MIDWEST STEEL FABRICATORS, INC.

OSHRC Docket No. 8799

Occupational Safety and Health Review Commission

April 7, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Paul E. Dixon, dated November 7, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed in all respects.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: This case concerns an order by Judge Paul E. Dixon granting the Secretary of Labor's motion to amend his reply to a petition for modification of abatement. The Secretary withdrew his objection to extending abatement dates as to items 1 and 2 until January 2, 1975. The Judge granted petitioner's requested modification.

Review was directed in order to determine whether notice of the Secretary's motion to amend his reply to the petition was accorded affected employees and the authorized employee representative in accordance with Commission Rules of Procedure.

This question concerning a possible failure to treat affected employees as a party for purposes of service n1 is not reached here because the case is now rendered moot. The extended abatement [*2] date has now passed. Moreover the petitioner has recently filed a new petition asking for an additional indefinite extension of time to abate. In replying, the Secretary of Labor has objected to this additional request, and the matter will be assigned for hearing in due course. The Secretary should of course serve a copy of this reply to the petition upon UAW Local Union No. 682, the representative of affected employees, as required by Commission Rule 7, as read in light of 5 U.S.C. section 551(3), the Administrative Procedure Act's definition of the term "party."

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n1 Concerning the rights of affected employees and their representatives as parties, see American Airlines, Inc., No. 6087 (December 4, 1974). See also Sinaiko Brothers Co., No. 4958 (August 28, 1974).

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[The Judge's decision referred to herein follows]

DIXON, JUDGE: On April 17, 1974 the Secretary issued a citation alleging petitioner had committed violations of the Occupational Safety and Health Act of 1970. Petitioner did not file [*3] a timely notice of intention to contest the citation or abatement dates.

On June 27, 1974, Petitioner filed a petition for an extension of the abatement periods provided for Item 1 and 2 of the Citation.

The Secretary on July 9, 1974, filed a reply to the petition herein, objecting to the extension of the abatement dates regarding items 1 and 2. It was asserted that petitioner had failed to show good faith effort to comply with the abatement requirements of the citation and that abatement had not been completed because of factors beyond its reasonable control.

On October 31, 1974, the Secretary filed a motion to amend its reply. Leave was requested to amend paragraph VIII of the reply to indicate "Respondent does not object to the granting of an extension of the abatement dates as to item Nos. 1 and 2 until January 2, 1975.

The citation issued herein was not contested and therefore became a final order of the Commission by virtue of Section 10(a) of the Act. Accordingly, petitioner was in violation of items 1 and 2 as alleged in the citation and was required to correct the violations within the time set forth therein. However, section 10(c) of the Act provides for the modification [*4] of the time for abatement and states in pertinent part as follows:

Upon a showing by an employer of a good faith effort to comply with the abatement requirements of a citation, and the abatement has not been completed because of factors beyond his reasonable control, the Secretary after an opportunity for a hearing as provided in this sub-section, shall issue an order affirming or modifying the abatement requirements in such citation.

The petition was timely filed with reference to item Nos. 1 and 2 and upon consideration of the reply filed herein, and Respondent's subsequent amendment thereof withdrawing objection because of further evidence this petition should be granted.

Therefore it is hereby ORDERED that:

1. Respondent's motion to amend the reply to petition is granted.

2. Petitioner's request for modification of abatement of item Nos. 1 and 2 of the citation is granted and the date for such abatement is extended to January 2, 1975.