UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 78–2161

WEAN-PORI, INC., RESPONDENT, AND UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL UNION 6082, DISTRICT 28, AUTHORIZED EMPLOYEE REPRESENTATIVE                                ,

 

                                             

 

 

June 29, 1979

DECISION

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

CLEARY, Chairman:

            Respondent, Wean-Pori, Inc., was issued two citations on May 10, 1978, for alleged violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (hereinafter ‘the Act’). Respondent, by letter dated May 12, 1978, timely contested Citation No. 1, which alleged a serious violation of 29 CFR § 1910.309(a)[1] and section 250.43(a)[2] of the National Electrical Code, NFPA 70–1971. A penalty of $420 was proposed. On May 19, 1978, the United Steelworkers of America, AFL-CIO and Local Union 6082 elected party status[3] as the authorized employee representative of the affected employees. Commission Rule 20, 29 CFR § 2200.20.

            Upon further investigation, the Secretary determined that there was ‘insufficient evidence to establish a violation of the standard alleged. . . .’ Accordingly, on July 18, 1978, the Secretary moved to withdraw the Citation and proposed penalty. In an accompanying letter to the judge, the Secretary stated that copies of the Notice of Withdrawal of Citation had been mailed both to the respondent and to the authorized employee representative. In his Order dated July 25, 1978, Judge James D. Burroughs granted the Secretary’s Motion to Withdraw, and thus vacated the alleged serious Citation and proposed penalty.

            On August 24, 1978, Commissioner Cottine directed the judge’s Order for review sua sponte in accordance with section 12(j) of the Act, 29 U.S.C. § 661(i). The parties were requested to brief the issue of whether the authorized employee representative, having elected party status, had an opportunity to be heard on the Secretary’s motion to withdraw Citation No. 1. The direction for review stated that the record failed to indicate whether the authorized employee representative assented to the withdrawal, but did reveal that the judge had ruled on the motion before the expiration of the time limit for response accorded parties under Commission Rule 37, 29 CFR § 2200.37.[4]

            Although the 10-day period accorded parties by Commission Rule 37 for response to a motion had not expired before the judge granted the Secretary’s motion to withdraw, it is clear from the employee representative’s September 8, 1978, response to the direction for review[5] that the authorized employee representative does not object to the Secretary’s withdrawal, and consequently the error in this case is harmless.[6] In the employee representative’s response, the union explained that it received a copy of the Secretary’s Notice of Withdrawal of Citation No. 1 on July 19, 1978, and that counsel for the Secretary advised the union of the basis for the withdrawal. On the basis of this notice, the union decided not to file any objections to the withdrawal of the Citation. The union further stated that it had therefore been ‘furnished with the opportunity to be heard on this question.’ Since the authorized employee representative has had an opportunity to be heard on the Secretary’s motion for withdrawal of Citation No. 1 and has no objection to the motion, we affirm the judge’s order granting the Secretary’s motion.[7]

 

So ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: JUN 29, 1979

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 78–2161

WEAN-PORI, INC., RESPONDENT, AND UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL UNION 6082, DISTRICT 28, AUTHORIZED EMPLOYEE REPRESENTATIVE,

 

                                             

 

July 25, 1978

ORDER GRANTING COMPLAINANTS MOTION TO WITHDRAW

            Respondent, by letter dated May 12, 1978, timely contested a serious citation issued to it on May 10, 1978. The citation alleged a violation of 29 C.F.R. § 1910.309(a), and Section 250.43(a) of the National Electrical Code, NFPA 70–1971. A penalty was proposed in the amount of $420.

            On July 20, 1978, a motion to withdraw the citation was received from the complainant. The motion having been read and considered, it is

            ORDERED:

            1. That the motion is granted; and

            2. That the serious citation and proposed penalty issued to respondent on May 10, 1978, are vacated.

 

Dated this 25th day of July, 1978.

 

JAMES D. BURROUGHS,

Judge


[1] Section 1910.309 National Electrical Code.

(a) The requirements contained in the following articles and sections of the National Electrical Code, NFPA 70–1971; ANSI C1–1971 (Rev. of C1–1968) shall apply to all electrical installations and utilization equipment:

Sections

250–43(a) . . . Fixed equipment, Grounding, Specific.

[2] 250.43. Fixed Equipment—Specific.

Exposed noncurrent-carrying metal parts of the following kinds of equipment, regardless of voltage, shall be grounded:

(a) Frames of motors as specified in section 430–142

[3] Rule 20 Party Status

(a) Affected employees may elect to participate as parties 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. . . .

[4] 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.

[5] In a letter received by the Commission on September 20, 1978, the Secretary stated that he did not intend to file a brief in response to the direction for review. Instead, the Secretary explained why he had sought to withdraw the Citation, and relied on the employee representative’s response to the direction for review as grounds for affirming the judge’s order.

[6] In Reynolds Metals Co., 79 OSAHRC 4/A2, 7 BNA OSHC 1042 n.9, 1979 CCH OSHD ¶23,295 n.9 (No. 78–2485, 1979), the Commission noted that ‘parties are entitled to rely on the period allowed for the filing of responses and it is error for the judge to take action on the motion prior to the expiration of this period.’

[7] Commissioner Barnako’s views with respect to the right of employee representatives who have elected party status to participate in proceedings involving a motion by the Secretary to withdraw a citation are set forth in his dissenting opinion in IMC Chemical Group, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1978 CCH OSHD ¶23,149 (No. 76–4761, 1978), petitions for review docketed, Nos. 79–3018 and 79–3041 (6th Cir., Jan. 11 and 16, 1979). See also Reynolds Metals Co., 79 OSAHRC 4/A2, 7 BNA OSHC 1042, 1979 CCH OSHD ¶23, 295 (No. 78–2485, 1979) (concurring and dissenting opinion); Kaiser Aluminum & Chemical Corp., 78 OSAHRC 103/A2, 6 BNA OSHC 2172, 1978 CCH OSHD ¶23,200 (No. 76–2293, 1978) (dissenting opinion), petition for review docketed, No. 79–7047 (9th Cir., Feb. 2, 1979); ITT Thompson Industries, Inc., 78 OSAHRC 70/D10, 6 BNA OSHC 1944, 1978 CCH OSHD ¶22,944 (Nos. 77–4174 & 77–4175, 1978) (concurring opinion).