WILLIAM E. BROCK, SECRETARY OF LABOR, PETITIONER V. UNITED
TRANSPORTATION UNION, ET AL.

   No. 85-170

   In The Supreme Court Of The United States

   October Term, 1985

   The Solicitor General, on behalf of the Secretary of Labor,
petitions for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Sixth Circuit in this case.

   Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Sixth Circuit

                       PARTIES TO THE PROCEEDING

   In addition to the parties named in the caption, the Cuyahoga
Valley Railway Company was a petitioner in the court of appeals;  the
Occupational Safety and Health Review Commission was a respondent.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutory provision involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 2a-14a) /1/ is
reported at 748 F.2d 340.  The opinion of the Occupational Safety and
Health Review Commission (Pet. App. 15a-21a) is reported at 1982
O.S.H. Dec. (CCH) Paragraph 26,296.  The order of the administrative
law judge (Pet. App. 22a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 20,
1984.  A petition for rehearing was denied on March 1, 1985 (App.,
infra, 1a).  On May 21, 1985, Justice O'Connor extended the time
within which to file a petition for a writ of certiorari to June 29,
1985;  on June 21, 1985, Justice OConnor further extended the time
within which to file a petition to and including July 29, 1985.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1).

                     STATUTORY PROVISION INVOLVED

   Section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. 659(c), provides:

         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 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 the 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.

                          QUESTION PRESENTED

   Whether an employee may challenge, and the Occupational Safety and
Health Review Commission may review, a decision by the Secretary of
Labor to withdraw a citation charging an employer with violating the
Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.

                               STATEMENT

   1. The Occupational Safety and Health Act of 1970 (Act or OSH Act),
29 U.S.C. 651 et seq., establishes a comprehensive set of procedures
that permit the Secretary of Labor to assure safe and healthful
conditions in the workplace.  To this end, the Act empowers the
Secretary to inspect work sites to uncover noncompliance with
statutory safety and health requirements.  29 U.S.C. 657(a);  see 29
U.S.C. 654(a).  If he discovers a violation during such an inspection,
the Act authorizes the Secretary to issue a written citation to the
offending employer that "fix(es) a reasonable time for the abatement
of the violation" (29 U.S.C. 658(a));  the Secretary also may assess a
penalty for violation of his safety standards.  29 U.S.C. 666;  see 29
U.S.C. 659(a).  See generally Whirlpool Corp. v. Marshall, 445 U.S. 1,
9 n.11 (1980).

   The Act's enforcement provisions are contained in 29 U.S.C. 659.
Section 659(a) provides that a citation or penalty issued by the
Secretary becomes final -- and hence unreviewable -- if not challenged
by the employer within 15 days.  /2/ In cases where the employer
contests the citation, the Secretary is directed to notify the
Occupational Safety and Health Review Commission (Commission) of the
challenge.  29 U.S.C. 659(c).  If the Secretary intends to seek
enforcement of the citation despite the employer's contest, the
Commission's regulations require the Solicitor of Labor to file a
complaint with the Commission within 20 days;  the employer must file
an answer within 15 days.  29 C.F.R. 2200.33.  Once these pleadings
are filed, a hearing to determine the validity of the citation will be
held before an administrative law judge (ALJ) (see 29 U.S.C. 659(c),
661(j)), with discretionary review by the Commission (see 29 U.S.C.
661(j)) and judicial review (see 29 U.S.C. 660) available.  See
generally Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 445-447 (1977).

   Section 659(c) also provides certain substantive and procedural
rights to employees.  Employees and their representatives are given 15
days from the date of issuance of a citation to challenge as
unreasonable "the period of time fixed in the citation for the
abatement of the violation".  The same provision also directs the
Commission to prescribe rules of procedure that "provide affected
employees or representatives of affected employees an opportunity to
participate as parties to hearings under (Section 659(c))." /3/

   2. a. On February 27, 1976, the Secretary cited respondent Cuyahoga
Valley Railway Company (Cuyahoga), /4/ a railway operator, for a
violation of the OSH Act (Pet. App. 3a, 15a-16a).  /5/ Cuyahoga
contested the citation in a timely fashion, as required by 29 U.S.C.
659(c).  The Secretary in turn filed a formal complaint with the
Commission pursuant to 29 C.F.R. 2200.33, and Cuyahoga filed an
answer.  Pet. App. 3a.  Respondent United Transportation Union
(Union), which represents Cuyahoga employees, meanwhile asserted its
right under 29 U.S.C. 659(c) to intervene as a party (Pet. App. 3a).

