“SECRETARY OF LABOR,Complainant,v.PAN AMERICAN WORLD AIRWAYS, INC.,Respondent.AIR TRANSPORT LOCAL 504,TRANSPORT WORKERS UNION, AFL-CIO,Authorized EmployeeRepresentative.OSHRC Docket No. 83-0249_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory function. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).The question for decision is whether an authorized representative ofaffected employees may object to a method of abatement prescribed in asettlement agreement between the Secretary of Labor and an employer. Wehave reexamined Commission precedent in light of several recentappellate court decisions and hold that the representative may not soobject.The Secretary issued to Pan American World Airways, Inc. (\”Pan Am\”) acitation alleging a violation of the exit door standard at 29 C.F.R. ?1910.36 (b)(4). The citation alleged that electromagnetic door locksinstalled on 24 exit doors prevented \”free and unobstructed egress\” froman airport building. Pan Am had installed the electromagnetic doorlocks to prevent pilferage. After Pan Am filed a notice of contest anddiscovery commenced, the Secretary and Pan Am agreed upon a settlement. The settlement prescribed, among other things, modifications to theelectromagnetic door lock system, instruction of employees in theoperation of the new system, and the installation of panic bars on doorsin two areas. A ten-week abatement period (originally set to end onJanuary 30, 1984) was prescribed. Pan Am also agreed to pay a penaltyand to withdraw its notice of contest.Air Transport Local 504 of the Transport Workers Union, AFL-CIO, whichhad elected party status, objected to the adequacy of the abatementmethods prescribed in the settlement agreement. After holding ahearing, Administrative Law Judge Jerome C. Ditore concluded that theunion had no right to object to the settlement on that ground but thatit could object to the reasonableness of the abatement period. Thejudge found that the union had not objected to the abatement period andtherefore approved the settlement. The union sought discretionaryreview, which was granted.The question of the right of a union that has elected party status toobject to the abatement methods prescribed in a settlement agreement hasbeen considered in many Commission and appellate court opinions. Sincethe Commission last considered the issue, four courts of appeals haveissued decisions disapproving the Commission’s holding that a union hasno right to object to the adequacy of the abatement methods prescribedin the the settlement agreement. _Donovan v. OSHRC (Mobil Oil Corp.)_,713 F.2d 918 (2d Cir. 1983), _rev’g Mobil Oil Corp_., 82 OSAHRC 45\/A2,10 BNA OSHC 1905, 1982 CCH OSHD ? 26,187 (No. 77-4386, 1982); _Donovanv. International Union, Allied Industrial Workers (Whirlpool Corp.)_,722 F.2d 1415 (8th Cir. 1983); _Donovan v._ _United Steelworkers(Monsanto Co.)_, 722 F.2d 1158 (4th Cir. 1983); _Donovan v. Oil,Chemical & Atomic Workers International_ _Union (American PetrofinaCo.)_, 718 F.2d 1341 (5th Cir. 1983)(following other circuits to prevent\”administrative chaos\”), _cert_. _denied_, 52 U.S.L.W. 3819 (U.S. May14, 1984)(No. 83-1298). These courts of appeals joined several othersthat had already hold or implied that unions lack such a right. _Oil,Chemical & Atomic Workers International Union v. OSHRC (AmericanCyanamid_ _Co_.), 671 F.2d 643, 650 & n.7 (D.C. Cir. 1982), _cert.denied_, 103 S.Ct. 206 (1983); _Marshall v. Oil Chemical & AtomicWorkers_ _International Union (American Cyanamid Co._), 647 F.2d 383 (3dCir. 1981), _following Marshall v. Sun Petroleum Products Co._, 622 F.2d1176 (3d Cir.) _cert. denied_, 449 U.S. 1061 (1980). _See also Marshallv. OSHRC (IMC Chemical Group)_, 635 F.2d 544 (6th Cir. 1980);_Automobile Workers v. OSHRC (Ford Motor Co._), 557 F.2d 607 (7th Cir.1977). We agree with the appellate court decisions cited above and holdthat a union lacks the right to object to the adequacy of the abatementmethods specified in a settlement agreement between the Secretary and anemployer, and that a union may object only to the reasonableness of theabatement period specified by the agreement. All decisions to thecontrary are overruled. Inasmuch as the union has not objected to theabatement date in the settlement agreement, the judge’s decisionapproving the agreement is affirmed.