HARSHAW CHEMICAL COMPANY

OSHRC Docket No. 78-2551

Occupational Safety and Health Review Commission

March 24, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

Irving Berger, for the employer

Lawrence J. Ahern, Director, Health & Safety Dept., International Chemical Workers Union, for the employees

Paul M. Davis, Vice President, International Chemical Workers Union, for the employees

William Harrison, Representative, International Chemical Workers Union, for the employees

John Bogdan, President, International Chemical Workers, Local # 10, for the employees

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner:

On August 22, 1978, Chief Administrative Law Judge Paul A. Tenney issued an order granting the Secretary of Labor's Motion to Vacate Citation.   I directed review of that order pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act"), and Commission Rule 91a(a), 29 C.F.R. §   2200.91a(a).   Review was limited to consideration of:

1.   Whether an Administrative Law Judge is obligated to inform an Authorized Employee Representative who has elected party status under Commission Rule 20(a), 29 C.F.R. §   2200.20(a), that a motion [*2]   to withdraw, filed by the Secretary of Labor prior to the time the election of party status is made, is pending before the Judge.

2.   Whether the Authorized Employee Representative, having elected party status under Commission Rule 20(a), 29 C.F.R. §   2200.20(a), had an opportunity to be heard on the motion to withdraw filed by the Secretary of Labor.

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n1 29 U.S.C. §   661(i).

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I

On May 15, 1978, Harshaw Chemical Company ("Harshaw") was issued a citation alleging serious violations of the Act for its failure to comply with 29 C.F.R. §   1910.134(a)(2), (b)(3), (b)(9), and (b)(11) as well as 29 C.F.R. §   1910.1000(b)(1) and (e).   Harshaw timely contested the citation.   On June 19, 1978, the Secretary filed a Motion to Vacate the Citation alleging that "at the present time, there is insufficient evidence to prove the cited violations."

On July 11, 1978, the International Chemical Workers Union and its Local Union 10 requested party status as the authorized employee representative pursuant to Commission Rule 20(a), n2 29   [*3]   C.F.R. §   2200.20(a).   In its letter electing party status, the authorized employee representative ("union") also requested "copies of the complaint, the Company's answer, and notice of any hearing."

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n2 This rule, in pertinent part, provides:

Rule 20 Party status.

(a) 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. . . .

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On July 27, 1978, the Secretary, through an associate regional solicitor, informed the authorized employee representative by letter that a Motion to Vacate the Citation was made on June 19, 1978, because "[i]nsufficient evidence had been compiled to bear out the allegations in the Citation. . . ."

On August 4, 1978, the judge issued an order directing the parties to show cause why the notice of contest should not stand as an answer.   This was followed on August 22, 1978, by the order now before us.   The August 22 order vacated [*4]   the August 4th order, noting that the earlier order had been "issued as a result of clerical error." In addition, the August 22 order admitted the International Chemical Workers Union as a party and, citing the Commission decision in Southern Bell Telephone and Telegraph Co., 77 OSAHRC 83/D1, 5 BNA OSHC 1405, 1977-78 CCH OSHD P21,840 (No. 10340, 1977), granted the Secretary's motion.

II

On review, the authorized employee representative initially notes that the letter from the associate regional solicitor informing the union of the decision to move to withdraw the citation "gave every indication that the matter had been finalized weeks before the Union's appearance." It contends that it did not receive a copy of the motion and was not provided with any part of the record until it received the judge's order of August 22.   It argues, citing to Dawson Brothers-Mechanical Contractors, 72 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971-73 CCH OSHD P15,039 (No. 12, 1972), that the administrative law judge was required to notify it of all matters upon election of party status.   It further contends, citing the Commission's decision in ITT Thompson Industries, Inc., 78 OSAHRC 70/D10, 6 BNA [*5]   OSHC 1944, 1978 CCH OSHD P22,944 (Nos. 77-4174 & 77-4175, 1978), that the judge is charged with ensuring authorized employee representatives an opportunity for meaningful participation in the settlement process.   In addition, the authorized employee representative cites Gurney Industries Inc., 74 OSAHRC 8/A2, 1 BNA OSHC 1218, 1971-73 CCH OSHD P15,684 (No. 722, 1973) dismissed, No. 73-1813 (4th Cir. 1973), as support for its contention that the judge should have afforded it an opportunity to be heard.

The authorized employee representative also relies on Chairman Cleary's dissent in Southern Bell Telephone and Telegraph Co., supra, expressing the opinion that the Secretary does not have the power to unilaterally dismiss citations and that an employee-representative party must be afforded an opportunity to be heard on the merits of such a motion to dismiss.   In conclusion, the authorized employee representative asks that this matter be remanded to the judge.

