IMC CHEMICAL GROUP, INC.

OSHRC Docket No. 76-4761

Occupational Safety and Health Review Commission

November 17, 1978

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

David G. Schmidt, for the employer

Robert A. Nappi, President, Oil, Chemical & Atomic Workers, International Union Local 7-854, for the employees

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

This dispute arose on November 2, 1976, when respondent, IMC Chemical Group, Inc., contested two citations that had been issued one week earlier. In lieu of filing a complaint, the Secretary of Labor moved to vacate the first (serious) citation on the ground that respondent had not created the hazard at the time or in the manner alleged in the citation. n1 The Secretary stated in the motion that further prosecution was not intended. Attached to the motion, a copy of which was sent to respondent's counsel, was a notice that objections to the motion should be filed within ten days with the Executive Secretary of the Commission. Ten days after the motion was filed, Local 7-854 of the Oil, Chemical, and Atomic Workers International Union [the union] sent a letter to the Executive Secretary requesting the Commission to affirm the citation. Administrative Law Judge Joseph L. Chalk rejected [*2] the union's request and granted the Secretary's motion on the ground that Federal Rule of Civil Procedure 41(a)(1) n2 grants the Secretary unfettered discretion to terminate prosecution before service of an answer or motion for summary judgment, neither of which was filed. The judge's decision was directed for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq (the Act), to decide whether this case is controlled exclusively by section (a)(1) of Rule 41 and, if the section controls, whether it was applied properly. We do not reach the second issue because we conclude that Rule 41(a)(2), not Rule 41(a)(1), is applicable in this case.

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n1 The Commission has no record of a complaint being filed in this case. The Secretary's motion, the judge's decision, and this opinion deal only with the first citation issued to respondent. The second citation is still before the judge.

n2 The Rule provides, in pertinent part:

41. DISMISSAL OF ACTIONS

(a) Voluntary Dismissal: Effect Thereof

(1) By plaintiff. . . . Subject to the provisions of . . . any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a dismissal at any time before service by an adverse party of an answer or of a motion for summary judgment, whichever first occurs. . . .

[*3]

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Congress authorized the Commission to promulgate rules of procedure, but provided that the Federal Rules of Civil Procedure would govern proceedings in the absence of a Commission rule. 29 U.S.C. 661(f). The Commission has not adopted a rule concerning voluntary dismissals of actions. Respondent and the Secretary argue that Federal Rule 41(a)(1) is applicable in the absence of a Commission rule. They argue further that the Federal Rule grants the Secretary absolute discretion to withdraw a citation before service by an adverse party of an answer or motion for summary judgment. We agree that Rule 41 is applicable to Commission proceedings. We believe, however, that, for the purposes of Rule 41(a)(1), a notice of contest is analogous to an answer in ordinary civil litigation. Thus, respondent's filing of a notice makes Federal Rule 41(a)(2) n3 applicable to this proceeding.

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n3 The Rule provides in pertinent part:

(2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper.

[*4]

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The Federal Rules of Civil Procedure are not applicable without qualification to Commission proceedings. The administrative procedures created for enforcing the Occupational Safety and Health Act differ significantly from the procedures created under all other federal laws, except for the recently enacted Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et. seq., the procedures of which largely parallel those in the Act. The differences most important for the purposes of Federal Rule 41 are the manner in which a controversy arises and the merits of the controversy come before the Commission. Under the Federal Rules, an action is commenced by filing a complaint. Fed.R.Civ.P. 2. While it does not commence an action, a citation issued under the Act serves the primary function of a complaint, i.e., it sets forth a claim for relief (assessment of a penalty and requirement for abatement). 29 U.S.C. 658(a) & 659(a). Parties to a civil suit join issue and place a controversy before the courts upon the filing of an answer. Fed.R.Civ.P. 8. Under the Act, issue is joined and the [*5] merits of a controversy are placed before the Commission upon the filing of a notice of contest. 29 U.S.C. 659(c). In addition, the failure to contest a citation, or a part thereof, is treated as an admission of the allegations in the citation (29 U.S.C. 659(a)), which is the same effect given to averments in a complaint to which a responsible pleading is required but not given (Fed.R.Civ.P. 8(d)). Administrative Adjudications under other federal laws follow the traditional pattern contemplated by the Federal Rules. For the purpose of applying Federal Rule 41(a)(1) to adjudications under the Act, a citation and notice of contest should be treated like a complaint and answer, respectively. Thus, by filing its notice of contest, respondent deprived the Secretary of the right to dismissal under Federal Rule 41(a)(1). See 5 Moore's Federal Practice P41.02[3] (2d ed. 1977). See generally Plains Growers, Inc. Fl. M.I. Co. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250, 253 (5th Cir. 1973).

