“SECRETARY OF LABOR,Complainant,v.AMERICAN BAKERIES COMPANY,Respondent.OSHRC Docket No. 83-0131DECISIONBefore:\u00a0\u00a0\u00a0 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 and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act).\u00a0 The Commission is an adjudicatoryagency, independent of the Department of Labor and the Occupational Safety and HealthAdministration.\u00a0 It was established to resolve disputes arising out of enforcementactions brought by the Secretary of Labor under the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).The question for decision is whether a motion by the Secretary of Labor towithdraw a citation shall be served upon authorized employee representatives of affectedemployees or posted for unrepresented affected employees if the representatives oremployees have not elected party status.The Secretary of Labor issued a citation to American Bakeries Company. \u00a0American Bakeries filed a notice of contest, which was transmitted to theCommission.\u00a0 In accordance with Commission Rule 7(h), 29 C.F.R. ? 2200.7(h),[[1]]American Bakeries certified that it had served the notice of contest upon the affectedemployees’ representative, Local Union No. 50 of the International Brotherhood ofTeamsters.\u00a0 The Secretary later moved to withdraw the citation on the ground thatinsufficient evidence existed to support his case, but he did not certify that his motionwas served upon the union local.\u00a0 Neither the union local nor any affected employeehad elected party status. [[2]] Administrative Law Judge Salyers granted the withdrawalmotion.\u00a0 The judge’s decision was thereafter directed for review on the questionstated above.\u00a0 We conclude that a motion to withdraw a citation need not be posted orserved on unions and employees who have not elected party status.In Ceres Terminals, Inc. 83 OSAHRC 30\/D8, 11 BNA OSHC 1373, 1983 CCH OSHD ?25,510 (No. 82-173, 1983),[[3]] the Commission required that motions to withdraw citationsbe posted and served on unions that had not elected party status.\u00a0 The Commissionreasoned that such action was \”consistent with the principles stated in\” itsdecision in Mobil Oil Corp., 82 OSAHRC 45\/A2, 10 BNA OSHC 1905,1982 CCH OSHD ? 26,187(No. 77-4386, 1982)(employees and unions may object to settlement agreement that does notprovide for abatement), rev’d sub nom. Donovan v. OSHRC (Mobil Oil Corp.), 713 F.2d 918(2d Cir. 1983). The Commission also relied on Republic Steel Corp., 82 OSAHRC 67\/E1, 10BNA OSHC 2222, 1982 CCH OSHD ? 26,326 (No. 81-656, 1982), which held that a union-partymay object to a motion to withdraw a citation.\u00a0 The decision in Ceres Terminals wasdesigned to permit a union or affected employees to review the motion, elect party status,and present objections to the motion to an administrative law judge.\u00a0 Its spokenpremise was that unions or employees that have elected party status may object to a motionby the Secretary 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 of a number ofappellate court decisions on this subject.\u00a0 Pan Am overruled Mobil and held that aunion that has elected party status may object only to the reasonableness of the abatementdate in a settlement; it may not object to the abatement methods agreed upon in thesettlement.\u00a0 See also Willamette Iron & Steel Co., No. 78-4198 (May 31,1984)(union may not object to characterization of violation in settlement).\u00a0 Inreaching this holding, we relied on numerous court decisions that had reviewed therespective roles of the Commission and the Secretary and had held or implied that aunion-party may not object to the Secretary’s withdrawal of citation.\u00a0 See Donovan v.OSHRC (Mobil Oil Corp.) 713 F.2d 918, 926-7 (2d Cir. 1983), rev’g Mobil Oil Corp., 82OSAHRC 45\/A2, 10 BNA OSHC 1905, 1982 CCH OSHD ? 26,187 (No. 77-4386, 1982); Donovan v.International Union, Allied Industrial Workers (Whirlpool Corp.), 722 F.2d 1415, 1419-21(8th Cir. 1983); Oil, Chemical & Atomic Workers International Union v. OSHRC (AmericanCyanamid 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 Chemical Group), 635 F.2d 544, 551(6th Cir. 1980).\u00a0 Inasmuch as we agree with these courts of appeals, we overruleRepublic Steel and hold that a union-party may not object to a motion by the Secretary towithdraw a citation.In view of this, it would serve little or no purpose to inform a union thatis not a party of the motion to withdraw, for even if it were to elect party status itwould have no right to object to the motion.\u00a0 We therefore hold that a motion towithdraw a citation need not be posted and served upon employees or unions who are notparties.\u00a0 Ceres Terminals and all other cases to the contrary are overruled. [[4]]We emphasize that where unions or affected employees are parties, CommissionRule 7(a) continues to require that they be served with all filed papers.\u00a0 Service ofa motion to withdraw a citation on employees and unions who are parties affords themnotice that the proceeding is being terminated.\u00a0 There is, however, no need toprovide such notice to those who have neither participated nor sought to participate inthe proceeding.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 Bakeries Companyfor a violation of the Occupational Safety and Health Act and the employees and theirbargaining representatives were presumably notified of the citation as required by section9(b) of the Act, 29 U.S.C. ? 658(b).\u00a0 Subsequently, the employer filed a notice ofcontest, and again employees or their employee representatives were presumably notified asrequired by Rule 7(g) of this Commission’s rules of procedure.