“SECRETARY OF LABOR,Complainant,v.AMERICAN BAKERIES COMPANY,Respondent.OSHRC Docket No. 83-0131_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).The question for decision is whether a motion by the Secretary of Laborto withdraw a citation shall be served upon authorized employeerepresentatives of affected employees or posted for unrepresentedaffected employees if the representatives or employees have not electedparty status.The Secretary of Labor issued a citation to American Bakeries Company. American Bakeries filed a notice of contest, which was transmitted tothe Commission. In accordance with Commission Rule 7(h), 29 C.F.R. ?2200.7(h),[[1]] American Bakeries certified that it had served thenotice of contest upon the affected employees’ representative, LocalUnion No. 50 of the International Brotherhood of Teamsters. TheSecretary later moved to withdraw the citation on the ground thatinsufficient evidence existed to support his case, but he did notcertify that his motion was served upon the union local. Neither theunion local nor any affected employee had elected party status. [[2]]Administrative Law Judge Salyers granted the withdrawal motion. Thejudge’s decision was thereafter directed for review on the questionstated above. We conclude that a motion to withdraw a citation need notbe posted or served on unions and employees who have not elected partystatus.In Ceres Terminals, Inc. 83 OSAHRC 30\/D8, 11 BNA OSHC 1373, 1983 CCHOSHD ? 25,510 (No. 82-173, 1983),[[3]] the Commission required thatmotions to withdraw citations be posted and served on unions that hadnot elected party status. The Commission reasoned that such action was\”consistent with the principles stated in\” its decision in Mobil OilCorp., 82 OSAHRC 45\/A2, 10 BNA OSHC 1905,1982 CCH OSHD ? 26,187 (No.77-4386, 1982)(employees and unions may object to settlement agreementthat does not provide for abatement), rev’d sub nom. Donovan v. OSHRC(Mobil Oil Corp.), 713 F.2d 918 (2d Cir. 1983). The Commission alsorelied on Republic Steel Corp., 82 OSAHRC 67\/E1, 10 BNA OSHC 2222, 1982CCH OSHD ? 26,326 (No. 81-656, 1982), which held that a union-party mayobject to a motion to withdraw a citation. The decision in CeresTerminals was designed to permit a union or affected employees to reviewthe motion, elect party status, and present objections to the motion toan administrative law judge. Its spoken premise was that unions oremployees that have elected party status may object to a motion by theSecretary to withdraw a citation.In Pan American World Airways, No. 83-249 (May 31, 1984), the Commissionre-examined its precedent relating to employee participation in light ofa number of appellate court decisions on this subject. Pan Am overruledMobil and held that a union that has elected party status may objectonly to the reasonableness of the abatement date in a settlement; it maynot object to the abatement methods agreed upon in the settlement. Seealso Willamette Iron & Steel Co., No. 78-4198 (May 31, 1984)(union maynot object to characterization of violation in settlement). In reachingthis holding, we relied on numerous court decisions that had reviewedthe respective roles of the Commission and the Secretary and had held orimplied that a union-party may not object to the Secretary’s withdrawalof citation. See Donovan v. OSHRC (Mobil Oil Corp.) 713 F.2d 918, 926-7(2d Cir. 1983), rev’g Mobil Oil Corp., 82 OSAHRC 45\/A2, 10 BNA OSHC1905, 1982 CCH OSHD ? 26,187 (No. 77-4386, 1982); Donovan v.International Union, Allied Industrial Workers (Whirlpool Corp.), 722F.2d 1415, 1419-21 (8th Cir. 1983); Oil, Chemical & Atomic WorkersInternational Union v. OSHRC (American Cyanamid Co.), 671 F.2d 643,649-50 & n.6 (D.C. Cir. 1982), cert. denied, 103 S.Ct. 206 (1983);Marshall v. Sun Petroleum Products Co., 622 F.2d 1176, 1187 (3d Cir.)cert. denied, 449 U.S. 1061 (1980); Marshall v. OSHRC (IMC ChemicalGroup), 635 F.2d 544, 551 (6th Cir. 1980). Inasmuch as we agree withthese courts of appeals, we overrule Republic Steel and hold that aunion-party may not object to a motion by the Secretary to withdraw acitation.In