Federal Rule 41(a)(2), as applied to Commission proceedings, permits the Secretary to dismiss an action voluntarily but only with the approval of the Commission. Dismissal [*6] on motion under this provision is within the sound discretion of the Commission. See, e.g, Armstrong v. Frostie Co., 453 F.2d 914 (4th Cir. 1971); Garner v. Missouri-Pacific Line, 409 F.2d 6 (6th Cir. 1969). The purpose of the section ". . . is primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions." Alamance Industries, Inc. v. Filene's, 291 F.2d 142, 146 (1st Cir. 1961), cert. denied 368 U.S. 831 (1961). Conditions may be imposed for the protection of defendants and remaining plaintiffs in multiparty litigation. Hudson Engineering Co. v. Bingham Pump Co., 298 F. Supp. 387 (S.D., N.Y. 1969). Although respondent and the Secretary urge dismissal of this action, the record establishes that affected employees, through their union, have elected party status to object to the Secretary's motion. n4 We believe it essential under the Act to hear the objections, if any, of the affected employees.

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n4 Affected employees need not expressly state that they wish to elect party status before it is conferred. Just as the scope of a cited employer's contest of a citation depends on the employer's intent at the time the notice of contest is drafted, Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD P20,221 (No. 7413, 1975), party status is conferred upon affected employees if they manifest an intent to be heard during the course of Commission proceedings. The union's letter manifests such an intent and, therefore, is considered an election of party status. All parties should have been notified by the Judge that an election was made.

[*7]

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The Secretary contends that, regardless of the Federal Rules, the Act grants him complete prosecutorial discretion, including the discretion to terminate prosecution over the objections of affected employees. A divided Commission, relying on an earlier presentation of this argument, held that affected employees do not have standing to object to the Secretary's withdrawal of a citation. Southern Bell Telephone and Telegraph Co., 77 OSAHRC 83/D1, 5 BNA OSHC 1405, 1977-78 CCH OSHD para. 21,840 (No. 10340, 1977). Upon reconsideration, we conclude that Southern Bell was decided incorrectly and must, therefore, be reversed.

The Secretary's claim to absolute prosecutorial discretion as a ground justifying the Commission's refusal to hear the union is not sound. The decision to conduct an inspection and issue a citation admittedly is within the Secretary's discretion, but even this discretion is not without restraints. Section 657(f)(1) n5 of the Act requires the Secretary to consider employee requests for inspections of conditions that threaten physical harm or present an imminent danger, [*8] to conduct an inspection if he determines that there are reasonable grounds to believe imminent danger or a violation of the Act exists, and to notify requesting employees in writing if he determines that reasonable grounds do not exist. Section 658(a) n6 of the Act requires the Secretary to issue a citation if he or his authorized representative believes that an inspected employer has violated the Act. At the least, the Secretary may not conduct his duties in an arbitrary manner to the detriment of employees he is obligated to protect. Cf. Dunlop v. Bachowski, 421 U.S. 560 (1975).

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n5 The section provides as follows.

Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided the employer or his agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy or on any record published, released, or made available pursuant to subsection (g) of this section. If upon receipt of such notification the Secretary determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists. If the Secretary determines there are no reasonable grounds to believe that a violation or danger exists he shall notify the employees or representative of the employees in writing of such determination. (Emphasis added)

n6 The section provides, in pertinent part:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of the Act . . . he shall with reasonable promptness issue a citation to the employer (emphasis added).