   At a calendar call hearing before the administrative law judge held
on August 24, 1976, however, the Secretary moved to vacate the
citation because he had concluded that the working conditions at issue
were exempt from coverage under the Act.  /6/ Although the Union
objected (see Pet. App. 3a-4a, 17a-18a), the ALJ granted the
Secretary's request on September 28, 1976, and vacated the citation
and proposed penalty (id. at 22a).

   b. Shortly afterwards, the Commission, acting sua sponte, directed
review of the ALJ'S order pursuant to 29 U.S.C. 661(j) (Pet. App. 18a
& n.4).  In early 1977 the Secretary responded to this order,
reiterating his view that portions of the citation involved matters
outside the OSH Act, and explaining that he had "determined in his
prosecutorial discretion that (the) additional portions of the
citation and complaint (that arguably involved matters within the Act)
should not be litigated because an evaluation of the evidence herein
led to the conclusion that * * * no useful purpose, either with
respect to employee safety or the proper allocation of the Secretary's
resources, would be served by litigation of these additional
allegations' (App., infra, 5a).  The Secretary also noted that the
record before the Commission was inadequate for a resolution of the
legal issues posed (id. at 4a).  And he maintained that employees have
no right under the Act to challenge the Secretary's decision to
withdraw a complaint (id. at 5a).

   Almost six years later, on October 29, 1982, the Commission, by a
divided vote, rejected the Secretary's arguments and remanded the case
to the ALJ for consideration of the Union's objections to the
withdrawal of the citation.  Relying on its decision in Mobil Oil
Corp., 1982 O.H.S. Dec. (CCH) Paragraph 26,187, rev'd, 713 F.2d 918
(2d Cir. 1983), which had held that employee representatives who elect
party status under 29 U.S.C. 659(c) may challenge the terms of a
settlement agreement between the Secretary and an employer, the
Commission concluded that an employee representative "may object to
the "secretary's motion to withdraw (a) citation" (Pet. App. 18a-19a).
 The Commission accordingly ruled that the ALJ in this case erred in
failing to "consider() the merits of (the Union's) objection" to
withdrawal of the complaint against Cuyahoga (ibid.).  Chairman
Rowland dissented from this conclusion, maintaining that "the decision
to withdraw a citation is within the prosecutorial discretion of the
Secretary" (id. at 19a n.5).

   c. On appeals by the Secretary and Cuyahoga, the court of appeals
affirmed the Commission's conclusion that the Commission may review
the Secretary's withdrawal of a citation after a complaint and answer
have been filed.  The court acknowledged that the Secretary "has the
sole authority to determine whether to prosecute", but explained that
in this case he "had already made the decision to prosecute by filing
a complaint and that complaint had been answered at the time the
Secretary attempted to withdraw the cita(t)ion" (Pet. App. 7a).
Because the "adversarial process" thus "was well-advanced at the time
the Secretary attempted to withdraw the citation", the court held that
the Commission, "as the adjudicative body, had control of the case and
the authority to review the Secretary's withdrawal of the citation"
(ibid.).  /7/

   The court of appeals also held that 29 U.S.C. 659(c) accords
employee representatives the right to object to the Secretary's
withdrawal of a citation once a complaint and answer have been filed.
The court read Section 659(c) as providing for two types of
proceedings before the commission:  those initiated by employers
through the "filing of a notice of contest to a citation", and those
initiated by employees "to contest the period set in a citation for
the abatement of a violation" (Pet. App. 9a).  Relying on the
Commission's Mobil Oil decision (Pet. App. 9a) and the Act's
legislative history (id. at 11a), the court concluded that Section
659(c) does not limit the scope of employee participation in
employer-initiated proceedings;  the court therefore held that, in
this employer-initiated case, "the Union has full rights, as parties
(sic), to contest the withdrawal of this citation" (Pet. App. 10a).

