21 the Commission would have been required to conduct its proceedings in accordance with the Federal Rules of Civil Procedure. 29 U.S.C. § 661(f); 29 C.F.R. § 2200.2, 36 Fed. Reg. 17409 (Aug. 31, 1971). Under Federal Rule 24(a)(1), the affected employees would be entitled to a statutory right to intervene based on the unconditional language of section 10(c) of the Act. See Brotherhood of Railroad Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519 (1947). See generally 3B Moore's Federal Practice, P24.06 (1981). Similarly, the employer would be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest and intervention would have been permitted as of right under Federal Rule 24(a)(2). See generally 3B Moore's Federal Practice PP24.05, 24.09.

The Commission rules also recognized the distinction between the absolute right of employee intervention under the statute as contrasted with other forms of intervention permitted by the rules. 29 C.F.R. § § 2200.20, 2200.21; see Pennsylvania Truck Lines, Inc., 79 OSAHRC 79/D12, 7 BNA OSHC 1722, 1979 CCH OSHD P23,873 (No. 77-3050, 1979); Brown & Root, Inc., 7 BNA OSHC 1526, 1979 CCH OSHD P23,731 (No. 78-127, 1979).

[*27]

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In spite of the unconditional statutory grant of invervening party status to affected employees and the Commission's implementing rules, the Secretary argues that this statutory language should be restricted to accommodate his "prosecutorial discretion." n20 The Secretary's argument overlooks the fundamental distinction between the initiation of enforcement proceedings and employee participation in adjudicatory proceedings. Certainly, the Secretary is granted discretion to investigate workplace hazards, issue citations, mitigate penalties and enforce the Commission's final orders, 29 U.S.C. § § 657(a), 658(a), 655(e), 660(a), respectively. n21 Moreover, the Act reserves to the Secretary the exclusive authority to initiate an enforcement action by issuing a citation under section 9 of the Act. 29 U.S.C. § 658. Employees are not authorized to issue a citation. 29 U.S.C. § 657(f)(2). Furthermore, the statute does not create any independent cause of action by affected employees against their employers for allegedly violative conditions. 29 U.S.C. § 653(b)(4); see, e.g., United Steelworkers [*28] of America v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980), cert. denied, 101 S.Ct. 3148 (1981). Thus, enforcement actions under section 9 may only be initiated by the Secretary. n22

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n20 "Prosecutorial discretion" can only be defined in reference to the specific governmental authority exercised. It is not a "magical incantation which automatically provides a shield for arbitrariness." Medical Comm. for Human Rights v. SEC, 432 F.2d 659, 673 (D.C. Cir. 1970), dismissed as moot, 404 U.S. 403 (1972). Enforcement discretion is entirely dependent on the government function assigned, the range of discretion delegated, and the adjudicatory forum involved. Certainly, criminal proceedings involve a broad range of enforcement discretion. Compare Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978) and United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973) with Blackledge v. Allison, 431 U.S. 76 (1977) and NAACP v. Levi, 418 F.Supp. 1109 (D.D.C. 1976), dismissed as moot sub. nom. NAACP v. Bell, 76 F.R.D. 134 (D.C. Cir. 1977). However, the Commission is not a criminal tribunal. McGowan v. Marshall, 604 F.2d 885 (5th Cir. 1979); Brennan v. Winters Battery Mfg. Co., 531 F.2d 317 (6th Cir. 1975); Frank J. Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (3d Cir. 1975), aff'd on other grounds sub nom. Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977). The Commission is an administrative tribunal created to adjudicate specific statutory duties. Atlas Roofing Co. v. OSHRC, 430 U.S. at 455-7, 461.

Furthermore, prosecutorial discretion in civil and administrative proceedings is reviewable. Dunlop v. Bachowski, 421 U.S. 560 (1975) (reviewable: Secretary of Labor's refusal to file a complaint under the Labor-Management Reporting and Disclosure Act); Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584 (D.C. Cir. 1971) (reviewable: EPA determination not to institute a proceeding to suspend or cancel a pesticide registration); Medical Comm. for Human Rights v. SEC, supra (reviewable: SEC determination not to require inclusion of a shareholder proxy proposal); see Marshall v. Jerrico, Inc., 446 U.S. 238, 249-250 & n.11 (1980) (reviewable: prosecutorial discretion under Fair Labor Standards Act).

n21 These exercises of the Secretary's discretion are not subject to direct administrative review. Moreover, judicial review of a specific exercise of this discretion is limited. See 29 U.S.C. § 662(a) (Secretary's failure to seel, relief against an imminent danger reviewable in district courts); 5 U.S.C. § § 701-706 (general judicial review provisions).

n22 Though employees may not initiate enforcement proceedings, this is not inconsistent with their right to participate in those proceedings. See Trbovich v. United Mine Workers of America, 404 U.S. 528, 536-7 (1972); International Union, UAW, Local 283 v. Scofield, 382 U.S. at 221. In fact, the absence of a private right of action reinforces the necessity of the intervening party's participation in this exclusive forum.

With respect to the statutory right of action created against an employer for discriminating against an employee for exercising his or her rights under the Act, the Sixth Circuit has concluded that section 11(c) of the Act, 29 U.S.C. § 660(c), does not create an implied private right of action. Taylor v. Brighton, 616 F.2d 256 (6th Cir. 1980). The court considered the explicit provision for an alternative means of redressing this form of discrimination -- a cause of action brought by the Secretary in the United States district court -- as precluding a private civil action by the employee. id. at 263-4. However, the absence of a private right of action with respect to retaliatory discrimination does not resolve the question of intervention in enforcement proceedings before the Commission. Congress expressly severed the two actions, assigning discrimination actions to the district courts and enforcement actions to the Commission. Compare 29 U.S.C. § 660(c) with Federal Mine Safety and Health Act Amendments of 1977, § 105(c)(2), (d), 30 U.S.C. § 815(c)(2), (d) (discrimination and enforcement actions assigned to the Federal Mine Safety and Health Review Commission).

[*29]

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The citation represents the exercise of the Secretary's discretion under sections 9 and 10 of the Act. However, once a citation is issued and a contest is filed the Commission is the exclusive post-citation forum and the Secretary's exercise of enforcement discretion is the heart of the controversy before the Commission. n23 Parties with interests adverse to the Secretary invoke Commission jurisdiction by their notices of contest. Moreover, their adverse interests confer intervening party status in the event they do not contest the citation but another party does. Commission Rule 20(a) & (b), 29 C.F.R. § 2200.20(a) & (b) (1981).

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n23 The court in Marshall v. Sun Petroleum Prod. Co. considered a citation to be "self-executing" under the Act. 622 F.2d 1176, 1184 (3d Cir. 1980). However, once a citation is contested it is no longer self-executing -- abatement is automatically stayed during Commission proceedings unless the contest is not initiated in good faith or the contest has been filed for the sole purpose of penalty avoidance. 29 U.S.C. § § 659(b), 666(d). In addition, a further stay of the Commission's final order is available on judicial review. 29 U.S.C. § 660(a). Thus, a citation is "self-executing" only when Commission jurisdiction has not been invoked by a notice of contest.

[*30]

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The mere existence of enforcement discretion does not limit the statutory status of the intervening party. This is not to suggest that the Secretary is deprived of enforcement discretion but that this discretion is subject to independent review when it is involved in an enforcement action before the Commission. The interests of all parties, governmental and private, are subject to the scrutiny of adversarial adjudication and "issues cannot be resolved by a doctrine of favoring one class of litigants over another," Schlagenhauf v. Holder, 379 U.S. 104, 113 (1964). Unlike the earliest versions of the legislation which vested investigatory, enforcement and adjudicatory authority exclusively in the Secretary, n24 Congress ultimately assigned adjudicatory responsibilities to the Commission under section 10 of the Act. H.R. Rep. No. 1765, 91st Cong., 2d Sess. 13 (1970) (conference report), Legis. History at 1166. Here the parties' adverse interests are to be adjudicated independent of the investigatory and enforcement discretion assigned to the Secretary. See S. Rep. No. 1282, 91st Cong. [*31] 2d Sess. 63 (1970) (minority view of Sens. Dominick & Smith), Legis. History at 202. Thus, the Secretary is deprived of the power to issue an enforceable order once a notice of contest has been filed. Instead, the government must come to an adjudicatory forum to obtain an enforceable final order. See United States v. Ketchikan Pulp Co., 430 F. Supp. at 86 (analogous judicial provision of Federal Water Pollution Control Act). n25

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n24 S.2193, 91st Cong., 1st Sess. § 6(a) (1969) (bill as originally introduced), Legis. History at 11-12; S.2193, 91st Cong., 2d Sess. § 10 (1970) (bill as reported by Senate Committee), Legis. History at 255-8; S.Rep. No. 1282, 91st Cong., 2d Sess. 14-15 (1970), Legis. History at 154-5; see text accompanying note 16, supra. Judicial review of the Secretary's enforcement orders could be obtained in the United States courts, S.2193, 91st Cong., 1st Sess. § 7(a) (1969), Legis. History at 12; S.2193, 91st Cong., 2d Sess. § 10(d), Legis. History at 258.

n25 In Oil, Chemical & Atomic Workers Int'l Union v. OSHRC (American Cyanamid Co.), the court relied on section 10(a) of the Act as the origin of the Secretary's discretion to settle cases over employee objections and reasoned that an employer's withdrawal of its notice of contest ousts the Commission of jurisdiction. 671 F.2d 643, 650 n.7 (D.C. Cir. 1982). The analysis overlooks the fact that settlements involve a wide variety of bargained-for-exchanges between the parties and do not necessarily dispose of an entire contest. Compare, e.g., Nu-Way Mobile Home Mfg., Inc., OSHRC No. 80-7082-A (May 28, 1982) (contest partially settled and severed for disposition) and Avalotis Painting Co., 81 OSAHRC 7/B1, 9 BNA OSHC 1226 n.1, 1981 CCH OSHD P25,157 at p. 31,055 n.1 (No. 76-4774, 1981) (partial dismissal of citation & partial withdrawal of contest) with Research Cottrell, Inc., Hamon Cooling Tower Div., 80 OSAHRC 113/F13 (No. 80-2431, 1980) (complete withdrawal of notice of contest) and Mass. Bay Electrical Corp., No. 80-5380 (Oct. 16, 1981) (complete withdrawal of citation). Furthermore, a contesting party usually seeks to withdraw its notice of contest when "the promise of another party has not led to the motion to withdraw the notice of contest." Commission Rule 100a, 29 C.F.R. § 2200.100(a). If a settlement prompts the withdrawal, the requirements of the Commission Rule on settlements must be satisfied. Id.; see Commission Rule 100, 29 C.F.R. § 2200.100; cf. Fed. R. Civ. P. 23(e) (compromise or settlement of class action requires court approval); Fed. R. Civ. P. 23.1 (derivative actions); Fed. R. Civ. P. 23.2 (unincorporated associations). In either case, Commission rules specifically apply and jurisdiction is not terminated until the appropriate motion has been granted. Compare Commission Rules 100 & 100(a), 29 C.F.R. § § 2200.100 and 100(a) with Fed. R. Civ. P. 41 and Marshall v. OSHRC (IMC Chemical Group, Inc.), 635 F.2d 544 (6th Cir. 1980) (dismissal of Secretary's complaint).

[*32]

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Furthermore, even in the exercise of the Secretary's investigatory and enforcement discretion, affected parties have distinct rights. Employees are explicitly permitted to file a complaint seeking inspection of a worksite hazard, 29 U.S.C. § 657(f)(1) n26, and both employees and employers are authorized to accompany the Secretary's representative during an inspection, 29 U.S.C. § 657(e). n27 Moreover, "[i]f the Secretary determines there are no reasonable grounds to believe that a violation or danger exists he shall notify the employees or representatives of the employees in writing of such determination." 29 U.S.C. § 657(f)(1). Both the employer and employees are also entitled to be informed that an imminent danger exists and that relief will be sought. 29 U.S.C. § 662(c). In addition, affected employees may seek a writ of mandamus if the Secretary "arbitrarily or capriciously fails to seek relief" to correct an imminent danger. 29 U.S.C. § 662(d). See generally Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980).

