OSHRC Docket Nos. 3199; 3200

Occupational Safety and Health Review Commission

August 31, 1973


Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners




CLEARY, COMMISSIONER: On August 3, 1973, Judge Herbert E. Bates issued a recommended decision and order in this case granting the employee representative's motion to withdraw its notice of contest and affirming the abatement requirements set forth in amended citation for serious violation to Globe Union, Inc., on May 8, 1973. n1

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n1 The citation, as amended by the Secretary's complaint, alleges a serious violation of section 5(a)(2) of the Act by failure to comply with the standards at 29 C.F.R. 1910.93(b) and (e), and 29 C.F.R. 1910.134, failure to implement feasible engineering or administrative controls to reduce employee exposure to lead and its inorganic compounds which were in excess of the limit set by Table G-2 of 29 C.F.R. 1910.93, and failure to use respirators to keep the exposure of employees to within said limits.

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Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), I am herewith directing that the Judge's order be reviewed by the Commission.

Review of the record discloses that on May 29 the employee representative timely contested the abatement prescribed in a citation for serious violation issued to the employer, Globe Union, Inc.   The Secretary's response to the employee contest discloses that Globe Union, Inc. contested the citation for serious violation and its proposed penalty.     Issue having been joined n2 in the employer contest, that matter   is presently pending assignment to a Judge for hearing. n3

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n2 The Secretary's complaint amended the citation for serious violation to state more clearly the nature of the violation alleged.   The abatement dates were not altered.

n3 Through administrative oversight the two contests were not consolidated and only the employee representative contest is before us at this time.

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The employee representative subsequently moved to withdraw its notice of contest. In its motion, at the suggestion of the Solicitor, the following paragraph was included:

(5) The Union understands that if the Commission grants its Motion an order will be entered by the Commission affirming the abatement requirements of the Citation in accordance with the prayer for relief contained in the Petitioner's Response to Employee Contest.

Review of the record indicates that in considering the respondent employee representative's motion, the Judge was apparently unaware of the employer contest. In view of the pendency of the latter contest he was without authority to affirm the abatement dates in a citation which was currently being contested by the employer and which contest, by virtue of section 10(b) of the Act, effectively tolled the abatement dates.

Accordingly, it is ORDERED that the Judge's order is set aside.    



  MORAN, CHAIRMAN, dissenting: The disposition ordered in this case bears no relationship to that sought by the parties and the procedure employed by the Commission in reaching this disposition is contrary to law.


This disposition is occasioned by the motion of respondent union to withdraw an objection it had filed   earlier to the time for the abatement of an alleged violation which was listed on a citation served upon Globe Union, Inc., the employer of members of the respondent union.

That very issue -- the time allowed Globe Union for abatement of the alleged violation -- is involved in another case pending with this Commission.   Consequently, that issue cannot be finally resolved in this proceeding.

There is no reason, however, why a union which has contested the reasonableness of an abatement date cannot withdraw its contest irrespective of the fact that the employer is also contesting the citation of which that abatement date is a part.   The Judge's action in this case allowing such a withdrawal motion would be correct were it not for the fact that the union's motion -- and the Judge's disposition -- is predicated, at least in part, upon the erroneous assumption that the abatement date on the citation will be affirmed upon allowance of the union's motion.   This, of course, cannot be the result at this time in view of the pendency of Globe Union's contest to that citation.

Justice requires therefore that the Judge's order be set aside without prejudice to it being resubmitted by the union if it subsequently chooses to do so with knowledge of the matters discussed herein.

That is all that this decision should cover -- a ruling upon the union's motion to withdraw. It is not in the interests of justice for the Commission to treat an issue -- unnecessary to the resolution of the motion under consideration and not raised by any party - as it has done in this decision by ordering consolidation of this case with Globe Union's case.

While that might seem a logical disposition, and it is one that I favor if all parties agree, it should not be ordered if the union still wishes to have its motion to   withdraw allowed or until Globe Union, Inc., which is not a party to this case, has the opportunity to be heard on the issue.


The Judge issued the decision in this case on August 3d and, without any notice to the parties, the Commission is herewith reversing that decision and ordering a disposition not sought by any party.

Such a procedure violates basic principles of fairness, is contrary at least to the spirit of the Commission's Rules of Procedure, and is clearly in conflict with the Administrative Procedure Act.

When parties to a case are subject to a ruling which could be adverse to their interests they are entitled to be advised of the same and given the opportunity to present arguments before the matter is adjudicated.   This principle has been part of the Anglo-American legal system since the Star Chamber was abolished in 1641.

Commission Rule 91 (29 C.F.R. 2200.91) allows a party who is aggrieved by a Judge's decision to petition the Commission for review of that decision at any time "before the 25th day" after issuance thereof.   This at least implies that the Commission will not act to affirm or reverse the Judge until the parties have had these 25 days to express their views to the Commission.   This rule is reduced to snare and delusion status when the Commission acts prior to expiration of the 30 day review period specified in section 12(j) of the Act.

Finally, the procedure employed by the Commission is contrary to section 8(b) of the Administrative Procedure Act (5 U.S.C. 557(c)), which states:

"Prior to each . . . decision   upon agency review of the decision of subordinate officers, the parties shall be afforded a reasonable   opportunity to submit for the consideration of the officers participating in such decisions (1) proposed findings and conclusions, or (2) exceptions to the decisions or recommended decisions of subordinate officers or to tentative agency decisions, and (3) supporting reasons for such exceptions or proposed findings or conclusions."

[The Judge's decision referred to herein follows]

BATES, JUDGE, OSAHRC: The Respondent-Union's motion to withdraw its Notice of Contest challenging the reasonableness of the abatement period specified in the amended Citation is hereby granted and it is so-ORDERED.

Since no contest now exists as to the abatement period previously at issue, and in accordance with the prayer for relief contained in the Secretary's "Response to Employee Contest," it is hereby further ORDERED that the abatement requirements specified in the Citation for Serious Violation issued on May 8, 1973, [as amended by the Complaint served on June 20, 1973], be, and are, affirmed in all respects.