\u00a0 Finally, theSecretary determined that he no longer wished to prosecute this action, and filed a motionto withdraw the citation.\u00a0 Yet, this latter document has not been made known to theemployees or their representatives even though the employees and their representativeshave the right to become a party to this action.\u00a0 As employees, they would have aninterest paramount above all others in the determination of this case because they are theones who would be affected 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 best position to know if aviolation exists, and are in a position to give evidence to a judge or to the Secretary,as any number of cases illustrates.\u00a0 See, e.g., Marshall v. Sun Petroleum ProductsCo., 622 F.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 Daniel Tarasevich, 1976-77 CCH OSHD ? 20,832(No. 11581, 1976)(ALJ).\u00a0 Indeed, if American Bakeries’ employees had been informedthat the Secretary wishes 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). \u00a0The Commission’s own rules afford them an unqualified right to do so at any time before ahearing commences.\u00a0 See Commission Rule 20(a).\u00a0 In view of the right ofemployees to become parties and the impact on employees of the outcome, a notification ofwithdrawal is more than 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, 1974-75 CCH OSHD ? 18,718(No. 4303, 1974).\u00a0 The Commission there said that \”[w]here employers have movedto withdraw their notices of contest, we require that a copy and a motion be served onaffected employees by posting.\”\u00a0 The requirement was imposed because favorabletreatment of the motion would terminate the proceedings, and thus terminate the right ofemployees to participate under section 10(c).\u00a0 The majority then went on to say:We see no reason why the same requirement should not be imposed oncomplainant when he moves to withdraw before the commencement of a hearing. \u00a0Complainant’s status as a party before this Commission is co-equal with that of a partyemployer, and simple fairness requires that both be treated equally.\u00a0 In any event,the reason for service of the 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 raise objectionsto a motion to withdraw a citation, I would still require posting and service for thebenefit of affected employees and their representatives who have not yet become parties.\u00a0 The Secretary and the Commission are charge with serving the public interest inenforcement of health and safety rights.\u00a0 These are public, not private rights, andpublic rights should be pursued in public view.\u00a0 Employees have no private cause ofaction under the Occupational Safety and Health Act; they must rely on the Secretary toinitiate action for their benefit.\u00a0 Therefore, the Commission should require theSecretary to apprise them as to whether, when, and how he has acted on their behalf.This is more then a general principle of good government; it is a requirementof the Act.\u00a0 Section 6 (e), 29 U.S.C. ? 655(e), requires that the Secretary take allsignificant action in full public view:\u00a0 \”Whenever the Secretary promulgates anystandard, 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 be published in theFederal Register.\”\u00a0 Section 9(b) provides that \”[e]ach citation issuedunder this section…shall be prominently posted, as prescribed in regulations issued bythe Secretary, at or near each place a violation referred to in the citationoccurred.\”\u00a0 If employees have a right to see the citation, it surely followsthat they have a concomitant right to know that the citation is being withdrawn. \u00a0This principle is evinced elsewhere in the Act.\u00a0 Section 8(f)(1), 29 U.S.C. ?657(f)(1), requires the Secretary to notify employees and employee representatives inwriting of his denial of their request for a special inspection.\u00a0 Similarly, section8(f)(2), 29 U.S.C. ? 657(f)(2), requires the Secretary to furnish employees and theirrepresentatives a written statement of the reasons for the Secretary’s refusal to issue acitation with respect to conditions alleged by the employees or representatives, before orduring an inspection, to violate the Act.\u00a0 Certainly, there is no less reason fornotification of the Secretary’s action in this case.I would require that employees and their representatives be notified when acase is abandoned by the Secretary.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 served with thenotice set forth in paragraph (g) of this section and with a copy of the notice ofcontest.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 and unions to filea notice of contest as to the reasonableness of the abatement date in the citation. \u00a0Commission Rule 20, 29 C.F.R. ? 2200.20, also permits affected employees and unions toelect party status.\u00a0 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, 1983CCH OSHD ? 26,521 (No. 82-993, 1983); National Railroad Passenger Corp., 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 of Procedure,which do not require service of motions to withdraw on those who are not parties. \u00a0Commission Rule 7(a), 29 C.F.R. ? 2200.7(a), requires papers to be served only uponparties and intervenors.\u00a0 See also Commission Rule 37, 29 C.F.R. ? 2200.37(affording parties and intervenors time to reply to motions).\u00a0 Commission Rule100(c), 29 C.F.R. ? 2200.100(c), provides an exception to the general rule of CommissionRule 7(a), but because it applies only to settlements, it is not relevant here.[[5]] See Republic Steel Corp,. 82 OSAHRC 67\/E1, 10 BNA OSHC 2222, 1982 CCHOSHD ? 26,326 (No. 81-656, 1982); Cuyahoga Valley Ry., 82 OSAHRC 59\/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).\u00a0\u00a0\u00a0\u00a0″