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n26 Section 8(f)(1) states in relevant part:

(f)(1) Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger. . . . If upon receipt of such notification the Secretary determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists. If the Secretary determines there are no reasonable grounds to believe that a violation or danger exists he shall notify the employees or representative of the employees in writing of such determination.

n27 Section 8(e) states:

(e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

[*34]

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The statute read as a whole establishes a series of checks and balances on the Secretary's enforcement discretion, including Commission adjudication of contested enforcement actions. Interpreting the statute to give effect to all its provisions, see Colautti v. Franklin, 439 U.S. 379 (1979), including the provision granting party status to affected employees, the Secretary's discretion and the statutory rights of employers and employees co-exist without sacrificing the interests of the private parties to the government's unlimited enforcement discretion.

The principal error of early Commission decisions was the failure to recognize the statutory distinction between a contesting party and an intervening party. In United States Steel Corp., 77 OSAHRC 12/C3, 4 BNA OSHC 2001, 1976-77 CCH OSHD P21,463 (No. 2975, 1977), the Commission majority limited the intervening party status of the employees to the "reasonableness of the abatement period." It relied on United Automobile Workers, Local 588 (Ford Motor Co.), 76 OSAHRC 58/B8, 4 BNA OSHC 1243, 1976-77 CCH OSHD P20,737 (No. 2786, 1976), [*35] aff'd, 557 F2d 607 (7th Cir. 1977) (hereinafter cited as UAW Local 588). n28 Without even discuss ing the relevant statutory issue, the majority in United States Steel simply concluded that "[o]ur decision in United Automobile Workers, Local 588 (Ford Motor Co.) is controlling in this case. . . ." 4 BNA OSHC at 2002, 1976-77 CCH OSHD P21,463 at p. 25,742. However, the literal interpretation of this language relating to employee contests has no application to the participatory rights independently established by section 10(c) with respect to employer contests. n29 Furthermore, the limitation on party participation imposed by the Commission in United States Steel leads to an anomalous result in this enforcement context. As Judge Louis H. Pollack observed:

. . . such a limitation would seem anomalous: Typically, an employer contests the Secretary's citation because the employer disputes the Secretary's finding of a violation -- a finding which in many cases flows from an employee or union complaint which the Secretary is by statute required to inquire into. And it would, indeed, be odd if the words of Section 10(c) precluded employees from pursuing at the adjudicative [*36] phase of OSHA enforcement the interests the Act encourages them to monitor at the investigative phase [footnote omitted].

Marshall v. Sun Petroleum Prod. Co., 622 F.2d 1176, 1189 (3rd Cir. 1980) (concurring in part & dissenting in part). Accordingly, Commissioner Cleary and I overrule United States Steel Corp., supra, to the extent it held that the employees' party status a statutorily limited to the "reasonableness of the abatement period."

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n28 In UAW the Commission held that the sufficiency of a noise abatement plan established by the citation "cannot be directly contested by the union" (original emphasis) and that the Commission lacks authority to issue an order modifying an abatement plan. 4 BNA OSHC at 1244, 1976-77 CCH OSHD at p. 24,865. The holding in UAW was based on an interpretation of that provision of section 10(c) of the Act pertaining to employee notices of contest. The Commission majority concluded that employee contests and the ensuing Commission proceedings are limited to questions concerning the reasonableness of the abatement period and that employees filing a notice of contest under section 10(c) cannot challenge the sufficiency of an abatement plan except to support their position that the period of time for abatement is unreasonably long. Primary reliance for this conclusion was placed on the reference in section 10(c) to the reasonableness of the period of time, which the Commission majority viewed as a literal limitation on the employee right to contest.

n29 In Marshall v. OSHRC(IMC Chemical Group, Inc.), 635 F.2d 544 (6th Cir. 1980), the court overlooks the party status provision entirely and states:

29 U.S.C. § 659(c) authorizes any employee of an employer contesting a citation issued by the Secretary to challenge as unreasonable the period of time fixed in the citation for abatement of the violation. This is the only provision in the act authorizing an affected employee to participate in OSHA proceedings before the Commission.

Id. at 551 (Original emphasis).

Similarly, in Marshall v. Sun Petroleum Prod. Co., 622 F.2d 1176 (3d Cir. 1980), the court relies exclusively on the legislative history underlying the contest rights of employees to concludes that "party status" is limited to the reasonableness of the abatement period. Id. at 1186 & nn.17&18. The court acknowledges that the employees must be considered "parties" but then concludes that employee party status is limited to the reasonableness of the abatement period because the contest right is merely a "fail-safe mechanism to insure employees the opportunity for a hearing" and is "operative only when the employer has not contested the citation and a hearing is desired by the employee or his representative." 622 F.2d at 1186 (Emphasis added). See also Marshall v. Oil, Chemical & Atomic Workers Int'l Union, 647 F.2d 383 (3d Cir. 1981). In other words if the employees want to guarantee their right to a hearing on the citation they must file a notice of contest within fifteen working days. It seems unlikely that Congress would require the employees to actively initiate the Commission's jurisdiction when their only intention is to be heard if their employer decides to invoke Commission jurisdiction. Party status protects their interest in the Commission proceedings without unnecessarily burdening the Commission with cases unless the employees have a specific claim that the abatement period is unreasonable.

[*37]

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After electing party status in this proceeding, the Union has objected to a bilateral settlement agreement concluded between the Secretary and the Respondent. The P.T.E.U. claims the abatement plan contained in the agreement is insufficient.

The Commission rules specifically encourage parties to resolve the controversy presented by a contesting party through a settlement acceptable to all parties provided certain minimum conditions are satisfied. 29 C.F.R. § 2200.100 (1981). The interim rules had provided that "[i]f all parties agree, settlement will be allowed at any stage of the proceeding." 29 C.F.R. § 2200.23, 36 Fed. Reg. 17409, 17414 (Aug. 31, 1971) (Emphasis added). However, in 1972, the rule on settlements was amended to simply provide that "[s]ettlement is encouraged at any stage of the proceedings where such settlement is consistent with the provisions and objectives of the Act ". . . and that "[s]ettlement agreements submitted by the parties shall be accompanied by an appropriate proposed order." 29 C.F.R. § § 2200.100(a), (b), 37 Fed. Reg. 20237, 20242 (Sept. 28, 1972).

Notwithstanding [*38] the advantages of a settlement agreed to by all parties, it is inevitable in any multi-party litigation that a settlement may be acceptable to some but not all of the parties, United States v. Ketchikan Pulp Co., 430 F.Supp. at 85, or that a party may not sign the agreement for reasons unrelated to the litigation, E.I. du Pont de Nemours & Co., 81 OSAHRC 11/A9, 9 BNA OSHC 1296, 1981 CCH OSHD P25,194 (No. 79-2261, 1981). For example, the contesting employees and the Secretary might agree on the settlement of an abatement contest that is unacceptable to the intervening employer. The intervening party's interest does not disappear because the contesting party and the Secretary have reached a mutually agreeable resolution of the contest, particularly when the interest of the intervening party involves a statutory right of participation or a statutory obligation to comply.

It is obvious that problems could result in government enforcement actions if an intervening party could block the approval of the settlement merely by objecting to its terms. See NLRB v. Oil, Chemical & Atomic Workers Int'l Union, 476 F.2d 1031, 1034-5 (1st Cir. 1976); United States v. Ketchikan [*39] Pulp Co., 430 F.Supp. at 85. The anomaly of approving a settlement when one of the parties to the action objects to the agreement is also obvious. See Id.; Brennan v. Connecticut State UAW Community Action Program Council, 60 F.R.D. 626, 632 (D. Conn. 1973). A reasonable procedural balance is struck under these circumstances by affording the intervening party with an opportunity to be heard on its objections to the settlement, but permitting a settlement to be approved over those objections when the minimum conditions established by Commission Rule 100 and related case-law have been satisfied, e.g., Dawson Bros. - Mech. Contractors, 1 OSAHRC 386, 1 BNA OSHC 1024, 1971-73 CCH OSHD P15,039 (No. 12, 1972). Accordingly, the Commission must determine whether the settlement is consistent with the purposes and provisions of the Act before the intervening party's interests are extinguished by the entry of a final order approving the settlement. This procedure assures basic fairness to all interested parties and generally avoids the troublesome substitution of a private party for the government, be it the employer for the Secretary in an employee abatement contest [*40] or the employees for the Secretary in an employer contest. n30

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n30 It is presumed at this time that the Secretary would proceed appropriately if the Commission determines that the settlement agreement fails to satisfy the minimum requirements of Commission Rule 100. See Dunlop v. Bachowski, 421 U.S. 560, 574-6 (1975).

The issue of the Secretary's withdrawal of a citation under Fed. R. Civ. P. 41(a) is not before the Commission in this case; this case involves only the approval of a settlement over the objections of an intervening party. Accordingly, it is unnecessary to address either the court's holding in the Marshall v. OSHRC (IMC Chemical Group, Inc.), 635 F.2d 544 (6th Cir. 1980), that the Secretary may unilaterally withdraw a citation prior to the filing of a complaint and answer, or the underlying Commission decision holding that the Secretary's withdrawal does not terminate proceedings in which the employees have elected party status and objected to the withdrawal, 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1978 CCH OSHD P23,149 (No. 76-4761, 1978).

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Again the Secretary claims that the consideration of the Union's objections by the Commission interferes with his "prosecutorial discretion" to settle enforcement actions. However, the Secretary misconstrues the Commission's procedural framework for consideration of settlements.

First, the employees' unilateral objections do not result in disapproval as a matter of right. Instead, the Commission considers the settlement agreement and the objections in terms of Rule 100(a) to determine whether the settlement is "consistent with the provisions and objectives of the Act." 29 C.F.R. § 2200.100(a). Thus, the Secretary's discretion to settle is not unilaterally limited by employee participation and settlements have been approved over employee objections on numerous occasions. E.g., E.I. du Pont de Nemours & Co., supra.

Second, no party, including the Secretary, is the exclusive representative of the "public interest." This statute like the National Labor Relations Act establishes a statutory pattern that does not permit an easy dichotomy between "public" as contrasted with "private" interests. See International [*42] Union, UAW, Local 283 v. Scofield, 382 U.S. at 220. Instead, these two interests "interblend in the intricate statutory scheme." See Id.; 29 U.S.C. § § 651(b)(1), (13). Though the Secretary is charged with enforcing a public right, Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442 (1977), "to employ the rhetoric of 'public interest' . . . is not to imply that the public right excludes the recognition of parochial private interests," International Uniuon, UAW, Local 283 v. Scofield, 382 U.S. at 218. The public interest is determined by the adjudication of the various adverse interests in Commission proceedings, not the unilateral representation of one party. See Id. at 221. Nor can it be assumed that there is an identity of interests between the exposed employees and the Secretary. See Trbovich v. United Mine Workers of America, 404 U.S. 528, 538-9 (1972); American Airlines Inc., 75 OSAHRC 43/F3, 2 BNA OSHC 1391, 1392, 1974-75 CCH OSHD P19,108 at p. 22, 838 (No. 6087, 1974). In fact, the party status conferred by the Act is an apparent recognition that the government might not always adequately protect the public interest. See United [*43] States v. Ketchikan Pulp Co., 430 F.Supp. at 86. See generally Dunlop v. Bachowski, 421 U.S. 560, 571 n.9 (1975). n31

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n31 In analyzing the Secretary's enforcement discretion, the role of the General Counsel at the National Labor Relations Board is particularly pertinent. In unfair labor practice cases the "unique legal status" of the charging party in relation to the General Counsel is practically identical to the relations between an authorized employee representative and the Secretary. With respect to unfair labor practice complaints, section 10(b) of the National Labor Relations Act provides that "if it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board . . . shall have the power to issue and cause to be served upon such a person a complaint." 29 U.S.C. § 160(b). As successor to that power in 1947, the General Counsel "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 . . . ." 29 U.S.C. § 153(d).

