“Docket No. 79-2600 SECRETARY OF LABOR,Complainant,v.COPPERWELD STEEL COMPANY,Respondent.UNITED STEELWORKERS OF AMERICA, LOCAL UNION 2243,Authorized Employee Representative.OSHRC Docket No. 79-2600DECISION Before:\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 anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement, actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).The Secretary of Labor issued a citation alleging that Copperweld SteelCompany had violated the Act.\u00a0 An administrative law judge held a hearing, andthereafter vacated the citation on the ground that the Secretary had not proved that aviolation occurred. The Secretary sought discretionary review, which was granted.\u00a0 Helater moved to withdraw the citation, noting Copperweld’s voluntary abatement efforts andthe difficulty of successfully prosecuting a failure-to-abate action, and stating that\”the Secretary has determined that this case is not an appropriate vehicle forfurther appeal.\”\u00a0 The authorized representative of affected employees, LocalUnion 2243 of the United Steelworkers of America, which had elected party status beforethe judge, objects to the Secretary’s motion to withdraw the citation.\u00a0 It arguesthat the judge’s decision should be reversed and the citation affirmed because theevidence establishes the existence of a violation.\u00a0 The question for decision iswhether the Commission may grant a motion by the Secretary to withdraw a citation despitean objection by a union-party that the evidence supports affirmance of the citation.[[1]]In American Bakeries Co., No. 83-131 (June 28, 1984), Pan AmericanWorld Airways, No. 83-249 (May 31, 1984), and Willamette Iron & Steel Co.,No. 78-4198 (May 31, 1984), the Commission re-examined its precedents relating to employeeand union participation.\u00a0 We held in American Bakeries that a union-party maynot object to a motion by the Secretary to withdraw a citation, and overruled the contraryholding of Republic Steel Co., 82 OSAHRC 67\/E1, 10 BNA OSHC 2222, 1982 CCH OSHD ?26,326 (No. 81-656, 1982).\u00a0 In so holding, we relied on several court decisions thatreviewed the respective roles of the Secretary and the Commission and held or implied thata union-party may not object to the Secretary’s withdrawal of a citation.\u00a0 SeeDonovan v. OSHRC (Mobil Oil Corp.), 713 F.2d 918, 926-7 (2d Cir. 1983), rev’gMobil Oil Corp., 82 OSAHRC 45\/A2, 10 BNA OSHC 1905, 1982 CCH OSHD ? 26,187 (No.77-4386, 1982); Donovan v. International Union, Allied Industrial Workers (WhirlpoolCorp.), 722 F.2d 1415, 1419-21 (8th Cir. 1983); Oil, Chemical & AtomicWorkers International 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); Marshallv. 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).Accordingly, the motion to withdraw the citation is granted.FOR THE COMMISSION Ray H. Darling, Jr.Executive SecretaryDATED:\u00a0 JUN 29 1984CLEARY, Commissioner, dissenting:I dissent from the majority’s ruling that a union representative of affectedemployees may not object to a motion by the Secretary to withdraw a citation.\u00a0 Iadhere to my opinion that an authorized employee representative that has elected partystatus has the right to object to the withdrawal of a citation.\u00a0 See RepublicSteel Corp., 82 OSAHRC 67\/E1, 10 BNA OSHC 2222, 1982 CCH OSHD ? 26,326 (No. 81-656,1982); Cuyahoga Valley Ry., 82 OSAHRC 59\/C3, 10 BNA OSHC 2156, 2158, 1982 CCH OSHD? 26,296, pp. 33,227-28 (No. 76-1188, 1982) (concurring opinion), pets. for rev. filed,Nos. 82-3771 & 82-3773 (6th Cir. Dec. 1 & 2, 1982).\u00a0 As the Commission hasstated:\u00a0 \”The Secretary cannot be permitted to exercise prosecutorial discretionin a manner that would interfere with the right of affected employees to be heard asparties protecting their interest.\”\u00a0 IMC Chemical Group, 78 OSAHRC95\/C14, 6 BNA OSHC 2075, 2077, 1978 CCH OSHD ? 23,149, p. 27,990 (No. 76-4761, 1978), rev’d,635 F.2d 544 (6th Cir. 1980).The facts of this case are particularly illustrative of the probable benefitto the ends of this statute that employee participation might produce.\u00a0 The factsare, roughly, as outlined in the Judge’s decision and the briefs, that the Secretarybrought a 5(a)(1) charge based on an explosion in the Copperweld plant because of moltensteel enveloping a puddle of water.\u00a0 The Administrative Law Judge vacated thecitation, and the Secretary filed a petition for discretionary review, which was granted.