UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STEELWORKERS

v.

HERMAN, ALEXIS


99-1402a

D.C. Cir. 2000


*	*	*


Edwards, Chief Judge: Three local chapters of the Unit- ed Steelworkers
of America ("Union") bring this petition  for review challenging the
Occupational Safety and Health  Review Commission's ("Commission")
refusal to review an  administrative law judge's ("ALJ") decision
approving a set- tlement between LTV Steel Company, Inc. ("LTV" or 
"Company") and the Secretary of Labor ("Secretary"). The  Secretary
had inspected LTV's facilities and cited the Com- pany for numerous
violations of the Occupational Health  and Safety Act of 1970 ("Act"),
29 U.S.C. ss 651-678  (1994). LTV contested the citations and the case
was set  before an ALJ. Before the case ever reached the hearing 
stage, however, LTV and the Secretary settled. The Union  challenged
the settlement on the ground that one of the  provisions effectively
granted LTV a variance from the Oc- cupational Health and Safety
Administration's ("OSHA")  regulations. The Union argued that the
Secretary is pro- hibited from granting variances in settlements and
urged  the ALJ to reject the settlement. The ALJ approved the 
settlement, and the Commission denied the Union's petition  to review


In the petition for review filed with this court, the Union  contends
that the Commission's failure to reject the settle- ment was arbitrary
and capricious. The Union asserts that,  although settlement
agreements are rarely subject to chal- lenge, employees should,
nonetheless, be allowed to challenge  a settlement agreement when the
Secretary has granted a  variance in the settlement. In other words,
the Union claims 


that the Secretary acted in excess of her statutory authority  in
granting a variance pursuant to a settlement, and, there- fore, the
settlement should be vacated.


The Union's argument fails. During oral argument, Union  counsel
effectively conceded that the settlement agreement  does not in fact
grant LTV a variance from OSHA's regula- tions; in other words, the
principal premise underlying the  Union's argument is missing. We
therefore have no occasion  to address the issue posed by the Union,
for the claim that it  raises lacks foundation. The law is otherwise
clear that  employee challenges to settlement agreements are limited
to  whether the agreed time for abatement is reasonable. The  Union
makes no objection to the settlement's abatement time,  so it has no
right to challenge the settlement. Accordingly,  the Union's petition
for review is denied.


I. Background


Following an OSHA inspection of LTV's Cleveland, Ohio  steel mill, the
Secretary issued LTV two citations alleging  over 60 violations and
proposing $242,000 in penalties. Only  one item is at issue in this
case. Item 12b of the first citation  alleged a violation of 29 C.F.R.
s 1910.179(n)(4)(i), which  provides that "[a]t the beginning of each
operator's shift, the  upper limit switch of each hoist shall be tried
out under no  load." 29 C.F.R. s 1910.179(n)(4)(i) (1998). The
Secretary  alleged that LTV violated this standard by testing the
switch  with lifting devices still attached to the hook. See OSHA 
Citation and Notification of Penalty at 13, reprinted in Joint 
Appendix ("J.A.") 1, 13 (charging that "[t]he upper limit  switch of
each hoist was not tried out under no load, at the  beginning of each
operator's shift," because, in one of the  shops, "some operators who
were testing the upper limit  switch were doing so with the spreader


LTV contested the citations, and the case was placed on the 
Commission's docket. The Union sought and obtained party  status in
the administrative proceeding. The proceeding  never took place,
however. Instead, the Secretary and the  Company, after consulting
with the Union, resolved the issues 


and agreed to a settlement; LTV withdrew its contest to the  citation.
With respect to Item 12b, the parties agreed that


the required test may be performed with or without remov- ing lifting
devices from the cranes so long as LTV Steel's  policy and practice is
to require that the crane be moved to  a safe location and, further,
employees do not stand directly  below or along the side of the crane
during the test.


Stipulation and Settlement Agreement at 2-3, reprinted in  J.A. 65,
66-67.


