“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 79?3136 \u00a0 CONSOLIDATED FREIGHTWAYS, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 April 27, 1981DECISIONBefore: BARNAKO, Acting Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:??????????? TheSecretary of Labor (?the Secretary?) has moved to vacate the administrative lawjudge?s decision granting the Secretary?s motion to vacate the citation. TheRespondent, Consolidated Freightways (?CF?), opposes the motion and has filed amotion to dismiss the Secretary?s motion and to affirm the judge?s decision. Wedeny the Secretary?s motion and affirm the judge?s decision.I??????????? OnMay 30, 1979, the Secretary issued a citation alleging that CF violated section5(a)(1), 29 U.S.C. ? 654(a)(1), of the Occupational Safety and Health Act of1970, 29 U.S.C. ??\u00a0651?678 (?the Act?). The inspection that gave rise tothe citation was apparently precipitated by a complaint from a CF employee, Mr.Raymond Carpenter. The citation alleged that seats in four of CF?strailer-pulling tractors did not provide protection from injury because a steelbar that extends along the rear edge of the seat was not ?properly covered.? CFcontested the citation and certified that a copy of the notice of contest wasserved upon ?Teamsters Local 413? in Columbus, Ohio. A complaint and answerwere later filed.??????????? Afterdiscussions were held between counsel for the Secretary and counsel for CF, thejudge, on December 28, 1979, received from CF a motion by the Secretary tovacate the citation under Federal Rule of Civil Procedure 41(a)(2).[1] CF certified that themotion to vacate was posted at the worksite where the alleged violationoccurred. The notice that was apparently posted with the motion stated that anyemployee or an authorized employee representative ?should communicate . . .objections [to the motion] within ten (10) days of the posting of thisAgreement? to the Commission?s Executive Secretary, Ray H. Darling, Jr.[2]??????????? OnJanuary 11, 1980, Administrative Law Judge James D. Burroughs issued and fileda decision granting the Secretary?s motion to vacate the citation. The judgenoted that [p]rior to the scheduled hearing, the parties advised that allmatters in dispute had been amicably resolved.???????????? OnJanuary 7, 1980, the Commission?s Executive Secretary received a letter fromMr. Carpenter, which was also signed by four Mr. Carpenter?s fellow employees.The letter requested that the vacation of the citation be reconsidered. Itstated in part that ?[t]here is a definite problem here that should get a ?dayin court?. To do otherwise is vacating the intent as well as substance of OSHA,. . . and the faith of working men and women that they do indeed have a rightto ?a safe place to work?.? The letter represented that the cited condition hadinjured Mr. Carpenter as well as another employee. The Executive Secretaryforwarded the letter to Judge Burroughs, who received it on January 15, 1980.Judge Burroughs then sent a memorandum to the Commission?s Associate GeneralCounsel for the Division of Central Review suggesting that ?the Commission maywant to consider the objection by the employees prior to letting the order tovacate become a final order.???????????? OnFebruary 11, 1980, Commissioner Cottine signed, and the Executive Secretaryreceived, a direction for review under section 12(j) of the Act, 29 U.S.C. ?661(i). The direction stated that the following issues were to be considered:1. Whether the Order GrantingComplainant?s Motion to Vacate should be vacated and the case remanded forfurther proceedings because objections to the motion from affected employeeswere not considered by the administrative law judge.*?2. Whether the objections of affectedemployees were timely filed.?3. Whether the affected employees in thiscase are ?represented? by an authorized employee representative within themeaning of Commission Rule 22(c), 29 C.F.R. ? 2200.00(c).?4. If affected employees are representedby an authorized employee representative, whether these employees are precludedby Commission Rule 22(c), 29 C.F.R. ? 2200.22(c), from individually filingobjections to the Complainant?s Motion to Vacate.?5. Whether affected employees have beenafforded a sufficient opportunity to be heard before the Judge on the Complainant?sMotion to Vacate.?