                   REASONS FOR GRANTING THE PETITION

   In holding that the Commission may review the Secretary's decision
to withdraw a citation issued under the OSH Act, the Sixth Circuit has
brought itself into conflict with eight other courts of appeals.  As
each of those courts has recognized, the Act gives the Secretary sole
responsibility for enforcement of its safety and health standards;  in
contrast, it accords the Commission and interested employees no
independent role in determining when maintenance of an enforcement
action is appropriate.  The decision below entirely disregards the
import of this statutory scheme.

   In so doing, the court of appeals' ruling threatens both to make
the Act's enforcement system unworkable and to disrupt the Secretary's
enforcement policies.  By subjecting the Secretary's OSH Act
enforcement efforts in the Sixth Circuit to a unique set of
constraints, the decision below will likely "precipitate
administrative chaos".  Donovan v. Oil, Chemical & Atomic Workers
(American Petrofina), 718 F.2d 1341, (5th Cir. 1983), cert. denied,
No. 83-1298 (May 14, 1984).  In these circumstances, review of the
decision below by this Court plainly is warranted.

   1. The decision below cannot be reconciled with decisions of the
Second, Third, Fourth, Fifth, Seventh, Eighth, Eleventh, and District
of Columbia Circuits to the effect that the Commission lacks the
authority to review the Secretary's withdrawal of a citation.  See
Donovan v. OSHRC (Mobil Oil), 713 F.2d 918, 925-931 (2d Cir. 1983);
Marshall v. Sun Petroleum Products Co., 622 F.2d 1176, 1184-1186 (3d
Cir.), cert. denied, 449 U.S. 1061 (1980);  Donovan v. United
Steelworkers (Monsanto), 722 F.2d 1158, 1160 (4th Cir. 1983);
American Petrofina, 718 F.2d at 1352-1353;  Donovan v. Allied
Industrial Workers (Midland), 760 F.2d 783, 785 (7th Cir. 1985);
Donovan v. International Union Allied, Industrial Workers (Whirlpool),
722 F.2d 1415, 1419-1421 (8th Cir. 1983);  Donovan v. Local 962,
International Chemical Workers Union (Engelhard), 748 F.2d 1470,
1472-1473 (11th Cir. 1984);  Oil, Chemical & Atomic Workers v. OSHRC
(American Cyanamid, 671 F.2d 643, 650-651 & n.7 (D.C. Cir.) (dictum),
cert. denied, 459 U.S. 905 (1982).  /8/

   None of these courts has accepted the Sixth Circuit's view that the
Secretary's decision to withdraw a citation is reviewable if it is
made after the Secretary has filed a complaint pursuant to 29 C.F.R.
2200.33.  /9/ To the contrary, these courts of appeals have explained
that the Act gives the Commission only one carefully circumscribed
role:  it may resolve employer (and, in certain limited circumstances,
employee) challenges to citations issued by the Secretary.  They
accordingly have concluded that withdrawal of the employer's notice of
contest or the Secretary's citation destroys the Commission's
jurisdiction to resolve the case before it.  These holdings, which
were entirely disregarded by the court below, follow directly from the
language and structure of the OSH Act.

   a. At the outset, "it is apparent from the detailed statutory
scheme that the public rights created by the Act are to be protected
by the Secretary * * * and that enforcement of the Act is the sole
responsibility of the Secretary".  Mobil Oil, 713 F.2d at 927.  See
Whirlpool, 722 F.2d at 1419;  American Petrofina, 718 F.2d at 1346;
Sun Petroleum, 622 F.2d at 1187.  Thus, the Secretary sets the
substantive standards for safety in the workplace (see 29 U.S.C.
655(a));  Staff of the Senate Comm. on Labor and Public Welfare, 92d
Cong., 1st Sess., Legislative History of the Occupational Safety and
Health Act of 1970 (S. 2193, Pub. L. No. 91-596), at 141, 145 (Comm.
Print 1971) (hereinafter Leg. Hist.), and he determines when a work
site should be inspected (29 U.S.C. 657(a) and (f)).  It is "(o)nly
(the Secretary who) has the authority to determine if a citation
should be issued to an employer." Mobil Oil, 713 F.2d at 927, citing
29 U.S.C. 658.  When a citation is issued, it is the Secretary who
sets the abatement period (29 U.S.C. 658(a)) and the appropriate
penalty (29 U.S.C. 659, 666);  if the citation is contested, he is the
"sole prosecutor" before the Commission.  Whirlpool, 722 F.2d at 1419;
 Mobil Oil, 713 F.2d at 927.  Indeed, even the Secretary's abatement
and penalty orders are in large part unreviewable:  if a citation or
proposed penalty is not challenged within 15 days, it is "deemed a
final order of the Commission and not subject to review by any court
or agency".  29 U.S.C. 659(a).