The Union objected to this part of the settlement on the  ground that
the settlement was contrary to the regulation  and, in effect, granted
LTV a variance from the standard.  The Union argued that the Secretary
is not authorized to  grant variances in settlements. Although the
Union conceded  that, normally, it was free to challenge only the
reasonable- ness of abatement dates in settlements, it nonetheless
urged  the ALJ to reject the settlement, arguing that the Secretary's 
actions were arbitrary and capricious and did not comply with  the
Act. The Company countered, simply, that the Union  had no standing to
contest the settlement agreement.


The ALJ approved the settlement. See Secretary of Labor  v. LTV Steel
Co., OSHRC Docket No. 98-0956, Order Ap- proving Settlement (June 21,
1999), reprinted in J.A. 91. The  Commission denied the Union's
petition for discretionary  review of the ALJ's decision, see
Secretary of Labor v. LTV  Steel Co., OSHRC Docket No. 98-0956, Notice
of Final Order  (Aug. 10, 1999), reprinted in J.A. 104, and this
petition for  review followed.


II. Discussion


Although the Union acknowledges that employee chal- lenges to
settlements are limited, the Union argues that it  nonetheless should
be allowed to challenge the settlement at  issue in this case,
because, by granting the Company a  variance in the settlement, the
Secretary exceeded her statu- tory authority. On the record at hand,
we find no merit in  this claim.


The Secretary's prosecutorial power to enforce the Act is  broad. See
Cuyahoga Valley R.R. v. United Transp. Union,  474 U.S. 3, 6-7 (1985).
In particular, she is charged with  vindicating the public rights
embodied in the Act. See Atlas  Roofing Co. v. OSHRC, 430 U.S. 442,
444-47 (1977). She has  the sole responsibility to enforce the Act and
she "is the  exclusive prosecutor of OSHA violations." Oil, Chem. and 
Atomic Workers v. OSHRC ("American Cyanamid"), 671  F.2d 643, 649
(D.C. Cir. 1982). If the Secretary issues a  citation and proposed
penalty that are not challenged, they  become final and are not
reviewable by any court. See 29  U.S.C. s 659(a). If the citation is
contested, the Commission  adjudicates the dispute and is empowered to
affirm, modify,  or vacate the Secretary's citations and proposed
penalties.  See Id. at s 659(c).


Employees and employee representatives play only limited  roles in the
prosecutorial and enforcement processes under  the Act, and their
rights to challenge the Secretary's prosecu- torial and enforcement
decisions are narrowly circumscribed.  See Donovan v. OSHRC, 713 F.2d
918, 926 (2d Cir. 1983). If  the Secretary issues a citation, but the
employer does not  challenge it, employees may only challenge whether
the  abatement date in the citation is reasonable. See 29 U.S.C.  s
659(c). If the employer does challenge a citation, employ- ees may
then participate as full parties in any proceeding  before the
Commission. See American Cyanamid, 671 F.2d  at 648-49. Cases
sometimes settle before they reach the  Commission proceedings,
however. See id. at 650 ("Neces- sarily included within the
[Secretary's] prosecutorial power is  the discretion to withdraw or
settle a citation issued to an  employer, and to compromise, mitigate
or settle any penalty  assessed under the Act."). If a case settles,
employee rights  of participation are again closely circumscribed.


Every circuit that has examined the issue has held that  when a case
settles, and the employer withdraws its contest  to the citation,
employees may only challenge-and the Com- mission may only
consider-the reasonableness of the abate- ment time. See Donovan v.
Allied Indus. Workers, 760 F.2d  783, 785 (7th Cir. 1985); Donovan v.
Local 962, Int'l Chem. 


