REPUBLIC STEEL CORPORATION
OSHRC Docket No. 81-656
Occupational Safety and Health Review Commission
November 30, 1982
[*1]
Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
William S. Kloepfer, Associate Regional Solicitor, USDOL
Gerald F. Penca, for the employer
John Mroczkowski, Staff Rep., USWA District No. 27, Local Union 1200, for the employees
Rudy Kogut, President, Local Union 1200, USWA, for the employees
OPINION:
DECISION
BY THE COMMISSION:
This case is before the Commission on interlocutory appeal n1 of an order entered by Administrative Law Judge James D. Burroughs denying a motion by the Secretary of Labor ("the Secretary") to withdraw a citation previously issued to and contested by Respondent, Republic Steel Corporation ("Republic"). The Secretary had based his motion on the ground that there was insufficient evidence to establish a violation of the cited standard at the time and place alleged in the citation. However, the United Steelworkers of America, Local Union 1200 ("the Union"), an authorized employee representative, had objected to the Secretary's motion on the ground that withdrawal of the citation would leave the hazardous conditions described in the citation uncorrected. The judge denied the Secretary's motion because (1) the Union [*2] had objected and (2) it had asserted that it was prepared to offer evidence to establish the alleged violation.
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n1 See Commission Rule 75, 29 C.F.R. § 2200.75.
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The judge implicitly rejected the arguments raised by the Secretary and Republic in opposition to the Union's right to object. We affirm his disposition of these issues. The interests of an authorized employee representative that has elected party status in a timely manner are not restricted, as Republic argues, to the reasonableness of the abatement period. Mobil Oil Corp., 82 OSAHRC , 10 BNA OSHC 1905, 1982 CCH OSHD P26,187 (No. 77-4386, 1982). The Union, as a party in this case, may object to the Secretary's motion to withdraw the citation. Cuyahoga Valley Railway Co., Docket No. 76-1188 (October 29, 1982).
Nevertheless, we conclude that the judge erred in denying the Secretary's motion to withdraw. The judge should have deferred ruling on the Secretary's motion until a hearing could be held on the Union's objections and a determination [*3] could be made as to whether the Secretary's motion is consistent with the provisions and objectives of the Act. n2 See Cuyahoga Valley Railway Co., supra.
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n2 If the judge again denies the Secretary's motion after a hearing on the Union's objections, he must then schedule the case for a hearing on the merits. If the Secretary declines to prosecute the case on the merits, Commissioner Cleary would permit the Union to prosecute. Mobil Oil Corp., supra (concurring opinion). Commissioner Cottine presumes that the Secretary will proceed appropriately on the merits if the Union's objections are found to be meritorious and the withdrawal motion is denied. See Dunlop v. Bachowski, 421 U.S. 560, 574-76 (1975).
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After the judge had certified this case for interlocutory appeal, the Union filed a motion to immediately enforce the citation in full. In response, we entered an order in which we reserved a ruling on that motion pending a decision on the merits of this interlocutory appeal. Because [*4] Republic has not withdrawn its notice of contest of the citation and no hearing has been held on the merits of the alleged violation, we cannot enter an order affirming the citation at this time. For this reason, the Union's motion is denied.
Accordingly, we set aside the judge's order and remand the case n3 to Judge Burroughs to consider the Union's objections to the withdrawal of the citation. n4
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n3 We note that Commission Rule 61, 29 C.F.R. § 2200.61, places strict limitations on the postponement of a hearing by a judge.
n4 Chairman Rowland adheres to his position in Mobil Oil Corp., supra (dissenting opinion) and in Cuyahoga Valley Ry. Co., supra, slip op. at p. 6 n.6. The Chairman believes that the decision to withdraw a citation is within the prosecutorial discretion of the Secretary. For this reason, he would reverse Judge Burroughs' order and grant the Secretary's motion to withdraw the citation.
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SO ORDERED.