   In contrast, the Commission has no role in setting enforcement
priorities or in determining the types of cases in which citations are
appropriately issued.  Under Section 659(c), the Commission's sole
function is to determine, "based on findings of fact", whether the
Secretary's citations should be enforced over an employer's challenge.
 See also 29 U.S.C. 661.  The Commission thus "functions only as a
neutral arbiter of disputes between the Secretary and employers, or
between the Secretary and employees or unions on the narrow question
of the reasonableness of the proposed abatement period".  Whirlpool,
722 F.2d at 1421.  In light of this limited purpose, it is not
surprising that the Act gives the Commission no prosecutorial powers
(see Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278, 279
(9th Cir. 1974) and no enforcement authority of the sort often
exercised by other federal agencies.  See American Cyanamid, 671 F.2d
at 652.  /10/

   It follows from this statutory division of responsibility that the
Secretary's decision to withdraw a citation is not reviewable by the
Commission.  "A necessary incident to the Secretary's prosecutorial
powers is the unfettered discretionary authority to withdraw or settle
a citation issued to an employer" (Mobil Oil, 713 F.2d at 927;  see
Whirlpool, 722 F.2d at 1420;  American Cyanamid, 671 F.2d at 650);
the Secretary can set enforcement priorities and effectively allocate
prosecutorial resources only if he is able to forgo -- or to abandon
-- enforcement efforts that he believes will not be fruitful.  See
generally Heckler v. Chaney, No. 83-1878 (Mar. 20, 1985), slip op.
9-11.  Conversely, permitting review of the Secretary's decision that
given enforcement action is inappropriate would involve the Commission
in "a policy function (that is) beyond (its) limited jurisdiction".
Mobil Oil, 713 F.2d at 931.  It also would turn on its head the
Commission's statutory role as a buffer between potentially
"overzealous enforcement of the Act" by the Secretary and those who
are affected by the Secretary's affirmative enforcement efforts.
Whirlpool, 722 F.2d at 1419.  See note 10, supra.  /11/

   b. The court below acknowledged the distinct roles of the Secretary
and the Commission, and accordingly recognized that the Secretary's
decision to withdraw a citation prior to the filing of a complaint is
not reviewable (Pet. App. 6a-7a).  The court nevertheless reasoned
that once "a formal complaint and answer (have been) filed with the
Commission * * * the Secretary's role as prosecutor becomes much more
limited, and the Commission's role as the adjudicative body takes
over" (id. at 7a).  This approach, however, misconstrues both the
complaint process and the nature of the Commission's jurisdiction.

   As Congress made clear, it is the existence of a citation and an
outstanding notice of contest that trigger Section 659(c)'s
"opportunity for a hearing", and thus implicate the Commission's
jurisdiction.  See Leg. Hist. 173.  It follows that withdrawal of the
citation or notice of contest ousts the Commission of jurisdiction.
Midland, 760 F.2d at 785;  American Cyanamid, 671 F.2d at 650.  Any
other conclusion would make the Commission into something other than
"a neutral arbiter of disputes".  Whirlpool, 722 F.2d at 1421.  The
Secretary's use of the complaint process, meanwhile, has no
independent, substantive significance that should affect this
conclusion.  The provisions for the filing of a complaint and answer
before the Commission are found not in the Act, but in a Commission
rule.  29 C.F.R. 2200.33.  As such, they can serve only to facilitate
the "orderly transaction of (the Commission's) proceedings" (29 U.S.C.
661(g));  they cannot expand the Commission's jurisdiction beyond that
spelled out in the statute.