The General Counsel's discretion is divided into two distinct time frames -- pre-complaint and post-complaint. Compare United Elec. Contractors Ass'n v. Ordman, 366 F.2d 776 (2nd Cir. 1966), aff'g 258 F.Supp. 758 (S.D.N.Y. 1965) (dismissal of action seeking a mandatory injunction to compel the General Counsel to issue an unfair labor practice complaint) with NLRB v. Martin A. Gleason, Inc., 534 F.2d 466 (2d Cir. 1976) (NLRB and judicial consideration of a charging party's objections to a post-complaint settlement). Thus, the discretion to file an unfair labor practice complaint and determine the precise charges to be litigated is distinct from the right of the charging party to be heard on its objections to a settlement agreement between the General Counsel and the charged party after a complaint has been filed. Compare Saez v. Goslee, 463 F.2d 214 (1st Cir. 1972) with NLRB v. Oil, Chemical & Atomic Workers Int'l Union, 476 F.2d 1031 (1st Cir. 1973).

In the exercise of the General Counsel's post-complaint settlement discretion, the Fifth Circuit has held that a charging party "must be afforded (1) an evidentiary hearing on any material issues of disputed fact presented by [the] objections and (2) a presentation on the record of [the] reasons for acceptance of the settlement agreement notwithstanding the objections." Concrete Materials of Georgia, Inc. v. NLRB, 440 F.2d 61, 68 (5th Cir. 1971) (citations omitted). The First and Ninth Circuits have expressly followed Concrete Materials, holding that the charging party is entitled to a hearing if it alleges facts which are disputed and materials to the Board's decision. NLRB v. Oil, Chemical & Atomic Workers Int'l Union, supra; NLRB v. International Bhd. of Elec. Workers, Local 357, 445 F.2d 1015 (9th Cir. 1971). The DC Circuit requires either a statement of reasons for accepting the settlement or an opportunity to be heard on the charging party's objections. International Ladies Garment Workers Union v. NLRB, 501 F.2d 823 (D.C. Cir. 1974); Textile Workers Union of America v. NLRB, 294 F.2d 738 (D.C. Cir. 1961). In contrast, the Third Circuit was held that a charging party is always entitled to a hearing on its objections. Marine Engineers Beneficial Ass'n No. 13 v. NLRB, 202 F.2d 546 (3d Cir.), cert. denied, 346 U.S. 819 (1953); Leed & Northrup Co. v. NLRB, 357 F.2d 527 (3d Cir. 1966). Compare George Ryan Co. v. NLRB, 609 F.2d 1249 (7th Cir. 1979) with International Union, UAW v. NLRB, 231 F.2d 237, 242 (7th Cir. 1979) and Osnkosh Truck Corp. v. NLRB, 530 F.2d 744 (7th Cir. 1976). The Second Circuit has considered the substantive objections raised by a charging party to a post-complaint settlement between the General Counsel and the charged party, NLRB v. Martin A. Gleason, Inc., 534 F.2d at 481-2, through this circuit has held that the charging party's consent is not necessary to effectuate a settlement and a charging party is not entitled to an independent evidentiary hearing on its objections to a settlement, Local 282, Int'l Bhd. of Teamsters v. NLRB, 339 F.2d 795 (2d Cir. 1964).

It is also noteworthy that the discretion delegated to the NLRB General Counsel varies considerably. In contrast to the discretion delegated under 29 U.S.C. § § 153(d) and 160(b) with respect to unfair labor practices, in representation elections "[t]he Board . . . shall direct an election by secret ballot and shall certify the results thereof." 29 U.S.C. § 159(c). Moreover, the General Counsel "shall, on behalf of the Board petition . . . for appropriate relief" with respect to secondary boycotts. 29 U.S.C. § 160(1). This obligatory language is similar to the discretion delegated under both the Occupational Safety and Health Act and the Labor-Management Reporting and Disclosure Act -- "the Secretary shall issue a citation", 29 U.S.C. § 658(a), and "the Secretary shall bring a civil action," 29 U.S.C. § 482(a); Dunlop v. Bachowski, 421 U.S. 560 (1975).

The Commission, like the NLRB and other adjudicatory agencies, is necessarily granted discretion to promulgate rules regarding settlement and to determine whether the public interest is best effectuated by the acceptance or rejection of a settlement agreement. See Wallace Corp. v. NLRB, 323 U.S. 248 (1944) cited approvingly in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 544 n.18 (1978); NLRB v. Martin A. Gleason, Inc., 534 F.2d 466, 482 (2d Cir. 1976); NLRB v. Northern Cal. Dist. Council of Hod Carriers, 389 F.2d 721, 724-5 (9th Cir. 1968). As the court observed in Leeds & Northrup Co. v. NLRB regarding the settlement of an unfair labor practice charge, "these are sensitive areas in the labor-management complex which the adjudicatory process provided by the Act was designed to reach." 357 F.2d at 436 (Emphasis added). This is particularly true when Congress directs specific action to be taken in response to violative conditions. See Adams v. Richardson, 480 F.2d 1180 (D.C. Cir. 1973).

[*44]

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Third, the Commission does not sit to reassess the relative merits of the bargain between the parties, but only to determine that certain minimum conditions have been satisfied. The Commission's limited proceedings on the settlement agreement preserve the Secretary's independent party status while assuring that the interests of all parties are given due consideration. Furthermore, the Secretary's range of discretion in the negotiation of a settlement remains unaffected and subject only to a limited review of the agreement for the purposes of assuring procedural fairness to all parties, Anaconda Co., Wire & Cable Div., 80 OSAHRC 106/E2 9 BNA OSHC 1159, 1980 CCH OSHD P24,917 (No. 79-5449, 1980), the abatement of the hazard, Nashua Corp., 80 OSHRC 121/A2, 9 BNA OSHC 1113, 1980 CCH OSHD P25,020 (No. 78-2146, 1980), and the necessary vacation, modification, or affirmance of the citation, Commission Rule 100(b)(1), 29 C.F.R. § 2200.100(b)(1). The Commission's minimum conditions are regularly satisfied without any objection. E.g., Consolidated Edison Co. of New York, 81 OSAHRC 9/B2, 9 BNA [*45] OSHC 1267, 1981 CCH OSHD P25,165 (Nos. 80-999 & 80-1252, 1981) (Commission approval); Fike Chemicals, Inc., OSHRC No. 78-2473 (Aug. 1, 1979) (Administrative law judge approval). It is a rare case that generates an objection to the settlement, see E.I. du Pont de Nemours & Co., supra, and the exceptional case which results in the disapproval of the settlement, see Nashua Corp., supra. n32

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n32 The lifeblood of the Act and the employees it seeks to protect must not be drained for the sake of administrative convenience. The dissent would create a one-way street to settlement for the mere purpose of administrative expedience, notwithstanding the direct statutory interest of affected employees in Commission proceedings. In the period from October 1976 through May 1982, the Commission disposed of 25,445 cases on the basis of settlements and withdrawals -- more than 75 percent of the total case-load. In that same period a mere 16 cases involving employee objections to settlements and withdrawals, including this one, have been directed for review. In addition, there were a small number of cases involving employee objections that were not directed for review in this period. Certainly, some employees may have been discouraged from objecting based on the narrow grounds permitted under United States Steel, 77 OSAHRC 12/C3, 4 BNA OSHC 2001, 1976-77 CCH OSHD P21,463 (No. 2975, 1977). However, employees were not completely barred from raising their objections before the Commission and thus it cannot be concluded that the Commission's past experience with employee objections is "inapposite or unrepresentative" as argued in the dissent. Furthermore, the dissent claims that cases may not be settled by the Secretary as a consequence of this ruling. However, if the Secretary concludes in the exercise of his enforcement discretion not to settle a case on the basis of employee objections, that certainly must be the Secretary's prerogative as is the discretion to settle.

[*46]

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Finally, the Commission treats the settlement as an integrated, non-severable agreement reflecting the bargained-for-exchange of the parties who signed it. See United States v. Armour & Co., 402 U.S. 673, 682 (1971). As a consequence, the Commission does not selectively approve some provisions and disapprove others. See Connecticut Aerosols, Inc., 80 OSAHRC 16/A2, 8 BNA OSHC 1052, 1980 CCH OSHD P24,256, (No. 78-25, 1980); Logan County Farm Enterprises, Inc., 79 OSAHRC 18/G9, 7 BNA OSHC 1275, 1979 CCH OSHD P23,425 (No. 78-4535, 1979); cf. Seaboard Coast Line Railroad Co., 76 OSAHRC 125/G4, 3 BNA OSHC 1760, 1975-76 CCH OSHD P20,184 (No. 10541, 1975), appeal dismissed, No. 76-1058 (D.C. Cir. March 15, 1976) (Commission concluded it would be unfair to a Respondent for the Commission to abrogate one term of a stipulation while leaving the remainder intact). Similarly, no modifications are made in the settlement by the Commission; it is reviewed as submitted by the parties and their motion to approve is either granted or denied. In this context the Commission does not modify [*47] the abatement provisions to satisfy any concerns it may have regarding the sufficiency of that abatement. In addition to assuring procedural fairness and protecting the public interest, these minimum conditions preserve the statutory interests of all parties without any sacrifice in the Secretary's discretion except to submit the contested citation to final adjudicatory resolution as prescribed by the statute. Once the employees have elected party status, the Commission is obligated to consider the objections to the settlement. If the review were circumscribed by a extremely narrow standard of review, the right of intervention would be a hollow right indeed. United States v. Ketchikan Pulp Co., 430 F.Supp. at 86.

The Union's objection in this case concerns one of the central purposes of the Act -- the abatement of allegedly hazardous conditions. See Farmer's Export Co., 80 OSAHRC 66/A2, 8 BNA OSHC 1655, 1980 OSHD P24,569 (No. 78-1708, 1980). In fact, disputes concerning the steps an employer must take to abate a violation are familiar controversies before the Commission. n33 Even in UAW Local 588 the Commission read section 9(a) of the Act, 29 U.S.C. § 658(a), [*48] which requires the citation "to fix a reasonable time for the abatement of the violation", as authorizing the use of abatement plans. 4 BNA OSHC 1243, 1244, 1976-77 CCH OSHD P20,737 at p. 24,865. Under whatever circumstances abatement is an issue in a Commission proceeding, employees who are affected by a hazardous condition are in a unique position to offer information on the basis of their knowledge and experience as to whether a particular procedure will abate the cited hazard. It is the employees who obviously have the most direct interest in assuring that abatement is accomplished. Where, as here, affected employees object to an abatement plan in a settlement agreement on the grounds that it will not achieve abatement of a cited hazard and they elect party status in a Commission proceeding in which that plan is submitted for approval, it would be contrary both to the purposes of the Act and to the Commission's independent adjudicatory responsibility under the Act to refuse to hear the employees' objection in determining whether the plan actually abates the hazardous condition and ultimately whether the entire agreement satisfies the minimum conditione required for approval. [*49]

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n33 The following illustrate the range of abatement issues resolved by the Commission:

(1) The Secretary's allegation that an employer has failed to correct a violation established by a prior final order of the Commission may be contested, invoking the Commission's jurisdiction to determine whether any of the steps the employer took to abate the violation satisfied its obligation under the previous order. 29 U.S.C. § 659(b).

(2) When a dispute concerning the reasonableness of the abatement period specified in a citation is before the Commission a reasonable abatement time must be determined and it may be necessary for the Commission to inquire into and resolve disputes concerning the appropriate method of abatement to achieve compliance in the shortest time. See UAW Local 588, supra; cf. Amoco Chemicals Corp., 80 OSAHRC 15/E3, 8 BNA OSHC 1085, 1980 CCH OSHD P24,253 (No. 79-4874-P, 1980); Gilbert Mfg. Co., 79 OSAHRC 68/A2, 7 BNA OSHC 1611, 1979 CCH OSHD P23,782 (No. 76-4719, 1979).

