SECRETARY OF LABOR,
Complainant,

v.

SPARTAN RIGGING CORPORATION,
Respondent.

OSHRC Docket No. 84-0827

SECRETARY OF LABOR,
Complainant,

v.

ATLANTIC RIGGING CORPORATION,
Respondent.

OSHRC Docket No. 84-0872

DECISION

Before:  BUCKLEY, Chairman, RADER and WALL, Commissioners.
BY THE COMMISSION:

These consolidated cases are before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. § 659(c).

The Secretary alleged in Docket No. 84-0827 as to Spartan Rigging Corporation and in Docket No. 84-0872 as to Atlantic Rigging Corporation that the respective employers committed serious violations of the general personal protective equipment standard applicable to construction work, published at 29 C.F.R. § 1926.28(a), by failing to require certain employees engaged in dismantling scaffolds at the separate worksites of the respective employers to wear tied-off safety belts.  The two cases were assigned to Chief Administrative Law Judge Paul A. Tenney, who after separate hearings consolidated them for briefing and decision.  In his decision, the judge found that the employers violated the personal protective equipment standard as alleged and affirmed the serious citations.
The employers filed a petition for discretionary review and Chairman Buckley directed review of the judge's decision.  The issues specified for decision were:

1) Whether the Administrative Law Judge erred in finding that a reasonable person familiar with the circumstances, including any facts unique to Respondent's industry, would have recognized that Respondent's employees were exposed to a hazard warranting the use of personal protective equipment; and
2) Whether the Secretary of Labor carried his burden of proving the feasibility of using safety belts and lanyards in the cited circumstances.

Also, in the briefing notice subsequently sent to the parties, the attention of the parties was directed to a recent decision of the Commission, Granite City Terminals Corp., 86 OSAHRC _____,12 BNA OSHC 1741, 1986 CCH OSHD ¶ 27,547 (No. 83-882-S, 1986).

On review, the Secretary filed a motion to withdraw the citations and complaints concerning the alleged violations of the personal protective equipment standard.  The Secretary stated:  "As a result of further evaluation of the facts in the record the Secretary has decided not to pursue this case any further and accordingly moves to withdraw the citations . . . . " The employers oppose the Secretary's motion because, among other things, it came so late in the proceedings and request that the Commission deny the Secretary's motion, direct the Secretary to file a brief, and issue a decision on the merits.

We consider that denial of the Secretary's motion to withdraw would be inappropriate.  See In re Federal Election Campaign Act Litigation, 474 F. Supp. 1051 (D.C., 1979) (missed opportunity for a legal ruling is not sufficient prejudice to warrant denial of a motion for voluntary dismissal).   Accordingly, the motion to withdraw the citations and the complaints is granted.[[1]]

SO ORDERED.[[2]]

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  SEP 3 1986

WILLIAM E. BROCK, SECRETARY OF LABOR,
Complainant,

v.

SPARTAN RIGGING CORP &
ATLANTIC RIGGING CORP.
Respondent.

OSHRC Docket Nos. (Consolidated)
84-0827 & 84-0872

MOTION TO WITHDRAW CITATION AND COMPLAINT

Complainant, William E. Brock, Secretary of Labor, United States Department of Labor, respectfully requests that the citations issued to respondents on July 19, 1984 and July 31, 1984 be withdrawn and the complaints filed in the above-referenced case on August 31, 1984 and September 12, 1984 be dismissed.

This case is now pending before the Occupational Safety and Health Review Commission to determine whether the Secretary established by a preponderance of the evidence that respondent failed to comply with 29 CFR 1926.28(a).

As a result of further evaluation of the facts in the record the Secretary has decided not to pursue this case any further and accordingly moves to withdraw the citations issued on July 19, and July 31, 1984.

The instant motion removes all contested items from this case.  Since no further issues remain, the case should be dismissed in its entirety.

For the above stated reasons, the Secretary respectfully requests that the commission grant this motion to withdraw citation and complaint.

Respectfully submitted,

GEORGE R. SALEM
Deputy Solicitor of Labor

JOHN J. HYNAN
Acting Associate Solicitor
for Occupational Safety & Health

DANIEL J. MICK
Counsel for Regional
Trial Litigation

MARY N. REVELL
Attorney

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail (lwhitsett@oshrc.gov), telephone (202-606-5398), fax (202-606-5050), TTY (202-606-5386).

FOOTNOTES:

[[1]] In their statement of opposition to the Secretary's withdrawal, the employers assert that "over-zealous representatives of the Secretary" have harassed members of the employers' trade association, the Scaffold Industry Association, by using the judge's decision as authority for a requirement for safety belts while erecting or dismantling scaffolds, even though the judge's decision was not a Commission final order and was directed for review before the Commission.  There is no evidence to support this assertion and we consider it unnecessary to examine the basis for this assertion in view of our disposition of these cases.  Our approval of the Secretary's motion to withdraw the underlying citation renders the judge's decision a nullity even with respect to the immediate parties.   It certainly should not be cited as an authoritative pronouncement of the Commission.

[[2]] There remains the matter of the judge's decision affirming a nonserious citation alleging that Atlantic Rigging Corporation violated 29 C.F.R. § 1926.100(a).  Because the judge's decision was directed for review as to the alleged serious violations of § 1926.28(a), the nonserious citation was also before the Commission.  See Hamilton Die Cast, Inc., 86 OSAHRC _____, 12 BNA OSHC 1797, 1986 CCH OSHD ¶ 27,576 (No. 83-108, 1986).  However, no party took exception to the judge's decision in this regard and the Secretary's motion to withdraw does not pertain to the nonserious citation.  Accordingly, we affirm the judge's decision in this respect.