   In any event, that a complaint and answer have been filed does not
change the discretionary nature of the Secretary's decision to forgo
prosecution of a given citation, or make less intrusive the
"infringement on the (Secretary's) prosecutorial discretion" that
would follow from Commission review of that decision.  Midland, 760
F.2d at 785.  Indeed, given the tight deadlines established by the Act
and the Commission rules -- an employer must file a notice of contest
within 15 days of the issuance of a citation, and the Secretary must
file his complaint within 20 days of receipt of that notice -- the
Secretary often will be obligated to file complaints as a matter of
course to preserve his right to proceed, even if settlement
negotiations or analyses of the likelihood of successful enforcement
have not yet been completed.  The court of appeals' holding that the
filing of a complaint marks the point at which the Secretary
surrenders his prosecutorial discretion therefore will interfere in a
very direct way with his ability to enforce the Act.  Cf. United
States v. Goodwin, 457 U.S. 368, 382 (1982);  Whirlpool, 722 F.2d at
1421-1422.

   2. The court of appeals also concluded that employees or their
representatives have a right to "contest () the withdrawal" of a
citation by the Secretary (Pet. App. 10a).  In holding that such a
contest may be resolved by the Commission, the court below again
disregarded the contrary holdings of eight other courts of appeals.

   While the circuits are in disagreement on the permissible scope of
employee participation before the Commission in employer-initiated
contests, /12/ each of the courts of appeals to have considered the
question -- with the exception of the court below -- has held that
employees lose all of their rights to be heard by the Commission in
such proceedings once the Secretary's citation or the employer's
notice of contest has been withdrawn.  /13/ Midland, 760 F.2d at 785;
Engelhard, 748 F.2d at 1472-1473;  Whirlpool, 722 F.2d at 1420-1421;
Monsanto, 722 F.2d at 1160;  American Petrofina, 718 F.2d at 1353;
Mobil Oil, 713 F.2d at 925-930;  American Cyanamid, 671 F.2d at
649-650 & n.7;  Sun Petroleum, 622 F.2d at 1186.  /14/

   As noted above, the Secretary is the "exclusive prosecutor of OSH
(Act) violations" (American Cyanamid, 671 F.2d at 649);  Congress gave
employees no independent rights to proceed against employers under the
Act.  /15/ The other courts of appeals accordingly have reasoned that
nothing in the Act grants employees such rights simply because the
Secretary at one point had issued a citation against their employer.
As a result, once the Secretary decides to forgo or abandon
prosecution of a citation, a controversy of the sort that the
Commission is empowered to decide no longer exists, whether or not
interested employees wish to challenge the Secretary's decision.  See
American Cyanamid, 671 F.2d at 649-650 & n.7.

   3. That the court of appeals' ruling is unsound in principle is
demonstrated by an examination of its practical impact.  The OSH Act,
of course, covers an enormous "administrative territory" (American
Petrofina, 718 F.2d at 1353), while the resources that the Secretary
can devote to the investigation and prosecution of safety violations
obviously are limited.  Cf. Leg. Hist. 152.  And as Congress itself
recognized, some violations of safety standards are relatively less
significant than others.  See 29 U.S.C. 658(a) (the Secretary may
issue "a notice in lieu of a citation with respect to de minimis
violations which have no direct or immediate relationship to safety or
health").  It is therefore not surprising that administrative hearings
often are avoided even in cases involving contested citations (see
American Petrofina, 718 F.2d at 1353);  the Department of Labor
informs us that, of the 4348 citation items contested in 1984 (out of
the 133,399 such items issued), some 1000 were withdrawn by the
Secretary -- more than 600 pursuant to settlement agreements and more
than 300 unilaterally.

   In taking such a course, the Secretary has pointed to a wide range
of factors relating to the exercise of his prosecutorial discretion:
that settlement will most efficaciously resolve the identified safety
violation (see, e.g., Whirlpool, 722 F.2d at 1421);  that, even in the
absence of a formal settlement, the employer's voluntary efforts have
largely remedied the violation (e.g., American Bakeries Co., 1984
O.S.H. Dec. (CCH) Paragraph 26,951, reprinted at Pet. App. 23a-30a);
or that, in light of the employer's willingness to contest the
citation, the case is not worth prosecuting on the merits (see
Whirlpool, 722 F.2d at 1418), would be difficult to prove (e.g.,
American Bakeries Co., supra), or simply is supported by insufficient
evidence (e.g., Copperweld Steel Co., 1984 O.S.H. Dec. (CCH) Paragraph
26,956, reprinted at Pet. App. 31a-35a).  Indeed, similar factors in
part motivated the Secretary's decision to withdraw the citation in
this case, where he explained that "no useful purpose, either with
respect to employee safety or the proper allocation of the Secretary's
resources, would be served by litigation" (App., infra, 5a).  See
generally Chaney, slip op. 10.