(3) Where the Secretary and a cited employer agree to settle a case that is within the Commission's jurisdiction, a statement of the employer's abatement obligations must be included in the agreement, which may be approved only if the agreement is consistent with the provisions and objectives of the Act. Farmers Export Co., supra; Commission Rule 100(a), 29 C.F.R. § 2200.100(a).

(4) In order to prove a violation of the "general duty clause," 29 U.S.C. § 654(a)(1), the Secretary must prove the feasibility and likely utility of his proposed means of abating the violation. E.g. National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).

(5) Certain OSHA standards specifically require proof of the feasibility of means of abating the hazardous condition. E.g. 29 C.F.R. § 1910.95(b)(1) (the occupational noise standard).

(6) Under certain standards the Commission requires the Secretary to identify means of abatement as part of his prima facie case. E.g., 29 C.F.R. § 1926.28(a) (the construction safety personal protective equipment standard).

[*50]

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Even the majority in UAW Local 588 stated that in the context of an employee notice of contest as to the abatement period, "the union may properly adduce evidence to show that the employer's abatement plan does not include all feasible abatement methods or controls that are presently available." 4 BNA OSHC at 1244, 1976-77 CCH OSHD P20,737 at p. 20,866. Thus, the majority implicitly recognized that the abatement method and the reasonable period of time for its accomplishment are inextricably intertwined. For this additional reason it is inappropriate to read the statute in a manner allowing employees to prove that an abatement method is ineffectual, yet not authorizing the Commission to enter an appropriate order approving or disapproving the settlement agreement.

Finally, even if we were to accept the Secretary's view that participating employees are limited in their participation to the allegation that "the period of time fixed in the citation for the abatement of the violation is unreasonable," the Secretary's narrow construction of this statutory phrase as "abatement date" is misplaced and [*51] inconsistent with the remedial purposes of the Act.

Section 10(c) simply reflects the statutory language of section 9 of the Act, which states,

In addition, the citation shall fix a reasonable time for the abatement of the violation.

29 U.S.C. § 658(a). Thus, that section of the statute authorizing the Secretary to issue citation makes no reference to abatement requirements or abatement plans, but refers only to the time for abatement of a violation. Similarly, section 10(c), in affording employees the right to file notices of contest with respect to abatement, uses parallel language concerning the period of time for abateement. Inasmuch as the manner for achieving abatement is not ordinarily set forth in the citation, it would be impossible for employees to file a notice of contest regarding the abatement method. As a result, it would be absurd for the Act to provided for employee notices of contest as to any aspect of abatement other than time the only abatement factor required to be identified by section 9(c) of the Act.

Time and abatement are inextricably intertwined. The period of time fixed in the citation has meaning only in relation to the abatement of the violative [*52] condition or hazard. As the Commission observed in UAW Local 588 "specific methods or controls and the time required for their implementation are determinative of the length of time needed for abatement." 4 BNA OSHC at 1244, 1976-77 CCH OSHD P20,737 at p. 24,866. A simple date devoid of abatement is meaningless in terms of assuring "so far as possible every working man and woman in the Nation safe and healthful working conditions". 29 U.S.C. § 651(b). Employees may be left at risk because: (1) there is no actual abatement as a result of the settlement; (2) interim abatement steps may not assure protection while a comprehensive engineering solution is installed, Nashua Corp., supra; (3) abatement is incomplete because it cannot remove all exposed employees from risk; or, (4) ineffective methods of abatement have been selected rather than effective batement methods. In each of these examples abatement will not have been achieved and employees will continue to be at risk from exposure to hazardous physical conditions or toxic substances. Accordingly, Commissioner Cleary and I overrule the Commission's decision in UAW Local 588 to the extent it held that the statutory [*53] language of section 10(c) limits employee participation to the date set for abatement. n34

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n34 In Marshall v. Oil, Chemical & Atomic Workers Int'l Union, 647 F.2d 383, 388 (3d Cir. 1981), the court suggests that in the absence of any abatement date the employee's right of participation is even further limited. However, section 9(a) of the Act provides that "a citation shall fix a reasonable time for the abatement of the violation." 29 U.S.C. § 658(a) (emphasis added). The Secretary may not preclude the employee's statutory right to be heard by omitting a time period from the citation. Similarly, the Secretary may not accomplish the same result by accepting the unilateral representation of the employer in the settlement agreement that abatement has already been achieved when employees claim that no abatement has occurred. Relegating the employees to a new enforcement complaint is inefficient, time-consuming, hazardous and inconsistent with the Commission's independent adjudicatory authority. See Part IIIB, supra.

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This is not to suggest that the employees' objections bar approval of the settlement but only that their objections must be considered in determining whether approval of the settlement agreement is appropriate. An evidentiary hearing is not required when a sufficient foundation for the serious consideration of the employees' objections may be established by other equally effective means. See NLRB v. Oil, Chemical & Atomic Workers Int'l Union, 476 F.2d at 1035-6 and cases cited; United States v. Ketchikan Pulp Co., 430 F.Supp. at 86.

As Justice Frankfurter observed, "We are not concerned with law enforcement practices except insofar as the courts themselves become instruments of law enforcement." McNabb v. United States, 318 U.S. 322, 347 (1943). The history of statutes as well as "[t]he history of liberty has largely been the observance of procedural safeguards." Id. In safeguarding the employees' express statutory rights under the Act, the approval of a settlement is a "judicial act which deserves more than the court's rubber stamp on the agency's action." United States v. Ketchikan Pulp Co., 430 F.Supp. at 86. Thus, the judicial power [*55] is exercised when judgment is entered on the basis of consent, Pope v. United States, 323 U.S. 1, 12 (1944), and the approval of a consent decree becomes an adjudication of the court, United States v. Ling-Temco-Vought, Inc., 315 F.Supp. 1301 (W.D.Pa. 1970). Because the judge declined to consider the Union's objections in approving the settlement agreement, this case is remanded for further adjudicatory proceedings consistent with the requirements of the statute and Commission rules.

SO ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, concurring:

I agree with Commissioner Cottine that employees who have elected party status under section 10(c) of the Act have a right to be heard on their substantive objections to an abatement plan, and that United States Steel Corp., 77 OSAHRC 12/C3, 4 BNA OSHC 2001, 1976-77 CCH OSHD P21,463 (No. 2975, 1977), must be overruled to the extent it holds that employee party status is statutorily limited to challenging the reasonableness of the abatement period. n35 I also agree that a settlement agreement cannot be judged for consistency with the purposes and objectives of the Act without a hearing on employees' substantive objections. n36 When affected [*56] employees or their authorized representative object to a proposed abatement plan, those objections must be taken into consideration by the administrative law judge in determining whether the agreement meets the minimum conditions established by Commission Rule 100. In the words of the Secretary of Labor, "election of party status by an authorized employee representative entitles said representative to meaningful participation in the settlement process." ITT Thompson Industries, Inc., 78 OSAHRC 70/D10, 6 BNA 1944, 1978 CCH OSHD P22,944 (No. 77-4174, 1978). The "right to meaningful participation" is meaningless if it does not include the right to be heard on substantive objections to a settlement agreement.

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n35 Indeed, it was in my dissenting opinion in United States Steel that I first stated that "[t]here is nothing in the Act or in the Commission rules that limits the participation of an employee representative once party status has been elected. Neither the Act nor our rules envision that an employee representative be a party for limited purposes. I submit that an employee representative is a full party with all rights of any party, including the right to join or object to settlement." 4 BNA OSHC at 2003, 1976-77 CCH OSHD at 25,742. See also my dissenting opinion in Southern Bell Telephone & Telegraph Co., 77 OSAHRC 83/D1, 5 BNA OSHC 1405, 1977-78 CCH OSHD P21,840 (No. 10340, 1977), in which I first stated my view that employees have a right to be heard in opposition to the Secretary's motion to dismiss the citation and complaint.

n36 I also agree with Commissioner Cottine that abatement method and abatement period are inextricably intertwined and this alone would be sufficient basis for employees' right to be heard on substantive objections to an abatement plan. However, this would be an alternative basis for the disposition of this case, and for the reasons given above, I regard the last sentence of § 10(c) as the primary source of employees' rights in the adjudicatory process, including the right to a hearing on objections to settlement.

[*57]

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The immediate question before us is whether an administrative law judge must consider employee objections to an abatement plan in determining whether a settlement agreement comports with the provisions and objectives of the Act. To answer that question, we must answer the larger one: what rights do employees have under section 10(c) of the Act? Section 10(c) provides in pertinent part:

If an employer notifies the Secretary that he intends to contest a citation issued under section 9(a), 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 9(a), 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 . . . and the Commission shall afford an opportunity for a hearing (in accordance with section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such section) . . . . The rules of procedure prescribed [*58] by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this subsection.

Four United States Circuit Courts of Appeals have considered the matter and have concluded that employees' rights under section 10(c) are limited to challenging the reasonableness of the abatement period. The courts' reading of employee rights under section 10(c) is based on their interpretation of the overall scheme of the Act, its legislative history, and general principles of exclusive prosecutorial discretion.

However, a restrictive reading of section 10(c) with respect to employee enforcement rights is not supported, much less dictated, by the reasons given by the circuit courts, nor is it consistent with the purpose of the Act, which is to promote employee safety and health.

In holding that section 10(c) does not give employees the right to challenge the adequacy of an abatement plan agreed upon by the Secretary and the employer, the Third Circuit stated that the Act's legislative history shows that Congress did not intend for employees to be heard on matters other than the reasonableness of the abatement [*59] period. Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir.), cert. denied, 101 S.Ct. 784 (1980). The court found evidence of legislative intent in a statement in the Senate Committee Report 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." LEGIS. HIST. at 155 (emphasis added by Third Circuit), and a statement by Senator Williams that "[e]mployees are also given appeal rights when they believe that an unreasonably long period of time has been allowed for abatement of a violation," LEGIS. HIST. at 414 (emphasis added by Third Circuit).

The court also concluded that the overall administrative "schema" vests unreviewable and exclusive prosecutorial powers in the Secretary: "Necessarily included within these prosecutorial powers is the discretion to settle citations issued against employers and to compromise, mitigate or settle any penalty assessed under the Act. 29 U.S.C. § 655(e)." Marshall v. Sun Petroleum Products Co., 622 F.2d at 1187. The court regarded matters of settlement [*60] and compromise as "basic administrative responsibilities" which Congress intended to place with the Secretary and beyond Commission review. Again quoting Senator Williams, the court suggested that Commission review of employee objections to the substance of settlement agreements would lead to "diffusion of responsibility and accountability as to seriously undermine the effectiveness of this program." LEGIS. HIST. at 417. In Marshall v. OCAW and OSHRC, 647 F.2d 383 (3d Cir. 1981), the Third Circuit further ruled, for the same reasons stated in Sun Petroleum, that employees have no right under section 10(c) to contest the representation of a settlement agreement that abatement has occurred.

The Sixth Circuit concluded that employees may not prosecute a citation before the Commission after the Secretary has moved to withdraw it because "the Act, by its terms, makes the Secretary the exclusive prosecutor of OSHA violations." Marshall v. OSHRC (IMC Chemical Group, Inc.), 635 F.2d 544, 550 (6th Cir. 1980). n37

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n37 The IMC court also stated that that provision in section 10(c) which authorizes employees to contest the reasonableness of the abatement period "is the only provision in the Act authorizing an affected employee to participate in OSHA proceedings before the Commission." 635 F.2d at 551. This, of course, is incorrect. Section 10(c) also provides, in its concluding sentence, that affected employees may elect party status. Both the D.C. Circuit, in OCAW v. OSHRC, supra, and the dissenting judge in the Third Circuit's Sun Petroleum case noted this.

