Docket No. 2979

REMODELING BY OLTMANNS, INC.

OSHRC Docket No. 2979

Occupational Safety and Health Review Commission

November 21, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: On July 24, 1973, Judge Herbert E. Bates issued a decision in this case granting Respondent's motion to withdraw its notice of contest, approving the stipulation submitted by the parties, and affirming the citation and proposed penalty in all respects.

On August 21, 1973, that decision was directed to be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act").

Review of the record discloses that Complainant, through his complaint, amended the citation and notification of proposed penalty issued on May 8, 1973, by deleting several items from the citation and by reducing the proposed penalties to conform to the amendments. These amendments were approved by the parties in their joint stipulation.

Although the complaint identifies Local 253, United Brotherhood of Carpenters and Joiners of America (hereafter Union), as the authorized employee representative, the record does not indicate service of the withdrawal motion upon the union. We hold that such service is not required in this case.

This record does not demonstrate that the union is an "authorized employee representative" within the meaning of our rules (29 C.F.R. 2200.1(g)). The mere fact that Complainant names a bargaining unit in his complaint does not require that we conclude there is such a unit for employees affected by the violations (29 C.F.R. 2200.1(e)). The parties stipulated service by posting, and in this case that is sufficient to meet our service requirements for hospitable consideration of the motion.

Accordingly, it is ORDERED that Respondent's motion to withdraw its notice of contest is granted and that the citation and notification of proposed penalty, as amended, are affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I dissent. I agree with the majority that: "The mere fact that complainant names a bargaining unit in his complaint does not require that we conclude there is such a unit for employees affected by the violations. . . ." On the other hand, the opposite conclusion is not required.

Here, the "bargaining unit" was not named in the complaint, but in the certificate of service accompanying the Secretary's complaint. n1 The certificate indicates that service was made upon Local 253 of the United Brotherhood of Carpenters and Joiners of America on May 30, 1973.

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n1 Had Local 253 been named in the complaint, respondent would have had to answer the allegation that the local was the authorized employee representative and we would not be faced with uncertainty.

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The subsequent stipulation of withdrawal of notice of contest filed by the parties on June 13, 1973, expressly indicates that a copy of the stipulation was posted in the workplace. The stipulation is silent on any additional service upon any collective bargaining representative. Essentially, two inferences are possible: one is that no local union is actually an authorized employee representative, and therefore the posting recited in the stipulation is all that our rules (Commission rules 2200.100 and 2200.7(g)) require by way of service upon affected employees. The second inference is that the local union is an authorized representative of employees, and service thereon as required by rule 7(f) was not perfected.

Because of this uncertainty, I would grant respondent's motion to withdraw its notice of contest upon clarification of the status of Local 253 by the parties and service upon the local union in the event it is an authorized employee representative. In the latter instance, the local union should have adequate time to file objections to the order.

[The Judge's decision referred to herein follows]

BATES, JUDGE, OSAHRC: This motion was assigned to this Judge by the Occupational Safety and Health Review Commission for disposition.

By stipulated motion which is hereby approved, the Respondent has requested permission to withdraw its Notice of Contest in the captioned case representing that the cited violations have, or will be, abated; that tender has been made to the Secretary of Labor for the penalty proposed therefor; that there will be continuing compliance on the Respondent's part with applicable provisions of the Occupational Safety and Health Act of 1970 and that the Respondent has complied with the service requirements specified in the Commission Rules with respect to the said Notice of Contest and this motion.

No objections to the Respondent's motion having been received and it appearing that the granting of same is not inconsistent with the provisions and purposes of the Act, the Respondent's Motion to Withdraw Notice of Contest should be, and is hereby granted.

It is therefore ORDERED that the Respondent's Notice of Contest be, and is hereby withdrawn, and that the Citation issued on May 8, 1973 and its attendant Notification of Proposed Penalty be, and are, affirmed in all respects.

Therebeing no further contest in this case, it is recommended that this Order be made the Order of the Commission.