“SECRETARY OF LABOR,Complainant,v.SPARTAN RIGGING CORPORATION,Respondent.OSHRC Docket No. 84-0827SECRETARY OF LABOR,Complainant,v.ATLANTIC RIGGING CORPORATION,Respondent.OSHRC Docket No. 84-0872_ __DECISION_Before: BUCKLEY, Chairman, RADER and WALL, Commissioners.BY THE COMMISSION:These consolidated cases are before the Occupational Safety and HealthReview Commission under 29 U.S.C. ? 661(j), section 12(j) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”theAct\”). The Commission is an adjudicatory agency, independent of theDepartment of Labor and the Occupational Safety and HealthAdministration. It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act andhas no regulatory functions. _See_ section 10(c) of the Act, 29 U.S.C.? 659(c).The Secretary alleged in Docket No. 84-0827 as to Spartan RiggingCorporation and in Docket No. 84-0872 as to Atlantic Rigging Corporationthat the respective employers committed serious violations of thegeneral personal protective equipment standard applicable toconstruction work, published at 29 C.F.R. ? 1926.28(a), by failing torequire certain employees engaged in dismantling scaffolds at theseparate worksites of the respective employers to wear tied-off safetybelts. The two cases were assigned to Chief Administrative Law JudgePaul A. Tenney, who after separate hearings consolidated them forbriefing and decision. In his decision, the judge found that theemployers violated the personal protective equipment standard as allegedand affirmed the serious citations.The employers filed a petition for discretionary review and ChairmanBuckley directed review of the judge’s decision. The issues specifiedfor decision were:1) Whether the Administrative Law Judge erred in finding that areasonable person familiar with the circumstances, including any factsunique to Respondent’s industry, would have recognized that Respondent’semployees were exposed to a hazard warranting the use of personalprotective equipment; and2) Whether the Secretary of Labor carried his burden of proving thefeasibility of using safety belts and lanyards in the cited circumstances.Also, in the briefing notice subsequently sent to the parties, theattention of the parties was directed to a recent decision of theCommission, _Granite City Terminals Corp_., 86 OSAHRC _____,12 BNA OSHC1741, 1986 CCH OSHD ? 27,547 (No. 83-882-S, 1986).On review, the Secretary filed a motion to withdraw the citations andcomplaints concerning the alleged violations of the personal protectiveequipment standard. The Secretary stated: \”As a result of furtherevaluation of the facts in the record the Secretary has decided not topursue this case any further and accordingly moves to withdraw thecitations . . . . \” The employers oppose the Secretary’s motion because,among other things, it came so late in the proceedings and request thatthe Commission deny the Secretary’s motion, direct the Secretary to filea brief, and issue a decision on the merits.We consider that denial of the Secretary’s motion to withdraw would beinappropriate. See _In re Federal Election Campaign Act_ _Litigation_,474 F. Supp. 1051 (D.C., 1979) (missed opportunity for a legal ruling isnot sufficient prejudice to warrant denial of a motion for voluntarydismissal). Accordingly, the motion to withdraw the citations and thecomplaints is granted.[[1]]SO ORDERED.[[2]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: SEP 3 1986————————————————————————WILLIAM E. BROCK, SECRETARY OF LABOR,Complainant,v.SPARTAN RIGGING CORP &ATLANTIC RIGGING CORP.Respondent.OSHRC Docket Nos. (Consolidated)84-0827 & 84-0872_MOTION TO WITHDRAW CITATION AND COMPLAINT _Complainant, William E. Brock, Secretary of Labor, United StatesDepartment of Labor, respectfully requests that the citations issued torespondents on July 19, 1984 and July 31, 1984 be withdrawn and thecomplaints filed in the above-referenced case on August 31, 1984 andSeptember 12, 1984 be dismissed.This case is now pending before the Occupational Safety and HealthReview Commission to determine whether the Secretary established by apreponderance of the evidence that respondent failed to comply with 29CFR 1926.28(a).As a result of further evaluation of the facts in the record theSecretary has decided not to pursue this case any further andaccordingly moves to withdraw the citations issued on July 19, and July31, 1984.The instant motion removes all contested items from this case. Since nofurther issues remain, the case should be dismissed in its entirety.For the above stated reasons, the Secretary respectfully requests thatthe commission grant this motion to withdraw citation and complaint.Respectfully submitted,GEORGE R. SALEMDeputy Solicitor of LaborJOHN J. HYNANActing Associate Solicitorfor Occupational Safety & HealthDANIEL J. MICKCounsel 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), TTY (202-606-5386).FOOTNOTES:[[1]] In their statement of opposition to the Secretary’s withdrawal,the employers assert that \”over-zealous representatives of theSecretary\” have harassed members of the employers’ trade association,the Scaffold Industry Association, by using the judge’s decision asauthority for a requirement for safety belts while erecting ordismantling scaffolds, even though the judge’s decision was not aCommission final order and was directed for review before theCommission. There is no evidence to support this assertion and weconsider it unnecessary to examine the basis for this assertion in viewof our disposition of these cases. Our approval of the Secretary’smotion to withdraw the underlying citation renders the judge’s decisiona nullity even with respect to the immediate parties. It certainlyshould not be cited as an authoritative pronouncement of the Commission.[[2]] There remains the matter of the judge’s decision affirming anonserious citation alleging that Atlantic Rigging Corporation violated29 C.F.R. ? 1926.100(a). Because the judge’s decision was directed forreview as to the alleged serious violations of ? 1926.28(a), thenonserious citation was also before the Commission. _See_ _Hamilton DieCast, Inc_., 86 OSAHRC _____, 12 BNA OSHC 1797, 1986 CCH OSHD ? 27,576(No. 83-108, 1986). However, no party took exception to the judge’sdecision in this regard and the Secretary’s motion to withdraw does notpertain to the nonserious citation. Accordingly, we affirm the judge’sdecision in this respect.”