Opinion PER CURIAM.
Petitioner Oil, Chemical and Atomic Workers International Union and its Local 3-499 ("OCAW") seek review of a decision of the Occupational Safety and Health Review Commission ("OSHRC" or "Commission") dismissing a citation issued by the Secretary of Labor to the American Cyanamid Company. Secretary of Labor v. American Cyanamid Company, OSHRC Docket No. 79-5762 (April 27, 1981), reported at 9 BNA OSHC 1596. American Cyanamid has moved to intervene and has moved to dismiss OCAW's petition for review, arguing that OCAW is not a proper petitioner for review under the Occupational Safety and Health Act of 1970 ("Act"), and that OSHRC is not a proper respondent. 29 U.S.C. § 660(a).
American Cyanamid's motion raises several threshold issues that must be answered before we reach the merits of the petition. Those issues are:
We answer the first, second and third questions in the negative and the fourth and fifth questions in the affirmative. Accordingly, we sustain the OCAW's petition for review and we deny the company's motion to dismiss.
The facts giving rise to this litigation are not in dispute. In 1977, American Cyanamid adopted a Fetus Protection Policy and implemented it at its Willow Island, West Virginia plant. This policy precluded female employees of presumed childbearing capacity from being assigned to, bidding into, or holding any production job at that plant which involved occupational exposure to toxic substances identified as harmful to the fetus. Any female production worker who failed to provide evidence of permanent infertility by April, 1978, would have to request a transfer to one of three departments where toxic substances were not used. Only seven job openings were available to the thirty women affected by this policy. To rebut the policy's presumption of the potential childbearing capacity of menstruating women, five female production workers underwent voluntary sterilizations. These women retained their production positions. All five stated that they would not have undergone the procedure but for the company's policy which threatened their livelihood. Late in 1978, two women presumed childbearing capacity who refused to be sterilized were transferred to the utility pool with subsequent loss of pay and benefits.
OCAW filed a complaint about the policy with the Occupational Safety and Health Administration ("OSHA"), pursuant to 29 U.S.C. § 657(f)(1), in December, 1978. Thereafter, OSHA inspectors conducted an inspection of the Willow Island plant. As a result of this inspection, OSHA issued a citation on October 9, 1979, alleging that Cyanamid had committed a willful violation of the general duty clause, 29 U.S.C. § 654(a)(1), by implementing a policy which required women employees to be sterilized in order to be eligible to work in certain areas of the plant. Cyanamid filed a timely notice of contest, and the Secretary issued a formal complaint. On November 16, 1979, OCAW elected party status pursuant to
Both the union and the Secretary petitioned the full OSHRC for discretionary review of the judge's decision pursuant to section 12(j) of the Act, 29 U.S.C. § 661(i). After review was directed, the OSHRC affirmed the ruling on a third ground, finding that the citation did not allege the existence of a "hazard" within the meaning of the Act's general duty clause. Accordingly, the citation was vacated.
Pursuant to section 11 of the Act, 29 U.S.C. § 660(a), OCAW filed a timely petition for review. It named the OSHRC as a respondent. The Secretary elected not to file a petition.
II. THE RIGHT OF OCAW TO APPEAL
As an initial matter, American Cyanamid challenges the jurisdiction of this court, arguing that OCAW's petition for review fails to present a case or controversy because the statute precludes the union from being heard on matters other than the reasonableness of the abatement period. Our jurisdictional basis for reviewing any OSHRC proceeding is 29 U.S.C. § 660, which provides for appellate review of commission decisions. It states:
Cyanamid argues in its motion that the broad language of § 660(a) must be limited by Section 10(c) of the Act, 29 U.S.C. § 659(c). Section 10(c) is the cornerstone of the right of employees, or their authorized representatives, to participate in hearings before the OSHRC. It provides, in its entirety:
29 U.S.C. § 659(c).
The company contends that section 10(c) limits employee participation in enforcement proceedings to contesting the reasonableness of the abatement period. It reasons that this limit on the initiation of and participation in commission adjudications should be carried over to the instigation of
We reject the company's initial contention that employees have no right to be heard on matters other than the reasonableness of the abatement period. The starting point for our analysis is section 10(c) of the Act, 29 U.S.C. § 659(c). It is apparent that the first sentence of section 10(c) contemplates two types of hearings. The first is triggered by an employer who notifies the Secretary of an intention to contest a citation. In that hearing, employees are authorized to "participate as parties" by virtue of the last sentence of section 10(c). The second type of hearing is triggered by employees who notify the Secretary of their contention "that the period of time fixed in the abatement citation is unreasonable."
This second type of hearing — that initiated by employees — is tied to the agenda set by statute: contesting the reasonableness of the abatement period. Marshall v. OSHRC and OCAW, 635 F.2d 544, 552 (6th Cir. 1980). Employees are prohibited from instituting a commission action on any matter other than the reasonableness of the abatement period. UAW v. OSHRC, 557 F.2d 607, 610 (7th Cir. 1977). Nothing in the text of the statute, however, so confines employee/union participation as "parties" in the first type of hearing — that initiated by the employer to contest a citation.
