Reich v. Occupational Safety & Health Review Commission

998 F.2d 134

• Court: Court of Appeals for the Third Circuit
• Decided: June 17, 1993
• Docket: Nos. 92-3297 & 92-3313
• Status: Published

Opinions

OPINION OF THE COURT

WEIS, Circuit Judge.

In this proceeding seeking review of an order by the Occupational Safety and Health Review Commission, we determine that a cross-petition filed in this Court more than sixty days after the date of the order is time barred. We also reject the Secretary of Labor’s contention that the Commission lacks authority to reduce an other-than-serious violation to one of a de minimis level. We therefore will dismiss the cross-petition and deny review of the Secretary’s petition.

After Erie Coke Company refused to include a provision in a collective bargaining agreement requiring payment for employees’ protective gloves, the United Steelworkers filed a complaint with the Occupational Safety and Health Administration. The union alleged that the company’s policy required its employees to pay for the flame resistant gloves needed for work at the coke oven batteries. After investigating the complaint, the Secretary issued a citation directing that the practice be abated, but did not seek assessment of a penalty.

Following a hearing, an ALJ found that the company had violated 29 C.F.R. § 1910.-1029(h)(l)(ii) which states that an employer “shall provide and assure the use of appropriate protective clothing ... such as ... [fjlame resistant gloves.” The ALJ affirmed the citation and the Occupational Safety and Health Review Commission granted discretionary review.

The Commission affirmed the finding of a violation, but reduced the level of the offense to de minimis status. In its opinion, the Commission noted that the Secretary had directed OSHA field staff to read the pertinent standard as meaning “the clothing provision and cleaning service are obligations of the employer at no cost to the employee.” OSHA Instruction STD 1-6.4(c)(1). The Commission treáted this instruction as the Secretary’s interpretation of the regulation and applying the test of reasonableness set out in Martin v. OSHRC, 499 U.S. 144, 154-56, 111 S.Ct. 1171, 1178-80, 113 L.Ed.2d 117 (1991), deferred to that construction.

The Commission rejected Erie’s assertions that the Secretary should be estopped from enforcing the standard based on previous inconsistent actions and that, in any event, requiring employees to pay for the gloves prevented wasteful use for non-work or unnecessary purposes.

Concluding that Erie had failed to comply with the terms of the regulation, the Commission determined, nevertheless, that the violation should be characterized as de min-imis rather than other-than-serious. The Commission, finding that Erie’s employees had not suffered any safety impairment because they had paid for the gloves, determined the infraction to be de minimis.

Fifty-nine days after the issuance of the Commission’s order, the Secretary filed a petition for review protesting the reduction of the offense level. Eight days later, Erie filed a separate petition for cross-review of the order seeking to reverse the Commission’s finding that Erie had violated the regulation.

I.

In order to define the scope' of the issues properly brought before us, we must first consider whether Erie’s cross-petition was timely filed. Judicial review of the Commission’s rulings are authorized by 29 U.S.C. § 660(a) which states, in part, that “[a]ny person adversely affected or aggrieved on an order of the Commission” may file a petition with an appropriate court of appeals “within sixty days following the issuance of such order.” The Secretary of Labor has a similar time limit within which to apply for review. 29 U.S.C. § 660(b).

Because Erie filed its cross-petition more than sixty days after the Commission’s order issued, the question is whether this Court lacks a statutory power of review. We note that the timely filing of an initial petition is a mandatory and jurisdictional requirement. See Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). In this case, we must decide whether, as applied to a cross-petition, the sixty-day filing period of Section 660(a) of OSHA is also mandatory and jurisdictional.

This Court considered whether statutory filing periods apply to cross-appeals in United States v. Tabor Court Realty Corp., 943 F.2d 335, 342 (3d Cir.1991). We concluded that, if the initial notice of appeal meets the jurisdictional time limit, whether a cross-appeal is subject to the same limit is not a question of mandatory jurisdiction, but a rule of practice. As such, the filing requirements for cross-appeals “may be waived in the interest of justice under appropriate circumstances.” Id. at 343. See also the discussion in Young Radiator Co. v. Celotex Corp., 881 F.2d 1408, 1415 (7th Cir.1989).

In Tabor Court, we pointed out that Rule 4(a)(3) of the Federal Rules of Appellate Procedure grants additional time for filing cross-appeals in most cases. Once a court has jurisdiction over an appeal, an appellee may file a cross-appeal even after the time for taking the original appeal has run. In some instances, in order to fully adjudicate a controversy on appeal, a court will consider a cross-appeal despite the fact that a notice of cross-appeal was never filed. Tabor Court, 943 F.2d at 344.

However, Appellate Rule 4(a)(3) does not validate Erie’s untimely cross-petition. As a general principle, an appellee who has not filed a timely cross-appeal may not “attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary.” Id. at 342 (citations omitted); cf. Bacon v. Sullivan, 969 F.2d 1517, 1522 (3d Cir.1992). In the case here, Erie is not simply asserting another ground for affirmance, but rather seeks to set aside the finding of a violation altogether.