view of this, it would serve little or no purpose to inform a unionthat is not a party of the motion to withdraw, for even if it were toelect party status it would have no right to object to the motion. Wetherefore hold that a motion to withdraw a citation need not be postedand served upon employees or unions who are not parties. CeresTerminals and all other cases to the contrary are overruled. [[4]]We emphasize that where unions or affected employees are parties,Commission Rule 7(a) continues to require that they be served with allfiled papers. Service of a motion to withdraw a citation on employeesand unions who are parties affords them notice that the proceeding isbeing terminated. There is, however, no need to provide such notice tothose who have neither participated nor sought to participate in theproceeding.Accordingly, the judge’s decision is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: JUN 28 1984CLEARY, Commissioner, dissenting:The facts of this case are that the Secretary cited American BakeriesCompany for a violation of the Occupational Safety and Health Act andthe employees and their bargaining representatives were presumablynotified of the citation as required by section 9(b) of the Act, 29U.S.C. ? 658(b). Subsequently, the employer filed a notice of contest,and again employees or their employee representatives were presumablynotified as required by Rule 7(g) of this Commission’s rules ofprocedure. Finally, the Secretary determined that he no longer wishedto prosecute this action, and filed a motion to withdraw the citation. Yet, this latter document has not been made known to the employees ortheir representatives even though the employees and theirrepresentatives have the right to become a party to this action. Asemployees, they would have an interest paramount above all others in thedetermination of this case because they are the ones who would beaffected by unsafe conditions.I have always maintained that employees have the right, at a minimum, toobject to the withdrawal of a citation.[[5]] They are in the bestposition to know if a violation exists, and are in a position to giveevidence to a judge or to the Secretary, as any number of casesillustrates. See, e.g., Marshall v. Sun Petroleum Products Co., 622F.2d 1176 (3d Cir.), cert. denied, 449 U.S. 1061 (1980); ConsolidatedFreightways, 81 OSAHRC 46\/E9, 9 BNA OSHC 1822, 1981 CCH OSHD ? 25,369(No. 79-3136, 1981); Penn Central Transportation Co. and DanielTarasevich, 1976-77 CCH OSHD ? 20,832 (No. 11581, 1976)(ALJ). Indeed,if American Bakeries’ employees had been informed that the Secretarywishes to no longer prosecute this citation, they may have exercisedtheir right to become parties under section 10(c) of the Act, 29 U.S.C.? 659(c). The Commission’s own rules afford them an unqualified rightto do so at any time before a hearing commences. See Commission Rule20(a). In view of the right of employees to become parties and theimpact on employees of the outcome, a notification of withdrawal is morethan a mere courtesy; it is a right.This Commission, long ago, dealt with this exact question in PacificIntermountain Express Co., 74 OSAHRC 67\/F10, 2 BNA OSHC 1228, 1974-75CCH OSHD ? 18,718 (No. 4303, 1974). The Commission there said that\”[w]here employers have moved to withdraw their notices of contest, werequire that a copy and a motion be served on affected employees byposting.\” The requirement was imposed because favorable treatment ofthe motion would terminate the proceedings, and thus terminate the rightof employees to participate under section 10(c). The majority then wenton to say:We see no reason why the same requirement should not be imposed oncomplainant when he moves to withdraw before the commencement of ahearing. Complainant’s status as a party before this Commission isco-equal with that of a party employer, and simple fairness requiresthat both be treated equally. In any event, the reason for service ofthe motion has equal application to both situations.Circumstances have not changed since Pacific Intermountain was decided.Even if I agreed, arguendo, that employees have