[*9]

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Reliance on the Secretary's prosecutorial authority caused the majority in Southern Bell Telephone and Telegraph Company, supra, to conclude that the right of affected employees to full participation as parties vanishes when the Secretary seeks to terminate prosecution because the right, as the majority characterized it, is "vicarious." Implicit in this characterization, and the opinion generally, is the conclusion that affected employees have only a conditional right to intervene in Commission proceedings. This conclusion is not supported by section 659(c) of the Act and, therefore, must be rejected.

In section 659(c) of the Act, Congress directs the Commission to ". . . provide affected employees an opportunity to participate as parties to hearings. . ." conducted by the Commission. This opportunity to participate, which is implemented by Commission Rule 20(a), n7 is an unconditional right on its face, and there is no language in any other provisions of the Act to suggest that Congress intended to create a conditional right. It is also significant that Congress grants the Commission the [*10] general authority to adopt rules of procedure (29 U.S.C. 661(f)) but specifically orders the adoption of a rule to permit affected employees an opportunity to protect their interests as parties. The right to participate is, therefore, not merely a right to intervene in on-going litigation, it is a right to meaningful participation, which the Secretary has a duty to ensure. The Secretary cannot be permitted to exercise prosecutorial discretion in a manner that would interfere with the right of affected employees to be heard as parties protecting their interest. n8 This means that the Secretary may be granted permission to withdraw from a case, but the proceedings may continue based on the citation originally issued by the Secretary if affected employees have elected party status. See Eaton Corporation and United Steelworkers of America, AFL-CIO, Nos. 76-1056 & 76-1311 (ALJ, June 1, 1978), pet. for rev. by Review Commission withdrawn on June 5, 1978; and Penn Central Transportation Co. and Daniel Tarasevich, 1976-77 CCH OSHD P20,832 (Nos. 11581, 12445, & 12361, 1976) (ALJ). [*11]

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n7 Rule 20(a) provides:

Affected employees may elect to participate as parties at anytime 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.

This rule preempts Fed.R.Civ.P. 24(a). 29 U.S.C. 661(f); Commission Rule 2(b).

n8 The "public interest" represented by the Secretary does not always coincide with the interests of affected employees. American Airlines, Inc., 75 OSAHRC 43/F3, 2 BNA OSHC 1391, 1974-75 CCH OSHD para. 19,108 (No. 6087, 1974) (Cleary, Commissioner). Cf. Trbovich v. United Mine Workers of America, 404 U.S. 528 (1968).

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Respondent raises three additional arguments to support the contention that the Commission should not consider the union's objections. First, the union has no standing to object because it did not petition for intervention under Commission Rule 21. Second, the union did not state it represented affected employees. Third, the union's objection is not related to this [*12] proceeding. The second and third arguments raise questions the answers to which are primarily factual. We believe that they should be addressed in the first instance by the judge after he has made inquiry into the matter. n9

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n9 Respondent correctly notes that the union has not stated that it represents affected employees, but such a statement is not required by Commission rules. Without resolving the question, we note that the record strongly supports the inference that the union does represent affected employees, inasmuch as the union was involved in an arbitration with respondent's predecessor, Sobin Chemical, Inc.

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With respect to respondent's first argument, as noted above, affected employees have a right to elect party status, as provided in Commission Rule 20(a), which permits an election of party status anytime before commencement of a hearing. Interested persons other than affected employees and their representatives may petition for intervention under Commission Rule 21, n10 but the allowance of intervention [*13] is within the discretion of the Commission.

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n10 Rule 21 provides as follows:

Intervention; appearance by non-parties.

(a) A petition for leave to intervene may be filed at any state of the proceeding before commencement of the hearing before the the Judge.

(b) The petition shall set forth the interest of the petitioner in the proceeding and show that the participation of the petitioner will assist in the determination of the issues in question, and that the intervention will not unnecessarily delay the proceeding.

(c) The Commission or the Judge may grant a petition for intervention to such an extent and upon such terms as the Commission or the Judge shall determine.

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Accordingly, it is ORDERED that the Judge's decision and order be vacated and this case remanded to the Judge for further proceedings consistent with this opinion.