More importantly, Rule 20 specifically provides that Rules 3-14 are not applicable to appeals from administrative agency orders. Fed.R.App.P. 20. The result is that the fourteen-day extension permitted for filing cross-appeals under Appellate Rule 4(a)(3) is not available in proceedings to review agency rulings. That being so, a cross-petition is restricted to the same sixty-day period applicable to the initial petition.

On facts indistinguishable from the ones at hand, the Court in Dole v. Briggs Construction Co., 942 F.2d 318, 320 (6th Cir. 1991), held it was unable to consider a cross-petition filed seven days after the sixty-day filing period set by 29 U.S.C. § 660(a). See also Seafarers Int’l Union v. NLRB, 896 F.2d 385, 387 (7th Cir.1990). Hence, because Appellate Rule 4(a)(3) does not extend the filing time for review of administrative agency orders, Erie’s cross-petition must be dismissed.

The inapplicability of Appellate Rule 4(a)(3) has undesirable side effects. After weighing the relative benefits and detriments of an agency decision, a party may well decide that further litigation is not worthwhile because the adverse aspects of the decision do not outweigh the good — at least to any appreciable degree. Consequently, that party will choose not to ask for appellate review. However, if its adversary files a petition for review, the situation changes and poses a risk that the favorable aspects of the agency action may be eliminated by the appeal. At that point, sound strategy would dictate filing a cross-petition that would seek to eliminate the unfavorable aspects of the administrative decision. If, however, the adversary has waited until the last minute and there is no longer time for filing a cross-petition, the other party has been “sandbagged,” whether inadvertently or otherwise. The only defense against such a scenariq is the filing of a protective petition for review. That tactic should not be encouraged because it is inefficient and may, in fact, lead to appeals that otherwise would not have been taken.

In short, failing to provide in agency proceedings for a cross-appeal procedure like that in Appellate Rule 4(a)(3) leads to wasteful and nonproductive litigation, We would welcome an examination of this problem and possible resolution by the Advisory Committee on Appellate Rules. •

II.

We come then to the sole remaining issue in this appeal-the Secretary’s contention that the Commission was barred from reducing the offense from other-than-serious to de minimis.¹ The difference between the two levels is that an other-than-serious designation requires abatement of the violation and a de minimis classification does not.

In Martin, 499 U.S. at 150, 111 S.Ct. at 1174, the Supreme Court reviewed the interplay between the roles allocated the Secretary of Labor and the Commission. Unlike most regulatory schemes, OSHA separates enforcement and rulemaking powers from adjudicatory functions. The Secretary is charged with the responsibility for setting and enforcing workplace safety standards. He is empowered to issue authoritative interpretations of the statute and “has the sole authority to determine whether to prosecute a violation of the Act.” Cuyahoga Valley Ry. v. United Transp. Union, 474 U.S. 3, 5, 106 S.Ct. 286, 287, 88 L.Ed.2d 2 (1985).

The Commission, on the other hand, is assigned to carry out adjudicatory duties. If a party contests a citation, the Commission, after a hearing, issues an order “based on findings of fact, affirming, modifying, or vacating the Secretary’s citation or proposed penalty, or directing other appropriate relief.” 29 U.S.C. § 659(e). In performing its tasks, the Commission reviews the Secretary’s interpretation only for reasonableness and consistency with statutory and regulatory language. Stated simplistically, the Secretary is entrusted with the enforcement and interpretation of law and the Commission with making findings of fact.

Citing Martin, the Commission in this case reviewed and deferred to the Secretary’s interpretation of the regulation in section 1910.1029(h)(1)(ii). The Commission thus agreed with the Secretary’s position that the word “provide” in the regulation requires an employer to not only furnish its employees with protective gloves, but to pay for them as well.

In determining the appropriate classification of Erie’s violation, the Commission noted that 29 U.S.C. § 658(a) refers to “de minim-is” violations as those that “have no direct or immediate relationship to safety or health.” The Commission found that the Secretary had not introduced any evidence to show that Erie’s employees had suffered any direct impairment of safety or health as a result of having had to pay for the gloves. The facts in the record did not establish that “employees were wearing torn or otherwise ineffective gloves beyond their useful life in order to save money, thereby exposing their hands to possible burns and coke oven emissions.” On those uncontroverted facts, the Commission found the violation was de minimis.

.Over the years, the courts and the Commission have read the Act as classifying violations into three categories: serious, non-serious, and de minimis. See Phoenix Roofing, Inc. v. Dole, 874 F.2d 1027, 1031 (5th Cir.1989); Fluor Constructors, Inc. v. Occupational Safety & Health Comm’n, 861 F.2d 936, 942 (6th Cir.1988); Donovan v. Daniel Construction Co., 692 F.2d 818, 820-21 (1st Cir.1982); Brennan v. Butler Lime & Cement Co., 520 F.2d 1011, 1019 n. 10 (7th Cir.1975); Brennan v. Occupational Safety & Health Review Comm’n, 494 F.2d 460, 463 (8th Cir.1974). Apparently, until the advent of the case at hand, the Secretary acquiesced in that classification. Now, however, despite that twenty-year history, he views the de minimis status as merely a preliminary charging decision over which the Commission has no authority..