Indeed, the section 10(c) limitation suggested by the company would be an anomaly when viewed in the total context of the Act. Typically, as demonstrated by the instant case, an employee who believes a violation exists that threatens physical harm may request an inspection by giving the Secretary written notice. 29 U.S.C. § 657(f)(1). If, upon receipt of such notification, the Secretary determines there are reasonable grounds to believe a violation exists, he must conduct a special inspection as soon as possible.
The anomalous limitation on employee participation argued by the company is not to be found in the text of section 10(c). The company, however, contends that it is supplied in the report of the Senate Committee on Labor and Public Welfare, which discusses the right of an employee to challenge the reasonableness of the abatement period. Subcom. on Labor of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970 at 154-55 (Comm. Print 1971) [hereinafter cited as Legislative History]. The company points to the following quotation in the second paragraph in that report to argue that the abatement period is the sole issue that can be raised by employees. We find, however, that when that paragraph is read along with the preceding one, it demonstrates that employee initiation of commission proceedings is but one of two means of employee participation in OSHRC proceedings.
Id. (Emphasis added).
In sum, the legislative history shows that Congress intended to allow employees to participate as parties in enforcement proceedings in two separate contexts — to initiate contests over the reasonableness of the abatement period and to participate as parties in an employer-initiated contest. We find that Congress did not intend to limit the interest assertable by the union in an employer-initiated proceeding to the length of the abatement period. The scheme of the Act enables employees to translate their concern for workplace safety into a demand for an inspection of the workplace, and, if a violation exists, into a citation. If the employer disputes the inspector's findings and files a notice of contest, the Act entitles employees to "participate as parties" in hearings before the OSHRC. The employees' request for party status confers jurisdiction on the commission to entertain the employees' objections on all matters relating to the citation in question.
We therefore hold that where a union or employee has elected party status in proceedings before the OSHRC, the union or employee has a right to appeal the decision
The legislative history of section 11(a) provides further support for our decision. The House version of the Act, H.R. 19200, clearly limited the right to seek judicial review to employers and the Secretary. Legislative History, 1192. The Senate version, S. 2193, contained the identical language as Section 11(a) of the Act, and provided for judicial review of any commission order by any person "adversely affected or aggrieved." Id. at 1192. Faced with the conflict between the two provisions for judicial review of commission decisions, the Conference Committee adopted the broader language of "any person adversely affected or aggrieved."
Our view does not impinge on the Secretary's unique role in administering the Act. As the Supreme Court has noted, the Act creates public rights that are to be vindicated by the Secretary through government management and enforcement of a complex administrative scheme. Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 444-47, 97 S.Ct. 1261, 1264-65, 51 L.Ed.2d 464 (1977). We recognize that the Secretary has been vested with considerable discretion in the promulgation of standards. Thus, employees may not compel the Secretary to adopt a standard. National Congress of Hispanic American Citizens v. Usery, 554 F.2d 1196 (D.C.Cir.1977). Similarly, we are persuaded that enforcement of the Act is the sole responsibility of the Secretary. He is the exclusive prosecutor of OSHA violations. Atlas Roofing Co., 430 U.S. at 445-47, 97 S.Ct. at 1264-65; Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278,
We endorse so broad a reading of prosecutorial discretion under the statute because we believe that such discretion comports with the Congressional intent that the Secretary be charged with the basic responsibilities for administering the Act. We agree with other courts that have considered the issue that the union has no right to challenge the refusal of the Secretary to proceed with a citation or to file a complaint. See, e.g., Marshall v. OSHRC and OCAW, supra, 635 F.2d at 550. The company, however, contends that these decisions prohibit employees from challenging the Secretary's prosecutorial decisions before the commission proceedings, except where the length of an abatement period is concerned. It reasons that the decision to seek review of a commission decision is a similar exercise of prosecutorial discretion and concludes that allowing employees to petition for judicial review of a commission decision impermissibly usurps the Secretary's prosecutorial discretion as enforcer of the Act.
We reject this position. We agree with the company that a decision of the Secretary not to appeal the OSHRC ruling is an exercise of prosecutorial discretion. Accordingly, we find that the union has no right to challenge the determination of the Secretary not to appeal. In this instance, however, the OCAW is not seeking review of the Secretary's decision; instead, it is seeking judicial review of an order of the OSHRC, an independent adjudicatory body.
The union's right to appeal OSHRC decisions where it has participated as a party in the commission proceedings is, however, subject to two conditions, derived from the general statutory scheme and purpose of the Act. First, the union must give the Secretary notice of its intention to appeal and must serve him with copies of all of the pleadings. This notice requirement is ordered so that the Secretary is made aware of the litigation and so that he may act to intervene if he deems it appropriate. Second, the case may become moot in those instances when the Secretary, participating in the appeal as an amicus curiae or as an intervenor, provides this court with a clear
III. THE PROPER RESPONDENT IN THE APPEAL
We must next decide if the OSHRC, the named respondent in this petition for review, has the authority to participate as a party in this court in a proceeding to review one of its decisions. American Cyanamid, in its motion to dismiss, contends that no case or controversy exists because the OSHRC cannot participate as a party. While we agree with the company that the Act limits the role of the OSHRC to that of an adjudicatory agency and precludes the OSHRC from independent representation in judicial proceedings before this court, we decline to dismiss these proceedings. We grant the motion to remove the OSHRC from these proceedings; concurrently, we grant the OCAW's motion to amend and reform the caption and to name the company as the proper party respondent in this petition for review.