   Decisions of this sort, which are related directly to the ordering
of enforcement priorities and the exercise of prosecutorial judgment,
involve matters that are uniquely within the Secretary's discretion.
As such, they turn on questions of enforcement policy that the
Commission -- and the courts of appeals, to which all Commission
orders may be appealed (29 U.S.C. 660) -- institutionally are not
equipped to analyze or review. See Chaney, slip op. 10.  And if it may
force the Secretary to pursue cases that he has decided to drop, the
Commission -- without being able to consider the totality of factors
that have inclined the Secretary to conclude that certain prosecutions
are more important or meritorious than others -- would essentially
take the Secretary's place as the body that allocates prosecutorial
resources.  /16/

   It is for similar reasons that this Court has held under the
Administrative Procedure Act that an agency's "(r)efusal () to take
enforcement steps" presumptively is unreviewable.  Chaney, slip op. 9,
11.  The court of appeals' contrary conclusion here, which subjects
the Secretary to a unique set of constraints in an area in which "the
need for uniformity is apparent" (American Petrofina, 718 F.2d at
1353), accordingly will serve only to disrupt the fair and effective
enforcement of the Act.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted,

   CHARLES FRIED

      Acting Solicitor General

   KENNETH S. GELLER

      Deputy Solicitor General

   CHARLES A. ROTHFELD

      Assistant to the Solicitor General

   FRANCIS X. LILLY

      Solicitor of Labor

   ALLEN H. FELDMAN

      Acting Associate Solicitor

   BARBARA J. JOHNSON

      Attorney Department of Labor

   July 1985

   /1/ Because the petition in No. 84-1634, with one exception (App.,
infra, 1a), contains all of the materials required by this Court's
Rule 21.1(k), those materials are not reprinted as an appendix to this
petition.  The appendix to No. 84-1634 is referred to hereafter as
"Pet. App.".

   /2/ Similarly, Section 659(b) gives an employer 15 days to object
to the Secretary's determination that the employer has failed to
remedy a violation within the abatement period;  if an objection is
not timely filed, the Secretary's determination and any accompanying
penalties become final and unreviewable.

   /3/ The Commission has prescribed such a rule (29 C.F.R.
2200.20(a)), which provides that "(a)ffected employees may elect to
participate as parties at any time before the commencement of the
hearing before the judge, unless for good cause shown, the Commission
or judge allows such election at a later time".

   /4/ Cuyahoga has filed a petition for a writ of certiorari (No.
84-1634) to review the judgment of the court of appeals in this case.

   /5/ In particular, the Secretary charged Cuyahoga with failing to
"(a)dequately instruct and enforce rules when employees are required
to couple and/or uncouple ingot buggy cars with stools" or to
"(m)aintain an adequate clearance between ingot buggy stools to permit
employees to perform their duties safely when it requires them to
place themselves between two buggies" (Pet. App. 16a n.1), in
violation of 29 U.S.C. 654(a)(1).

   /6/ The Secretary based this conclusion on 29 U.S.C. 653(b)(1),
which makes the Act inapplicable to the "working conditions of
employees with respect to which other Federal agencies * * * exercise
statutory authority to prescribe or enforce standards or regulations
affecting occupational safety or health".  See generally Donovan v.
Red Star Marine Services, Inc., 739 F.2d 774 (2d Cir. 1984), cert.
denied, No. 84-590 (Feb. 25, 1985).  Here, the Secretary determined
that the Federal Railway Administration had issued safety regulations
covering the working conditions at issue.  See Pet. App. 3a, 16a-17a.

   /7/ The court of appeals thus distinguished its decision in
Marshall v. OSHRC, 635 F.2d 544 (6th Cir. 1980), which held that
neither the Commission nor a union may prevent the Secretary from
withdrawing a citation prior to the filing of a complaint.

