“Docket No. 83-0249 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. 83-0249DECISIONBefore:\u00a0 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 and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunction.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).The question for decision is whether an authorized representative of affectedemployees may object to a method of abatement prescribed in a settlement agreement betweenthe Secretary of Labor and an employer.\u00a0 We have reexamined Commission precedent inlight of several recent appellate court decisions and hold that the representative may notso object.The Secretary issued to Pan American World Airways, Inc. (\”Pan Am\”) a citationalleging a violation of the exit door standard at 29 C.F.R. ? 1910.36 (b)(4).\u00a0 Thecitation alleged that electromagnetic door locks installed on 24 exit doors prevented\”free and unobstructed egress\” from an airport building.\u00a0 Pan Am hadinstalled the electromagnetic door locks to prevent pilferage.\u00a0 After Pan Am filed anotice of contest and discovery commenced, the Secretary and Pan Am agreed upon asettlement.\u00a0 The settlement prescribed, among other things, modifications to theelectromagnetic door lock system, instruction of employees in the operation of the newsystem, and the installation of panic bars on doors in two areas.\u00a0 A ten-weekabatement period (originally set to end on January 30, 1984) was prescribed.\u00a0 Pan Amalso agreed to pay a penalty and to withdraw its notice of contest.Air Transport Local 504 of the Transport Workers Union, AFL-CIO, which hadelected party status, objected to the adequacy of the abatement methods prescribed in thesettlement agreement.\u00a0 After holding a hearing, Administrative Law Judge Jerome C.Ditore concluded that the union had no right to object to the settlement on that groundbut that it could object to the reasonableness of the abatement period.\u00a0 The judgefound that the union had not objected to the abatement period and therefore approved thesettlement.\u00a0 The union sought discretionary review, which was granted.The question of the right of a union that has elected party status to objectto the abatement methods prescribed in a settlement agreement has been considered in manyCommission and appellate court opinions.\u00a0 Since the Commission last considered theissue, four courts of appeals have issued decisions disapproving the Commission’s holdingthat a union has no right to object to the adequacy of the abatement methods prescribed inthe the settlement agreement.\u00a0 Donovan v. OSHRC (Mobil Oil Corp.), 713 F.2d918 (2d Cir. 1983), rev’g Mobil Oil Corp., 82 OSAHRC 45\/A2, 10 BNA OSHC 1905, 1982CCH OSHD ? 26,187 (No. 77-4386, 1982); Donovan v. International Union, AlliedIndustrial Workers (Whirlpool Corp.), 722 F.2d 1415 (8th Cir. 1983); Donovan v.United Steelworkers (Monsanto Co.), 722 F.2d 1158 (4th Cir. 1983); Donovan v.Oil, Chemical & Atomic Workers International Union (American Petrofina Co.),718 F.2d 1341 (5th Cir. 1983)(following other circuits to prevent \”administrativechaos\”), cert. denied, 52 U.S.L.W. 3819 (U.S. May 14, 1984)(No.83-1298).\u00a0 These courts of appeals joined several others that had already hold orimplied that unions lack such a right.\u00a0 Oil, Chemical & Atomic WorkersInternational Union v. OSHRC (American Cyanamid Co.), 671 F.2d 643, 650 &n.7 (D.C. Cir. 1982), cert. denied, 103 S.Ct. 206 (1983); Marshall v. OilChemical & Atomic Workers International Union (American Cyanamid Co.), 647F.2d 383 (3d Cir. 1981), following Marshall v. Sun Petroleum Products Co., 622 F.2d1176 (3d Cir.) cert. denied, 449 U.S. 1061 (1980).\u00a0 See also Marshall v.OSHRC (IMC Chemical Group), 635 F.2d 544 (6th Cir. 1980); Automobile Workers v.OSHRC (Ford Motor Co.), 557 F.2d 607 (7th Cir. 1977).\u00a0 We agree with theappellate court decisions cited above and hold that a union lacks the right to object tothe adequacy of the abatement methods specified in a settlement agreement between theSecretary and an employer, and that a union may object only to the reasonableness of theabatement period specified by the agreement.\u00a0 All decisions to the contrary areoverruled.\u00a0 Inasmuch as the union has not objected to the abatement date in thesettlement agreement, the judge’s decision approving the agreement is affirmed.[[1]]FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED:\u00a0 MAY 31 1984CLEARY, Commissioner, dissenting:Like Judge Pollak, I take a \”more spacious view\” of employeerights.\u00a0 See Marshall v. Sun Petroleum Products Co., 622 F.2d 1176,1191 (3d Cir.,) cert. denied, 449 U.S. 1061 (1980) (Louis H. Pollak of the UnitedStates District Court for the Eastern District of Pennsylvania sitting by designation,dissenting in part).In my view, employees should be heard on all aspects of employer-contestedcitations at all stages of Review Commission proceedings, including settlement.\u00a0 Istated my reasons for this view in exhaustive detail in Mobil Oil Corp., 82 OSHRC45\/A2, 10 BNA OSHC at 1920, 1982 CCH OSHD ? 26,187 at 33,034 (No. 77-4386, 1982), rev’d,713 F.2d 918 (2d Cir. 1983).\u00a0 Briefly, nothing in the Act, its legislative history,or basic principles of federal regulatory action justifies exclusion of employee evidence;but the most elementary principles of law militate in favor of hearing all evidence likelyto throw light on issues in dispute.The Act itself specifies that employees are entitled to party status inemployer-initiated proceedings.