*The objections were not considered by Judge Burroughsbecause they were filed with the Executive Secretary of the Commission ratherthan with the judge.II??????????? OnJanuary 9, 1981, the Secretary filed a motion to vacate the judge?s decision.The Secretary asserted that he ?now wishes to withdraw his Motion to Vacate.?He noted that affected employees have objected to the vacation of the citation.He explained that although his motion to vacate the citation was based upon hisbelief that he could not satisfy his burden of proof under any circumstances,he has since ?discovered additional information which convinces him that thecitation can be sustained if it is amended to allege a violation of 29 C.F.R. ?1910.132(a),? the protective equipment standard. The Secretary also moved toamend the citation to allege a violation of the standard at section1910.132(a).??????????? CFfiled a memorandum in opposition to the Secretary?s motion. CF argues that theeffect of the Secretary?s motion is to vest affected employees ?with a right ofprivate action in their favor.? It cites Marshallv. OSHRC (IMC Chemical Group, Inc.), 635 F.2d 544 (6th Cir. 1980), and Taylor v. Brighton Corp., 616 F.2d 256(6th Cir. 1980), for the proposition that the Act does not create such a rightof action. CF maintains that neither the Secretary?s motion nor the employees?objection to the judge?s decision were filed within 10 days after the postingof ?the agreement to vacate.? CF objects to the Secretary?s motion to amend onthe grounds that: (1) it states ?an additional and separate distinct basis forliability? that is barred by the six-month limitations period in section 9(c)of the Act, 29 U.S.C. ? 658(c); and (2) it fails to meet the requirements ofCommission Rule 33(a)(3), 29 C.F.R. ? 2200.33(a)(3), in that it does not setforth the reason for the requested amendment or state with particularity thechange sought. CF claims that it has been prejudiced by the delay in theamendment ?both in fact relative to the production of witnesses and otherevidence and in law in that this matter was legally ?dismissed?.? It cites Cornell & Co. v. OSHRC, 573 F.2d 820(3d Cir. 1978). CF also argues that ?the Secretary is barred from relitigatingthat which has already been litigated.? It points to the conference betweencounsel for CF and counsel for the Secretary, the preparation for a hearing(including discovery), negotiations, and the judge?s decision vacating thecitation. It cites the Sixth Circuit?s IMC decision for the proposition thatneither the Commission nor affected employees may question the Secretary?sexercise of prosecutorial discretion, i.e., his motion to vacate the citation.CF argues that it therefore follows that the Secretary may not on reviewreverse his original position, and that the principle of res judicata applies.It also argues that to now allow the Secretary to reverse his position ?wouldbe tantamount to a confirmation and approval of a gross abuse of prosecutorialdiscretion by the Secretary and\/or this Commission.? Finally, CF maintains thatCommissioner Cottine?s direction for review was untimely because it was filedon the thirty-first day after the judge?s decision was filed.III??????????? Wefirst consider CF?s claim that the direction for review is untimely. Thejudge?s decision was filed on January 11, 1980. The thirtieth day thereafter,February 10, 1980, was a Sunday. The direction for review was received by theExecutive Secretary on the next business day, Monday, February 11, 1980.??????????? Section12(j) of the Act, 29 U.S.C. ? 661(i), states that a judge?s report ?shallbecome the final order of the Commission within thirty days after such report .. ., unless within such period any Commission member has directed that suchreport shall be reviewed by the Commission.? Commission Rule 90 implements andsubstantially interprets section 12(j). The rule states:? 2200.90 Decisions and reports of Judges.(a) Upon completion of any proceeding, theJudge shall prepare a decision. When a hearing is held the decision shallcomply with 5 U.S.C. 557. Copies of the decision shall be mailed to allparties. Thereafter, the Judge shall file with the Executive Secretary a reportconsisting of his decision, the record in support thereof, and any petitionsfor discretionary review of his decision, or statements in opposition to suchpetitions, that may be filed in accordance with ? 2200.91. The Judge shall filehis report on the day following the close of the period for filing petitionsfor discretionary review, or statements in opposition to such petitions, but nolater than the twenty-first day following the date of the mailing of thedecision to the parties.?(b) (1) Promptly upon receipt of theJudge?s report, the Executive Secretary shall docket the case and notify allparties of that fact. The date of docketing shall be the date that the Judge?sreport is made for purposes of section 12(j) of the Act (29 U.S.C. 661).?