[*61]

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The Seventh Circuit ruled that employees have no right to challenge the adequacy of an abatement plan because section 10(c) limits the Commission's adjudicative powers to consideration of whether the period of time fixed in the citation for the abatement of the violation is unreasonable. Automobile Workers v. OSHRC, 557 F.2d 607 (7th Cir. 1977). Like the Third Circuit, the Seventh quoted from that portion of the Senate Report which states that section 10(c) gives an employee or union the right to challenge the Secretary's citation on the ground that the abatement date provided therein is unreasonably long. In addition, the Seventh Circuit states that "a plain reading" of Section 10(c) shows that Commission review is limited to the reasonableness of the abatement period.

The D.C. Circuit, in deciding the scope of employee rights to appeal from a final order of the Commission, endorsed the holdings of the Third, Sixth and Seventh Circuits and stated that "so broad a reading of prosecutorial discretion under the statute . . . comports with the Congressional intent that the Secretary be charged with [*62] the basic responsibilities for administering the Act." Oil, Chemical and Atomic Workers v. OSHRC, 671 F.2d 643, 650 (D.C. Cir. 1981), pet. for cert. filed sub nom. American Cyanamid v. OCAW, (March 26, 1982) (No. 81-1784).

The courts are saying, in each case, that employees must be excluded from substantive participation in Review Commission proceedings in order to assure the Secretary exclusive prosecutorial discretion, and that the Secretary's exclusive prosecutorial role requires that employees be excluded from substantive participation in enforcement proceedings. But why? Does the legislative "scheme" or the legislative history really show that the Secretary must have exclusive and unreviewable control over enforcement proceedings once a citation is issued and that employee participation is limited to questioning the reasonableness of the abatement period? If not, do general principles of "exclusive prosecutorial discretion" require that result? And if neither prosecutorial "discretion" nor the legislative scheme and history demand preclusion of employees from substantive participation before the Commission, what construction of the statutory language best serves [*63] the purpose of the Act, which is to promote employee safety and health?

III

Our analysis must begin with the language of the Act, specifically, the last sentence of section 10(c), which provides that "[t]he 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) The key word is "parties"; what does it mean that employees have the right to participate as parties?

The terms "party" and "parties" have many different meanings and definitions, depending generally upon the context in which they are used, but in connection with judicial proceedings the term "parties" is a technical word with a precise, legal meaning. A party to a judicial proceeding is, generally, one of the opposing litigants, whether a natural or legal person. A person is not a true party to an action even though he is named in a pleading unless he is competent to sue and has a right to control the proceedings, defend, adduce and cross-examine witnesses, and appeal in his own right. It is the right to control the proceedings that is the hallmark of [*64] a party to a judicial proceeding. One who has such rights is generally called a "principal party" to distinguish him from other parties to the action such as parties in interest, warrantors, parties opposing, and intervenors. An intervenors party, for example, although generally permitted to submit evidence, cross-examine witnesses, and appeal from a final order, may participate only by leave of court, after objections from the principal parties to his appearance have been heard, and under whatever restrictions the court deems appropriate. n38 67A C.J.S. Parties § § 3, 68, 69; 59 AM.JUR.2d Parties § 7.

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n38 Even when an intervenor enters litigation pursuant to Fed.R.Civ.P. 24(a)(1), which provides that "anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene" (emphasis added), the scope of the intervenor's participation may be limited in subordination to the interests of the principal parties. See Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 HARV.L.REV. 721 (1968).

[*65]

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If "party" is a legal term of art describing one with the rights ofa plaintiff or defendant, i.e., having the right to control the judicial proceeding, and there are those who say that under the Occupational Safety and Health Act employees' only substantive right with respect to enforcement of a citation is to challenge the reasonableness of an abatement period, we must ask whether other provisions in the Act, its legislative history, or its purpose, show that "party" within section 10(c) means something less than "principal party."

The language in the Act which has caused courts strictly to limit the scope of employee participation in Commission proceedings is that clause in section 10(c) which provides: "if, within fifteen working days of this issuance of a citation . . . 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 Commission shall afford an opportunity for a hearing . . . ." As the Seventh Circuit put it, "[u]nder a plain reading of section 10(c), [*66] the Commission may review only the reasonableness of the period of time fixed in the citation for the abatement of the violation." Automobile Workers v. OSHRC, supra, 557 F.2d at 609. In the courts' view, this provision states the outer bounds of any legitimate dispute between the Secretary and employees.

However, explicit inclusion of this right should not be construed as an implicit preclusion of other rights, especially in light of the peculiar relationship that can sometimes develop between the Secretary and employees wherein the employees agree with the Secretary that a violation exists, but disagree with the Secretary with respect to abatement. When this occurs, employees have no interest in contesting the citation, but they do have an interest in contesting one, subsidiary, provision in the citation. The second clause of section 10(c) merely acknowledges this reality and makes plain that employees have the right to contest something less than the entire citation. Examined from another angle, this provision also serves the purpose of vesting jurisdiction in the Commission, at the behest of employees, over less than the entire citation. This scheme is entirely [*67] consistent with section 10(a), which explicitly provides for an employer right to limit a contest to the amount of penalty only.

The Seventh and Third Circuits relied heavily on pronouncements in the Senate Committee Report and by Senator Williams that employees have the right to contest the period of abatement as evidence that this is their only right. However, the quoted passages are virtually identical to the very language in question, they appear in the legislative history unaccompanied by any discussion or elaboration whatever, and there is not a shred of evidence elsewhere in the legislative history to indicate that Congress wished to withdraw from employees those rights that normally flow from party status. Under these circumstances the quoted statements are incapable of shedding light on the statutory language, and just as the clause itself cannot reasonably be taken as preclusive, neither can these excerpts.

The second important reason for the courts' unwillingness to treat employees as principal parties is that, in their view, to do so would be to infringe on the Secretary's prosecutorial powers. They infer that Congress intended that the Secretary's exercise of [*68] prosecutorial powers be exclusive and beyond Commission review from the fact that Congress separated the three agency functions -- regulatory, enforcement and adjudicative -- placing the first two with the Secretary and the last with the Commission. In the words of the D.C. Circuit, "so broad a reading of prosecutorial discretion under the statute . . . comports with the Congressional intent that the Secretary be charged with the basic responsibilities for administering the Act." OCAW v. OSHRC, supra.

However, it is clear from the legislative history that Congress' purpose in separating the adjudicative from the regulatory and enforcement functions was to avoid placing an undue concentration of power in the hands of one individual and had nothing to do with the scope of employee rights in adjudicative proceedings.

The concentration of all authority for the promulgation of standards, the inspection and investigation of complaints, the prosecution of cases, and the adjudication of cases, totally in the hands of the Secretary of Labor is not a balanced approach . . . . It is objectionable because concentration of power gives rise to a great potential for abuse. A single [*69] man is easier to harass than an independent board or commission. Political pressure can be concentrated to achieve a particular point of view or course of action. The tradition of this Nation has been to place safeguards on power whenever it is granted. One of the greatest safeguards has been the separation of powers. By separating the legislative, executive, and judicial functions, a balance has been achieved which permits progress without abuse of authority.

LEGIS. HIST. at 420.

"While the concentration of authority may lead to more efficient action in line with a particular point of view, it also raises the [specter] of abuse." LEGIS. HIST. at 201.

There were those who thought that the Department of Labor had been captured by business. n39 Others regarded the Department as the tool of Labor. n40 But no one seriously disputed that it was crucial that the Occupational Safety and Health Act, whatever its contours, inspire confidence in the impartiality of its administration: "The important thing is to inspire confidence in the community that we expect to obey this law . . . . There is no question about the fact that the community will be considerably reassured in the difficult, [*70] and one might say dangerous situation, by the adoption of this amendment placing the adjudicative function in an independent agency." n41

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n39 In considering whether adjudicative function ought to be with the Secretary or with an independent body, Senator Javits stated:

I, for one, believe that in the light of over 30 years of utterly dismal performance by the Department of Labor of its safety and health responsibilities under the Walsh-Healey Act, labor has little reason to expect, or business any reason to fear, overly energetic administration of this act by the Secretary of Labor or disregard by him of the legitimate concerns of business.

LEGIS. HIST. at 194.

n40 Senator Holland from Florida:

I know perfectly well, from my own experience as a lawyer over a good many years, that the impression prevailed that the labor unions and the labor union administrators and managers and leaders were much too close to the personnel of the Board under the Wagner Act, and that fair and objective and impartial judgments were not to be expected from that agency . . . . There was the feeling that the decisions of the then Secretary of Labor -- and I again say that I do not question his soundness of conscience -- were not practicable, were not objective, and were much more nearly in accord with the demands and expectations of those who were directly representing the labor organizations.

LEGIS. HIST. at 473; see also Senator Holland's remakrs at 474-5.

n41 LEGIS. HIST. at 469, Senator Javits.

[*71]

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There is simply no basis in the legislative history for the courts' suggestion that Congress, by assigning the adjudicative function to an independent body, meant to preclude that body from considering the Secretary's exercise of prosecutorial discretion for consistency with the remedial purpose of the Act. Indeed, all the evidence indicates that Congress regarded employers and employees as parties of equal standing. In discussing a provision under which a plant could be shut down due to imminent dangers, Senator Tower observed that "Government, labor, and management [should] have an equal stake in improving safety conditions . . . . [W]e must insure that employers and employees alike have a stake in improving these conditions. Labor-management relations can only improve if a sense of harmony and cooperation between employer and employee alike exists, independent of an omnipotent centralized voice from Washington." LEGIS. HIST. at 448. Senator Williams stated that permitting employees to accompany OSHA inspectors on inspections

reflects a fair and practical resolution of the conflicting viewpoint [*72] of employers who fear that an unlimited right of employees to accompany inspectors could lead to disruption of production operations and, the viewpoint of employees who urgently believe they need their representatives to participate and assist in the inspection which is so important to their continued protection on their job.

I think this is an important point. Certainly no one knows better than the working man what the conditions are, where the failures are, where the hazards are, and particularly where there are safety hazards. The opportunity to have the working man himself and a representative of other working men accompanying inspectors is manifestly wise and fair . . . .

LEGIS. HIST. at 430.

Of particular significance is the fact that the Act itself limits the Secretary's prosecutorial discretion. If, upon receipt of an employee complaint of a serious violation or an imminent danger, the Secretary "determines there are reasonable grounds" he must make an inspection as soon as practicable. If he determines that there are no reasonable grounds to believe that a violation or danger exists, he must notify the employees in writing. Section 8(g). If, upon inspection, [*73] the Secretary believes that a violation exists, he must issue a citation. Section 9(a). Section 6(e) of the Act, which is generally ignored, provides that "Whenever the Secretary promulgates any standard, makes any rule, order, or decision, grants any exemption or extension of time, or compromises, mitigates, or settles any penalty assessed under this Act, he shall include a statement of the reasons for such action, which shall be published in the Federal Register." All these restrictions have been placed on the Secretary's prosecutorial discretion, despite Congress' fine awareness that his resources would be limited (and perhaps because of a fine awareness of the political pressures which would be operating upon him). n42

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n42 The fact that Congress was conscious of the Secretary's vulnerability to special interest pressure has been discussed above. Congress was also aware that he would have limited resources. See LEGIS. HIST. 399 and 471.

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It simply makes no sense to say that an adjudicative body, [*74] created for the express purpose of assuring that the Secretary performs his enforcement function with the maximum of fairness, is unduly involved in the "basic administration" n43 of the Act if it hears objections to settlement agreements and withdrawal of citations. n44

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n43 See OCAW v. OSHRC, 671 F.2d 643 (D.C. Cir. 1981), in which the court stated that employee challenges to the Secretary's decision to settle or drop a case would not comport with Congressional intent that the Secretary be charged with "basic responsibility for administering the Act."

n44 In the Commission's Sun Petroleum decision, 79 OSAHRC 26/C1, 7 BNA OSHC 1306, 1977-78 CCH OSHD P21,870 (No. 76-3749, 1979), Commissioner Barnako stated that the Commission has no authority to specify abatement measures. But the proper question is whether the Commission has authority to examine abatement plans for consistency with the Act's purpose.