[[1]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: MAY 31 1984CLEARY, Commissioner, dissenting:Like Judge Pollak, I take a \”more spacious view\” of employee rights. _See_ _Marshall v. Sun Petroleum Products Co_., 622 F.2d 1176, 1191 (3dCir.,) _cert. denied_, 449 U.S. 1061 (1980) (Louis H. Pollak of theUnited States District Court for the Eastern District of Pennsylvaniasitting by designation, dissenting in part).In my view, employees should be heard on all aspects ofemployer-contested citations at all stages of Review Commissionproceedings, including settlement. I stated my reasons for this view inexhaustive detail in _Mobil Oil Corp._, 82 OSHRC 45\/A2, 10 BNA OSHC at1920, 1982 CCH OSHD ? 26,187 at 33,034 (No. 77-4386, 1982), _rev’d_, 713F.2d 918 (2d Cir. 1983). Briefly, nothing in the Act, its legislativehistory, or basic principles of federal regulatory action justifiesexclusion of employee evidence; but the most elementary principles oflaw militate in favor of hearing all evidence likely to throw light onissues in dispute.The Act itself specifies that employees are entitled to party status inemployer-initiated proceedings. Section 10(c), 29 U.S.C. ? 659(c). Thehallmarks of party status are the right to present evidence, to be heardin opposition to all other parties, to participate fully in all aspectsof the case, both substantive and procedural. The Act itself does notdefine \”party\” more narrowly, and nothing in the legislative historysupports a more limited definition. (To the extent that the legislativehistory mentions employee participation in Commission proceedings atall, the quoted passages are virtually identical in language to section10(c) itself and therefore cannot support a restrictive interpretation. _See_ SUBCOMMITTEE ON LABOR, SENATE COMMITTEE ON LABOR & PUBLIC WELFARE,THE LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF1970 at 155, 414 (1971)).Judge Pollak, in his partial dissent in _Sun Petroleum_, _supra_,reviewed the legislative history of the section as follows:The anomalous limitation not expressed in the text of Section 10(c) issupplied, so the court insists, by the report of the Senate Committee onLabor and Public Welfare. It is of course true, as the court notes,that the Committee’s report recites that Section 10(c) \”gives anemployee or representative of employees a right, whenever he believesthat the period of time provided in a citation for abatement of aviolation is unreasonably long to challenge the citation on thatground.\” But the report says more. The entire relevant passage,including the language relied on by the court, shows the Committee’sunderstanding that an employee \/union challenge to the length of theproposed abatement period is but one of two of employee\/unionparticipation in Commission proceedings–two _distinct_ modes linked bythe conjunctive \”also.\”If the employer decides to contest a citation or notification, orproposed assessment of penalty, the Secretary must afford an opportunityfor a formal hearing under the Administrative Procedure Act. Based uponthe hearing record the Secretary shall issue an order confirming,denying, or modifying the citation, notification, or proposed penaltyassessment. The procedural rules prescribed by the Secretary for theconduct of such hearings must make provision for affected employees orother representatives to participate as parties.Section 10(c) _also_ gives an employee or representative of employees aright, whenever he believes that the period of time provided in acitation for abatement of a violation is unreasonably long, to challengethe citation on that ground. Such challenges must be filed within 15days of the issuance of the citation, and an opportunity for a hearingmust be provided in similar fashion to hearings when an employercontests. The employer is to be given an opportunity to participate asa party. [[4]] (Emphasis added.)