NEWSPAPER AGENCY CORPORATION

OSHRC Docket No. 1902

Occupational Safety and Health Review Commission

May 6, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Leon J. Moran, dated March 12, 1973, granting respondent's motion to withdraw its notice of contest and affirming the Secretary's citation and proposed penalty, is before this Commission for review pursuant to 12(j) 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).

On November 30, 1972, respondent was issued an amended citation and an amended notification of proposed penalty, under the provisions of the Act, to which respondent filed a timely notice of contest. On December 29, 1972, respondent certified that notice of the case had been given to affected employees by posting and by service on the two local unions representing affected employees, the Salt Lake Typographical Union Number 115 and the Salt Lake Web Pressmen's Union Number 28. See 29 U.S.C. 659(c) and 29 C.F.R. 2200.7. The record also indicates that the Secretary served a copy of the complaint on these two unions by mail on December 27, 1972.

The respondent subsequently, on February 8, 1973, filed a [*2] motion to withdraw its contest to the complainant's action, and certified that a posting of the application was made in accordance with the Commission rules. 29 C.F.R. 2200.7. As of March 12, 1973, the day Judge Moran granted the motion to withdraw, neither union had elected party status.

We affirm the Judge's decision and in so doing specifically hold that posting is sufficient notice in this type of proceeding where neither affected employees nor unions representing them have elected party status.

To impose arbitrary conditions restricting respondent's ability to withdraw, such as the conditional granting of the motion to take effect at some future date after additional notice is given and no action taken thereon by those given notice, is unnecessary.

In this case, respondent's affected employees are represented by two substantial labor unions, both of which were notified of the commencement of the proceeding before the Commission and advised of their right to elect party status. After the passage of some months, they have elected to take no action. No purpose will be served by any further notices to them on this case.

The employer, after due consideration, has [*3] determined not to proceed any further and has posted notice of its motion to withdraw in the workplace occupied by the employees belonging to the unions in question. The only effect of allowance of the motion to withdraw is to place the employer in the position in which it would have been, had no notice of contest ever been filed -- an act which would have required no notice to anyone.

We think this employer has done all that is required and that no employee's rights will be lost by the allowance of the employer's motion.

Accordingly, the Judge's decision is hereby affirmed in all respects.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur in Chairman Moran's disposition of this case. The reasons expressed in his opinion regarding service of the motion to withdraw accord with the view I stated in my minority opinion in Owens-Illinois, Inc., S. & H. Guide para. 17,434 (Rev. Com'n., March 11, 1974).

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I cannot agree with a sudden, sharp reversal of long standing Commission policy resulting in a denial to authorized employee representatives of their [*4] right to participate in Commission proceedings.

In this case the majority holds that a respondent's posting of a copy of its motion to withdraw its notice of contest is sufficient "service" upon the authorized employee representatives. Such a holding serves to limit effectively procedural rights afforded employee representatives by the Act and our own Rules of Procedure, 29 CFR Part 2200. n1

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n1 See, Caribtow Corp., No. 2547 (December 13, 1973) (Cleary, Commissioner, Concurring), aff'd. on other grounds, sub nom., Caribtow Corp. v. O.S.H.R.C., No. 73-1285 (2nd Cir., March 18, 1974).

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This decision reverses a line of decisions holding that where a respondent moves to withdraw its notice of contest under section 2200.50, Commission approval will not be granted unless, among other things, the movant demonstrates that a copy of the motion was served upon the authorized representative of the affected employees. Owens-Illinois, Inc., No. 3420 (March 11, 1974); Muller Boat Works, Inc., No. 553 (May 3, [*5] 1972); Meyco Products, Inc., No. 647 (April 21, 1972). In our earlier cases we denied motions to withdraw and dismissed respondents' notices of contest where such service was not shown. Muller Boat Works, Inc., supra; Meyco Products, Inc., supra. In more recent cases, however, the Commission has granted such motions contingent upon the lack of objection thereto by the authorized employee representative within 10 days of its receipt of the Commission order. Owens-Illinois, Inc., supra. This is the proper result and order in this case.

Authorized representatives of affected employees are guaranteed access to Commission proceedings as parties under section 10(c) of the Act which provides, in part, that:

The rules of procedure prescribed by the Commission shall provide . . . representatives of affected employees an opportunity to participate as parties in hearings . . .

In order to exercise its statutory right to party status the authorized employee representative must be served with copies of pre-hearing motions to withdraw. Clearly, an authorized employee representative served with a copy of the complaint and answer, without ordinary service on it of a subsequent [*6] motion to withdraw, may be lulled to sleep only to awaken without having had an opportunity to assert party status after the notice of contest has been withdrawn. Under these circumstances the authorized employee representative may be left waiting for a hearing that would never be held. Thus, granting a motion to withdraw before a hearing without effective service of the motion on the authorized employee representative deprives it of its full rights to party status.

The Rules of Procedure that proport to carry out section 10(c) must, of course, be read in light of its objectives. The majority's acceptance of respondent's posting of its motion to withdraw its notice of contest in lieu of other service upon the authorized employee representative, therefore, should be considered contrary to section 2200.7(f) and (c) of our Rules of Procedure. Section 2200.7(f) requires that:

Service and notice to employees represented by an authorized employee representative shall be deemed accomplished by serving the representative in the manner prescribed in paragraph (c) of this section. n2 (Emphasis added.)

Section 2200.7(c) provides:

Unless otherwise ordered, service may be [*7] accomplished by postage pre-paid first class mail or by personal delivery.

No other form of service, as permitted by this rule, upon the authorized employee representative was ordered in this case.

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n2 Section 2200.7(a) does not limit the application of these service requirements to situations where the employee representative has been actually admitted as a party. In view of the requirements of section 10(c) of the Act, section 2200.7(a) should be construed to include as parties authorized employee representatives having a statutory right to be parties. Otherwise, as suggested in the text, such representatives may be lulled to sleep after receiving a service of a contest under section 2200.7(g) but nothing thereafter unless they affirmatively elect to become parties.

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Thus it is clear that the majority has departed from Commission precedent and has failed to follow its own rules.

The danger caused by this departure lies in the precedental value of the broad policy announced in this case. n3 The policy may reduce [*8] interest and correspondingly reduce participation by authorized employee representatives in future proceedings in which employees may have much to contribute in the way of probative evidence. Other problems may also be generated by this holding. n4

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n3 In this rather simple case no serious difficulty exists because the one violation was immediately abated and the penalty paid.

n4 The broad policy announced by the majority of allowing "service" of a motion to withdraw a notice of contest upon an authorized employee representative by posting greatly restricts the "opportunity to participate." While not an issue in this case, this policy would result in an even harsher result in those cases where there is an exclusive hiring hall agreement with the authorized employee representative. Such a hiring hall may be miles from the worksite where the motion has been posted.

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Accordingly, I would hold that the Judge's order granting respondent's motion to withdraw be affirmed unless the authorized employee representative [*9] filed an objection thereto within 10 days of the receipt of the Commission order.

[The Judge's decision referred to herein follows]

MORAN, JUDGE, OSAHRC: Ruling on Respondent's motion to withdraw notice of contest; Granted.