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Although the courts do not say so explicitly, it is apparent that they consider employee and Commission [*75] involvement in settlement agreements and withdrawal decisions as an undue interference with the Secretary's prosecutorial discretion. The tradition is well established that prosecutorial powers, by their nature, are exclusive and unreviewable. After all, the reasoning goes, the prosecutor knows his own resources, the quality of the evidence that has been collected, how a particular case fits into an overall enforcement strategy. He should not be forced to spend resources he does not have. He should not be forced to prosecute an unwinnble case. Nothing is gained by forcing him into litigation that undermines a larger strategy. The United States Court of Appeals for the District of Columbia, for example, in holding that it was powerless to intervene where it appeared that a United States Attorney had treated two individuals indicted for the same offense disparately, stated:

Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought. . . . Two persons may have committed what is precisely [*76] the same legal offense but the prosecutor is not compelled by law, duty or tradition to treat them the same as to charges. . . . [N]o court has any jurisdiction to inquire into or review his decision. . . . [W]hile this discretion is subject to abuse or misuse just as is judicial discretion, deviations from his duty as an agent of the Executive are to be dealt with by his superiors. . . . [I]t is not the function of the judiciary to review the exercise of executive discretion whether it be that of the President himself or those to whom he has delegated certain of his powers.

Newman v. United States, 382 F.2d 479, 480, 481-82 (D.C. Cir. 1967).

To paraphrase Plato, the unexamined rule is not worth having, and the question must be asked, why is it not the function of the judiciary to review the exercise of executive, or prosecutorial, discretion? Will review necessarily impede the Secretary's management function by involving him in unwinnable and unaffordable litigation?

Professor Davis, in his treatise on administrative law, poses some extremely cogent questions: "[i]nstead of saying that 'few subjects are less adapted to judicial review' than prosecutors' discretion, [*77] why not say that few subjects are more adapted to a judicial check to prevent abuse of discretion, including a judicial requirement that findings and reasons be adequate stated?" DAVIS, ADMINISTRATIVE LAW TEXT 522, § 28.07 (3d. ed. 1972) (hereafter "DAVIS"). Instead of saying that "it is not the function of the judiciary to review the exercise of executive discretion," why not cite a hundred Supreme Court decisions holding that the judicial function is to review the exercise of executive discretion in order to check abuse, and why not observe that under the Administrative Procedure Act judicial review of discretionary action is the rule and unreviewability is the exception? n45 Instead of saying that no court has jurisdiction to review executive discretion, why not point out thousands of cases in which federal courts do review executive discretion?

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n45 Section 554(c) of the APA, 5 U.S.C. § 554(c), provides in pertinent part:

The agency shall give all interested parties opportunity for (1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceedings, and the public interest permit.

[*78]

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Professor Davis points out that the tradition of unreviewability of prosecutorial discretion became settled in the nineteenth century when courts adhered to the now outmoded view that "interference of the Courts with the performance of the ordinary duties of the executive departments of the government would be productive of nothing but mischief." Decatur v. Paulding, 39 U.S. 497, 516 (1840). Yet, as the very existence of the Administrative Procedure Act testifies, limited judicial review can occur without judicial assumption of power committed to administrators.

We have learned during the present century that the exercise of administrative discretionary power is not weakened but can be strengthened by a limited judicial review. Our modern system of judicial review of administrative action is built upon almost precisely the opposite of the Court's 1840 pronouncement: We now know that a judicial check to prevent or correct abuse of discretion in the performance of the ordinary duties of the executive departments of the government makes for better administration and for a higher quality of justice. [*79] This is why the courts developed a presumption of reviewability, and this is why Congress carried that presumption into the Administrative Procedure Act.

DAVIS, supra at 523.

The unfettered power to settle or withdraw for good reason is also the unfettered power to settle or withdraw due to favoritism, caprice, or neglect and may be extremely damaging to private interests. And the interest at stake here is considerable -- the safety and health of human beings. Although Justice Douglas may be describing more an ideal than a practical reality inasmuch as absolute discretion is not always pernicious or even undesirable, he states a guiding principle when he says: "Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered . . . . Absolute discretion . . . is more destructive of freedom than any of man's other inventions." United States v. Wunderlich, 342 U.S. 98, 101 (1951). And: "Absolute discretion, like corruption, marks the beginning of the end of liberty." New York v. United States, 342 U.S. 882, 884 (1951).

The [*80] legislative history and the structure of the Act itself demonstrate, on the one hand, a complete lack of Congressional intent to bestow absolute prosecutorial discretion in the Secretary, and on the other, Congressional intent that employees play a central and active role in the OSHA process. As mentioned above, Senator Williams argued in favor of employee walk-around rights because "no one knows better than the working man what the conditions are, where the failures are, where the hazards are . . . ." LEGIS. HIST. at 430. Senator Tower stressed that employers . . . ." LEGIS. HIST. at 430. Senator Tower stressed that employers and employees should have an equal stake in improving safety conditions. LEGIS. HIST. at 448. Congress was well aware of the conflict that often exists between employers and employees n46 and that employees might attempt to abuse the OSHA process. n47 Nevertheless, as Commissionere Cottine documents, the Act is replete with provisions which bring employees into the heart of the OSHA process.

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n46 LEGIS. HIST. at 474-5.

n47 Senator Saxbe: "If the employee wants to be a harrassing agent, of course he can send in a complaint every day, and then the Secretary would have to determine whether it is genuine." LEGIS. HIST. at 398.

Representative Scherle from Iowa:

As it stands at the time of the issuance of this citation, the employer is simply accused of violating one of his duties under the Act. However, he must post, in conspicuous places on his bulletin boards and near the place of the violation, the accusation of the Federal Government. It can be expected that the unions will make use of these accusations in any bargaining sessions, and in addition, you must remember that the Taft-Hartley Act allows employees, under certain conditions, to leave a job where certain hazardous conditions exist. It is conceivable that after the employer has been accused of having an unsafe plant that the employees could walk off, and use the accusation of the Department of Labor as the reason for the wildcat strike.

LEGIS. HIST. at 1223-4.

[*81]

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One of the assumptions underlying the idea that employees need not be treated as principal parties despite the language of section 10(c) is that their interests are adequately represented by the Secretary, who has a legislative mandate to protect employee safety and health. But the Secretary represents public interests as well as the interests of employees at a particular site. As the United States Supreme Court observed when it acknowledged that the Secretary of Labor's obligations to the public interest may conflict with his obligations to individual union members in litigation under the Labor-Management Reporting and Disclosure Act of 1959, "[e]ven if the Secretary is performing his duties, broadly conceived, as well as can be expected, the union member may have a valid complaint about the performance of 'his lawyer.'" Trbovich v. United Mine Workers of America, 404 U.S. 528, 539 (1972). The court concluded that the mere possibility of inadequate representation by the Secretary entitles unions to a limited right to participate in Title IV litigation even though the Labor-Management Reporting [*82] and Disclosure Act makes no explicit provision whatever for union participation. n48

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n48 And it cannot be overemphasized that union paticipatory rights under LMRDA depend entirely on Fed.R.Civ.P. 24(a)(2), which limits participatory rights by permitting the parties already in the suit to argue in opposition to intervention, which requires the party seeking to intervene to justify its presence in the case, and which permits the court to apply its discretionary judgment before granting the intervening party the "right" to participate. Each of these limitations is precluded by the final clause of section 10(c) of the OSH Act.

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The idea of "the public interest" should not be misunderstood. The public interest is no single thing, there are many public interests-here ranging from occupational safety and health, to conservation of government resources, to expeditious resolution of cases, to integrity of the judicial process. Specific public interests can fall into conflict with each other as well as with specific interests [*83] of employees at a particular worksite, and these larger conflicts can obscure the issues in individual cases. As a court we would do violence to our judicial responsibilities if we failed to recognize this, particularly if we failed to distinguish between the public interest in bureaucratic economy which grows primarily out of the Secretary's administrative function and the public interest in occupational safety and health which grows primarily out of the remedial purpose of the Act. We would violate our judicial obligation of neutrality if we ceded to the Secretary, on the ground of his amorphous "public interest" mandate, our independent duty to assure a full airing of all factual and legal issues necessary to resolution of a case.

Another factor which undoubtedly contributes to judicial reluctance to read section 10(c) expansively is that to do so is to disturb the "prosecutor-defendant" paradigm: there can be only one prosecutor; the Secretary is the prosecutor under the Act; ergo, employees cannot take on prosecutorial functions. This however, is taking the word "prosecutor" entirely too literally and elevating form over substance. After all, Commission proceedings are only [*84] quasi-judicial in nature, and in large part the terms "prosecutor" and "prosecutorial function," in the context of this Act, have more to do with the idea of executive function than with courtrooms. As long as due process is preserved, there is no good reason for subsuming the purpose of the Act to legal jargon or technicalities.

If neither prosecutorial discretion nor legislative intent demand limited employee participation with respect to settlement and withdrawal, one must ask: Is the purpose of the Act -- to protect employee safety and health -- best served by limiting employee participation in such matters?

To preclude employees from showing that an abatement plan is inadequate or that, contrary to the representations of a settlement agreement, abatement has not occurred, is to undermine rather than advance the purpose of the Act. It is true that the Secretary can reinspect at a later date and cite the employer for failure to abate, but I agree with Commissioner Cottine's reasons why this is unsatisfactory. Moreover, if employees in a particular case are right, that the fact of abatement has been misrepresented or that an abatement plan is inadequate, to postpone discovery [*85] of that fact in order to preserve a legalistic and outmoded view of the prosecutorial function seems indefensible.

If the Secretary wishes to withdraw a citation, he can have only three reasons: He may decide a particular case is not worth the expenditure of agency resources; he may decide that the evidence is not good enough to win; he may decide that the legal issues raised ought to be decided at another time, in another context, for purposes of an overall enforcement strategy. If we examine these reasons from a pragmatic, rather than legalistic viewpoint, it is hard to see how it serves the purpose of the Act to keep employees out of settlement and withdrawal in at least two out of the three situations. If the Secretary's reason for wishing to withdraw is lack of resources, and the employees, acting through their authorized representative (generally a union), volunteer to take on the financial burden of proving a violation, does it serve the purpose of the Act to cry "exclusive, unreviewable prosecutorial discretion" and leave the dangerous condition uncorrected? If the Secretary's reason for withdrawal is his judgment that the evidence is not good enough to establish a violation, [*86] and he is wrong, does it serve the purpose of the Act to prevent employees from proving that fact? If the evidence is as insufficient as the Secretary's preliminary assessment indicates, that fact will soon become apparent to the administrative law judge, probably fairly early in the proceedings.

We must not forget that sections 8(g) and 9(a), which mandate Secretary action only upon reasonable belief that a violation exists, have already operated as a screening process upon the matter and have indicated that a violation does exist. n49 Moreover the danger of employee abuse of participatory rights is significantly minimized by two factors: the economic realities which operate on employer pocketbooks operate on employee pocketbooks as well, and the Secretary's motion to dismiss will be decided by the administrative law judge in light of the quality of the employees' arguments. n50 IMC Chemical Group, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1976-77 CCH OSHD P21,514 (No. 76-4761, 1978), reversed, 635 F.2d 544 (6th Cir. 1980).

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n49 It is worth noting that Justice Douglas, in Trbovich v. United Mine Workers of America, supra, in agreeing with the majority that the Secretary's power to bring suit under the LMRDA is a "screening function," also said that the decision to bring suit exhausts the screening function.

