## Facts

- Erie Coke Corporation operated coke oven batteries and required employees to use flame-resistant gloves.
- During collective bargaining, Erie refused to agree to a provision requiring the company to pay for the protective gloves.
- A union complaint prompted an OSHA investigation alleging employees had to pay for the required gloves.
- The Secretary of Labor cited Erie for violating 29 C.F.R. § 1910.1029(h)(1)(ii), which requires employers to provide and assure the use of protective clothing, including flame-resistant gloves.
- The citation sought abatement (payment for gloves) but imposed no monetary penalty.
- An ALJ found a violation and affirmed the citation.
- On discretionary review, the Occupational Safety and Health Review Commission affirmed the violation but reclassified it as de minimis on the ground that the payment dispute had no direct relationship to employee safety or health because employees used the gloves.
- The Secretary timely petitioned for review; Erie filed a cross-petition more than 60 days after the Commission’s final order.

## Issues

1. Whether a cross-petition for judicial review filed more than 60 days after the Commission’s final order is jurisdictionally barred.
2. Whether the Commission has authority to reclassify the Secretary’s “other-than-serious” citation as a de minimis violation.

## Decision

- Erie’s cross-petition was dismissed as untimely because the 60-day filing deadline for review of Commission orders is jurisdictional.
- The Secretary’s petition was denied.
- The court held the Commission may reclassify an “other-than-serious” violation as de minimis as part of its power to affirm, modify, or vacate citations.
- The Commission’s order (affirming the violation but deeming it de minimis) was left in place.

## Legal Principles

- A petition (including a cross-petition) for review of a Commission final order must be filed within the statutory 60-day period; late filings are jurisdictionally barred.
- The Secretary has primary responsibility to interpret OSHA standards and prosecute citations, but the Commission’s adjudicatory authority includes the power to modify citations.
- A de minimis violation is one with no direct relationship to employee safety or health and generally carries no abatement requirement.
- The Commission may classify a proven violation as de minimis where the evidence shows employees were protected and the dispute concerns allocation of cost rather than the presence or use of required protective equipment.

## Conclusion

The Third Circuit dismissed an employer’s late cross-petition for lack of jurisdiction and upheld the Commission’s authority to reduce a nonserious OSHA citation to de minimis status when the proven violation did not directly affect employee safety or health.


Reich v. Occupational Safety & Health Review Comm’n, 998 F.2d 134 (3d Cir. 1993)