(2) On or after the date of docketing ofthe case, all pleadings or other documents that may be filed in the case shallbe addressed to the Executive Secretary.?(3) In the event no Commission Memberdirects review of a decision on or before the thirtieth day following the dateof docketing of the Judge?s report, the decision of the Judge contained thereinshall become a final order of the Commission.\u00a0??????????? Subsection(b)(3) of the rule does more than merely reiterate the thirty-day review periodin section 12(j). It interprets the last day of the review period provided insection 12(j) to be ?the thirtieth day following the date of docketing of theJudge?s report.? Commission Rule 4(a), 29 C.F.R. ? 2200.4(a), which applies to?any period of time prescribed or allowed in these rules? and therefore appliesto the time period prescribed by Commission Rule 90(b)(3), states in part:? ? 2200.4 Computation of time.?(a) In computing any period of timeprescribed or allowed in these rules, the day from which the designated periodbegins to run shall not be included. The last day of the period so computedshall be included unless it is a Saturday, Sunday, or Federal holiday, in whichevent the period runs until the end of the next day which is not a Saturday,Sunday, or Federal holiday . . ..???????????? Togetherthese rules provide a uniform and well-understood method for computing timeperiods in Commission proceedings that comports with the usual rule inadministrative and federal practice.[3] For example, by readingthe rules together with section 12(j), parties are apprised that in computingthe last day of the thirty-day review period, the date of docketing of thejudge?s decision is not included, and that if, as in this case, the last dayfalls on a Sunday, the next working day is considered the thirtieth day of thereview period.??????????? Wealso conclude that this view of section 12(j) is a permissible one. AlthoughCongress wrote into the Act various time periods, there is no indication thatit intended the thirty-day period in section 12(j) to be treated anydifferently than similar periods are treated under other statutes. Indeed,Congress itself made permissible the application of the usual rule embodied inFederal Rule of Civil Procedure 6(a), supra note 2, for in section 12(g) of theAct, supra note 1, it made the federal rule applicable ?unless the Commissionhas adopted a different rule.? See UnionNational Bank v. Lamb, 337 U.S. 38, 40?41 (1949). We therefore hold thatthe direction for review was timely.IV??????????? Wenow turn to the questions posed by the direction for review. We disregard theletter filed by the affected employees because it appears from the employees?letter and from CF?s certification of posting of the notice of contest thatTeamster?s Local 413 is the authorized representative of the affectedemployees. Under Commission Rule 22(c), 29 C.F.R. ?\u00a02200.22(c),[4] these employees may notrepresent themselves in Commission proceedings. See Babcock & Wilcox Co., 80 OSAHRC 95\/A2, 8 BNA OSHC 2102,2106, 1980 CCH OSHD ? 24,812 at pp. 30,565?6 (No. 78?446, 1980). We also notethat Teamster?s Local 413 has never elected party status or intervened underCommission Rules 20(a) or 21, 29 C.F.R. ?? 2200.20(a) and 2200.21(a). Inasmuchas Commission Rule 7(a), 29 C.F.R. ? 2200.7(a), requires papers to be servedonly upon parties and intervenors, the lack of service upon affected employeesand their union does not furnish a ground for reversal. Furthermore, theexception to the general rule of Commission Rule 7(a) found in Commission Rule100(c), 29 C.F.R. ? 2200.100(c),[5] does not apply herebecause that rule applies only to settlements. The Secretary therefore was notrequired to serve the motion to vacate the citation upon the affected employeesor Teamsters Local 413, nor was Judge Burroughs obliged to give them anopportunity to object to the motion.V??????????? Wedeny the Secretary?s motion to vacate the judge?s decision. The Secretary doesnot allege that the judge erred in granting the Secretary?s motion to vacatethe citation, nor does the Secretary claim that he had good cause for notdiscovering that there was ground to support his case while the matter wasbefore the judge. The Secretary did not file a petition for discretionaryreview with the Commission alleging that he had newly discovered evidencewarranting a resumption of prosecution, and review of that issue was notordered in the direction for review. The Secretary?s change of mind simply hascome too late.??????????? TheSecretary?s responsibility as a litigant required him to evaluate the merits ofhis case when this case was before the judge. Commission Rule 92(d), 29 C.F.R.? 2200.92(d), under which this case was directed for review, states a commonrule of orderly procedure: ?Except in extraordinary circumstances, theCommission?s power to review is limited to issues of law or fact raised by theparties in the proceedings below.? Commission Rule 91(b)(4), 29 C.F.R. ?