\u00a0 Section 10(c), 29 U.S.C. ? 659(c).\u00a0 Thehallmarks of party status are the right to present evidence, to be heard in opposition toall other parties, to participate fully in all aspects of the case, both substantive andprocedural.\u00a0 The Act itself does not define \”party\” more narrowly, andnothing in the legislative history supports a more limited definition.\u00a0 (To theextent that the legislative history mentions employee participation in Commissionproceedings at all, the quoted passages are virtually identical in language to section10(c) itself and therefore cannot support a restrictive interpretation.\u00a0 SeeSUBCOMMITTEE ON LABOR, SENATE COMMITTEE ON LABOR & PUBLIC WELFARE, THE LEGISLATIVEHISTORY OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 at 155, 414 (1971)).Judge Pollak, in his partial dissent in Sun Petroleum, supra, reviewed thelegislative 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 on Labor and PublicWelfare.\u00a0 It is of course true, as the court notes, that the Committee’s reportrecites 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 aviolation is unreasonably long to challenge the citation on that ground.\”\u00a0 Butthe report says more.\u00a0 The entire relevant passage, including the language relied onby the court, shows the Committee’s understanding that an employee \/union challenge to thelength of the proposed abatement period is but one of two of employee\/union participationin Commission proceedings–two distinct modes linked by the conjunctive\”also.\”If the employer decides to contest a citation or notification, or proposedassessment of penalty, the Secretary must afford an opportunity for a formal hearing underthe Administrative Procedure Act.\u00a0 Based upon the hearing record the Secretary shallissue an order confirming, denying, or modifying the citation, notification, or proposedpenalty assessment.\u00a0 The procedural rules prescribed by the Secretary for the conductof such hearings must make provision for affected employees or other representatives toparticipate as parties.Section 10(c) also gives an employee or representative of employees aright, whenever he believes that the period of time provided in a citation for abatementof a violation is unreasonably long, to challenge the citation on that ground.\u00a0 Suchchallenges must be filed within 15 days of the issuance of the citation, and anopportunity for a hearing must be provided in similar fashion to hearings when an employercontests.\u00a0 The employer is to be given an opportunity to participate as a party.\u00a0 [[4]]\u00a0 (Emphasis added.) Sun Petroleum, 622 F.2d at 1190.Much has been made of the fact that unrestricted employee participation would interferewith the Secretary’s prosecutorial discretion.\u00a0 Both the Act and the legislativehistory show that Congress intended for employees to play a central and active role inOSHA proceedings.\u00a0 For example, the Secretary must investigate employeecomplaints of OSHA violations, and he must inform the complaining employees of hisreasons if he does not issue a citation for a serious violation or an imminentdanger.\u00a0 See sections 8(g), 9(a) 29 U.S.C. ?? 657(g), 658(a).\u00a0 Thelegislative history shows that Congress recognized and attached significance to the factthat employees have valuable knowledge about their working conditions.\u00a0 LEGISLATIVEHISTORY at 430, 448. \u00a0Moreover, absolute and unreviewable prosecutorial discretion isnot in harmony with the Administrative Procedure Act, which has long imposed a presumptionof review-ability an administrative discretionary powers.\u00a0 See discussion inDAVIS, 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 and material evidenceshould be heard unless there are important policy reasons for exclusion.[T]he whole machinery of jurisprudence, in all its branches, is contrived forthe purpose of enabling the judging power to determine on the truth or falsehood of everylitigation proposition.\u00a0 This is to be done by hearing and examining evidence, thatis to say, hearing and examining everything that will contribute to bring the mind to thedetermination required.\u00a0 If we refuse to hear what will, in any degree, produce thiseffect, we must determine on imperfect evidence; and in proportion to the importance ofthe matter thus refused to be heard, must evidently be the chance of making an incorrectrather than a just determination.Livingston, INTRODUCTORY REPORT TO THE CODE OF EVIDENCE in COMPLETE WORKS OFEDWARD LIVINGSTON ON CRIMINAL JURISPRUDENCE 411, 421 (1873).Limiting employee participation prevents the trier of fact from consideringall probative, relevant and material evidence–without advancing any important policy.\u00a0Worse yet, exclusion of employee evidence undermines the purpose of the Act indirect proportion to the employees’ ability to prove that a hazard exists or that anabatement plan is inadequate.Although the Fifth Circuit Court of Appeals ultimately held, for reasons ofuniformity, that employees have only limited participatory rights in employer-initiatedproceedings, it first explained why, if it were writing \”on a clean slate,\” itwould hold otherwise.\u00a0 Donovan v. Oil, Chemical, and Atomic Workers InternationalUnion (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.\”\u00a0 Id.at 1349.