In lieu of a brief, the Secretary filed a letter with the Commission noting that the employee representative was informed of the Secretary's withdrawal of the citation by letter dated July 27, 1978.   Since the   [*6]   judge did not grant the motion to withdraw until August 22, 1978, the Secretary argues that the employee representative had sufficient time to express its views to the judge.   The Secretary also contends that the judge, following the Commission's decision in Southern Bell Telephone and Telegraph Co., supra, correctly determined that only the Secretary is empowered to prosecute contested cases.   In addition, the Secretary clarified his earlier assertion that the evidence was insufficent to support the citation.   He stated that the "testing samples . . . had been improperly counted and that therefore, employees were not exposed to contaminant levels in excess of the standards' requirements."

Respondent contends that the Commission need not determine whether an administrative law judge must inform an authorized employee representative of a motion to vacate a citation because in this case the authorized employee representative was in fact informed.   In support of this argument Respondent cites the letter sent by the associate regional solicitor to the authorized employee representative nearly a month before the motion was granted.   It also submits, through the affidavit of its [*7]   manager of occupational safety and health, that three union representatives were in attendance at a meeting held on June 20, 1978, where they were informed that the Secretary had filed a Motion to Vacate the Citation.   In conclusion, Respondent argues that the "artful language" used by the authorized employee representative stating that it "'received no copy of the [M]otion to [to Vacate Citations] . . . .'" is a tacit concession that it did know of the motion.

III

The Commission has reviewed the questions flowing from voluntary dismissals in IMC Chemical Group, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1978 CCH OSHD P23,149 (No. 76-4761, 1978), appeal filed, No. 79-3018 (6th Cir. Jan. 11, 1979) (Respondent), appeal filed, No. 79-3041 (6th Cir. Jan. 16, 1979) (Secretary).   In IMC the Secretary, prior to the filing of a compliant, moved to vacate a citation stating that further prosecution was not intended.   A copy of the motion was served on the union which had elected party status.   The union timely filed a letter requesting that the Commission affirm the citation.   The administrative law judge rejected the union's request and granted the Secretary's motion to vacate.   [*8]   The judge in IMC based the decision on his conclusion that Federal Rule of Civil Procedure 41(a)(1) n3 grants the Secretary unfettered discretion to terminate prosecution before service of an answer or motion for summary judgment, neither of which was filed in that case.   On review, the Commission vacated the judge's decision and order and remanded the case for further proceedings.

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n3 Rule 41.   Dismissal of Actions.

(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.   Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.

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In IMC, the Commission concluded that actions under the Act commence with the issuance of a citation and issue is joined by the filing of a notice of contest. Accordingly, the Commission reasoned that:

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 [unilateral] dismissal under Federal Rule 41(a)(1) (citations omitted).

IMC Chemical Group Inc., supra, 6 BNA OSHC at 2076, 1978 CCH OSHD P23,149, at p. 27,989. We concluded that Southern Bell Telephone and Telegraph Co., supra, was erroneous as a matter of law and accordingly overruled its holding.   Thus, even in the absence of objections by the union, the Secretary could only withdraw the citation in this case upon an order of the Commission and upon "such terms and conditions as the [Commission] deems proper." Federal Rule 41(a)(2). n4

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n4 Rule 41.   Dismissal of Actions.

(a) Voluntary Dismissal: Effect Thereof.

* * *

(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. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court.   Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

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Section 10(c) of the Act, 29 U.S.C. §   659(c), as implemented by Commission Rule 20(a), 29 C.F.R. §   2200.20(a), grants to affected employees "an opportunity to participate as parties to hearings" conducted by the Commission.   We have held that this right is unconditional and is a right to meaningful participation.   IMC Chemical Group, Inc., supra. In this case the judge's order of August [*11]   22, 1978, admitting the union as a party to the action and simultaneously granting the Secretary's motion to withdraw the citation, cannot be said to have afforded the union an opportunity for meaningful participation.

Commission judges are obligated to advise the Secretary and Respondents of elections of party status.   Reynolds Metal Company, 79 OSAHRC 4/A2, 7 BNA OSHC 1042, 1979 CCH OSHD P23,295 (No. 78-2485, 1979).   Under Commission Rules 7(a) n5 and 37, n6 29 C.F.R. § §   2200.7(a) and 37, parties are entitled to be served with copies of motions filed with the judge and are afforded 10 days from the service of a motion within which to file a response.   Service is effected by sending a copy of the motion by first class mail or by personal delivery.   Commission Rule 7(c), 29 C.F.R. §   2200.7(c).

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n5 Rule 7 Service and Notice.

(a) At the time of filing pleadings or other documents a copy thereof shall be served by the filing party or intervenor on every other party or intervenor.

n6 Rule 37 Response to Motions.

Any party or intervenor upon whom a motion is served shall have 10 days from service of the motion to file a response.

