ON CONSOLIDATED PETITIONS FOR REVIEW OF AN ORDER OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
Before Aldisert and Higginbotham, Circuit Judges and Teitelbaum,*fn* District Judge.
The issue in this case is whether the Occupational Safety and Health Review Commission (Commission) erred when, in a 2 to 1 vote, it decided that the Oil, Chemical and Atomic Workers International Union (Union) had the right to object to a proposed settlement between American Cyanamid Company (American Cyanamid) and the Secretary of Labor (Secretary) on grounds other than the reasonableness of the abatement period fixed in the settlement agreement. The Commission's Order was entered on April 30, 1980, one month prior to our court's decision in Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir.), cert. denied, 449 U.S. 1061, 101 S. Ct. 784, 66 L. Ed. 2d 604 (1980). Because we are bound by our decision in Sun Petroleum, we reverse the Commission's Order.
On October 14, 1977, American Cyanamid's Fort Worth Plant was cited for violating certain sections of the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (Act). The citation was issued by the Secretary of Labor and sets forth specific abatement periods and proposed penalties. American Cyanamid filed a notice of contest with the Secretary and proceedings were instituted before the Commission. The Union elected for party status in these proceedings.
The Secretary submitted a proposed settlement agreement to all of the parties on February 23, 1978. The Union notified the Secretary but did not notify American Cyanamid that it had objections to the settlement. American Cyanamid signed the settlement after making some changes in the agreement which were unrelated to the Union's objections. The principal term of the agreement asserted that the condition which led to the citation had already been abated. The Secretary accepted the modifications, signed the agreement and forwarded it for approval to the Administrative Law Judge (ALJ) to whom the case had been assigned. The ALJ approved the settlement on March 20, 1978 and issued an approval order on the same day.
On March 21, 1978, the Union wrote to the ALJ, contesting the approval and indicating that the Union would not sign the agreement. The Union's refusal to sign was based on its belief that, contrary to what the agreement indicated, American Cyanamid had not cured the condition leading to the citation. The Union also asserted that it had not been included in the negotiations though it did attempt to persuade the Secretary not to sign the modified agreement. Commission Chairman Cleary construed this letter as a petition for discretionary review and directed such review on April 19, 1978.
The gist of the conflict before the Commission concerned whether the Union had been deprived of its statutory right to participate meaningfully in the settlement process because it had not had the opportunity to show the lack of abatement. 29 U.S.C. § 659(c). Section 659(c) provides as follows:
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 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 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.
In its decision the Commission questioned whether the Union had been deprived of an opportunity to participate. It noted a statement of the Secretary that the agreement represented a three party effort to achieve settlement. Furthermore, the Commission recognized that the Union had attempted to persuade the Secretary to reject American Cyanamid's modifications to the proposed settlement. The resolution of this factual contention notwithstanding, the Commission appropriately noted that a threshold question of jurisdiction existed. "Here, the authorized employee representative's objection to the settlement calls into question the truth of the representation in the agreement indicating that abatement has taken place. We are called upon to make inquiry and resolve the question. This raises the more fundamental issue of whether we have the authority to make such a determination. As (American Cyanamid) points out, where a proposed settlement agreement makes such a representation we generally do not inquire into whether abatement has actually occurred." 8 OSHC 1346, 1349 (1980) (footnote omitted). The Commission decided that it did have jurisdiction to consider the Union's charge that, contrary to the representations made by the agreement, abatement had not occurred. The basis ...