_Sun Petroleum_, 622 F.2d at 1190.Much has been made of the fact that unrestricted employee participationwould interfere with the Secretary’s prosecutorial discretion. Both theAct and the legislative history show that Congress intended foremployees to play a central and active role in OSHA proceedings. Forexample, the Secretary _must_ investigate employee complaints of OSHAviolations, and he _must_ inform the complaining employees of hisreasons if he does not issue a citation for a serious violation or animminent danger. _See_ sections 8(g), 9(a) 29 U.S.C. ?? 657(g),658(a). The legislative history shows that Congress recognized andattached significance to the fact that employees have valuable knowledgeabout their working conditions. LEGISLATIVE HISTORY at 430, 448. Moreover, absolute and unreviewable prosecutorial discretion is not inharmony with the Administrative Procedure Act, which has long imposed apresumption of review-ability an administrative discretionary powers. _See_ discussion in DAVIS, ADMINISTRATIVE LAW TEXT 518-523 (3d ed. 1972).Set against this striking absence of support for limited employeeparticipation is the fundamental principle that relevant, probative andmaterial evidence should be heard unless there are important policyreasons for exclusion.[T]he whole machinery of jurisprudence, in all its branches, iscontrived for the purpose of enabling the judging power to determine onthe truth or falsehood of every litigation proposition. This is to bedone by hearing and examining evidence, that is to say, hearing andexamining everything that will contribute to bring the mind to thedetermination required. If we refuse to hear what will, in any degree,produce this effect, we must determine on imperfect evidence; and inproportion to the importance of the matter thus refused to be heard,must evidently be the chance of making an incorrect rather than a justdetermination.Livingston, INTRODUCTORY REPORT TO THE CODE OF EVIDENCE in COMPLETEWORKS OF EDWARD LIVINGSTON ON CRIMINAL JURISPRUDENCE 411, 421 (1873).Limiting employee participation prevents the trier of fact fromconsidering all probative, relevant and material evidence–withoutadvancing any important policy. Worse yet, exclusion of employeeevidence undermines the purpose of the Act in direct proportion to theemployees’ ability to prove that a hazard exists or that an abatementplan is inadequate.Although the Fifth Circuit Court of Appeals ultimately held, for reasonsof uniformity, that employees have only limited participatory rights inemployer-initiated proceedings, it first explained why, if it werewriting \”on a clean slate,\” it would hold otherwise. _Donovan v. Oil,Chemical, and Atomic Workers International Union (American Petrofina)_,718 F.2d 1341 (5th Cir. 1983), _cert_. _denied_, __U.S.__ (1984).Assuming that \”Congress used words as they are commonly used andordinarily understood,\” the Fifth Circuit concluded that the word\”party\” connotes \”persons entitled to participate fully in litigation.\” _Id_. at 1349. The fact that Congress explicitly limited employeeparticipatory rights in employee-initiated proceedings seemed to thecourt evidence that Congress meant its unqualified assignment of partystatus in employer-initiated contests to be read literally.The Secretary argued in _American Petrofina_ that employee rights areyoked to the status of the employer’s participation so that even if theemployer’s notice of contest opens the door to plenary employeeparticipation, the employer’s withdrawal of the notice of contest wouldreturn employees to the status of abatement date challengers only. Thecourt, however, concluded that employees in employer-initiated contestsare analogous to intervenors in a civil lawsuit whose claims can proceedto decision even after the original parties have settled or soughtdismissal. \”The weight of authority in the United States Courts ofAppeals supports the principle that an intervenor can continue tolitigate after dismissal of the party who originated the action.\” _Id_.at 1351, quoting _U.S_. _Steel v. EPA_, 614 F.2d 843, 845 (3rd Cir. 1979).The Fifth Circuit disagreed, as do I, with those courts that havelimited employee participation in part on the ground that this isnecessary to the Secretary’s authority as prosecutor under the Act. \”Focussing solely on the prosecutorial phase of the process misses theissue in the case. The Union’s rights arise at the adjudicatory stage,the administration of which falls within the Commission’s bailiwick.