“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78?2161 WEAN-PORI, INC., RESPONDENT, AND UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL UNION 6082, DISTRICT 28, AUTHORIZED EMPLOYEE REPRESENTATIVE??????????????????????????????? , \u00a0 ???????????????????????? ???????????????????? \u00a0 \u00a0June 29, 1979DECISIONBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.CLEARY, Chairman:??????????? Respondent,Wean-Pori, Inc., was issued two citations on May 10, 1978, for allegedviolations of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651et seq. (hereinafter ?the Act?). Respondent, by letter dated May 12, 1978,timely contested Citation No. 1, which alleged a serious violation of 29 CFR ?1910.309(a)[1]and section 250.43(a)[2] of the National ElectricalCode, NFPA 70?1971. A penalty of $420 was proposed. On May 19, 1978, the UnitedSteelworkers of America, AFL-CIO and Local Union 6082 elected party status[3] as the authorized employeerepresentative of the affected employees. Commission Rule 20, 29 CFR ?\u00a02200.20.??????????? Uponfurther investigation, the Secretary determined that there was ?insufficientevidence to establish a violation of the standard alleged. . . .? Accordingly,on July 18, 1978, the Secretary moved to withdraw the Citation and proposedpenalty. In an accompanying letter to the judge, the Secretary stated thatcopies of the Notice of Withdrawal of Citation had been mailed both to therespondent and to the authorized employee representative. In his Order datedJuly 25, 1978, Judge James D. Burroughs granted the Secretary?s Motion toWithdraw, and thus vacated the alleged serious Citation and proposed penalty.??????????? OnAugust 24, 1978, Commissioner Cottine directed the judge?s Order for review suasponte in accordance with section 12(j) of the Act, 29 U.S.C. ? 661(i). Theparties were requested to brief the issue of whether the authorized employeerepresentative, having elected party status, had an opportunity to be heard onthe Secretary?s motion to withdraw Citation No. 1. The direction for reviewstated that the record failed to indicate whether the authorized employeerepresentative assented to the withdrawal, but did reveal that the judge hadruled on the motion before the expiration of the time limit for responseaccorded parties under Commission Rule 37, 29 CFR ? 2200.37.[4]??????????? Althoughthe 10-day period accorded parties by Commission Rule 37 for response to amotion had not expired before the judge granted the Secretary?s motion towithdraw, it is clear from the employee representative?s September 8, 1978,response to the direction for review[5] that the authorizedemployee representative does not object to the Secretary?s withdrawal, andconsequently the error in this case is harmless.[6] In the employeerepresentative?s response, the union explained that it received a copy of theSecretary?s Notice of Withdrawal of Citation No. 1 on July 19, 1978, and thatcounsel for the Secretary advised the union of the basis for the withdrawal. Onthe basis of this notice, the union decided not to file any objections to thewithdrawal of the Citation. The union further stated that it had therefore been?furnished with the opportunity to be heard on this question.? Since theauthorized employee representative has had an opportunity to be heard on theSecretary?s motion for withdrawal of Citation No. 1 and has no objection to themotion, we affirm the judge?s order granting the Secretary?s motion.[7]?So ORDERED.FOR THE COMMISSION:Ray H. Darling, Jr.Executive SecretaryDATED: JUN 29, 1979\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78?2161 WEAN-PORI, INC., RESPONDENT, AND UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL UNION 6082, DISTRICT 28, AUTHORIZED EMPLOYEE REPRESENTATIVE, \u00a0 ???????????????????????? ???????????????????? \u00a0 July 25, 1978ORDER GRANTING COMPLAINANTS MOTION TOWITHDRAW??????????? Respondent,by letter dated May 12, 1978, timely contested a serious citation issued to iton May 10, 1978. The citation alleged a violation of 29 C.F.R. ? 1910.309(a),and Section 250.43(a) of the National Electrical Code, NFPA 70?1971. A penaltywas proposed in the amount of $420.??????????? OnJuly 20, 1978, a motion to withdraw the citation was received from thecomplainant. The motion having been read and considered, it is??????????? ORDERED:??????????? 1.That the motion is granted; and??????????? 2.That the serious citation and proposed penalty issued to respondent on May 10,1978, are vacated.?Dated this 25th day of July, 1978.?JAMES D. BURROUGHS,Judge[1] Section 1910.309National Electrical Code.(a)The requirements contained in the following articles and sections of theNational Electrical Code, NFPA 70?1971; ANSI C1?1971 (Rev. of C1?1968) shallapply to all electrical installations and utilization equipment:Sections250?43(a). . . Fixed equipment, Grounding, Specific.[2] 250.43. FixedEquipment?Specific. Exposednoncurrent-carrying metal parts of the following kinds of equipment, regardlessof voltage, shall be grounded:(a)Frames of motors as specified in section 430?142[3] Rule 20 PartyStatus(a)Affected employees may elect to participate as parties before the commencementof the hearing before the Judge, unless, for good cause shown, the Commissionor the Judge allows such election at a later time. . . .[4] Rule 37 Responseto motions.Anyparty or intervenor upon whom a motion is served shall have 10 days fromservice of the motion to file a response.[5] In a letterreceived by the Commission on September 20, 1978, the Secretary stated that hedid not intend to file a brief in response to the direction for review.Instead, the Secretary explained why he had sought to withdraw the Citation,and relied on the employee representative?s response to the direction forreview as grounds for affirming the judge?s order.[6] In ReynoldsMetals Co., 79 OSAHRC 4\/A2, 7 BNA OSHC 1042 n.9, 1979 CCH OSHD ?23,295 n.9(No. 78?2485, 1979), the Commission noted that ?parties are entitled to rely onthe period allowed for the filing of responses and it is error for the judge totake action on the motion prior to the expiration of this period.?[7] CommissionerBarnako?s views with respect to the right of employee representatives who haveelected party status to participate in proceedings involving a motion by theSecretary to withdraw a citation are set forth in his dissenting opinion in IMCChemical Group, Inc., 78 OSAHRC 95\/C14, 6 BNA OSHC 2075, 1978 CCH OSHD?23,149 (No. 76?4761, 1978), petitions for review docketed, Nos. 79?3018and 79?3041 (6th Cir., Jan. 11 and 16, 1979). See also Reynolds Metals Co.,79 OSAHRC 4\/A2, 7 BNA OSHC 1042, 1979 CCH OSHD ?23, 295 (No. 78?2485, 1979)(concurring and dissenting opinion); Kaiser Aluminum & Chemical Corp.,78 OSAHRC 103\/A2, 6 BNA OSHC 2172, 1978 CCH OSHD ?23,200 (No. 76?2293, 1978)(dissenting opinion), petition for review docketed, No. 79?7047 (9thCir., Feb. 2, 1979); ITT Thompson Industries, Inc., 78 OSAHRC 70\/D10, 6BNA OSHC 1944, 1978 CCH OSHD ?22,944 (Nos. 77?4174 & 77?4175, 1978)(concurring opinion).”