Workers Union, 748 F.2d 1470, 1473 (11th Cir. 1984); Dono- van v.
International Union, 722 F.2d 1415, 1420-21 (8th Cir.  1983); Donovan
v. United Steelworkers, 722 F.2d 1158, 1160  (4th Cir. 1983); Donovan
v. Oil, Chem., and Atomic Workers,  718 F.2d 1341, 1352-53 (5th Cir.
1983); Donovan, 713 F.2d at  929-31; Marshall v. Sun Petroleum Prod.
Co., 622 F.2d 1176,  1186-88 (3d Cir. 1980); see also American
Cyanamid, 671  F.2d at 650 n.7 (noting in dicta that when a case
settles,  "employees are only empowered to invoke commission juris-
diction to object to the reasonableness of the abatement  period"). As
our sister circuits have ably explained, this rule  is grounded in the
Secretary's well-recognized prosecutorial  discretion and the
statutory limits on employee participation.  We join our sister
circuits and hold that when a case settles,  and an employer withdraws
its contest to the citation, "the  only ground on which the Union may
seek a hearing on a  settlement is the unreasonableness of the
abatement period."  Donovan, 722 F.2d at 1160.


The Union attempts to circumvent this rule by arguing  that, even if
employees are not allowed to challenge routine  settlements, employees
should be allowed to challenge settle- ments in which the Secretary
has exceeded her statutory  authority. The Union argues that the
Secretary has exceed- ed her statutory authority here by effectively
granting LTV a  variance in the settlement. Variances, the Union
argues, can  only be granted through the rulemaking provisions of
section  6 of the Act, 29 U.S.C. s 655, and cannot be granted in the 
context of an enforcement proceeding. Therefore, the Union  argues,
because the Secretary granted LTV a variance in an  enforcement
proceeding, she exceeded her statutory authori- ty, and the Union
should be able to challenge the settlement.


We need not entertain this argument because, as Union  counsel was
forced to concede at oral argument, the disputed  settlement agreement
in this case did not in fact grant LTV a  variance. In other words,
the principal premise underlying  the Union's argument is missing.


In its briefs to this court, the Union argued that the  settlement
granted LTV a variance from 29 C.F.R. 


s 1910.179(n)(4)(i), which provides that "[a]t the beginning of  each
operator's shift, the upper limit switch of each hoist shall  be tried
out under no load." The Union claimed that the  regulation requires
the company to test the switch with  nothing-not even lifting
devices-attached to the hook. The  settlement, the Union asserted,
grants LTV a variance, be- cause it allows LTV to test the switch
without removing the  lifting devices from the hook. At oral argument,
however,  Union counsel conceded that if, under the settlement agree-
ment, employees will not be exposed to any unsafe condition,  then the
Act has not been violated and no variance has been  granted. This is
precisely the posture of the instant case.


The settlement agreement at issue in this case insures that  employees
will not be exposed to danger while the switch is  being tested. In
the settlement, LTV agreed to require that  the "crane be moved to a
safe location" to perform the test.  Both the Secretary and LTV
interpret this language to mean  that employees cannot be exposed to
danger when the test is  performed. The law is clear that the Act is
only violated if  employees could be exposed to dangers that the
statute is  designed to protect against. See Astra Pharmaceutical 
Prod., 9 O.S.H. Cas. (BNA) 2126 (O.S.H.R.C. 1981), aff'd in  part,
remanded in part, 681 F.2d 69 (1st Cir. 1982). Because  the Secretary
and LTV are on record as stating that the  settlement is intended to
remove employee exposure, a fortio- ri, the settlement is not a


Furthermore, there is no variance here, because the disput- ed
regulation has never been definitively interpreted to re- quire the
employer to remove lifting devices before perform- ing the test. The
Union's interpretation of the regulation is  one possible
interpretation; but, as the Company argues,  another possible
interpretation is that the regulation simply  requires the employer to
remove any load from the lifting  device before performing the test.
Thus, because the settle- ment is not at odds with any definitive
interpretation of the  regulation, it does not grant LTV a variance.
Significantly,  at oral argument, both the Company and the Secretary 
conceded that if the regulation is later definitively interpreted 
strictly to require more than is required by the parties' 


settlement agreement, the subsequent regulatory interpreta- tion will
take precedence over the settlement and LTV would  be bound by the
more stringent interpretation.


The terms of the settlement agreement were entirely with- in the
Secretary's statutory authority. Accordingly, because  LTV has
withdrawn its contest to the Secretary's citation and  because no
issue has been raised with regard to the abate- ment time, the Union
has no right to challenge the settlement  agreement.


III. Conclusion


The petition for review is denied.


So ordered.