216 F.3d 1095 (D.C. Cir. 2000)
United Steelworkers of America, Local No. 185, et al.,Petitionersv.Alexis M. Herman, Secretary of Labor and LTV Steel Company, Inc.,Respondents
No. 99-1402
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2000Decided June 23, 2000

On Petition for Review of an Order of the Occupational Safety and Health Review Commission
Jeremiah A. Collins argued the cause and filed the briefs  for petitioners.


1
Mark S. Flynn, Senior Appellate Attorney, United States  Department of Labor, argued the cause for respondent Secretary of Labor.  With him on the briefs were Allen H.  Feldman, Associate Solicitor, and Nathaniel I. Spiller, Deputy Associate Solicitor.


2
Mark D. Katz argued the cause and filed the brief for  respondent LTV Steel Company, Inc.  Andrew A. Paisley  entered an appearance.


3
Before:  Edwards, Chief Judge, Randolph and Garland,  Circuit Judges.


4
Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge:

5
Three local chapters of the United 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 settlement between LTV Steel Company, Inc. ("LTV" or  "Company") and the Secretary of Labor ("Secretary").  The  Secretary had inspected LTV's facilities and cited the Company for numerous violations of the Occupational Health  and Safety Act of 1970 ("Act"), 29 U.S.C. §§ 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 Occupational Health and Safety Administration's ("OSHA")  regulations.  The Union argued that the Secretary is prohibited 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 that decision.


6
In the petition for review filed with this court, the Union  contends that the Commission's failure to reject the settlement was arbitrary and capricious.  The Union asserts that,  although settlement agreements are rarely subject to challenge, 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, therefore, the settlement should be vacated.


7
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 regulations;  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

8
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. § 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. § 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 bar on the hook").


9
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


10
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 toa safe location and, further, employees do not stand directlybelow or along the side of the crane during the test. Stipulation and Settlement Agreement at 2-3, reprinted in  J.A. 65, 66-67.


11
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 reasonableness 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.


12
The ALJ approved the settlement.  See Secretary of Labor  v. LTV Steel Co., OSHRC Docket No. 98-0956, Order Approving 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

13
Although the Union acknowledges that employee challenges 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 statutory authority.  On the record at hand, we find no merit in  this claim.


14
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. § 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 § 659(c).


15
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 prosecutorial 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.  § 659(c).  If the employer does challenge a citation, employees 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 ("Necessarily 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.


16
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 Commission may only consider-the reasonableness of the abatement 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);  Donovan 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 jurisdiction 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.


17
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 settlements in which the Secretary has exceeded her statutory  authority.  The Union argues that the Secretary has exceeded 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. § 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 authority, and the Union should be able to challenge the settlement.


18
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.


19
In its briefs to this court, the Union argued that the  settlement granted LTV a variance from 29 C.F.R. § 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, because 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 agreement, 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.


20
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 fortiori, the settlement is not a variance.


21
Furthermore, there is no variance here, because the disputed regulation has never been definitively interpreted to require the employer to remove lifting devices before performing 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 settlement 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 interpretation will take precedence over the settlement and LTV would  be bound by the more stringent interpretation.


22
The terms of the settlement agreement were entirely within 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 abatement time, the Union has no right to challenge the settlement  agreement.

III. Conclusion

23
The petition for review is denied.


24
So ordered.