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In this case, the union's election of party status was filed while the Secretary's motion to vacate was pending.   Thus, the judge's order of August 22, 1978, in effect, granted a motion that had not been served upon a party and precluded that party from exercising its right to file a response.

Here, both the Secretary and Respondent argue that the union, having been apprised of the existence of the pending motion at the June 20, 1978 meeting, and by the associate regional solicitor's letter of July 27, 1978, had ample opportunity to make its objections to the judge.

We reject this argument.   Once party status has been elected, the union had an unconditional right to a copy of all pleadings and motions filed.   Commission Rule 7(a), 29 C.F.R. §   2200.7(a).   Neither oral communication at a meeting nor an "informative" letter can substitute for serving of a copy of a motion. n7 As this case demonstrates, such informal "service" may well be subject to different interpretations at a later date.   Participating employee representatives are entitled to the same procedural safeguards as are other parties to our [*13]   proceedings.   Thus, the Commission Rules of Procedure and fundamental fairness require that copies of pleadings or other documents filed by a party be served on every other party.   To the extent that the Commission's early decision in Champion International Corp., 75 OSAHRC 38/F11, 2 BNA OSHC 1654, 1974-75 CCH OSHD P19,400 (No. 7725, 1975) appears to be inconsistent with this holding, it is overruled.

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n7 Cf. Donald K. Nelson Construction, Inc., 76 OSAHRC 2/A2, 3 BNA OSHC 1914, 1975-76 CCH OSHD P20,299 (No. 4309, 1976), dismissed by joint stipulation, No. 76-1112 (10th Cir. 1976) (personal service of a citation on the wife of a corporate officer was invalid despite the officer's actual knowledge of citation).

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Accordingly, we conclude that the judge erred in failing to inform the Secretary and Respondent promptly that the union had elected party status in these proceedings and to assure service on the union of copies of all pleadings, including a copy of the Secretary's motion to withdraw. In [*14]   addition, the judge erred in not allowing the union at least 10 days to file a response to the motion before acting upon it. n8 Therefore, the judge's order of August 22, 1978, is vacated and the case is remanded to the judge for further proceedings.

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n8 When service is accomplished by mail, three additional days are added to the time period.   Commission Rule 4(b), 29 C.F.R. §   2200.4(b).

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So ORDERED.  

CONCURBY: CLEARY; BARNAKO

CONCUR:

CLEARY, Chairman, Concurring:

While I concur in Commissioner Cottine's disposition of this case, I believe it is appropriate to place the judge's handling of the case in perspective.   At the time the case was decided by the judge Southern Bell Telephone and Telegraph Co., supra, was the controlling decision of this Commission.   Under that decision the Secretary's right to withdraw a citation was established.   In applying that decision the judge's disposition, granting of the Secretary's motion to vacate the citation, was correct.   The employee representative had no right to oppose the motion and [*15]   the failure of the judge to notify the employee representative of the motion was harmless error.

In view, however, of the intervening decision in I.M.C. Chemical Group, Inc., supra, which reversed Southern Bell, the case must be remanded for consideration in light of the principles enunciated in I.M.C.

BARNAKO, Commissioner, Concurring:

I agree with my colleagues that the International Chemical Workers Union, on behalf of itself and Local Union 10, was not afforded an opportunity for meaningful participation in this case and that the case should be remanded for further proceedings.   However, my rationale for this conclusion as well as the proceeding I would permit on remand differs from my colleagues.

In this case as in IMC Chemical Group, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1978 CCH OSHD P23,149 (No. 76-4761, 1978), petition for review filed, No. 79-3018 (6th Cir. Jan. 11, 1979), my colleagues give the authorized employee representative the right to file with the judge any objections it may have to the motion to withdraw by the Secretary.   It is my colleagues' view that employees who have elected party status must be allowed the opportunity for a   [*16]   hearing before, and decision by, the judge on such objections.

I do not agree.   For the reasons stated in my dissent in IMC Chemical Group Inc., supra, employees have no right to a hearing if the Secretary desires to withdraw a citation.   Rather than allowing employees to file objections with the judge, I would require that employees or their representatives who have elected party status make their views known to the Secretary.   As I stated in IMC Chemical Group, Inc.,

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.

6 BNA OSHC at note 12, 1978 CCH OSHD P23,149 at note 12. n1

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n1 Furthermore, unlike my colleagues I would allow the Secretary an unqualified right to withdraw a citation without prejudice if, after consideration of any objections by employees or their representatives who have elected party status, he decides to withdraw a citation and files his motion to withdraw before the respondent has served either the answer or a motion for summary judgment, whichever occurs first.   In my opinion, Federal Rule 41(a)(1) applies in this situation, and my colleagues err in concluding that the Secretary can only withdraw a citation in accordance with the provisions of Federal Rule 41(a)(2).   IMC Chemical Group, Inc., supra, 6 BNA OSHC at 2080-81, 1978 CCH OSHD P23,149 at 27,993-94 (dissenting opinion).

