Docket No. 562

OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO

OSHRC Docket No. 562

Occupational Safety and Health Review Commission

February 6, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: MORAN

OPINION:

ORDER

MORAN, CHAIRMAN: This matter arose out of a contest commenced by the Oil, Chemical and Atomic Workers International Union, AFL-CIO (hereinafter the "Union"). Specifically, the Union contested the reasonableness of the abatement period for item 50(c) of the citation. It also maintained that it could contest items specified as having been abated in the citation.

On May 16, 1972, Occupational Safety and Health Review Commission Judge Leon J. Moran issued an order in the above-captioned matter in which he concluded that Review Commission jurisdiction, under section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the "Act") was limited to determination of the question of whether or not the period of time fixed for abatement of item 50(c) of the citation is unreasonable.

On May 22, 1972 the Union requested certification for an interlocutory appeal from the May 16th order. On May 30, 1972 the hearing Judge certified the appeal in accordance with Commission rule 2200.12, and the petition was granted by the Commission on June 7, 1972. The parties were asked to brief the questions on appeal. Both the Secretary and the employer filed briefs, but the Union did not file a brief.

After having reviewed the entire record and all the documents in this case, the Commission affirms the hearing Judge's decision.

DISSENTBY: BURCH

DISSENT:

BURCH, COMMISSIONER, dissenting: The Commission has, in my opinion, affirmed its Judge's decision in this case without examining the underlying merits of the labor organization's contest.

The Judge concluded that "Commission jurisdiction. . . [is] limited to the issue as to whether or not the period of time fixed [for abatement of] item 50(c) of the citation . . . is unreasonable." Order, page 4. While the conclusion is reasonable, it fails to state fully the issue in this case. The contestant here is disputing the reasonableness of the time actually afforded the employer for abatement -- not the date set forth in the citation. The Commission's Judge has elevated form above substance, refusing to hear evidence concerning the actual time for abatement, on the basis that the reasonableness of the time set forth on the documents constituting the citation is the only issue which he may try.

If the contestant's allegations have substance, they are certainly matters concerned with "the period of time fixed in the citation for the abatement of the violation. . ." (Section 10(c) of the Act, Emphasis added). Contestant alleges that the time set forth in the citation is not the time fixed as a matter of fact. I believe that contestant should be afforded an opportunity to adduce evidence in support of its allegations. If true, the issue is one of serious proportions appropriate for consideration by this Commission which, in my opinion, is ill advised to deny a hearing.

From its very inception the Commission has made every effort to afford all contestants an opportunity to have their day in court. We owe this contestant no less.

[The Judge's decision referred to herein follows]

MORAN, JUDGE, OSAHRC: The Secretary of Labor on January 28, 1972, issued three citations for alleged serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, and one citation for 90 alleged other than serious violations to the employer, Mobil Oil Corporation. The employer did not contest the citations nor the proposed penalties.

By a letter dated February 17, 1972, the Oil, Chemical and Atomic Workers International Union hereinafter referred to as the "Union", as employee representative, filed a Notice of Contest which states in pertinent part:

We have reviewed in detail the citations issued against the employer on January 28, 1972. After consultation with the refinery employees, we have concluded that many items listed as 'abated' have not been corrected as of today. We have also concluded that many items, which have been assigned dates for compliance prior to today, have not yet been corrected. Lastly, we have found one item where the period for abatement is excessively long.

The attached list details those items which we wish to contest the abatement period. Item #50(c) (our number 70) has an abatement period of more than three months. We feel that this abatement period is excessively long and should have been shortened to one month from the issuance of the citation.

For the rest of the 69 items listed on the attached sheet, the company has failed to abate in violation of the citation. This failure, in effect, denies the employees of any indication of when the hazard will be corrected and therefore becomes an unreasonable period of abatement.

On March 6, 1972, the Secretary filed a "complaint" as required by Rule 2200.7(d) of the Commission's Rules of Procedure averring therein that the Union had filed a "Notification of intent to contest only the reasonableness of the abatement date for item 50(c) of the above mentioned citation pursuant to the provisions of section 10(c) of the Act", that the abatement date of item 50(c) was reasonable and that the date should be affirmed. The employer in a pleading in answer to the complaint of the Secretary was in agreement with the Secretary.