The Secretary contends that by lowering the offense to a de minimis level and, thus, not requiring abatement, the Commission usurped his authority to enforce the applicable standard. In addition, he maintains that by eschewing abatement, the Commission has, in effect, granted an exception to a valid regulatory requirement. Moreover, he asserts that in order to avoid a regulatory requirement, an employer must apply for a variance. Finally, the Secretary contends that Erie failed to assert the de minimis standard as an affirmative defense.

The precise issue of the Commission’s authority to characterize an offense as de minimis was decided by the Court of Appeals for the First Circuit in Donovan v. Daniel Construction Co., 692 F.2d 818 (1st Cir.1982). After reviewing the functions of the Commission, the Court held that “[tjhere is no doubt (and it is agreed) that the Act gives the Commission authority, in appropriate cases, to reduce violations to the de minimis category.” Id. at 821. The Court went on to say that “the Commission could properly decide that de minimis treatment of an OSHA violation is acceptable if there is a very attenuated relationship between the existence of the violation and the health and safety of the employees.” Id. at 821-22; see also Phoenix Roofing, 874 F.2d at 1032 (In absence of a ruling by the Commission, Court of Appeals reduced offense to de minimis classification, finding it required as a matter of law).

The Daniel court also rejected the argument that the Commission had trenched on the Secretary’s power to weigh the likelihood of hazard embodied in the standard. The Court found that the Commission “did no such thing but simply inquired whether the possibility of injury in this particular instance was minimal, remote, and negligible.” Id. at 822 n. 5.

Daniel is directly on point and persuasive. Accepting the Secretary’s position would create an undesirable intercircuit conflict. The Secretary cites no change in the statute or Supreme Court interpretation that would justify us departing from the Court of Appeals’ straightforward statutory construction. Indeed, the Secretary notes in his brief that, in Daniel, his predecessor conceded that the Commission had power to classify certain violations as de minimis.²

We do note that Congress amended OSHA in 1990. Omnibus Budget Reconciliation Act of 1990, Pub.L. No. 101-508, 1990 U.S.C.C.A.N. (104 Stat. 1388) 2017. After conducting a series of oversight hearings, Congress increased the penalties that could be assessed under the Act. It is significant, we think, that the Secretary did not take that opportunity to have Congress remove the Commission’s authority to reduce offenses to a de minimis level.

In Martin, the Supreme Court referred to the Commission’s role as a “neutral arbiter” and said “Congress expressly charged the Commission with making authoritative findings of fact and with applying the Secretary’s standards to those facts in making a decision.” 499 U.S. at 154, 111 S.Ct. at 1178. That is what occurred in this case. The Commission made a specific finding of fact that the safety of Erie’s employees was not jeopardized by the company’s failure to pay for protective gloves. We conclude that the Commission’s finding is supported by substantial evidence.

The Commission has the statutory authority to affirm, modify, or vacate the Secretary’s citation, or to direct other appropriate relief. Its action in reducing the violation to de minimis status clearly falls within that grant of power. The reduction of the offense level is analogous to the power of a court to reduce a criminal offense to a lesser level than the one charged in an indictment. That traditional procedure has not been considered to be a usurpation of prosecutorial discretion, but rather a necessary prerogative of the court. Moreover, the Secretary does not challenge the Commission’s authority to reduce a serious violation to non-serious status. Thus, it appears that it is not the Commission that is seeking to enhance its authority, but the Secretary who is attempting to enlarge his power at the expense of the “neutral arbiter.”

We need not elaborate on Daniel, although further arguments could be recited to sustain its holding and refute the Secretary’s arguments. Here, we are content to rely on the well-reasoned opinion and holding of the Court of Appeals for the First Circuit.

We also find no support in the regulations requiring a party to plead de minimis as an affirmative defense and reject the Secretary’s procedural challenge on that point.

Accordingly, the Secretary’s petition for review will be denied and Erie’s petition for cross-review will be dismisséd.

1 . At oral argument, Erie's counsel informed this Court that, in a new collective bargaining agreement signed after the petition for review was filed, Erie has assumed the obligation to pay for flame resistant gloves. Erie, however, considers the matter open for negotiation in future contract discussions. In these circumstances, we do not consider the case to be moot. United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953) (voluntary cessation of allegedly illegal conduct does not make a case moot).

The fact that the Commission agreed that a violation existed apparently did affect the collective bargaining process. It is unrealistic, therefore, to accept the Secretary's argument that a de minimis finding has no consequences.

2 . The government should be extremely chary of fomenting intercircuit conflicts with the accompanying uncertainty and lack of coherence in the law. If an agency believes that a Court of Appeals has made a serious error, the Supreme Court or Congress is available to correct the mistake. It is difficult to believe that after living with the Daniel decision for twenty years, the Department of babor can now find that it poses a threat to the efficient and orderly implementation of OSHA.