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In a later case, Kaiser Aluminum & Chemical Corp., 78 OSAHRC 103/A2, 6 BNA OSHC 2172, 1978 CCH OSHD P23,200 (No. 76-2293, 1978) (dissenting opinion), petition for review dismissed, No. 79-7047 (9th Cir. Feb. 7, 1980) involving a settlement rather than a motion to withdraw, I stated that the Secretary must inform employees or their representatives who have elected party status of any settlement negotiations prior to formulation of the final settlement. This same obligation is equally applicable when the Secretary has decided to withdraw a citation.   Accordingly, in my opinion the Secretary should inform employees or their representatives who have elected party status of his intent to withdraw a citation before the motion to withdraw is filed with the judge.

In this case the motion to withdraw was filed prior to the union's election of party status.   Therefore the Secretary was under no obligation to advise the union of his intent to withdraw the citation.   After the union filed a letter with the judge to elect party status, the Secretary informed the union by letter of his motion to withdraw [*18]   the citation.

Both the Secretary and Respondent note that the union was informed of the Secretary's motion to withdraw the citation before the judge granted the Secretary's motion and argue that the union had sufficient opportunity to present its views concerning the Secretary's motion to withdraw. They therefore assert that the judge's order should be affirmed.

At the time the union received the Secretary's letter, however, I had not yet fully stated my position concerning the rights of employees or their representatives who had elected party status with respect to motions to withdraw citations. n2 Accordingly, the union was not aware that as a party it had a right to make its views known to the Secretary nor did the Secretary know that in my opinion in deciding whether to withdraw a citation he should carefully consider the views of employees or their representatives who have elected party status.   Accordingly, the mere transmittal by the Secretary of a letter to the union informing it that a motion to withdraw had been filed was insufficient to put the union on notice that as a party it had the right to object to the Secretary concerning the motion to withdraw.

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n2 In Southern Bell Telephone & Telegraph Co., 77 OSAHRC 83/D1, 5 BNA OSHC 1405, 1977-78 CCH OSHD P21,840 (No. 10340, 1977), decided prior to the issuance of the citation to Respondent herein, I joined with Commissioner Moran in concluding that employees or their representatives who have elected party status cannot object to the judge to the Secretary's action in withdrawing a citation.   I did not, however, address the right of employees or their representatives who have elcted party status to make their views known to the Secretary concerning the withdrawal of a citation.

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In any event, for the reasons advanced by my colleagues, once the union elected party status, the union was entitled to all pleadings in the proceedings. n3 It should have been served with a copy of the Secretary's motion to withdraw and afforded the opportunity to present any objections it may have had to the motion to the Secretary before the judge ruled on the motion.

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n3 In the circumstances of this case, I agree with my colleagues that the judge should have assured service on the union of copies of all pleadings, including a copy of the Secretary's motion to withdraw. I do not agree with my colleagues that the judge is obligated to advise the Secretary and Respondent of elections of party status.   Commission Rule 7(a), 29 C.F.R. 2200.7(a), by its plain terms provides that a party who files a pleading or other document is responsible for serving that pleading on all other parties.   Commission Rule 20(a), 29 C.F.R. 2200.20(a), establishes that affected employees have party status upon filing an election letter and therefore are considered a party within the meaning of the service requirements of Rule 7(a).   Therefore employees or authorized employee representatives who elect party status must serve on all other parties the document setting forth such election. Reynolds Metal Co., 79 OSAHRC 4/A2, 7 BNA OSHC 1042, 1046 n.9, 1979 CCH OSHD P23,295 at 28,181 n.9 (No. 78-2485, 1979) (concurring and dissenting opinion).   Similarily employees who are parties at the time pleadings are served should be served with copies of pleadings and other documents in accordance with the rule by the party filing such documents with the Commission or the judge.

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Accordingly, I would remand this case to the judge who should assure service of all pleadings on the union.   I would allow the union ten days from service of the motion to withdraw to make its objections known to the Secretary, n4 who should then re-evaluate his position in light of any union objection to determine whether or not the citation should be withdrawn.   In the event the Secretary upon consideration of the union's objections wishes to renew his motion to withdraw, I would grant the motion without affording the union any opportunity to further proceedings before the judge.

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n4 The majority notes that Commission Rule 37(a), 29 C.F.R. 2200.37(a), gives a party ten days from the service of a motion to respond.   I would read this rule in conjunction with my views concerning employee rights and permit the union in this case ten days from service of the motion to withdraw in which to make its views known to the Secretary.

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