\” _Id_. at 1349.In short, the Fifth Circuit found that on balance there is more evidencefavoring full employee participation in employer-initiated proceedingsthan against it, that Congress intended employees to be more than mere\”gadflies.\” \”[W]e understand Congress to have attempted to erect acomprehensive structure that would allow for meaningful participation ofthose most personally concerned with workplace safety, — the workers.\” _Id_. I agree.I am mindful of the fact that full employee involvement may cause delayin some small proportion of the cases. But it seems to me delay forpurposes of hearing all the facts is to be preferred over final ordersbased on incomplete evidence. In any case, I find the Secretary’scurrent horror of delay somewhat strange; during the first eight yearsof the Act, the Secretary submitted literally thousands of proposedsettlements for Commission approval with no apparent ill result. ThisCommission has now been in existence for almost thirteen years, but thenumber of cases in which the Secretary has considered it importantenough to challenge Commission jurisdiction over the substance ofsettlements are fewer than ten. Thus, interference with administrationof the Act or the judicial process is for all practical purposesnonexistent, and at one point the Secretary had an apparent policy ofseeking employee comment and cooperation in arriving at settlementagreements. _See_ _Reynolds Metals Company_, 79 OSHRC 4\/A2, 7 BNA OSHC1042, 1979 CCH OSHD ? 23,295 (No. 78-2485, 1979); _Gardinier, Inc., andInternational Chemical Workers Local_ _439_, 79 OSHRC 80\/D5, 7 BNA OSHC1738, 1979 CCH OSHD ? 23,892 (No. 78-3895, 1979); _Kaiser Aluminum &Chemical_ _Corporation_, 78 OSHRC 103\/A2, 6 BNA OSHC 2172, 1976-77 CCHOSHD ? 21,398 (No. 76-2293, 1978), _rev’d_, 647 F.2d 171 (9th Cir. 1981)(Secretary abrogated settlement agreement on employee representativeobjection); _I.T.T. Thompson Industries, Inc._, 78 OSHRC 70\/D10, 6 BNAOSHC 1944, 1978 CCH OSHD ? 22,944 (Nos. 77-4174 and 77-4175, 1978). Iwould urge the Secretary to return to this policy and encourageparticipation in settlements by representatives of employees in thoseinstances where they have entered a case as a party.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] The union’s petition for review suggests that it objected beforethe judge to the reasonableness of the abatement period in thesettlement agreement. The judge found otherwise, as do we. At thehearing held by Judge Ditore on the union’s objections to thesettlement, the judge invited the union to state an objection to theabatement period but the union did not do so.The union’s petition also argues that the settlement agreement was notserved in accordance with Commission Rule 100(c). The settlementagreement was not served on counsel for the union, but at the hearingcounsel for the union stated that he did have a copy of the settlementagreement. The union has not claimed that any shortness of noticeprevented it from formulating an objection to the abatement date. Indeed, after the hearing, the judge waited far longer than the ten-dayobjection period prescribed by Commission Rule 100(c) before approvingthe settlement agreement. The union’s objections therefore do notprovide a basis for challenging the judge’s approval of the settlement.[[4]] Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare,92nd Cong., 1st Sess., Legislative History of the Occupational Safetyand Health Act of 1970 at 154-155 (Comm. Print 1971) [herein cited asLegislative History]. The bill referred from committee, which isaddressed in the above passage, contemplated hearings within theDepartment of Labor; hence, the allusion in the excerpt to hearingsbefore the Secretary. As detailed in the opinion of the court, however,the enforcement scheme was modified on the Senate floor to provide forreview before an independent administrative body in the form of theReview Commission. Apart from the substitution of the Review Commissionfor the Secretary, procedures set forth in the final Act are, in allrelevant respects, identical to those which are the subject of thisCommittee report.”