SECRETARY OF LABOR,
Complainant,

v.

COPPERWELD STEEL COMPANY,
Respondent.

UNITED STEELWORKERS OF AMERICA,
LOCAL UNION 2243,

Authorized Employee
Representative.

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 Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement, actions brought by the Secretary 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 Steel Company had violated the Act.  An administrative law judge held a hearing, and thereafter vacated the citation on the ground that the Secretary had not proved that a violation occurred. The Secretary sought discretionary review, which was granted.  He later moved to withdraw the citation, noting Copperweld's voluntary abatement efforts and the difficulty of successfully prosecuting a failure-to-abate action, and stating that "the Secretary has determined that this case is not an appropriate vehicle for further appeal."  The authorized representative of affected employees, Local Union 2243 of the United Steelworkers of America, which had elected party status before the judge, objects to the Secretary's motion to withdraw the citation.  It argues that the judge's decision should be reversed and the citation affirmed because the evidence establishes the existence of a violation.  The question for decision is whether the Commission may grant a motion by the Secretary to withdraw a citation despite an 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 American World 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 employee and union participation.  We held in American Bakeries that a union-party may not object to a motion by the Secretary 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 court decisions that reviewed the respective roles of the Secretary and the Commission and held or implied that a union-party may not object to the Secretary's withdrawal of a citation.  See Donovan v. OSHRC (Mobil Oil Corp.), 713 F.2d 918, 926-7 (2d Cir. 1983), rev'g Mobil 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 (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 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 Secretary

DATED:  JUN 29 1984

CLEARY, Commissioner, dissenting:

I dissent from the majority's ruling that a union representative of affected employees may not object to a motion by the Secretary to withdraw a citation.  I adhere to my opinion that an authorized employee representative that has elected party status has the right to object to the withdrawal of a citation.  See Republic Steel 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).  As the Commission has stated:  "The Secretary cannot be permitted to exercise prosecutorial discretion in a manner that would interfere with the right of affected employees to be heard as parties protecting their interest."  IMC Chemical Group, 78 OSAHRC 95/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 benefit to the ends of this statute that employee participation might produce.  The facts are, roughly, as outlined in the Judge's decision and the briefs, that the Secretary brought a 5(a)(1) charge based on an explosion in the Copperweld plant because of molten steel enveloping a puddle of water.  The Administrative Law Judge vacated the citation, and the Secretary filed a petition for discretionary review, which was granted.  Subsequently, the Secretary filed a motion to withdraw the direction for review, and the employees' representative, who was a party to this case, objected.

The majority dismisses the union objection on the basis that a union-party may not object to a motion by the Secretary to withdraw a citation.  In this case, there was an accident that precipitated the Secretary's investigation.  It involved molten metal with a temperature close to 3,000 degrees, overflowing and contacting water in 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 been standing.  Four employees nearby ran from the explosion; one employee suffered minor injuries.

Certainly, many factors would bear on whether or not there is a violation 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 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 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 not recur is certainly worthy of this Commission's attention.

The employee party may be in the best position to know if a recognized hazard is present, and may well be able to present the best evidence as to the existence of a violation.  Accordingly, I would consider the union's objections to the Secretary's motion to withdraw before deciding whether to grant or deny the motion, rather than give the Secretary the unfettered discretion to act in a manner potentially at odds with the rights of a party and the purposes of the Act.

RAYMOND J. DONOVAN, SECRETARY OF LABOR,
Complainant,

v.

COPPERWELD STEEL COMPANY,
Respondent

UNITED STEELWORKERS OF AMERICA,
LOCAL 2243,

Authorized Employee
Representative.

OSHRC DOCKET NO. 79-2600

MOTION TO WITHDRAW COMPLAINANT'S PETITION FOR DISCRETIONARY REVIEW AND CITATION

Comes now Complainant, Raymond J. Donovan, Secretary of Labor, United States Department of Labor, and respectfully moves that the Occupational Safety and Health Review Commission grant this motion to withdraw Complainant's Petition for Discretionary Review and the citation for the alleged 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 June 6, 1979, charging respondent with, inter alia, a willful violation of Section 5(a)(1) of the Act.  Respondent filed an answer, denying this charge, on June 25, 1979.
2.  The hearing in this case took place on October 3 and 4, 1979 before Administrative Law Judge James D. Burroughs.
3.  Judge Burroughs filed his decision on April 24, 1980 vacating the section 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 May 28, 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 this case, the Secretary has determined that this is not an appropriate vehicle for further appeal.
9.  Respondent's attorney has been contacted and states that he consents to this motion.
10.  Wherefore, Complainant respectfully moves that the Commission grant this motion to withdraw its petition for discretionary review and the section 5(a)(1) citation.
11.  In addition, the Complainant and the Respondent respectfully request that the Commission suspend the briefing schedule in this case until a decision has been reached on this motion.

Respectfully submitted,
T. TIMOTHY RYAN, JR.
Solicitor of Labor

FRANK A. WHITE
Associate Solicitor for
Occupational Safety and Health

HAROLD J. ENGEL
Counsel for Regional
Trial Litigation

MARY N. REVELL
Attorney

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), 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 had reserved ruling on the Secretary's motion to withdraw the citation.  Copperweld Steel Co., No. 79-2600 (December 2, 1982), pet. for review dismissed as premature, No. 83-3039 (6th Cir. April 9, 1984).