   /8/ These decisions arose in the context of settlement agreements
in which the Secretary withdrew or modified his citation or the
requested relief, and the employer in turn withdrew its notice of
contest.  As the courts of appeals themselves have noted, such a
settlement is no different in principle from the simple withdrawal of
a citation by the Secretary without a formal settlement agreement
between the parties.  See, e.g., Whirlpool, 722 F.2d at 1420 ("as a
natural incident to his enforcement powers, (the Secretary) has the
discretion to withdraw or settle citations");  Mobil Oil, 713 F.2d at
927 ("(a) necessary incident to the Secretary's prosecutorial powers
is the unfettered discretionary authority to withdraw or settle a
citation issued to an employer");  American Cyanamid, 671 F.2d at 650
("included within the prosecutorial power is the discretion to
withdraw or settle a citation issued to an employer").  Similarly, the
Commission has recognized that the decisions cited in text involved
"the Secretary's withdrawal of a citation", and are controlling even
in cases in which the withdrawal is not accompanied by a settlement.
See American Bakeries Co., 1984 O.S.H. Dec. (CCH) Paragraph 26,951,
reprinted at Pet. App. 23a-30a;  Copperweld Steel Co., 1984 O.S.H.
Dec. Paragraph 29,956, reprinted at Pet. App. 31a-35a.  In either
case, the question is whether the Commission has jurisdiction to
review the Secretary's conclusion that he "does not wish to prosecute
the citation further".  Whirlpool, 722 F.2d at 1419.

   /9/ Two of the decisions cited above specifically noted that a
complaint and answer had been filed, and nevertheless explained that
the Secretary's decision to withdraw or modify his citation was
unreviewable.  See American Cyanamid, 671 F.2d at 645-646;  Sun
Petroleum, 622 F.2d at 1178.  While the other opinions cited in text
do not mention whether complaints had been filed at the time that the
settlements were reached, a review of the administrative decisions and
records in these cases demonstrates that complaints were filed in them
as well.  See Midland, I R. at 5, 6;  IV R. at 1-2;  Engelhard, I R.
at 1-6;  R. Excerpts at 3;  Whirlpool, I R. at 1-8, 1-4;  III R. at
1-5;  Monsanto, J.A. at 6-10;  American Petrofina, III R. at 1-8, 1-4;
 VI R. at 1-2.

   /10/ The legislative history points up the Commission's limited
role in the enforcement process.  As originally introduced, the Act
made no provision for the Commission;  the Secretary was both to issue
citations and to judge employer challenges to those citations.  See
Leg. Hist. 155.  This arrangement was criticized on the ground that it
would permit the Secretary to "act() as prosecutor and judge" (id. at
392 (remarks of Sen. Javits)), and thus would lead to a "reluctance to
rule in favor of an employer".  Id. at 466 (remarks of Sen. Williams).
 Senator Javits therefore proposed creation of the Commission (see id.
at 381) to serve as a buffer between the Secretary and the employers
who chose to contest his citations.  See id. at 392, 464, 470 (remarks
of Sen. Javits);  id. at 429, 466 (remarks of Sen. Williams);  id. at
471-472 (remarks of Sen. Dominick);  id. at 473 (remarks of Sen.
Holland).  The Javits amendment ultimately was adopted (see id. at
479) and was incorporated into the Act "to separate the adjudication
of violations from the other functions performed by the Secretary of
Labor, in order to provide every assurance that fairness and due
process would be fully served".  Id. at 1147 (remarks of Sen.
Williams).  See generally Mobil Oil, 713 F.2d at 930-931 & n.21;
Whirlpool, 722 F.2d at 1419.

   /11/ In reaching its conclusions in this case, the court of appeals
reasoned that the Commission's interpretation of the OSH Act is
entitled to deference (Pet. App. 9a, 12a).  The Commission, however,
has overruled its Mobil Oil decision (upon which the court of appeals
relied), and now takes the view that it cannot entertain employee
challenges to the Secretary's withdrawal of a citation.  See Pan
American World Airways, Inc., 1984 O.S.H. Dec. (CCH) Paragraph 26,920,
reprinted at Pet. App. 36a-46a;  American Bakeries Co., 1984 OSH Dec.
(CCH) Paragraph 26,951, reprinted at Pet. App. 23a-30a.  In any event,
it is the Secretary rather than the Commission who is empowered to set
policy regarding enforcement of the Act (see generally Whirlpool Corp.
445 U.S. at 11);  his views on the initiation and termination of
enforcement proceedings accordingly are entitled to greater weight.
See Donovan v. A. Amorello & Sons, Inc., 761 F.2d 61, 64-65 (1st Cir.
1985) (citing cases and noting a conflict among the circuits on this
point).  Cf. Potomac Electric Co. v. Director, OWCP, 449 U.S. 268, 278
n.18 (1980).

