YAFFE IRON & METAL COMPANY, INC.
OSHRC Docket No. 76-4063
Occupational Safety and Health Review Commission
February 23, 1977
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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor
Mike Seney, President United Founders Tower
OPINION:
DECISION
BY THE COMMISSION:
On October 28, 1976, Administrative Law Judge Joseph L. Chalk issued an order in this case in which he construed a document entitled "entry of appearance as representative," filed for respondent by Mr. Mike Seney, as a motion for leave to represent respondent and denied the motion. Respondent filed petition requesting review of the order by the Commission. The Secretary, responding by letter, regarded respondent's petition as an interlocutory appeal and stated that there was no objection by the Secretary to the Commission considering the issue raised by respondent. The Commission granted respondent's petition and invited the submission of briefs. The issue before us is the propriety of Judge Chalk's ruling that a respondent employer may not be represented in proceedings before this Commission by a person who is neither an attorney nor a regular officer or employee of that respondent. Only respondent has filed a brief.
Judge Chalk's [*2] order was upon his own motion on the basis of respondent's answer and an entry of appearance having been filed by Mr. Seney, President of Professional Safety, Inc. Seney is a private consultant who is neither an attorney nor a regular employee of respondent. There has been no objection by the Secretary to respondent's choice of representative. On the basis of Commission Rule 22, n1 which allows but does not require a party to be represented by an attorney, the Judge ruled that a party cannot be represented by ". . . any representative not legally qualified." He found the intent of the rule to be that a respondent may only be represented by an attorney or a non-attorney who is one of its regular officers or employees. No reasons were advanced in support of this qualification placed upon Rule 22(a). Judge Chalk stated only that, "[t]he Review Commission is the sole judge of the right of other qualified representatives to appear," citing 5 U.S.C. § 555(b).
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n1 Commission Rule 22, 29 CFR § 2200.22, states in relevant part as follows:
Rule 22. Representatives of Parties and intervenors
(a) Any party or intervenor may appear in person or through a representative.
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(d) Nothing contained herein shall be construed to require any representative to be an attorney at law.
The Advance Notice of Proposed Rulemaking published by the Commission at 41 Fed. Reg. 26707 (1976) leaves unchanged those parts of the current Rule 22 relevant to this case. See Proposed Rule 32, 41 Fed. Reg. 26711 (1976).
[*3]
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The Administrative Procedure Act clearly accords this Commission the discretion to decide who may appear before us as a representative of a party or intervenor. At 5 U.S.C. § 555(b) it is stated that, "[t]his subsection does not grant or deny a person who is not a lawyer the right to appear for or represent others before an agency or in an agency proceeding." It also states that a party may be represented by counsel ". . . or, if permitted by the agency, by other qualified representative." The Commission has by rule decided that a party may appear through a representative who is not an attorney at law. See note 1 supra. Commission Rule 1(h), 29 CFR § 2200.1(h), defines a "representative" as ". . . any person, including an authorized employee representative, authorized by a party or intervenor to represent him in a proceeding." n2
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n2 The Advance Notice of Proposed Rulemaking suggests no change in this definition. See Proposed Rule 1(i), 41 Fed. Reg. 26709 (1976).
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There is nothing before us indicating that respondent's chosen representative is not qualified, n3 or that his representation would detract from the fairness of the proceeding since respondent has been afforded the right to have counsel. n4 We hold that the representative is entitled to appear on behalf of respondent pursuant to Rule 22.
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n3 We note that the Judge has not intimated that Mr. Seney is unqualified to represent respondent by reason of deficiencies in ability or experience, but only because he is not an attorney or an employee of respondent.
n4 Local Union No. 742, Unit. Broth. of Carpenters & Joiners of America v. N.L.R.B., 377 F.2d 929 (D.C. Cir. 1967); cert. denied, 389 U.S. 843 (1967).
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Accordingly, it is ORDERED that the Judge's order be vacated and the case be remanded for further proceedings.