## Facts

- American Cyanamid adopted a fetal-protection policy barring women presumed capable of childbearing from certain production jobs with exposure to substances identified as toxic to fetuses.
- Some women underwent sterilization to keep production jobs; others who refused were transferred with reduced pay and benefits.
- The union representing affected employees filed a complaint with OSHA challenging the policy.
- OSHA cited Cyanamid for a willful violation of the OSH Act general duty clause, 29 U.S.C. § 654(a)(1); Cyanamid contested the citation.
- The union elected party status in the administrative enforcement proceeding.
- An ALJ dismissed the citation; the Occupational Safety and Health Review Commission (OSHRC) affirmed the dismissal.
- The Secretary of Labor declined to seek judicial review, but the union petitioned the D.C. Circuit for review under 29 U.S.C. § 660(a).
- Cyanamid moved to intervene and to dismiss the petition, arguing the union lacked authority to appeal and that OSHRC was an improper respondent.

## Issues

1. Whether a union that participated as a party before OSHRC is a “person adversely affected or aggrieved” under 29 U.S.C. § 660(a) and may petition for review when the Secretary declines to appeal.
2. Whether the Secretary’s role as exclusive prosecutor under the OSH Act bars a union-initiated petition for review of an OSHRC order.
3. Whether OSHRC may appear as an active litigant in the court of appeals to defend its own order.
4. Who is the proper respondent on a union-initiated petition for review of an OSHRC order.
5. Who is the proper respondent on an employer-initiated petition for review of an OSHRC order.

## Decision

- The court denied Cyanamid’s motion to dismiss and allowed the union’s petition for review to proceed.
- The Secretary’s exclusive prosecutorial role did not preclude the union’s appeal of an OSHRC order.
- The union could seek review despite the Secretary’s decision not to appeal.
- OSHRC was not a proper active party in the court of appeals on review of its own decisions.
- In a union-initiated petition, the employer was the proper respondent; in an employer-initiated petition, the Secretary was the proper respondent.

## Legal Principles

- Under 29 U.S.C. § 660(a), “any person adversely affected or aggrieved” by an OSHRC order may seek judicial review, which can include a union that participated as a party and represents employees directly affected by the order.
- The Secretary’s enforcement discretion and prosecutorial control over citations do not eliminate an independent statutory right of judicial review held by other aggrieved parties.
- OSHRC’s adjudicatory function bars it from acting as an adversarial litigant defending its orders on judicial review.
- Proper party alignment on review depends on who has the adversarial interest: the employer is the respondent to employee/union petitions challenging citation dismissals, and the Secretary is the respondent to employer petitions challenging enforcement outcomes.

## Conclusion

The D.C. Circuit held that a participating union may petition for review of an OSHRC order under the OSH Act even if the Secretary declines to appeal, that OSHRC may not litigate as an active respondent in review proceedings, and that respondent status turns on whether the petition is brought by employees/unions (employer responds) or by the employer (Secretary responds).


Oil, Chem. & Atomic Workers Int’l Union v. Occupational Safety & Health Rev. Comm’n, 671 F.2d 643 (D.C. Cir. 1982)