“Docket No. 84-0827_84-0872 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\u00a0DECISION Before:\u00a0 BUCKLEY, Chairman, RADER and WALL,Commissioners. BY THE COMMISSION:These consolidated cases are before the OccupationalSafety and Health Review 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\”).\u00a0 The Commission is an adjudicatory agency, independent of the Departmentof Labor and the Occupational Safety and Health Administration.\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act,29 U.S.C. ? 659(c).The Secretary alleged in Docket No. 84-0827 as to Spartan Rigging Corporation and inDocket No. 84-0872 as to Atlantic Rigging Corporation that the respective employerscommitted serious violations of the general personal protective equipment standardapplicable to construction work, published at 29 C.F.R. ? 1926.28(a), by failing torequire certain employees engaged in dismantling scaffolds at the separate worksites ofthe respective employers to wear tied-off safety belts.\u00a0 The two cases were assignedto Chief Administrative Law Judge Paul A. Tenney, who after separate hearings consolidatedthem for briefing and decision.\u00a0 In his decision, the judge found that the employersviolated the personal protective equipment standard as alleged and affirmed the seriouscitations.The employers filed a petition for discretionary review and Chairman Buckley directedreview of the judge’s decision.\u00a0 The issues specified for decision were:1) Whether the Administrative Law Judge erred infinding that a reasonable person familiar with the circumstances, including any factsunique to Respondent’s industry, would have recognized that Respondent’s employees wereexposed to a hazard warranting the use of personal protective equipment; and2) Whether the Secretary of Labor carried his burden of proving the feasibility of usingsafety belts and lanyards in the cited circumstances.Also, in the briefing notice subsequently sent to theparties, the attention of the parties was directed to a recent decision of the Commission,Granite City Terminals Corp., 86 OSAHRC _____,12 BNA OSHC 1741, 1986 CCH OSHD ?27,547 (No. 83-882-S, 1986).On review, the Secretary filed a motion to withdrawthe citations and complaints concerning the alleged violations of the personal protectiveequipment standard.\u00a0 The Secretary stated:\u00a0 \”As a result of furtherevaluation of the facts in the record the Secretary has decided not to pursue this caseany further and accordingly moves to withdraw the citations . . . . \” The employersoppose the Secretary’s motion because, among other things, it came so late in theproceedings and request that the Commission deny the Secretary’s motion, direct theSecretary to file a brief, and issue a decision on the merits.We consider that denial of the Secretary’s motion towithdraw would be inappropriate.\u00a0 See In re Federal Election Campaign Act Litigation,474 F. Supp. 1051 (D.C., 1979) (missed opportunity for a legal ruling is not sufficientprejudice to warrant denial of a motion for voluntary dismissal). \u00a0 Accordingly, themotion to withdraw the citations and the complaints is granted.[[1]]SO ORDERED.[[2]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 SEP 3 1986WILLIAM E. BROCK, SECRETARY OF LABOR,Complainant,v.SPARTAN RIGGING CORP & ATLANTIC RIGGING CORP.Respondent.OSHRC Docket Nos. (Consolidated)84-0827 & 84-0872MOTION TO WITHDRAW CITATION AND COMPLAINT Complainant, William E. Brock, Secretary of Labor,United States Department of Labor, respectfully requests that the citations issued torespondents on July 19, 1984 and July 31, 1984 be withdrawn and the complaints filed inthe above-referenced case on August 31, 1984 and September 12, 1984 be dismissed.This case is now pending before the OccupationalSafety and Health Review Commission to determine whether the Secretary established by apreponderance of the evidence that respondent failed to comply with 29 CFR 1926.28(a).As a result of further evaluation of the facts in therecord the Secretary has decided not to pursue this case any further and accordingly movesto withdraw the citations issued on July 19, and July 31, 1984.The instant motion removes all contested items fromthis case.\u00a0 Since no further issues remain, the case should be dismissed in itsentirety.For the above stated reasons, the Secretaryrespectfully requests that the commission grant this motion to withdraw citation andcomplaint.Respectfully submitted, GEORGE R. SALEMDeputy Solicitor of Labor JOHN J. HYNANActing Associate Solicitorfor Occupational Safety & Health DANIEL J. MICKCounsel for Regional Trial LitigationMARY N. REVELL AttorneyThe 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), TTY (202-606-5386).FOOTNOTES: [[1]] In their statement of opposition to theSecretary’s withdrawal, the employers assert that \”over-zealous representatives ofthe Secretary\” have harassed members of the employers’ trade association, theScaffold Industry Association, by using the judge’s decision as authority for arequirement for safety belts while erecting or dismantling scaffolds, even though thejudge’s decision was not a Commission final order and was directed for review before theCommission.\u00a0 There is no evidence to support this assertion and we consider itunnecessary to examine the basis for this assertion in view of our disposition of thesecases.\u00a0 Our approval of the Secretary’s motion to withdraw the underlying citationrenders the judge’s decision a nullity even with respect to the immediate parties. \u00a0It certainly should not be cited as an authoritative pronouncement of the Commission.[[2]] There remains the matter of the judge’sdecision affirming a nonserious citation alleging that Atlantic Rigging Corporationviolated 29 C.F.R. ? 1926.100(a).\u00a0 Because the judge’s decision was directed forreview as to the alleged serious violations of ? 1926.28(a), the nonserious citation wasalso before the Commission.\u00a0 See Hamilton Die Cast, Inc., 86 OSAHRC_____, 12 BNA OSHC 1797, 1986 CCH OSHD ? 27,576 (No. 83-108, 1986).\u00a0 However, noparty took exception to the judge’s decision in this regard and the Secretary’s motion towithdraw does not pertain to the nonserious citation.\u00a0 Accordingly, we affirm thejudge’s decision in this respect.”