\u00a02200.91(b)(4),expresses disfavor upon a party?s attempt to repudiate before the Commission adisposition that he consented to before the judge. The rule states that ?[i]nthe case of proposed settlements or other proposed dispositions by consent ofall parties, petitions for discretionary review shall not be allowed, exceptfor good cause shown.? The Secretary did not even attempt to come under thisrule by filing a petition for discretionary review within the time to do so,and we can find no extraordinary circumstances that would warrant considerationon review of the new matter raised by the Secretary. Not only does theSecretary?s motion not allege good cause for not discovering the merits of hiscase when it was before the judge, the record does not colorably indicate goodcause. From all that appears in the record, the Secretary?s belated attempt tochange course was precipitated by the protest of affected employees to theCommission.??????????? Whileit is the Secretary?s duty to defend employee safety and health, it is theCommission?s responsibility to ensure that cases brought under the Act areimpartially adjudicated in a manner consistent with orderly procedure. TheSecretary should remain mindful that there is a substantial public interest inorderly procedure, and that his goal of ensuring employee safety and health isnot likely to be achieved if the Commission?s adjudication process does notwork smoothly and impartially. Although we have long stressed the public interestin deciding cases on their merits, that interest is outweighed in this case bythe need for finality. See SeattleCrescent Container Service, 79 OSAHRC 91\/A2, 7 BNA OSHC 1895, 1899, 1979CCH OSHD ?24,002, p. 29,133 (No. 15242, 1979).[6]??????????? Accordingly,the motion to vacate the judge?s decision is denied, and the judge?s decisionis affirmed.?SO ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: APR 27 1981\u00a0\u00a0COTTINE, Commissioner, Concurring in part anddissenting in part:??????????? Iconcur in Part III of the lead opinion and its holding that the direction forreview was timely. However, I dissent from Parts IV and V of the majorityopinion concluding that the letter of protest from the affected employees mustbe disregarded and the Secretary?s motion to vacate the judge?s decision shouldbe denied.??????????? Mycolleagues treat this case as involving little more than a series of misstepsby the Secretary. They do this by completely disregarding the letter filed bythe affected employees on the ground that under Babcock & Wilcox Co., 80 OSAHRC 95\/A2, 8 BNA OSHC 2102, 1980CCH OSHD ?24,812 (No. 78?446, 1980), the affected employees have no right to beheard because they are represented for collective bargaining purposes by aunion. The majority?s application of Babcock & Wilcox to this case confirmsmy view that this unfortunate precedent compromises the statutory right ofparticipation for employees.??????????? Section10(c) of the Act, 29 U.S.C. ? 659(c), requires this Commission to provideaffected employees or their representatives with an opportunity to participateas parties.[7]This right was provided by Congress as a valuable mechanism to assure safe andhealthful working conditions. Section 2(b), 29 U.S.C. ? 651. Moreover, thestatutory purposes of prevention and abatement of workplace hazards will beachieved in this case only if the participatory rights of the affectedemployees are given effect here. Accordingly, I would treat the letter filed bythe affected employees with the Commission as a timely election of party statusunder Commission Rule 20(a), 29 C.F.R. ? 2200.20(a), and I would consider theSecretary?s motion in light of the representations of the affected employees.