“SECRETARY OF LABOR,Complainant,v.COPPERWELD STEEL COMPANY,Respondent.UNITED STEELWORKERS OF AMERICA,LOCAL UNION 2243,Authorized EmployeeRepresentative.OSHRC Docket No. 79-2600_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. _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. An administrative law judge held ahearing, and thereafter vacated the citation on the ground that theSecretary had not proved that a violation occurred. The Secretary soughtdiscretionary review, which was granted. He later moved to withdraw thecitation, noting Copperweld’s voluntary abatement efforts and thedifficulty of successfully prosecuting a failure-to-abate action, andstating that \”the Secretary has determined that this case is not anappropriate vehicle for further appeal.\” The authorized representativeof affected employees, Local Union 2243 of the United Steelworkers ofAmerica, which had elected party status before the judge, objects to theSecretary’s motion to withdraw the citation. It argues that the judge’sdecision should be reversed and the citation affirmed because theevidence establishes the existence of a violation. The question fordecision is whether the Commission may grant a motion by the Secretaryto withdraw a citation despite an objection by a union-party that theevidence 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 & SteelCo_., No. 78-4198 (May 31, 1984), the Commission re-examined itsprecedents relating to employee and union participation. We held in_American Bakeries_ that a union-party may not object to a motion by theSecretary to withdraw a citation, and overruled the contrary holding of_Republic Steel Co_., 82 OSAHRC 67\/E1, 10 BNA OSHC 2222, 1982 CCH OSHD ?26,326 (No. 81-656, 1982). In so holding, we relied on several courtdecisions that reviewed the respective roles of the Secretary and theCommission and held or implied that a union-party may not object to theSecretary’s withdrawal of a citation. _See_ _Donovan_ _v. OSHRC (MobilOil Corp.)_, 713 F.2d 918, 926-7 (2d Cir. 1983), _rev’g Mobil OilCorp_., 82 OSAHRC 45\/A2, 10 BNA OSHC 1905, 1982 CCH OSHD ? 26,187 (No.77-4386, 1982); _Donovan v. International Union, Allied IndustrialWorkers (Whirlpool_ _Corp_.), 722 F.2d 1415, 1419-21 (8th Cir. 1983);_Oil, Chemical & Atomic Workers 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); _Marshall v. Sun Petroleum_ _ProductsCo_., 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 (6thCir. 1980).Accordingly, the motion to withdraw the citation is granted.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: JUN 29 1984CLEARY, Commissioner, dissenting:I dissent from the majority’s ruling that a union representative ofaffected employees may not object to a motion by the Secretary towithdraw a citation. I adhere to my opinion that an authorized employeerepresentative that has elected party status has the right to object tothe withdrawal of a citation. _See_ _Republic Steel Corp._, 82 OSAHRC67\/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 CCHOSHD ? 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). As the Commission has stated: \”The Secretary cannot bepermitted to exercise prosecutorial discretion in a manner that wouldinterfere with the right of affected employees to be heard as partiesprotecting their interest.\” _IMC Chemical Group_, 78 OSAHRC 95\/C14, 6BNA 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 probablebenefit to the ends of this statute that employee participation mightproduce. The facts are, roughly, as outlined in the Judge’s decisionand the briefs, that the Secretary brought a 5(a)(1) charge based on anexplosion in the Copperweld plant because of molten steel enveloping apuddle of water. The Administrative Law Judge vacated the citation, andthe Secretary filed a petition for discretionary review, which wasgranted. Subsequently, the Secretary filed a motion to withdraw thedirection for review, and the employees’ representative, who was a partyto this case, objected.The majority dismisses the union objection on the basis that aunion-party may not object to a motion by the Secretary to withdraw acitation. In this case, there was an accident that precipitated theSecretary’s investigation. It involved molten metal with a temperatureclose to 3,000 degrees, overflowing and contacting water in a pit whichcaused an explosion that blew out windows of a control room 30 feetaway, and spewed slag out of a 35-foot deep tapping pit onto a platformwhere employees had been standing. Four employees nearby ran from theexplosion; one employee suffered minor injuries.Certainly, many factors would bear on whether or not there is aviolation of the Act in this case, including (as the Judge points out):The volume of water in the pit, the amount of molten steel which mightoverflow a ladle, the depth and width of the pit, the type ofconstruction, and the fact that the ladle was positioned to absorb mostof the shock. Thus, I make no attempt to decide the case at this point,but employee concern about whether this type of accident may or may notrecur is certainly worthy of this Commission’s attention.The employee party may be in the best position to know if a recognizedhazard is present, and may well be able to present the best evidence asto the existence of a violation. Accordingly, I would consider theunion’s objections to the Secretary’s motion to withdraw before decidingwhether to grant or deny the motion, rather than give the Secretary theunfettered 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 EmployeeRepresentative.OSHRC DOCKET NO. 79-2600_MOTION TO WITHDRAW COMPLAINANT’S PETITION FOR DISCRETIONARY REVIEW ANDCITATION_Comes now Complainant, Raymond J. Donovan, Secretary of Labor, UnitedStates Department of Labor, and respectfully moves that the OccupationalSafety and Health Review Commission grant this motion to withdrawComplainant’s Petition for Discretionary Review and the citation for thealleged violation of section 5(a)(1) of the Act.As grounds therefor complainant states:1. The Secretary issued a complaint in the above-captioned case on June6, 1979, charging respondent with, inter alia, a willful violation ofSection 5(a)(1) of the Act. Respondent filed an answer, denying thischarge, on June 25, 1979.2. The hearing in this case took place on October 3 and 4, 1979 beforeAdministrative Law Judge James D. Burroughs.3. Judge Burroughs filed his decision on April 24, 1980 vacating thesection 5(a)(1) citation.4. The Secretary filed his petition for Discretionary review on May 21,1980, taking exception to the vacation of the section 5(a)(1) citation.5. The Secretary’s petition for discretionary review was granted on May28, 1980.6. The Review Commission’s Briefing Notice was filed on December 8, 1981.7. The Secretary’s brief is due on January 18, 1981.8. Upon further reconsideration and review of the evidence in thiscase, the Secretary has determined that this is not an appropriatevehicle for further appeal.9. Respondent’s attorney has been contacted and states that he consentsto this motion.10. Wherefore, Complainant respectfully moves that the Commission grantthis motion to withdraw its petition for discretionary review and thesection 5(a)(1) citation.11. In addition, the Complainant and the Respondent respectfullyrequest that the Commission suspend the briefing schedule in this caseuntil a decision has been reached on this motion.Respectfully submitted,T. TIMOTHY RYAN, JR.Solicitor of LaborFRANK A. WHITEAssociate Solicitor forOccupational Safety and HealthHAROLD J. ENGELCounsel for RegionalTrial LitigationMARY N. REVELLAttorney————————————————————————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]] At an earlier stage of this case, the Commission stated that ithad reserved ruling on the Secretary’s motion to withdraw the citation. _Copperweld Steel Co_., No. 79-2600 (December 2, 1982), _pet. for reviewdismissed as premature_, No. 83-3039 (6th Cir. April 9, 1984).”