WHEELING-PITTSBURGH STEEL CORP., WHEELING CORRUGATING CO.
OSHRC Docket No. 4793
Occupational Safety and Health Review Commission
September 24, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission on Commissioner Cleary's order directing review of a decision made by Judge Henry K. Osterman. The issue raised in the order is whether affected employees have received notice of Complainant's motion to withdraw the contested citation and the penalty proposed therefor.
The record discloses that Respondent was cited for various alleged violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"), and that it timely contested the allegations. Respondent's affected employees were notified of the contest in the manner prescribed by our rules. Thereafter, Complainant filed his motion to withdraw. It does not appear from the record that the motion was served on affected employees. Nevertheless, it was granted.
In situations where employers have moved to withdraw their notices of contest we require that a copy of the motion be served on affected employees by posting. Newspaper Agency Corporation, [*2] May 6, 1974). We have imposed the requirement because favorable treatment of such a motion prior to a hearing will terminate the proceedings and thus terminate the right of employees to participate as parties to the proceeding. In this regard we note that section 10(c) of the Act n1 affords affected employees the right of participation. According to Rule 20 n2 of our Rules of Procedure affected employees may elect to exercise their right as late as the commencement of a hearing.
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n1 29 U.S.C. 659(c)
n2 29 C.F.R. 2200.20
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We see no reason why the same requirement should not be imposed on Complainant when he moves to withdraw before the commencement of a hearing. Complainant's status as a party before this Commission is co-equal with that of a party employer, and simple fairness requires that both be treated equally. In any event, the reason for service of the motion has equal application to both situations.
We see no reason why the same requirement should not be imposed on Complainant when he moves to [*3] withdraw before the commencement of a hearing. Complainant's status as a party before this Commission is co-equal with that of a party employer, and simple fairness requires that both be treated equally. In any event, the reason for service of the motion has equal application to both situations.
Accordingly, the Judge' s order is amended as follows: Complainant's motion to withdraw the citation for non-serious violation and notification of proposed penalty is granted on the condition that Complainant certify that a copy of the motion and of this order have been mailed to Respondent to be posted at the place where the citation is required to be posted and that Respondent has done so. It is so ORDERED.
CONCURBY: CLEARY (In Part)
DISSENTBY: CLEARY (In Part)
DISSENT:
CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur in the majority's holding that the Secretary's motion to withdraw be posted in order to notify unrepresented affected employees of the Secretary's motion. The mere posting of the motion, however, is not sufficient. In addition, in light of section 10(c) of the Act, the Commission's rules should be read to require that representatives of affected employees also be [*4] served with the Secretary's motion to withdraw. n3
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n3 The majority's decision is in sharp conflict with the Commission's previous decision in The Wackenhut Corp., No. 2069 (March 22, 1973).
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The record discloses that Local No. 2256, United Steelworkers of America, AFL-CIO, Production and Maintenance Employees, is the representative of respondent's affected employees. Service of the Secretary's motion was not made upon their authorized representative of employees, nor was the motion posted for the benefit of unrepresented employees.
In considering whether to approve the Secretary's motion to withdraw a citation in a contested case, an essential consideration is the right of affected employees to be heard concerning te subject matter of the contest. Section 10(c) of the Act provides that the Commission's rules of procedure "shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings. . . ."
There may be situations where affected employees or their [*5] representatives wish to participate in hearings as parties and to carry the burden of proving a violation of the Act and obtaining abatement of that violation, n4 even when the Secretary does not wish to go forward. If the Secretary moves to withdraw the citation and the case is dismissed when a copy of the motion has not been posted and served on the representatives of affected employees, the affected employees or their representatives will be effectively denied their right to participate as parties to the hearing. We cannot know whether affected employees or their representatives have been afforded the opportunity to participate in the hearing unless they have been served with a copy of the Secretary's motion.
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n4 The right given to employees and their representatives to participate as parties in section 10(c) of the Act is without limitation and is patently not limited to issues of abatement. The right to party status confers the right to be heard on all issues being decided.
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In addition, section 8(f)(1) [*6] of the Act permits employees or representatives of employees to request, by notice, an inspection by the Secretary. In the event that a request for an inspection by an employee representative prompted the Secretary's inspection and citation in this or any other case, it would be patently unfair to permit the Secretary to withdraw the citation without notice to the authorized representative.
Finally, it should be noted that in promulgating rule 100(c) [29 CFR 2200.100(c)] the Commission has, in harmony with section 10(c) of the Act, required that "Where parties to settlement agree upon a proposal, it shall be served upon represented and unrepresented affected employees. . ." (emphasis added). The Commission requires compliance with this rule by posting of the settlement agreement and service of it upon the authorized employee representative. Dorfman Constr. Co., Inc., No. 4341 (July 22, 1974); Otis Elevator Co., No. 4502 (July 22, 1974); Corporacion Raymond, S.A., No. 4588 (July 22, 1974). Although the Commission has not promulgated a specific rule for withdrawal from a contested case in its rules of procedure, I believe that when either party moves for [*7] withdrawal the motion should be posted and served upon authorized employee representatives. n5
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n5 In Newspaper Agency Corp., No. 1902 (May 6, 1974) the majority held that when an employer moves to withdraw from a contested case, that motion does not have to be served upon the authorized employee representative, and posting is sufficient.
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Even though there may be some procedural differences between a settlement arrived at by both parties and a motion to withdraw by either party, the end result in each situation is a termination fo the case after Commission approval, unless there is objection by the employees or their representatives. Since this termination concerns employee representatives as well as employees, I fail to see why notice of the pending termination is required to be served on employee representatives under the circumstances of a settlement under rule 100(c) but not in the circumstances of a withdrawal. I too believe that "simple fairness requires" that the Secretary and the employer be treated equally. [*8] I further believe, however, that "simple fairness requires" the employee representative be treated equally in withdrawals as well as settlements and be served with the appropriate motions in both situations.
[The Judge's decision referred to herein follows]
OSTERMAN, JUDGE, OSAHRC: Ruling on Secretary's motion to withdraw citation and proposed penalty; Granted.