Although the point has been made that a citation is issued by non-legal personnel acting with necessary dispatch, the complaint which follows is issued by legal personnel who at that point have the added benefit of the employer's notice of contest.

n50 Indeed, our actual experience is that employee assumption of prosecutorial function in Commission proceedings is both manageable and effective. In Eaton Corp., 78 OSAHRC 70/B14, 6 BNA OSHC 1905, 1978 CCH OSHD P22,942 (No. 76-1056, 1978), and Penn Central Transport. Co. and Daniel Tarasevich, 1976-77 CCH OSHD P20,832 (No. 11581, 1976), the Secretary announced his intention, immediately prior to the scheduled hearing, not to present evidence and moved to amend the citations to reduce the characterization of the violations to de minimis. The employees, acting through their authorized representatives, were permitted to go forward with the evidence, and in each case successfully proved a violation and established that it was not de minimis. In Southern Bell Telephone & Telegraph Co., 82 OSAHRC 6/ , 10 BNA OSHC , 1982 CCH OSHD P (No. 80-1195, 1982), the Secretary's motion to dismiss for lack of sufficient evidence was denied after the authorized employee representative indicated a willingness to assume the burden of proving the alleged violations. After a hearing at which the Secretary declined to present evidence and the employee representative presented testimony and exhibits, the citation was vacated on the merits. See also Gurney Industries, Inc., 74 OSAHRC 8/A2, 1 BNA OSHC 1218, 1971-73 CCH OSHD P15,684 (No. 722, 1973), in which the Commission held that it was abuse of discretion for the administrative law judge to grant the employer's motion to withdraw its notice of contest without considering the employees' proffer of evidence on the feasibility of abatement and the seriousness of the violation.

[*87]

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The third reason for prosecutorial restraint is somewhat different. If the Secretary's reason for withdrawing a citation is that prosecution of the particular case would interfere with an overall enforcement scheme, that would be sufficient ground for the Commission to grant the Secretary's motion to dismiss over the objections of the employees without a full airing of the employees' substantive contentions.

In the instant case, the argument is made that introduction of yet another stage in the adjudicatory process, i.e., an evidentiary hearing on employee objections to a settlement agreement, hampers employee safety and health by delaying if not actually foreclosing a legal duty to abate; no abatement is required while the parties dispute the abatement plan, and if the hearing ends in disapproval of the settlement agreement, a final order against the Respondent may never issue. n51 The implication is that even if the Secretary's abatement plan is less than perfect it will certainly achieve some improvement in employee safety and health and that a very real gain is being traded away for the chimera [*88] of perfect safety. This might be true if the focus of the hearing were whether and to what extent the employees' abatement plan is better than the Secretary's, but that is not the case. The question before the administrative law judge at such a hearing is not whether the employees' plan is better than the Secretary's plan, but whether the Secretary's plan comports with the purposes and objectives of the Act, in other words, whether it is adequate. In the case, as here, of a general duty clause violation, a plan will be deemed adequate if it renders the workplace free of the hazard. The employees' burden will be to prove that the agreement's averment of actual abatement is in fact not true or that the proposed abatement method will not render the workplace free of the hazard. Therefore, the focus of the hearing will be not on the relative merits of the employees' and the Secretary's plan, but on whether the proposed abatement method(s) have rendered or will render the workplace free of the hazard.

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n51 My dissenting colleague takes particular note of the fact that the instant case is now four years old. I could not agree more that time is of the essence; no one could seriously argue against speedy resolution of OSHA cases. However, one must question the value of a final, enforceable order which is based on a settlement agreement which will not achieve abatement.

In any case, the question before us is legal one -- what, in light of the Act's legislative history and overall scheme, is the scope of section 10(c) of the Act? The question is not whether cases could be more quickly disposed of if employees were excluded from substantive participation in settlement. Moreover, in the instant case, the four year delay is not the result of anything the employees did or sought to do during settlement, but is the result of the fact that their right to be heard was placed in issue as a legal matter; had the fundamental question of employee rights not been in dispute, a final order in this case would undoubtedly have been issued long ago.

[*89]

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A related argument is that a hearing on employee objections does not actually advance employee safety and health interests because it is, in fact, an exercise in futility. The terms of the challenged agreement represent the Secretary's best assessment both of the case and of his own resources, and if his abatement plan is disapproved he will not act to pursue the employees' views. However, as explained above, the settlement agreement will be disapproved only if the employees show that the proposed abatement methods are ineffective. To suggest that even in the face of such evidence the Secretary will refuse to negotiate further, or, in the event the employees take over the prosecutorial function and achieve a final order affirming the citation, he will subsequently refuse to issue a failure-to-abate order, is to assume that the Secretary will not act in good faith. There is no foundation for such an assumption.

DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Chairman, dissenting:

More than four years ago, the Secretary of Labor and Mobil Oil Company entered into an agreement to end this litigation. As part of the agreement, Mobil [*90] promised to implement certain measures to protect its employees against the hazard the Secretary alleged to exist in Mobil's workplace. However, while the Commission has been deciding whether to approve the agreement, Mobil has been under no legal obligation to institute either these or any other measures to protect its employees against this allegedly serious hazard. Now, my colleagues n1 further delay the entry of an abatement order by remanding this case so that the administrative law judge can consider whether additional measures sought by the union represent Mobil's affected employees are necessary to abate the violation. n2 If so, then the judge must disapprove the settlement agreement. If this occurs, it is not clear what my colleagues expect the parties to do, but it is clear that the entry of the abatement order will at best be further delayed and perhaps will never occur at all. This procedure is necessary, my colleagues assert, to serve the purpose of protecting employee health and safety.

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n1 It may be presumptuous of me to read any majority views into the widely divergent separate views of my colleagues. Nevertheless, they both agree to dispose of this case in the same manner, and I must assume there is some common ground for their disposition.

n2 For the reasons stated infra, the facts of this case illustrate that resolving, the merits of the Union's objection may be more easily said than done. The Union agrees with virtually the entire abatement plan submitted by the Secretary and Mobil. It disputes only that portion of the plan that provides for radio contact to be maintained with the gauger during what the parties refer to as the "less critical period" following the refloating of a roof. This period begins at least four hours after the roof has been refloated. Thus, the provision the Union objects to would only come into play after the most dangerous time for an employee to be on a roof has passed without incident. The Union contends that the provision is inadequate and seeks to have a second employee maintain visual contact with the gauger during the less critical period as well as during the earlier, more dangerous period.

[*91]

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In my opinion, my colleagues' disposition misconceives the role of the Commission in the Act's enforcement scheme, misconstrues the Act by giving employees broader "rights" than Congress explicitly gave them, and is inconsistent with the very objective of employee safety and health that my colleagues assertedly seek to advance.

The Occupational Safety and Health Act imposes mandatory requirements on employers and gives the Secretary broad enforcement powers. n3 The Secretary is given the authority to promulgate occupational safety and health standards, n4 inspect and investigate worksites, n5 issue citations to employers he believes are in violation of the Act, n6 prosecute contested citations before the Commission, n7 seek enforcement of Commission orders, n8 seek injunctions to counteract imminent dangers, n9 grant variances from standards, n10 and compromise, mitigate, and settle penalties. n11 The Commission's sole authority is to resolve disputes resulting from enforcement actions brought by the Secretary. n12

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n3 Section 5(a), 29 U.S.C. § 654(a), requires that employers comply with the general duty clause and with the occupational safety and health standards promulgated under the Act. Employers can be penalized for failing to do so. 29 U.S.C. § 666(a)-(c). Although section 5(b), 29 U.S.C. § 654(b), requires that employees comply with provisions applicable to their conduct, the Act does not provide for enforcement actions against employees. Nacirema Operating Co., 4 BNA OSHC 1393, 1976-77 CCH OSHD P20,879 (No. 12099, 1976). See Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 553-54 (3d Cir. 1976). Thus, the Secretary can bring enforcement actions against employers only.

n4 29 U.S.C. § § 655(a) and (b).

n5 29 U.S.C. § 657(a).

n6 29 U.S.C. § 658(a).

n7 29 U.S.C. § 659(c).

n8 29 U.S.C. § § 659(b) and 660(b).

n9 29 U.S.C. § 662(a).

n10 29 U.S.C. § 655(d).

n11 29 U.S.C. § 655(e).

n12 29 U.S.C. § 659(c). A case may come before the Commission in three ways: (1) an employer may contest a citation or notification of proposed penalty; (2) employees may contest the period of abatement provided in a citation; and (3) an employer can seek a modification of an abatement date established by a Commission final order.

[*93]

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Employees are given certain specific rights under the Act, such as the right to request an inspection of their workplace n13 and to accompany the inspector during the inspection. n14 They cannot, however, compel the Secretary to issue a citation and, with one exception, they cannot dispute the citation once it is issued. The exception involves the abatement date contained in the citation. Under section 10(c), 29 U.S.C. § 659(c), employees may contest before the Commission the reasonableness of the time permitted for abatement. Section 10(c) also gives employees the procedural right to participate as parties to Commission proceedings instituted by their employers.

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n13 29 U.S.C. § 657(f)(1).

n14 29 U.S.C. § 657(e).

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Except for the right to challenge the abatement time, the Act gives employees only one other way in which they can question the Secretary's prosecutorial discretion. Section 13(d), 29 U.S.C. § 662(d), permits an employee [*94] to seek a writ of mandamus in a federal district court if the Secretary arbitrarily and capriciously fails to seek an injunction to counteract an imminent danger. These two limitations on the Secretary's prosecutorial authority demonstrate that, where Congress intended for employees to question the Secretary's prosecutorial discretion, it explicitly provided that they could do so. Where Congress did not so provide, it did not intend to create a private right of action. Taylor v. Brighton Corp., 616 F.2d 256 (6th Cir. 1980).

Thus, the Act gives the Secretary broad prosecutorial authority, limited only by the right of employees to challenge an abatement date and by the right, which is not applicable to Commission proceedings, to seek a writ of mandamus in imminent danger situations. The procedural right of affected employees to become parties to Commission proceedings must be interpreted consistent with the overall enforcement mechanism the Act establishes, and therefore cannot be read to limit the Secretary's prosecutorial discretion in Commission proceedings except where the employees and the Secretary differ on the issue of the abatement date. The cases decided by the courts [*95] of appeals universally recognize this principle. In Marshall v. OSHRC (IMC Chemical Group, Inc.), 635 F.2d 544 (6th Cir. 1980), the court held that employees cannot object to the Secretary's decision to withdraw a citation. The Third Circuit has stated that the only objection an employee party can raise to a settlement agreement between the Secretary and an employer concerns any abatement date provided for in the agreement. Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir.), cert. denied, 101 S. Ct. 784 (1980). The same court has held that employees may not contest the representation in a settlement agreement that abatement has occurred. Marshall v. Oil, Chemical and Atomic Workers, 647 F.2d 383 (3d Cir. 1981). The D.C. Circuit has agreed with the Sixth and Third Circuits that employees cannot prosecute a citation the Secretary seeks to withdraw and cannot dispute the terms of a settlement between the Secretary and an employer. Oil, Chemical and Atomic Workers v. OSHRC, 671 F.2d 643, 650 (D.C. Cir. 1981), pet. for cert. filed, No. 81-1784 (March 26, 1982). The court further stated that, although an employee representative [*96] that has elected party status can appeal an adverse Commission decision to a court of appeals, such an appeal will be rendered moot if the Secretary informs the court that he will not further enforce the claim regardless of the court's disposition of the appeal. Id. at 651. My colleagues do not find these decisions persuasive. n15 They prefer to read the final sentence of section 10(c) to give employees broad rights that are inconsistent with the Act's overall pattern. In my opinion, the courts are precisely correct in recognizing that the procedural right of employees to elect party status does not confer on them the right to challenge the Secretary's prosecutorial authority in Commission proceedings except on the specific issue of the abatement date.

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n15 Commissioner Cottine notes that some courts have held that the charging party in an NLRB case is entitled to be heard on its objections to a settlement between the Board's General Counsel and the party charged with an unfair labor practice. Those decisions, however, have relied on the "unique legal status" of the charging party in an unfair labor practice proceeding, NLRB v. Oil, Chemical & Atomic Workers Int'l Union, 476 F.2d 1031, 1036 (1st Cir. 1973), and on the "overall legislative scheme" of the National Labor Relations Act, Concrete Materials of Georgia, Inc. v. NLRB, 440 F.2d 61, 67 (5th Cir. 1971). However, as I have noted, the courts that have considered the role of employee parties in the context of the overall legislative scheme of the Occupational Safety and Health Act have held that employee objections to settlement agreements are limited to the period of time allowed for abatement. Thus, the NLRB cases are inapposite.