In a responsive pleading filed by the Union on March 17, 1972, it is stated, inter alia, that in its notice of February 17, 1972, it urged "that the period of time fixed in the citation for the abatement of one (1) serious violation n1 was unreasonable and, further, many other violations listed as 'abated' but which did not have any 'abatement date' had not been corrected as of February 17, 1972. Accordingly, the Union urged that the Commission's authority likewise extended to determining whether in such circumstances Mobil had been allowed an unreasonable abatement period to remedy said violations. The Union avers that the Secretary seeks to limit the scope of the Union's contest to the reasonableness of the abatement date for item 50(c) of the citation while the Notice of Contest "speaks for itself as to the scope of its contest."

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n1 Actually a nonserious violation.

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It is the Secretary's position that Section 10(c) of the Occupational Safety and Health Act, 29 U.S.C. 651, limits the scope of inquiry with regard to abatement periods to those items which one party may feel are excessively long and that the Commission has no authority under section 10(c) to inquire into the question of whether or not abatement has occurred. The Secretary urges that the Act contains other machinery for effecting compliance with abatement dates which have become the final order of the Commission citing sections 10(b), 17(d) and 11(b) of the Act and that if the Union feels that abatement has not in fact been effectuated it need only advise the Secretary and thus invoke these provisions of the Act.

Section 10(c) provides in pertinent part that any employee or representative of employees may file a "notice with the Secretary alleging that the period of time fixed in the citation for abatement of the violation is unreasonable" and upon notification of such filing the Commission shall afford an opportunity for a hearing. It further provides that "The Commission shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief. . . ." Section 9(a) of the Act provides that the citation shall fix a reasonable time for the abatement of a violation.

Having considered the pleadings, the memoranda filed by the parties and the contentions of the parties at the pre-hearing conference it is determined that under the Act the Commission's jurisdiction in this case is limited to the issue as to whether or not the period of time fixed in item 50(c) of the citation issued on January 28, 1972, for the abatement of the alleged violation is unreasonable. As to the other 69 items listed in the notice of contest the Commission's authority to review can not be expanded or extended to encompass the issue as to whether or not abatement had in fact occurred. Section 10(c) is clear that jurisdiction exists where an employee or representative of an employee files a notice that the period of time fixed in the citation for abatement of the violation is unreasonable. The language is clear, unambiguous and limiting. To hold that Congress in enacting this legislation intended to include jurisdiction of the Commission, to initially review the matter of whether or not abatement had occurred would be reading into the statute a provision that even a liberal construction of the Act would not permit.

While mindful of the serious charges involved in the Union's contention that 69 items in the citation were not abated, one does not find in the Act authority for this Commission to review the alleged failure of the Secretary to file a follow-up violation and/or assess additional penalty as contended, by the Union (Tr. of Prehearing Conference, p. 12). Section 9(b) of the Act bestows upon the Secretary the authority, if he has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction, to issue a notification to the employer of such failure and the proposed penalty. This section further provides for the right of an employer to contest the Secretary's action. The Act, however, contains no provision for contest of the Secretary's failure to find a failure to abate and failure to impose a proposed penalty for such failure.

There is also to be considered herein the petitioner's motion to strike the "Counterclaim" filed by the respondent with the answer, the "Jurisdictional Statement" and so much of paragraph 4 of the answer "which items seek to broaden the scope of these proceedings beyond those items alleged in the Secretary's complaint." With respect to the "Counterclaim" asserted by the Union this Commission has no statutory authority to consider such a claim. In view of the determination made herein so much of paragraph 4 of the Union's answer which seeks to broaden the scope of these proceedings is stricken. As to the "Jurisdictional Statement" the petitioner has moved, and it was granted, to amend the caption in all pleadings filed herein to more properly identify the parties which alleviated many of the objections raised in the "Jurisdictional Statement" and rendered moot their consideration in this proceeding. It should be noted that the objection raised by the Union as to a complaint being filed as required by the Commission's Rules on the Union and the posting requirements with respect to the complaint raise serious questions as to the rules which may well be considered in any proposed amendment of said rules.

It is therefore ORDERED that the sole issue upon which proof will be received and determination made is whether or not the period of time fixed for abatement of item 50(c) in the citation issued on January 28, 1972, was unreasonable. It is further ORDERED that the Counterclaim filed by the Union is dismissed.