no right to raiseobjections to a motion to withdraw a citation, I would still requireposting and service for the benefit of affected employees and theirrepresentatives who have not yet become parties. The Secretary and theCommission are charge with serving the public interest in enforcement ofhealth and safety rights. These are public, not private rights, andpublic rights should be pursued in public view. Employees have noprivate cause of action under the Occupational Safety and Health Act;they must rely on the Secretary to initiate action for their benefit. Therefore, the Commission should require the Secretary to apprise themas to whether, when, and how he has acted on their behalf.This is more then a general principle of good government; it is arequirement of the Act. Section 6 (e), 29 U.S.C. ? 655(e), requiresthat the Secretary take all significant action in full public view: \”Whenever the Secretary promulgates any standard, makes any rule, order,or decision, grants any exemption or extension of time, or compromises,mitigates, or settles any penalty assessed under this Act, he shallinclude a statement of the reasons for such action, which shall bepublished in the Federal Register.\” Section 9(b) provides that \”[e]achcitation issued under this section…shall be prominently posted, asprescribed in regulations issued by the Secretary, at or near each placea violation referred to in the citation occurred.\” If employees have aright to see the citation, it surely follows that they have aconcomitant right to know that the citation is being withdrawn. Thisprinciple is evinced elsewhere in the Act. Section 8(f)(1), 29 U.S.C. ?657(f)(1), requires the Secretary to notify employees and employeerepresentatives in writing of his denial of their request for a specialinspection. Similarly, section 8(f)(2), 29 U.S.C. ? 657(f)(2), requiresthe Secretary to furnish employees and their representatives a writtenstatement of the reasons for the Secretary’s refusal to issue a citationwith respect to conditions alleged by the employees or representatives,before or during an inspection, to violate the Act. Certainly, there isno less reason for notification of the Secretary’s action in this case.I would require that employees and their representatives be notifiedwhen a case is abandoned by the Secretary.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Commission Rule 7(h) states:Service and notice.(h) The authorized employee representatives, if any, shall be servedwith the notice set forth in paragraph (g) of this section and with acopy of the notice of contest.The notice set forth in Rule 7(g) informs employees of their right toparticipate as parties.[[2]] 29 U.S.C. ? 659(c), section 10(c) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678, permits affected employees andunions to file a notice of contest as to the reasonableness of theabatement date in the citation. Commission Rule 20, 29 C.F.R. ?2200.20, also permits affected employees and unions to elect partystatus. See also Commission Rule 21, 29 C.F.R. ? 2200.21.[[3]] See also Georgia Pacific Corp., 83 OSAHRC 30\/E9, 11 BNA OSHC 1374,1983 CCH OSHD ? 26,521 (No. 82-993, 1983); National Railroad PassengerCorp., 83 OSAHRC 30\/E2, 11 BNA OSHC 1375, 1983 CCH OSHD ? 26,511 (N0.82-785, 1983).[[4]] This holding is consistent with the Commission’s Rules ofProcedure, which do not require service of motions to withdraw on thosewho are not parties. Commission Rule 7(a), 29 C.F.R. ? 2200.7(a),requires papers to be served only upon parties and intervenors. Seealso Commission Rule 37, 29 C.F.R. ? 2200.37 (affording parties andintervenors time to reply to motions). Commission Rule 100(c), 29C.F.R. ? 2200.100(c), provides an exception to the general rule ofCommission Rule 7(a), but because it applies only to settlements, it isnot relevant here.[[5]] See Republic Steel Corp,. 82 OSAHRC 67\/E1, 10 BNA OSHC 2222, 1982CCH OSHD ? 26,326 (No. 81-656, 1982); Cuyahoga Valley Ry., 82 OSAHRC59\/C3, 10 BNA OSHC 2156, 1982 CCH OSHD ? 26,296 (No. 76-1188, 1982),pets. for rev. filed, Nos. 82-3771 & 82-3773 (6th Cir. Dec 1 & 2, 1982). “