[*97]

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Prosecutorial discretion serves a valuable purpose; it assures that a private person need not answer frivolous charges, but provides for a government agency to serve a screening function and decline to bring charges it determines have no merit. n16 Trbovich v. United Mine Workers of America, 404 U.S. 528, 537; Taylor v. Brighton Corp., 616 F.2d at 262. Moreover, this screening function does not cease when the Secretary issues a citation. As Commissioner Cleary has pointed out, citations are issued by the Secretary's nonlegal personnel acting with necessary dispatch. Donald K. Nelson Construction, Inc., 76 OSAHRC 2/A2, 3 BNA OSHC 1914, 1975-76 CCH OSHD P20,299 (No. 4309, 1976). Thus, the Secretary's attorneys normally do not assess the justification for a citation until the citation is issued and is contested. At that time, they are obligated to review the matter to determine whether the citation should be prosecuted. See Rule 11 of the Federal Rules of Civil Procedure. Moreover, this screening function continues throughout a case. As prosecuting attorneys representing the United [*98] States government, the Secretary's attorneys have a continuing duty to see that justice is done.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape of innocence suffer.

Berger v. United States, 295 U.S. 78, 88 (1935). n17 Although this statement was made in a criminal case, its rationale obviously applies equally to any proceeding, such as this, in which the government is prosecuting a private party for allegedly violating the law and the party can be penalized if found in violation.

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n16 Even if a person is ultimately vindicated, the necessity to answer and defend a charge imposes a substantial burden on the accused party. Indeed, it was concern for the burden imposed by the need to simply defend a charge that led Congress to enact the recent Equal Access to Justice Act, 28 U.S.C. § 2412, which provides that certain parties who prevail in suits against the government may be awarded attorney fees and expenses if the government's position was not substantially justified.

n17 I do not agree with my colleagues that the Secretary cannot be relied upon to adequately represent the public interest. I have no reason to believe that the Secretary's concern for the public interest is any less than that of this Commission.

[*99]

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One of the principal controversies that arose during the congressional debates was whether adjudicatory authority should be vested in the same agency, the Secretary of Labor, responsible for prosecuting contested actions or whether a separate, independent agency should be established for the adjudication of disputes. The Act was considered first by the Senate, whose Committee on Labor and Public Welfare reported to the floor a bill, S. 2193, that gave adjudicatory as well as prosecutorial authority to the Secretary.

The Committee minority, however, favored an independent panel to adjudicate disputes. Senator Javits explained the rationale for the minority view:

[H]earing and determination of enforcement cases by an independent panel more closely accords with traditional notions of due process than would hearing and determination by the Secretary. In the latter case the Secretary is essentially acting as prosecutor and judge. Any finding by the Secretary in favor of a respondent would be essentially a repudiation by the Secretary of his own Department's employees. While this type of enforcement [*100] has been used in connection with other statutes, is contemplated by the Administrative Procedure Act, and is not jurisdictionally defective on due process grounds, the awkward mechanics it imposes upon heads of Departments who wish to exercise their adjudicatory power personally in order to preserve due process has not generally been appreciated.

Senate Subcommittee on Labor, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970 at 195. Consequently, on the floor of the Senate, Senator Javits introduced an amendment to S. 2193, which was ultimately adopted and established the Commission as an independent adjudicatory agency.

The House of Representatives also considered a committee bill, H.R. 16785, which vested both prosecutorial and adjudicatory authority in the Secretary of Labor, and a substitute bill, H.R. 19200, which established an independent commission to adjudicate contested enforcement actions. The substitute bill was passed as an amendment to the committee bill. Thus, Congress established this Commission because it was concerned that placing adjudicatory as well as prosecutorial authority in the Secretary of Labor would be [*101] unfair to employers who were subject to enforcement actions brought by the Secretary. See Taylor v. Brighton Corp., 616 F.2d at 260-61. The Commission was not given any policy-making role, any prosecutorial powers, or any authority to oversee the Secretary's exercise of his prosecutorial discretion. Marshall v. Sun Petroleum Products Co., 622 F.2d at 1183-84. Indeed, asserting such powers would necessarily detract from the impartiality that provided the very reason for Congress to create the Commission. See Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278 (9th Cir. 1974).

Intormal dispositions are the "lifeblood of the administrative process." Local 282, International Brotherhood of Teamsters v. NLRB, 339 F.2d 795, 797 (2d Cir. 1964). This principle holds true under the Occupational Safety and Health Act. If every dispute between the Secretary and employers had to be resolved through litigation, the Act's enforcement machinery would be overburdened, with even longer delays in the disposition of cases than now exist. n18 And since any abatement requirement is tolled pending the entry of a Commission final order when an employer contests a [*102] citation in good faith, n19 there would be long delays in achieving abatement in those situations ultimately found by the Commission to be in violation of the Act.

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n18 As noted above, this case has been before the Commission for more than four years. Other cases have been here even longer. The Commission's backlog would be even worse but for the fact that a substantial number of cases are disposed of by the consent of the parties. For example, Commission records reveal that, in fiscal 1981, 92.7% of case dispositions by Commission administrative law judges occurred prior to a hearing. These dispositions include settlements, withdrawals of citations by the Secretary, and withdrawals of notices of contest by employers.

n19 29 U.S.C. § 659(b).

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Thus, settlements play a vital role in the Secretary's ability to entorce the Act. They enable him to allocate his resources efficiently while achieving rapid entry of abatement orders. However, settlements involve an element of compromise, and the Secretary may be unable [*103] to achieve all he seeks in a settlement agreement. Nevertheless, when he balances the concessions he must make against the conservation of his resources, the swift entry of an abatement order, and the possibility he may lose in litigation, he might well conclude that a settlement fulfills the purposes of the Act even if its terms are not those he would regard as optimum.

My colleagues remand this case for the judge to second-guess the Secretary and decide whether the settlement agreement between the Secretary and Mobil fulfills the purposes of the Act. In making this determination, the practical considerations that may have induced the Secretary to agree to the settlement apparently must be ignored. Instead, the judge is to hold some type of hearing at which the Union presents its objections to the agreement and, on the basis of whatever information the parties present to him, determine whether the abatement plan in the agreement is inadequate. n20 If the judge believes that the Secretary's plan is inadequate, he must disapprove the settlement agreement. n21

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n20 At various places in my colleagues' opinions, they imply that the judge will encounter little difficulty in making this determination. That is only true if, as I suspect, they expect the judge to simply compare the Union's abatement proposal with that of the Secretary and Mobil and see which appears to offer more protection. However, a serious inquiry into an employer's abatement responsibility under a broad requirement such as § 5(a)(1) is not a simple task. See National Realty and Constr. Co. v. OSHRC, 489 F.2d 1257, 1266-67 (D.C. Cir. 1973). Normally, the Commission determines whether an employer's precautions were sufficient to free its workplace from a hazard when an employer contests a citation or a failure to abate notification. However, when the Commission does so, it has the benefit of a complete evidentiary record made after the employer's precautions have been implemented and their effectiveness, or lack thereof, demonstrated. See BASF Wyandotte Corp., 81 OSAHRC , 10 BNA OSHC 1250, 1982 CCH OSHD P25,831 (No. 78-2316, 1981) (employer's precautions against explosion hazard were sufficient; additional precautions sought by the Secretary are therefore not required). In contrast, assuming that my colleagues expect the judge to conduct a serious inquiry into the adequacy of the abatement plan contained in the settlement agreement, they expect him to do so in some type of proceeding whose nature is not clear but is apparently something other than a full evidentiary hearing. Indeed, it does not appear that my colleagues even agree on the nature of this proceeding.

n21 On its face, the provision in the Union's plan for continuous visual contact with the gauger appears to provide more protection than the plan for radio contact at ten-minute intervals contained in the settlement agreement. See note 2 supra. However, it is not clear that a recognized hazard likely to cause death or serious harm to employees would remain after implementation of the Secretary's abatement plan. An intelligent inquiry into the adequacy of the Secretary's abatement plan must address in detail the nature of the hazard during the less critical period. Thus, the Secretary may be unable to persuade the judge that his plan is adequate without extensive litigation, which is what he sought to avoid by settling the case in the first place.

[*104]

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If the judge disapproves the settlement agreement, the Secretary must then decide whether to abide by the agreement or withdraw from it. If he abides by the agreement, he cannot obtain an enforceable order. He may also not be able to obtain an enforceable order if he withdraws from the agreement. One court had persuasively held that "dictates of fairness and justice require that all parties be placed in the position of status quo ante the issuance of the citation" if the Secretary withdraws from a settlement. Marshall v. Sun Petroleum Products Co., 622 F.2d at 1187.

If the Secretary nevertheless attempts to withdraw from the agreement and litigate the case on the merits, the burden is on him to prove a violation, and he may be unable to satisfy that burden. In such a situation, Mobil would have no abatement obligation at all, and the Secretary loses the benefits he would have gained through the settlement. If the Secretary sustains his burden of proof, then Mobil will be required to abate the violation. n22 However, only the Secretary can issue a failure to abate notification, [*105] which Mobil can avoid by taking whatever abatement measures are satisfactory to the Secretary. Thus, even if the Union and the Commission disagree with the adequacy of the abatement measures sought by the Secretary, it is futile for them to suggest that an employer must do more than the Secretary believes is necessary, for it is within the Secretary's sole discretion to decide whether to issue a failure to abate notification to an employer.

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n22 When the Commission finds, in a case litigated on its merits, that an employer violated the Act as alleged in a citation, it enters an order affirming the citation. The Commission had never included in its order a specific abatement method an employer must follow. See United Auto Workers, Local 588 (Ford Motor Co.), 76 OSAHRC 58/B8, 4 BNA OSHC 1243, 1976-77 CCH OSHD P23,737 (No. 2786, 1976), aff'd, 557 F. 2d 607 (7th Cir. 1977) (Commission lacks authority to order employer to institute specific abatement measures); Brown & Root, Inc., 80 OSAHRC 97/A2, 8 BNA OSHC 2140, 2144, 1980 CCH OSHD P24,853 at p. 30,656 (No. 76-1296, 1980) (employer may abate violation by any method it chooses that is sufficiently effective). Therefore, in my view, even if the Union persuades the judge that the abatement plan in the settlement agreement is inadequate, the Commission cannot require the employer to follow the particular plan of abatement proposed by the Union.

[*106]

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Thus, the disposition ordered by the majority imposes substantial burdens on the Secretary and Mobil while producing benefits to nobody. This absurd result illustrates the anomaly of the Commission, a purely adjudicatory agency, interfering in matters that lie within the Secretary's prosecutorial discretion. It further illustrates the wisdom of the court decisions that have recognized that the right of employees to elect party status cannot be interpreted as a limitation on the Secretary's prosecutorial discretion except where the abatement date is an issue. n23 This Commission has enough to do without assuming powers that Congress did not give it. I would affirm the judge's order approving the settlement agreement.

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n23 Commissioner Cottine's observation that the Commission has rarely disapproved settlement agreements is inapposite. Until today, the Commission and its administrative law judges would not consider employee objections to abatement plans in settlement agreements under the Commission precedent the majority overrules. United States Steel Corp., 77 OSAHRC 12/C3, 4 BNA OSHC 2001, 1976-77 CCH OSHD P21,463 (No. 2975, 1977). However, while this case has been under consideration, a number of other cases involving employee objectons to settlement agreements have accumulated in the Commission's backlog. Therefore, it is not accurate to say that such objections occur only rarely. Moreover, we obviously do not know in how many cases employees refrained from raising objections to settlement agreements because the administrative law judge could not consider the objections under United States Steel Corp., supra. Finally, we do not know how many cases may not be settled because of the possibility this decision creates that the settlement may not be approved.

[*107]

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