\u00a0 The fact that Congress explicitly limited employee participatory rights inemployee-initiated proceedings seemed to the court evidence that Congress meant itsunqualified assignment of party status in employer-initiated contests to be readliterally.The Secretary argued in American Petrofina that employee rights areyoked to the status of the employer’s participation so that even if the employer’s noticeof contest opens the door to plenary employee participation, the employer’s withdrawal ofthe notice of contest would return employees to the status of abatement date challengersonly. \u00a0The court, however, concluded that employees in employer-initiated contestsare analogous to intervenors in a civil lawsuit whose claims can proceed to decision evenafter the original parties have settled or sought dismissal.\u00a0 \”The weight ofauthority in the United States Courts of Appeals supports the principle that an intervenorcan continue to litigate after dismissal of the party who originated the action.\”\u00a0Id. at 1351, quoting U.S. Steel v. EPA, 614 F.2d 843, 845 (3rdCir. 1979).The Fifth Circuit disagreed, as do I, with those courts that have limitedemployee participation in part on the ground that this is necessary to the Secretary’sauthority as prosecutor under the Act.\u00a0 \”Focussing solely on the prosecutorialphase of the process misses the issue in the case.\u00a0 The Union’s rights arise at theadjudicatory stage, the administration of which falls within the Commission’sbailiwick.\”\u00a0 Id. at 1349.In short, the Fifth Circuit found that on balance there is more evidencefavoring full employee participation in employer-initiated proceedings than against it,that Congress intended employees to be more than mere \”gadflies.\”\u00a0\”[W]e understand Congress to have attempted to erect a comprehensive structure thatwould allow for meaningful participation of those most personally concerned with workplacesafety, — the workers.\”\u00a0 Id. I agree.I am mindful of the fact that full employee involvement may cause delay insome small proportion of the cases.\u00a0 But it seems to me delay for purposes of hearingall the facts is to be preferred over final orders based on incomplete evidence.\u00a0 Inany case, I find the Secretary’s current horror of delay somewhat strange; during thefirst eight years of the Act, the Secretary submitted literally thousands of proposedsettlements for Commission approval with no apparent ill result.\u00a0 This Commission hasnow been in existence for almost thirteen years, but the number of cases in which theSecretary has considered it important enough to challenge Commission jurisdiction over thesubstance of settlements are fewer than ten.\u00a0 Thus, interference with administrationof the Act or the judicial process is for all practical purposes nonexistent, and at onepoint the Secretary had an apparent policy of seeking employee comment and cooperation inarriving at settlement agreements.\u00a0 See Reynolds Metals Company, 79OSHRC 4\/A2, 7 BNA OSHC 1042, 1979 CCH OSHD ? 23,295 (No. 78-2485, 1979); Gardinier,Inc., and International Chemical Workers Local 439, 79 OSHRC 80\/D5, 7 BNA OSHC1738, 1979 CCH OSHD ? 23,892 (No. 78-3895, 1979); Kaiser Aluminum & Chemical Corporation,78 OSHRC 103\/A2, 6 BNA OSHC 2172, 1976-77 CCH OSHD ? 21,398 (No. 76-2293, 1978), rev’d,647 F.2d 171 (9th Cir. 1981) (Secretary abrogated settlement agreement on employeerepresentative objection); 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).\u00a0 I would urgethe Secretary to return to this policy and encourage participation in settlements byrepresentatives of employees in those instances where they have entered a case as a party.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 before the judge to thereasonableness of the abatement period in the settlement agreement.\u00a0 The judge foundotherwise, as do we.\u00a0 At the hearing held by Judge Ditore on the union’s objectionsto the settlement, the judge invited the union to state an objection to the abatementperiod but the union did not do so.The union’s petition also argues that the settlement agreement was not servedin accordance with Commission Rule 100(c).\u00a0 The settlement agreement was not servedon counsel for the union, but at the hearing counsel for the union stated that he did havea copy of the settlement agreement.\u00a0 The union has not claimed that any shortness ofnotice prevented it from formulating an objection to the abatement date.\u00a0 Indeed,after the hearing, the judge waited far longer than the ten-day objection periodprescribed by Commission Rule 100(c) before approving the settlement agreement.\u00a0 Theunion’s objections therefore do not provide a basis for challenging the judge’s approvalof the settlement.[[4]] Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92nd Cong., 1stSess., Legislative History of the Occupational Safety and Health Act of 1970 at 154-155(Comm. Print 1971) [herein cited as Legislative History].\u00a0 The bill referred fromcommittee, which is addressed in the above passage, contemplated hearings within theDepartment of Labor; hence, the allusion in the excerpt to hearings before the Secretary.\u00a0As detailed in the opinion of the court, however, the enforcement scheme wasmodified on the Senate floor to provide for review before an independent administrativebody in the form of the Review Commission.\u00a0 Apart from the substitution of the ReviewCommission for the Secretary, procedures set forth in the final Act are, in all relevantrespects, identical to those which are the subject of this Committee report.”