DISSENTBY: BARNAKO

DISSENT:

BARNAKO, Commissioner, DISSENTING:

The primary issue this case presents is whether employees have the right to independently prosecute a citation that the Secretary of Labor seeks [*14] to withdraw on the ground that the violation alleged in the citation did not occur. n1 In Southern Bell Telephone Co., 77 OSAHRC 83/D1, 5 BNA OSHC 1405, 1977-78 CCH OSHD para. 21,840 (No. 10340, 1977), the Commission held that employees had no such right. I would follow Southern Bell, and therefore dissent from the order remanding this case.

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n1 There is some question whether the union actually seeks this right. Its letter simply asks the Commission to "deem this citation valid and hold the citation on record because "(a)n arbitration case between our Local Union and Sobin (IMC's predecessor) was and still is pending. We the Union, submitted this citation as supporting evidence to arbitor (sic), Albert Epstein, Chicago, Illinois." The majority construes this as evidencing the union's intent to adopt party status in this proceeding, citing Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD para. 20,221 (No. 7413, 1975).

In Turnbull, the Commission held that an employer's notice of contest that was limited to the penalty only would be construed as also contesting the citation if that in fact was the employer's intent. The Turnbull rule, however, is not applied automatically, but requires an inquiry into the employer's actual intent. F. H. Sparks of Maryland, Inc., 78 OSAHRC 13/C13, 6 BNA OSHC 1356, 1978 CCH OSHD para. 22,543 (No. 15472, 1978).

I would apply the same rule here. The union's submission does not, on its face, adopt party status, but it is ambiguous. Before deciding that the union had elected party status, I would ask it to clarify if that was in fact its intent. Because the majority concludes that the union has adopted party status, however, I shall address the question whether the union has the right to independently prosecute the citation.

[*15]

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I agree with the majority that affected employees have the right to become parties to our proceedings. Section 659(c) of the Act directs us to afford employees that right, and we have done so through Rule 20 of our rules of procedure, 29 C.F.R. 2200.20. Neither the Act nor our rules, however, delineate the role employees who have elected party status shall play. With respect to the issue presented here, that is the right of employees to independently prosecute a citation, the role of employees should be determined by considering the rights and responsibilities employees were given by Congress with respect to enforcement matters in general.

Congress recognized that employees have an interest in seeing that the conditions under which they work are safe and healthful, and gave them certain rights under the Act. However, with respect to enforcement responsibilities these rights are limited and clearly not equal to those of the Secretary. Congress gave the Secretary the authority to determine whether to inspect a particular worksite, n2 issue a citation, n3 seek enforcement of the Commission's orders, [*16] n4 issue a notification of failure to abate, n5 and compromise, mitigate, and settle penalties. n6 Employees, on the other hand, were given only limited rights in the enforcement area. As noted by the majority, employees have the right to request the Secretary to make an inspection when they believe that a violation of a safety or health standard exists that threatens physical harm or that an imminent danger exists. n7 However, if the Secretary fails to inspect because he determines there are no reasonable grounds to believe that such a violation or danger exists, n8 or if the Secretary inspects but does not issue those citations considered appropriate by employees, the Act provides only limited resource for employees. Section 662(d) provides that an employee may bring an action of mandamus in the district court if the Secretary "arbitrarily or capriciously fails to seek relief" in an imminent danger situation. The Act gives employees no similar rights in all other situations where no imminent danger exists. So long as the matter is not pending before the Commission, it is clear that employees cannot, for example, require the issuance of citations or question the appropriateness [*17] of citations that have been issued. Moreover, once the Secretary issues a citation he can withdraw or amend the citation before it becomes a final order without Commission review, provided the employer does not contest. In such cases, employees have no rights, unless of course the Secretary's action is directed to the abatement period. n9 In view of the limited rights of employees with respect to enforcement matters prior to the commencement of Commission proceedings, I do not believe, merely because an employer has chosen to contest, Congress intended employees to have greater rights by virtue of party status in Commission proceedings.

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n2 29 U.S.C. 657(f)(1).

n3 29 U.S.C. 658(a).

n4 29 U.S.C. 660(b).

n5 29 U.S.C. 659(b).

n6 29 U.S.C. 655(e).

n7 29 U.S.C. 657(f)(1)

n8 Id.

n9 Employees do have the right to contest the reasonableness of an abatement period specified in a citation. 29 U.S.C. 659(c).

