OWENS-ILLINOIS, INC., LILY TULIP DIVISION
OSHRC Docket No. 3420
Occupational Safety and Health Review Commission
March 11, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: On September 18, 1973, Judge Bates issued an order granting respondent's motion to withdraw its notice of contest.
On October 16, 1973, pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act"), review of this order was directed. n1
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n1 Because of an oversight, the issue on review was not specified. A more specific notice at this time, however, would serve no useful purpose in light of the Commission's decision granting the requested relief subject to a condition to protect the interests of affected employees. Further proceedings are not contemplated, except those that are possible under our conditional order.
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On May 22, 1973, respondent was issued a citation alleging that it was in violation of the Act by failing to comply with three occupational safety and health standards. Respondent timely contested only the length of time allowed [*2] for abatement of item 2. n2 The citation set forth an abatement date of May 22, 1974. Respondent requested that it be extended to May 22, 1976.
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n2 Item 2 charged a failure to comply with the standard at 29 C.F.R. 1910.95(b)(1).
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Respondent filed a Motion to Withdraw Notice of Intent to Contest based upon a joint stipulation of the Secretary and respondent that extended the abatement date of May 22, 1976.
Respondent's motion provides, inter alia;
4. Respondent has complied with all posting requirements and all pleadings required to be served upon the employees representative have been served.
However, the certificate of service attached to the Motion to Withdraw and Stipulation does not certify that service has been made upon Local 241, United Paperworkers, the employee representative. A certificate is required. Cf. Chace International Corp., No. 2253 (August 14, 1973). Also, the arrangement between the Secretary and respondent may be properly characterized as a settlement. Accordingly, [*3] the identical service requirements of Commission rule 100(c) n3 also apply.
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n3 29 CFR 2200.101(c). The rule incorporates by reference the general rules on service published in 29 CFR 2200.7.
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Accordingly, we affirm Judge Bates' order with the following amendment.
Respondent's motion is granted; provided, that within ten (10) days of respondent's receipt of this decision it certifies to the Commission that a copy of the Motion to Withdraw and Stipulation has been properly served upon the authorized employee representative; and provided further, that the authorized employee representative files no objection thereto within ten (10) days of its receipt of respondent's Motion and Stipulation.
[Certification perfected]
CONCURBY: VAN NAMEE
CONCUR:
VAN NAMEE, COMMISSIONER, concurring: I concur in that portion of the majority's decision which grants the Respondent's motion to withdraw. I see no need for the imposition of conditions subsequent, i.e., the certification of service upon the authorized employee representative [*4] of the motion to withdraw and the imposition of a period for objections.
We have stated on numerous occasions that a motion to withdraw will be given hospitable consideration if inter alia the record reflects service of the motion upon the affected employees. Dawson Brothers -- Mechanical Contractors, BNA 1 O.S.H.C. 1024, CCH Employ. S. & H. Guide para. 15,039 (1972); Muller Boat Works, Inc., BNA 1 O.S.C.H. 1037, CCH Employ. S & H. Guide para. 15, 101 (1972); Meyco Products, Inc., BNA 1, O.S.H.C. 1040, CCH Employ. S. & H. Guide para. 15,071 (1972).
The majority now states that service upon affected employees is accomplished only if an employer has posted his motion to withdraw and served a copy of any authorized employee representative. My colleagues rely on Chace International Corp., BNA 1 O.S.H.C. 1275, CCH Employ. S. & H. Guide para. 16,442 (1973) as authority for these requirements. Such reliance is misplaced. Chace stands for the principle, as noted above, that a motion to withdraw must be served on affected employees. It does not require that service be made as suggested by the majority.
Our rules afford affected employees the right [*5] to participate in Commission proceedings (29 C.F.R. 2200.22) as is required by section 10(c) of the Act. Under Rule 22 the right of participation may be invoked "at any time before the commencement of the hearing." Our requirement that a motion to withdraw be served on affected employees serves the purpose of notifying them that the proceedings may be terminated without a hearing. I am of the opinion that posting of a motion to withdraw, at the place where the citation must be posted, successfully accomplishes this purpose. It affords all affected employees and their representatives reasonable and fair notice that an employer wishes to terminate a proceeding. The additional requirement set forth by the majority requires a redundant and unnecessary act once posting of the motion has been accomplished.
Nevertheless, since my colleagues believe that this additional requirement is necessary I concur because neither party can be harmed by such an order. In addition, I concur so the Commission may once again unanimously endorse the principle that a motion to withdraw will be given hospitable consideration if inter alia such motion is served upon affected employees.
[The [*6] Judge's decision referred to herein follows]
BATES, JUDGE, OSAHRC: Respondent's motion to withdraw: Granted.