\u00a0Subsequently, the Secretary filed a motion to withdraw the direction for review, andthe employees’ representative, who was a party to this case, objected.The majority dismisses the union objection on the basis that a union-partymay not object to a motion by the Secretary to withdraw a citation.\u00a0 In this case,there was an accident that precipitated the Secretary’s investigation.\u00a0 It involvedmolten metal with a temperature close to 3,000 degrees, overflowing and contacting waterin a pit which caused an explosion that blew out windows of a control room 30 feet away,and spewed slag out of a 35-foot deep tapping pit onto a platform where employees had beenstanding.\u00a0 Four employees nearby ran from the explosion; one employee suffered minorinjuries.Certainly, many factors would bear on whether or not there is a violation ofthe Act in this case, including (as the Judge points out): The volume of water in the pit,the amount of molten steel which might overflow a ladle, the depth and width of the pit,the type of construction, and the fact that the ladle was positioned to absorb most of theshock.\u00a0 Thus, I make no attempt to decide the case at this point, but employeeconcern about whether this type of accident may or may not recur is certainly worthy ofthis Commission’s attention.The employee party may be in the best position to know if a recognized hazardis present, and may well be able to present the best evidence as to the existence of aviolation.\u00a0 Accordingly, I would consider the union’s objections to the Secretary’smotion to withdraw before deciding whether to grant or deny the motion, rather than givethe Secretary the unfettered discretion to act in a manner potentially at odds with therights of a party and the purposes of the Act.RAYMOND J. DONOVAN, SECRETARY OF LABOR, Complainant, v.COPPERWELD STEEL COMPANY,RespondentUNITED STEELWORKERS OF AMERICA,LOCAL 2243,Authorized Employee Representative.OSHRC DOCKET NO. 79-2600MOTION TO WITHDRAW COMPLAINANT’S PETITION FOR DISCRETIONARY REVIEW ANDCITATIONComes now Complainant, Raymond J. Donovan, Secretary of Labor, United StatesDepartment of Labor, and respectfully moves that the Occupational Safety and Health ReviewCommission grant this motion to withdraw Complainant’s Petition for Discretionary Reviewand the citation for the alleged violation of section 5(a)(1) of the Act.As grounds therefor complainant states:1.\u00a0 The Secretary issued a complaint in the above-captioned case on June6, 1979, charging respondent with, inter alia, a willful violation of Section 5(a)(1) ofthe Act.\u00a0 Respondent filed an answer, denying this charge, on June 25, 1979.2.\u00a0 The hearing in this case took place on October 3 and 4, 1979 beforeAdministrative Law Judge James D. Burroughs.3.\u00a0 Judge Burroughs filed his decision on April 24, 1980 vacating the section 5(a)(1)citation.4.\u00a0 The Secretary filed his petition for Discretionary review on May 21, 1980, takingexception to the vacation of the section 5(a)(1) citation.5.\u00a0 The Secretary’s petition for discretionary review was granted on May 28, 1980.6.\u00a0 The Review Commission’s Briefing Notice was filed on December 8, 1981.7.\u00a0 The Secretary’s brief is due on January 18, 1981. 8.\u00a0 Upon further reconsideration and review of the evidence in this case, theSecretary has determined that this is not an appropriate vehicle for further appeal.9.\u00a0 Respondent’s attorney has been contacted and states that he consents to thismotion.10.\u00a0 Wherefore, Complainant respectfully moves that the Commission grant this motionto withdraw its petition for discretionary review and the section 5(a)(1) citation.11.\u00a0 In addition, the Complainant and the Respondent respectfully request that theCommission suspend the briefing schedule in this case until a decision has been reached onthis motion.Respectfully submitted,T. TIMOTHY RYAN, JR. Solicitor of LaborFRANK A. WHITEAssociate Solicitor forOccupational Safety and HealthHAROLD J. ENGELCounsel for Regional Trial LitigationMARY N. REVELLAttorneyThe 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]] At an earlier stage of this case, the Commission stated that it hadreserved ruling on the Secretary’s motion to withdraw the citation.\u00a0 CopperweldSteel Co., No. 79-2600 (December 2, 1982), pet. for review dismissed as premature,No. 83-3039 (6th Cir. April 9, 1984).”