[8]??????????? Thediligence of the affected employees in this case cannot be overlooked. Thisinspection was precipitated by a complaint to the Occupational Safety andHealth Administration by Raymond Carpenter, one of the affected employees. Itwas only when the motion to vacate the citation was posted at their workplacethat the affected employees learned that the Secretary would no longer pursuethe citation resulting from the inspection. However, the notice that wasapparently posted with the motion led the affected employees to believe thatthey should file their objections with the Commission?s Executive Secretary. Asmy colleagues observe in footnote 2 of their opinion, this notice wasmisleading because the Commission?s rules require papers to be filed with thejudge, not the Commission, when the case is pending before the judge. In thiscase, the affected employees filed, and the Commission?s Executive Secretaryreceived, their letter objecting to vacation of the citation before the judgeacted on the Secretary?s motion to vacate.[9] Had the noticeaccompanying the motion to vacate the citation accurately informed the affectedemployees of where their objections should have been filed, Judge Burroughswould have had the views of the affected employees before him when heconsidered the Secretary?s motion. In addition, the Secretary?s trial attorneywould have been able to consider the employees? views before the judge acted.??????????? Mycolleagues emphasize that the Secretary should diligently prosecute litigationand that there is a public interest in expeditiously bringing litigation to anend. I share this concern regarding finality, and I would join in their dispositionif the Secretary had pursued this matter alone. But there is another statutoryparty before us who has attempted diligently and vigorously to participate inthis litigation. Moreover, my colleagues concede that on the basis of therecord it appears that, ?the Secretary?s belated attempt to change course wasprecipitated by the protest of affected employees to the Commission.? Thepublic interest militates against viewing this case as a mere lack ofprosecutorial diligence by the Secretary. First, it is the affected employeeswhose safety and health are at risk from the allegedly hazardous condition andwhose participatory rights are guaranteed by the statute. Second, it is thelongstanding practice of the Commission to favor the disposition of cases ontheir merits. See, e.g., Duquesne LightCo., 80 OSAHRC 32\/B7, 8 BNA OSHC 1218, 1222, 1980 CCH OSHD ?24,384 at p.29,719 (No. 78?5034, 1980). This policy favoring decisions on the merits notonly effectively preserves the parties? opportunity to be heard, but alsoadvances the primary purpose of the Act in preventing workplace hazards andresultant injuries, see, e.g., Marshallv. Western Electric, Inc., 565 F.2d 240, 245 (2d Cir. 1977); Arkansas-Best Freight Systems, Inc. v. OSHRC,529 F.2d 649, 653 (8th Cir. 1976).??????????? Accordingto the affected employees? letter and the attached materials, CF employeesdrive tractor trailer trucks having seats that cause injury to the employeeswhen the tractors are driven on rough roads. The seats are alleged to have inadequatelypadded steel parts that injured Mr. Carpenter and other drivers. The affectedemployees state:?I hit that bar so hard I thought I wasgoing to pass out.???I hit a hole in that yard out there andcame down [on the seat] and busted my tailbone on that bar.???I drove that [tractor] one day. The next,I turned it down. They might fire me, but I?m not going to drive it . . ..???There is a severe pain up on the outsideof my tailbone . . .. I?ve never had any problem with my tailbone before theseseats . . .. I can?t sit on a stuffed cushion [now] . . .. I can?t lie on myback. It hits the spot.??Indeed, the Secretary?s complaint characterized thealleged violation here as ?serious? because there was a ?substantialprobability that death or serious physical harm could result? from thecondition of the seats.??????????? Iwould remand this case to the judge for further proceedings so that this casecan be decided on its merits. As the affected employees state, ?[t]o dootherwise is vacating the intent as well as the substance of [the Act], itsregulations, and the faith of working men and women that they do indeed have aright to ?a safe place to work?.?\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 79?3136 \u00a0 CONSOLIDATED FREIGHTWAYS, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 January 11, 1980ORDER GRANTING COMPLAINANT?S MOTION TOVACATE??????????? Respondent,by letter dated June 12, 1979, from its counsel, contested a serious citationissued to it on May 30, 1979. The citation alleged a violation of section5(a)(1) of the Occupational Safety and Health Act of 1970 and proposed a penaltyof $630.00.??????????? Priorto the scheduled hearing, the parties advised that all matters in dispute hadbeen amicably resolved. On December 28, 1979, a motion to vacate was receivedfrom counsel for the complainant. The motion having been read and considered,it is??????????? ORDERED:??????????? 