   /12/ Section 659(c) permits employees or their representatives to
participate in proceedings before the Commission in one of two ways.
They may initiate a proceeding themselves to contest the
reasonableness of the abatement period specified in a citation;  in
such cases, the agenda of the Commission hearing is strictly limited
to that issue.  See, e.g., American Cyanamid, 671 F.2d at 648.
Section 659(c) also directs the Commission to "provide affected
employees or representatives of affected employees an opportunity to
participate as parties" in employer-initiated proceedings.  Several
courts of appeals have held that employees may participate in
employer-initiated proceedings as full parties, and thus may address
issues other than the reasonableness of the abatement time.  See,
e.g., Whirlpool, 722 F.2d at 1419;  American Petrofina, 718 F.2d at
1348-1352;  American Cyanamid, 671 F.2d at 647-649.  One court of
appeals, however, has held that employees who participate in
proceedings of this sort may challenge only the reasonableness of the
abatement period.  Sun Petroleum, 622 F.2d at 1186.  See also
Monsanto, 722 F.2d at 1160;  Mobil Oil 713 F.2d at 927 n.13, 928-929.

   /13/ If the Secretary leaves a modified citation outstanding,
affected employees retain their right under Section 659(c) to initiate
proceedings of their own challenging the reasonableness of the
abatement period.  See note 12, supra.

   /14/ The court below thus erred in asserting that its conclusion is
consistent with decisions by the Fifth, Eighth, and District of
Columbia Circuits (Pet. App. 10a).  While those courts have held that
employees may participate as full parties in employer-initiated
proceedings (see note 12, supra), they also have made clear that
"included within the (Secretary's) prosecutorial power is the
discretion to withdraw or settle a citation issued to an employer"
(American Cyanamid, 671 F.2d at 659) -- even "over employee
objections".  Id. at 650 n.7 See Whirlpool, 722 F.2d at 1421;
American Petrofina, 718 F.2d at 1353.

   /15/ In addition to the rights enumerated in Section 659(c) --
which come into play only after the Secretary has issued a citation --
Congress gave employees several other procedural rights that may
assist them in influencing the Secretary's administration of the Act.
Employees may participate in the promulgation of safety standards and
in proceedings for variances from those standards (29 U.S.C.
655(b)(1), (6)(B)(v) and (d);  may request the Secretary to conduct a
workplace inspection (29 U.S.C. 657(f)(1)) and have a representative
accompany the compliance officer during such an inspection (29 U.S.C.
657(e));  may obtain informal review of the Secretary's decision not
to issue a citation after he conducts a workplace inspection that was
requested by an employee (29 U.S.C. 657(f)(1) and (2));  and may bring
to seek an injunction restraining an imminent danger in the workplace.
 29 U.S.C. 662(d).

   /16/ Indeed, when citations or employer contests are withdrawn
pursuant to a settlement, the availability of Commission review might
directly frustrate the Secretary's aim of achieving an expeditious
cure for safety violations.  Because the effect of a citation
requiring the abatement of a violation is stayed until the Commission
enters a final order in an employer-initiated contest (see 29 U.S.C.
659(b)), Commission review of settlements "delays the day when a final
order requiring abatement may be entered".  Marshall v. Oil, Chemical
& Atomic Workers, 647 F.2d 383, 387 (3d Cir. 1981) (citation omitted).
 Even were the Commission to enter an order approving the settlement
immediately upon receiving notice of the agreement, that order would
be stayed for 30 days while finality attached.  29 U.S.C. 659(c).  And
in cases in which the Commission actually reviews the settlement or
withdrawal of the citations, considerably longer delays are likely to
attach;  in this case, for example, Commission review took almost six
years.  See pages 6-7, supra.  See also, e.g., Whirlpool, 722 F.2d at
1417 (Commission review of a settlement took over three years).

   APPENDIX