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In Trbovich v. United Mine Workers of America, 404 U.S. 528 (1972), the Supreme Court considered a statutory [*18] enforcement mechanism established by the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). n10 The LMRDA, among other things, sets forth substantive rules governing the election of union officers, and provides that a union member who believes the union has violated these rules, and who has exhausted internal union procedures, may file a complaint with the Secretary of Labor. The Secretary must investigate the complaint and, if he finds probable cause to believe a violation has occurred, shall file a civil action in federal court to set aside the election. n11 Following a complaint filed by Trbovich, the Secretary brought such a suit, alleging that the union election was invalid in some, but not all, of the respects urged by Trbovich. The Supreme Court permitted Trbovich to intervene in the suit pursuant to Fed. R. Civ. P. 24, but only to present evidence and argument in support of the Secretary's complaint; Trbovich could not raise any claims different than those urged by the Secretary because the Secretary was presumed to have considered such claims and decided they did not have merit. The Court concluded, "Congress intended to insulate the union from any complaint [*19] that did not appear meriterious to both a complaining member and the Secretary." 404 U.S. at 537.

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n10 29 U.S.C. 401 et seq.

n11 29 U.S.C. 482.

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The Secretary serves a similar screening function under the Occupational Safety and Health Act. See Marshall v. Daniel Construction Co., 563 F.2d 707 (5th Cir. 1977), cert. denied, No. 77-1697 (Oct. 2, 1978). Employees may believe that the conditions under which they work are unsafe or unhealthful but the Secretary, who is intimately familiar with the requirements of the Act and of his standards, is in a much better position than the employees to determine whether those conditions actually constitute a violation of the Acy by the employer. The majority disagrees that this is always true and states that the "public interest" represented by the Secretary does not always coincide with the interests of affected employees. They fail to note however that the interests of employees may not always coincide with the achievement of safety and health, and it is this goal, [*20] not fostering of the "public interest," which the Secretary is charged with promoting under the Act. n12 On balance, therefore, I conclude that ultimately the attainment of the highest degree of health and safety in the workplace will best be achieved by vigorous enforcement of the Act by the Secretary's trained personnel. n13

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n12 Employees or their representatives who have elected party status have a right to make their views known to and be considered by the Secretary. If these employees or their representatives believe the Secretary is acting improperly in withdrawing a citation, they should so inform the Secretary's representative. The Secretary should then re-evaluate his position in light of the employees' objections and any supporting evidence they have presented to determine whether or not the citation should be withdrawn.

n13 The majority suggests that the Secretary can withdraw from the proceedings if he believes a citation should be dismissed and that the matter can be handled by the employees. But such a course may be unacceptable to the Secretary, especially if employees were to advocate a legal position contrary to that of the Secretary's, for example with respect to the interpretation of a standard, or seek to litigate a case that presents important legal issues which are crucial to the prosecution by the Secretary of other cases. The majority's holding therefore leads to the incongruous result of having prosecutorial functions in the hands of two separate entities.

[*21]

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I would therefore find that Judge Chalk properly permitted the Secretary to withdraw the citation. The Secretary contends, however, that the Judge erred in specifying that the withdrawal be with prejudice. He argues that he has an absolute right, given by Fed. R. Civ. P. 41(a)(1), to withdraw the citation without prejudice prior to his filing a complaint. I agree that under the circumstances of this case the Secretary has an absolute right to withdraw his citation without prejudice and to that extent I would apply Rule 41(a)(1). (See footnote 19 infra).