1.That the motion to vacate is granted;??????????? 2.That the serious citation issued to respondent on May 30, 1979, and the penaltyproposed for the alleged violation are vacated.?Dated this 11th day of January, 1980.?JAMES D. BURROUGHSJudge[1] Section 12(g) ofthe Act, 29 U.S.C. ? 661(f), states that ?[u]nless the Commission has adopted adifferent rule, its proceedings shall be in accordance with the Federal Rulesof Civil Procedure.? Commission Rule 2(b), 29 C.F.R. ? 2200.2(b), states that?[i]n the absence of a specific provision, procedure shall be in accordancewith the Federal Rules of Civil Procedure.? Inasmuch as there is no Commissionrule on voluntary dismissals, the Secretary proceeded under Federal Rule41(a)(2).[2] Commission Rule8(a), 29 C.F.R. ? 2200.8(a), provides that after a case is assigned to a judgeand before the judge?s decision is issued, all papers should be filed with thejudge. Only after the judge?s decision is issued are papers to be filed withthe Executive Secretary.[3] In Sherwood Brothers, Inc. v. District ofColumbia, 113 F.2d 162, 163?4 (D.C. Cir. 1940) (tax statute; claim forrefund filed with tax appeals board), the court stated:Business practice and accepted legalprinciple, apart from statute, permit and in some instances require an act tobe done on the following Monday where the last day upon which it should havebeen done falls on Sunday. That is the common-law, and it has become embeddedin the habits and customs of the community, both from respect for religiousconsiderations and by long-established legal and commercial tradition. It wouldbe reasonable, therefore, to assume that Congress had the common-law rule inmind when it legislated, and to construe the statute accordingly. Various statecourts have interpreted state temporal statutes in this manner. Many stateshave enacted statutes for computation of time which expressly exclude the finalSunday. The Federal Rules of Civil Procedure, 29 U.S.C.A. following section723c, do likewise. Rule 6(a). And the only decisions of the Supreme Courtbearing on the problem which have come to our attention follow the same rule.[Citations omitted.] It has the support, therefore, of controlling authority,as well as of tradition, fairness and convenience . . .. [Footnotes omitted.]Federal Rule of Civil Procedure 6(a) issimilar to Commission Rule 4(a), except that the federal rule also expresslyapplies to periods prescribed or allowed ?by any applicable statute.?[4] The rule states:? 2200.22 Representatives of parties andintervenors.(c) Affected employees who are representedby an authorized employee representative may appear only through suchauthorized employee representative.CommissionRule 1(g), 29 C.F.R. ? 2200.1(g), defines ?Authorized employee representative?as ?a labor organization which has a collective bargaining relationship withthe cited employer and which represents affected employees.?[5] The rule states:? 2200.100 Settlement(c) Filing; service and notice. When asettlement proposal is filed with the Judge or Commission, it shall also beserved upon represented and unrepresented affected employees in the mannerprescribed for notices of contest in ? 2200.7. Proof of service shall accompanythe settlement proposal. A settlement proposal shall not be approved until atleast 10 days following service of the settlement proposal on affectedemployees.[6] Cf. Marshall v. Northern Concrete Block, Inc., 636 F.2d 26 (2dCir. 1980) (no abuse of discretion in vacating citation for Secretary?s failureto diligently prosecute).-*[7] In Babcock & Wilcox, I stated that theproper interpretation of the statute and the Commission?s rules of procedure isthat individual employees are prevented from participating in our proceedingsonly when their authorized employee representative elects party status andactually represents the affected employees before the Commission. 8 BNA OSHC at2109, 1980 CCH OSHD at p. 30,569.[8] Commission Rule20(a) freely permits affected employees to elect party status at any timebefore the hearing begins. Since no hearing has been held, they may freelyelect party status. Furthermore, the affected employees? letter is properlytreated as an election of party status. See, e.g., IMC Chemical Group, Inc., 78 OSAHRC 95\/C14, 6 BNA OSHC 2075, 2076n.4, 1978 CCH OSHD ? 23,149, p. 27,989 n.4 (No. 76?4761, 1978), rev?d on other grounds, 635 F.2d 544(6th Cir. 1980).[9] Under CommissionRule 8(c), 29 C.F.R. ? 2200.8(c), filing is effected upon mailing.”