R. P. DRYWALL, INC.

OSHRC Docket No. 8629

Occupational Safety and Health Review Commission

May 14, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: A decision of Judge John J. Larkin is before the Commission for review 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"]. On October 8, 1974, Judge Larkin issued his decision granting the Secretary's motion to dismiss the complaint and withdraw the citation. On November 7, 1974, review before the full Commission was directed on the following issues:

1. Whether the Administrative Law Judge erred in denying the Secretary of Labor's motion for continuance?

2. Whether under the facts of this case, service upon affected employees complied with the requirements of Commission Rules of Procedure?

The Secretary did not file a brief with the Commission, but chose to rely upon the Judge's decision. The respondent also filed no brief before us.

Respondent, R.P. Drywall, Inc., is engaged in the business of installing drywalls for construction and reconstruction projects in Miami, Florida. Respondent was issued a citation and notification of proposed penalty on June 4, 1974, that alleged a serious violation [*2] of section 5(a)(2). n1 Respondent filed a timely notice of contest contending that the hand-held electric tools were owned by another employer, and the injured and exposed employees were not employees of respondent.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The citation describes the violation as follows:

29 CFR 1926.20(b)(2) & 1926.300(a) -- Failure to maintain hand held electric power tools, and extension cords in a safe condition, and failure to provide regular frequent inspections, and maintenance by competent persons to assure the safe condition of electric power tools and cords used by employees, on May 23, 1974 [date of inspection].

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

On October 2, 1974, the Secretary, complainant, moved for a motion of continuance on grounds that "Complainant had learned as of September 23, 1974, that the Respondent . . . is a joint employer of the affected employees. . . ." The Secretary issued citations to the other two employers on September 24, 1974, and as a consequence, the Secretary believed a continuance to be in order to effectuate consolidation [*3] of this case with the other cases were the other two employers to contest the citations of September 24, 1974.

On September 27, 1974, Judge Larkin issued an order denying the Secretary's motion for continuance. The Judge was not convinced by the Secretary's above-described argument. Furthermore, he was not convinced by the Secretary's argument that a material witness would not be able to appear on the scheduled date of the hearing because of an appearance at a criminal trial to be held on the same date. Judge Larkin denied the Secretary's motion for continuance on grounds that complainant had stated insufficient cause for a continuance under Commission Rule 61. n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 Judge Larkin relied on the following language of Rule 61: "Postponement of a hearing ordinarily will not be allowed . . . (emphasis added)."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

On October 1, 1974, the Secretary filed a "Notice of Dismissal of Complaint and Withdrawal of Citation" on grounds of insufficient evidence to prove the alleged violation. The Secretary served a copy of [*4] the "notice" on the respondent's attorney.

On October 8, 1974, Judge Larkin, properly considering the "notice" as a motion, granted the motion to dismiss complaint and withdraw the citation. He vacated the citation issued on June 4, 1974, and ordered that no penalty be assessed.

The evidence of record shows that respondent's employees are not represented by an authorized employee representative. There is no evidence that the Secretary's motion to dismiss was posted by the employer so as to inform its unrepresented employees. When either the Secretary or respondent files a motion to dismiss, a copy of the motion is required to be posted as notice to affected employees, since affected employees have a right of participation as parties in the proceeding. St. Regis Paper Company, No. 4183 (January 22, 1975). See also Newspaper Agency Corp., No. 1902 (May 6, 1974). Notice to affected employees is required to protect this right. Indeed, in Pacific Intermountain Express Co., No. 4303 (September 24, 1974), the Commission held that where the complainant moves to withdraw a complaint before the commencement of a hearing, the complainant must preserve the affected [*5] employees' right of participation in the proceeding by certifying that he has supplied to respondent for posting a copy of the motion and the Commission order for posting and that posting had been accomplished. That is what must be done in this case.

Although we agree with the Secretary that the question is moot, as far as he is concerned, we are nevertheless constrained to comment upon the Judge's denial of the motion for continuance. In determining whether to grant or deny a motion for continuance, the administrative law judge should be guided by rules of fairness and impartiality, as his action is solely within his discretion and will not be disturbed in the absence of abuse thereof. The discovery of the possibility that respondent was a joint employer of the affected employees led to the citing of the other employers, and thus created a reasonable possibility that notices of contest would be filed by these other employers. The continuance should have been granted so as to permit possible consolidation of these actions arising out of common parties of common questions of law and fact. In addition, the record reveals further grounds for a continuance in complainant's assertion [*6] that a material witness would be unavailable because of an earlier scheduled appearance at a criminal hearing which conflicted with the hearing date set for this case. On these facts, we are of the opinion that the Secretary's assertions were sufficient to create extraordinary circumstances requiring a continuance, especially as the motion was unopposed. Judge Larkin's failure to grant the motion for continuance, under these circumstances, was an abuse of his discretion. Cf. N.L.R.B. v. Miami Coco Cola Bottling Co., 306 F.2d 569, 576 (5th Cir. 1966).

Accordingly, the Judge's motion to dismiss is affirmed provided that within 10 days of respondent's receipt of this decision the Secretary certify that a copy of the motion to dismiss and this order has been mailed to respondent for posting in an authorized place and has in fact been posted; and provided further that no objection thereto is made by any employee within ten (10) days from the date of posting of the Commission's decision.

CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: I concur in the disposition ordered but disagree with my colleague's comments on the manner in which the Judge disposed of the [*7] motions before him. In my opinion Judge Larkin acted quite properly. I would have handled the matter exactly as he did.

It is noted, therefore, that the only agreement among Commission members concerns the disposition of this matter.

[The Judge's decision referred to herein follows]

LARKIN, JUDGE: On October 2, 1974, complainant filed motion to dismiss the complaint and withdraw the citation.

Wherefore it is ORDERED:

Complainant's motion is granted. The citation issued on June 4, 1974, is vacated and no penalty is assessed.