The majority concludes that Rule 41(a)(2) applies in this situation and that the Secretary can withdraw a citation only upon such terms and conditions as the Commission deems appropriate. In reaching this conclusion the majority analogizes a citation and notice of contest to the complaint and answer under the Federal Rules. However, the dissimilarities between a complaint/answer and citation/notice of contest are greater than the similarities. For example, unlike an answer, which can be amended at any stage of the proceedings, n14 a notice of [*22] contest, except in limited circumstances, cannot be amended beyond the 15-day period permitted for contesting a citation. F. H. Sparks of Maryland, Inc., supra. Furthermore, under the Federal Rules, an answer ends the pleading stage of a case except under circumstances not relevant to our proceedings. 5 C. Wright & A. Miller, Federal Practice and Procedure 1202 (1971). A notice of contest, however, does not end the pleading stage of a Commission case; our rules specifically provide for a complaint and answer after a notice of contest if filed. n15 Indeed, the complaint and answer under our rules serve the same fundamental purpose as the complaint and answer under the Federal Rules: they frame the issues in dispute between the parties. n16 The citation and notice of contest serve a different purpose. As Chairman Cleary has observed, a citation "merely set(s) in motion the machinery of an inquiry . . . and does not even serve the purpose of a pleading." Donald K. Nelson Construction, Inc., 76 OSAHRC 2/A2 at p. 11, 3 BNA OSHC 1914, 1917, 1975-76 CCH OSHD para. 20,299 at pl 20,206 (No. 4309, 1976) (dissenting opinion), quoting NLRB v. Indiana & Michigan Electric Co., [*23] 318 U.S. 9, 18 (1943). Accordingly, I would conclude that a citation and notice of contest should not be treated as a complaint and answer, respectively, and for this reason would apply Rule 41(a)(1) in the instant case.

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n14 Fed. R. Civ. P. 15(a) and (b).

n15 29 C.F.R. 2200.33.

n16 Contrary to the majority's opinion, the citation and notice of contest do not frame the issues since it is not until the answer is filed that the employer is required to take issue with the individual elements of the Secretary's case and set forth its affirmative defenses.

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In concluding Rule 41(a)(2) should apply to Commission proceedings, the majority relies upon the need to protect the rights of employees who may object to the Secretary's motion for withdrawal, yet this factor was never considered in the drafting of Rule 41(a)(1) and (2). n17 Rule 41 is directed toward facilitating voluntary dismissals. Rule 41(a)(1) recognizes that voluntary dismissals are desirable but seeks to safeguard abuse of the right by limiting it to an early [*24] stage of the proceedings before the other party has expended time and effort in the preparation of its defense. Armstrong v. Frostie Co., 453 F.2d 914, 916 (4th Cir 1971); 5 Moore's Federal Practice para. 41.02[1] (2nd ed. 1978). These considerations are equally applicable here.

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n17 The right of employees to object properly depends upon their rights as parties in Commission proceedings and should not be viewed in the context of Rule 41. In the large majority of cases employees do not object to the Secretary's motion to withdraw. Nevertheless because employees do object in some cases, the majority has foreclosed application of Rule 41(a)(1) in Commission proceedings.

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It does not serve the purposes of the Act to place a roadblock in the Secretary's path when he seeks to withdraw a citation at this early stage of the proceeding. Citations are issued by the Secretary's nonlegal personnel acting with necessary dispatch. n18 When a notice of contest is filed, however, the Solicitor of Labor's office enters [*25] the case, and may determine that the citation is deficient for reasons with which the Secretary's nonlegal personnel may not be familiar. See Henkels & McCoy, Inc., 76 OSAHRC 143/C2, 5 BNA OSHC 1502, 1976-77 CCH OSHD para. 20,944 (No. 8842, 1976). To preclude the Secretary from freely withdrawing a citation either before a complaint is filed or before a response to a complaint is filed at best creates unnecessary paperwork, and at worst serves to create a dispute where none may exist, thereby detracting from the purposes of the Act. See Francisco Tower Service, 76 OSAHRC 11/A2, 3 BNA OSHC 1952, 1975-76 CCH OSHD para. 20,401 (No. 4845, 1976).

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n18 See Donald K. Nelson Constr. Inc., supra (Cleary, dissenting).

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In summary, I would permit the Secretary to withdraw a citation despite employee objection at any time. If the withdrawal motion is made before an answer or a motion for summary judgment is filed, Fed. R. Civ. P. 41(a)(1) applies and such withdrawal is without prejudice. n19

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n19 Rule 41(a)(1) provides for the dismissal of an action without order of court. The Secretary, however, does not contend nor would I conclude that Rule 41(a)(1) should apply so that either the judge or the Commission are deprived from entering an order granting the Secretary's motion.

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