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Reich v. Occupational Safety and Health Review Com'n

filed: June 17, 1993; As Corrected August 5, 1993.

ROBERT REICH,*FN* SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, PETITIONER IN NO. 92-3297
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION AND ERIE COKE CORPORATION, RESPONDENTS ERIE COKE CORPORATION, PETITIONER IN NO. 92-3313 V. ROBERT REICH, *FN* SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, RESPONDENTS



ON PETITIONS FOR REVIEW OF A FINAL ORDER OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.

Before: Becker, Greenberg, and Weis, Circuit Judges.

Author: Weis

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)(1)(ii) which states that an employer "shall provide and assure the use of appropriate protective clothing . . . such as . . . flame 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 treated 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, 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 minimis 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 "any 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, 54 L. Ed. 2d 521, 98 S. Ct. 556 (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, 895 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 scenario 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.*fn1 The difference between the two levels is that an other-than-serious designation ...


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