The circuits are sharply divided on the question of whether the commission is a proper party to an OSHA appeal. Three circuits have held that the commission is not a proper party.
The opposite position has been taken by the Fourth and Fifth Circuits. In Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1267 (4th Cir. 1974), the Fourth Circuit held that "it is appropriate for the commission to appear in the courts of appeals to defend the policies Congress empowered it to adopt in adjudication." In Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 648 n.8 (5th Cir. 1976), the court noted that the commission is "properly a party similar to other administrative agencies in suits by the Secretary or private parties to review its orders."
An examination of the legislative history
When read together, the legislative history and the statutory scheme of the Act compel the conclusion that Congress designed the commission as an independent adjudicator. Other statutes which provide
In this instance, the OSHRC has no enforcement power comparable to the FCC, FERC or the NLRB. We believe the OSHRC should never be considered a proper statutory respondent under 29 U.S.C. § 660(a). The commission was envisioned by its creators to be similar to a district court. It was established to settle disputes between employers and the Secretary of Labor over citations issued by the Secretary's inspectors. The commission, like a district court, has no duty or interest in defending its decision on appeal. As a purely adjudicative entity, it has no stake in the outcome of the litigation. Accordingly, the OSHRC may not participate in this court to review the commission decision as a party respondent in proceedings initiated by any party to the commission hearing.
Sufficient adversity exists between the parties at the commission proceeding to ensure a proper case or controversy at the appellate level. When an employer initiates a hearing before the commission to contest the issuance of a citation, the Secretary automatically is a party respondent in the action. 29 U.S.C. § 659(c). He is charged with defending the action of his inspectors in issuing the citation. Employees may intervene as parties in these hearings. Id. If the commission rules in favor of the Secretary and affirms the citation, the employer, a party adversely aggrieved by the commission's order, may file a petition for review of that order within sixty days of the issuance of the order. 29 U.S.C. § 660(a). In this instance, the Secretary is the proper party respondent. His interest was adverse to the employer in the commission proceeding below and continues to be so on appeal. He has an interest in sustaining a commission action with which he agrees.
In those instances where the commission rules in favor of the employer and dismisses the citation, two parties may appeal the commission's order. The Secretary may file a petition for review of the commission's action. 29 U.S.C. § 660(b). He may have an interest in seeking review of a decision of which he disapproves. In this instance, the employer would be the proper respondent. Like an appellee in the appeal of a district court decision, the employer has a concrete stake in having the commission's order affirmed.
In a case such as the instant one, where the union is appealing an adverse decision by the commission, the proper party respondent is the employer.
In most cases, a single private party is contesting the action of an agency, and the agency must appear and defend to assure the adversarial stance requisite to a case or controversy. In this case, however, sufficient adversity exists between the union and the company to insure proper litigation without the participation of the OSHRC. The company's interest is adverse to the interests of the petitioner union. It can be expected to litigate vigorously to sustain the ruling of the OSHRC. The union plainly has an interest in having the OSHRC decision reversed and the citation upheld, resulting in an invalidation of the company's Fetus Protection Policy and a fine assessed against the company. To require the OSHRC to appear as a party would parallel requiring a district court to appear and defend its decision upon direct appeal. Just as a district court may not defend its decision in the court of appeals, the OSHRC has no authority to defend its order before this court.
In this case, the motion to amend and reform the caption to delete the OSHRC and add the company as a respondent was filed thirty-three days after the sixty-day statutory period to file a proper petition for review of the OSHRC decision had expired. We are in agreement with other circuits that courts of appeals have no jurisdiction to grant relief from a final OSHRC order unless a petition for review is filed within the sixty-day period following the date the order becomes final. Consolidated Andy, Inc. v. Donovan, 642 F.2d 778, 779 (5th Cir. 1981); Midway Industrial Contractors, Inc. v. OSHRC, 616 F.2d 346, 347 (7th Cir. 1980); Hoerner Waldorf Pan American Bag Co., Inc. v. OSHRC, 614 F.2d 795, 796 (1st Cir. 1980).
We are not confronted, however, with this problem. In this case, the petition for review was timely filed but the petitioners mistakenly named the OSHRC as the respondent. Discovering its mistake, the union moved to amend its petition to name the company as the proper respondent; by this time, the statutory sixty-day period had expired. We recognize that, in similar circumstances, some courts
We will consider this motion to amend the caption as one which relates back to the date on which the petition for review was filed.
Pursuant to the statutory mandate of 29 U.S.C. § 659(c), the commission has consistently held that "[an] employee representative electing party status has the right to litigate all the issues raised by the citation and complaint." Southwestern Bell Telephone Co., 5 BNA OSHC 1851, 1852 (1977). See also Gurney Industries, Inc., 1 BNA OSHC 1218 (1973).