OSHRC Docket No. 2547
Occupational Safety and Health Review Commission
December 13, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
MORAN, CHAIRMAN: A decision of Review Commission Judge Herbert E. Bates dated August 16, 1973, is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590). That decision granting the complainant's motion to dismiss the respondent's notice of contest is hereby affirmed.
CLEARY, COMMISSIONER concurring: I concur with the majority in the disposition of this case. Respondent's flagrant disregard for the rights of its employees clearly requires the Commission to grant the motion to dismiss. Denial of the Secretary's motion to dismiss respondent's defiant refusal to give notice to affected employees of their right to participate in the hearing, would negate the substantive and procedural rights of employees as expressly stated in the Act and the Commission's Rules of Procedure.
The Occupational Safety and Health Act of 1970 was enacted ". . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions."
In drafting the Act, Congress was careful to assure that employees could actively participate at every phase of the Act's operation. n1 One of the most important rights that Congress has given to employees is the right to participate as a party. Section 10(c) provides affected employees with the same rights as their employer to contest the reasonableness of abatement periods. Where employees do not choose to file an independent notice of contest, they may participate as parties in a hearing where the notice of contest was filed by the employer.
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n1 See e.g., section 8(e) (right to accompany the inspector in the course of his inspection); section 8(f) (right to petition Secretary for an inspection); section 11(c) (prohibits discrimination against employees who have filed a complaint); section 13(d) (right to seek mandamus of Secretary where there is imminent danger).
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Section 10(c) states: "The rules of procedure prescribed by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this subsection." The Commission has implemented this statutory mandate through rule 20(a), which gives employees an absolute right to party status before the hearing and a qualified right to party status thereafter. Rule 20(a) provides:
Affected employees may elect to participate as parties at any time before the commencement of the hearing before the Judge, unless, for good cause shown, the Commission or the Judge allows such election at a later time.
Where an employer files a notice of contest, employees may become a party to the proceedings without filing a separate notice of contest under section 10(c) and rule 35. Where, however, an employer moves to withdraw its notice of contest before the hearing, affected employees are threatened with having the case terminated without their position ever having been considered unless they are apprised of the pending withdrawal.
As Judge Bates correctly concludes here, affected employees are likewise denied their right to participate where the employer fails or refuses to notify the employees of their right to participate initially.
The Commission's notice requirement is set forth in rule 7. This rule requires that where employees have an authorized representative, the representative must be served personally or by mail with all motions in the case. Where the employees have no authorized representative, rule 7(g) requires that all motions, notices of contest and other relevant papers in the matter must be posted in a conspicuous place. A notice stating that employees can participate in the hearing as parties must also be posted.
In the performance of our function under the Act, we must resolutely protect the rights of employees and employers alike.
[The Judge's decision referred to herein follows]
BATES, JUDGE, OSAHRC: The Complainant by motion urges the Commission to dismiss the Notice of Contest filed by the Respondent herein, on the grounds that the Respondent refuses to comply with Commission Rule 7(g), as affirmatively declared by the Respondent in its motion dated April 26, 1973, and Paragraph 3 of the Respondent's "Involuntary Answer" to the Complaint, wherein the Respondent, "affirmatively states that it has not and will not post 'Notice to Employees' OSAHRC Form 3 which was received in the mail." The Respondent's refusal to post is based on its claim that this Commission lacks jurisdiction over the subject matter herein involved, "aside from the constitutional issues presented herein."
The Respondent has not replied to the Secretary's Motion to Dismiss.
Section 10(c) of the Occupational Safety and Health Act of 1970 (the Act) affords to affected employees or their representatives an opportunity to participate as parties to hearings under this subsection. Commission Rule 7(g) of the Rules promulgated under the Act, requires (inter alia), cited employers to notify unrepresented employees of their right to so participate, by notice to such employees posted at the situs where the Citation and other documents are required to be posted.
The Commission in Secretary of Labor v. Meyco Products, Inc., In its opinion, the Commission stated:
The Commission has on numerous occasions stated that one of the conditions precedent to granting motions for withdrawal is proof of service of that pleading upon all parties, including affected employees or their authorized representative. (citing cases)
By an extension of this opinion to the instant situation, it would appear to me that Respondent's rather bold assertion of non-compliance with Commission Rule 7(g) should likewise constitute a breach of a condition precedent to the Respondent's continued status as a party to the captioned litigation, and this breach of the Respondent's statutory duty to notify affected employees of their right to participate, [as guaranteed to such employees by Congress in Section 10(c) of the Act], in litigation so concerned with their safety and health, leaves me no alternative but to grant the Secretary's motion.
It is hereby ORDERED that the Complainant's Motion to Dismiss the Respondent's Notice of Contest be, and is, granted and the Serious Citation issued March 15, 1973 and its attendant Notification of Proposed Penalty of the same date be, and are affirmed in all respects.