SECRETARY OF LABOR,

Complainant,

v.

AMERICAN BAKERIES COMPANY,

Respondent.

OSHRC Docket No. 83-0131

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 question for decision is whether a motion by the Secretary of Labor to withdraw a citation shall be served upon authorized employee representatives of affected employees or posted for unrepresented affected employees if the representatives or employees have not elected party status.

The Secretary of Labor issued a citation to American Bakeries Company.   American Bakeries filed a notice of contest, which was transmitted to the Commission.  In accordance with Commission Rule 7(h), 29 C.F.R. § 2200.7(h),[[1]] American Bakeries certified that it had served the notice of contest upon the affected employees' representative, Local Union No. 50 of the International Brotherhood of Teamsters.  The Secretary later moved to withdraw the citation on the ground that insufficient evidence existed to support his case, but he did not certify that his motion was served upon the union local.  Neither the union local nor any affected employee had elected party status. [[2]] Administrative Law Judge Salyers granted the withdrawal motion.  The judge's decision was thereafter directed for review on the question stated above.  We conclude that a motion to withdraw a citation need not be posted or served on unions and employees who have not elected party status.

In Ceres Terminals, Inc. 83 OSAHRC 30/D8, 11 BNA OSHC 1373, 1983 CCH OSHD ¶ 25,510 (No. 82-173, 1983),[[3]] the Commission required that motions to withdraw citations be posted and served on unions that had not elected party status.  The Commission reasoned that such action was "consistent with the principles stated in" its decision in Mobil Oil Corp., 82 OSAHRC 45/A2, 10 BNA OSHC 1905,1982 CCH OSHD ¶ 26,187 (No. 77-4386, 1982)(employees and unions may object to settlement agreement that does not provide for abatement), rev'd sub nom. Donovan v. OSHRC (Mobil Oil Corp.), 713 F.2d 918 (2d Cir. 1983). The Commission also relied on Republic Steel Corp., 82 OSAHRC 67/E1, 10 BNA OSHC 2222, 1982 CCH OSHD ¶ 26,326 (No. 81-656, 1982), which held that a union-party may object to a motion to withdraw a citation.  The decision in Ceres Terminals was designed to permit a union or affected employees to review the motion, elect party status, and present objections to the motion to an administrative law judge.  Its spoken premise was that unions or employees that have elected party status may object to a motion by the Secretary to withdraw a citation.

In Pan American World Airways, No. 83-249 (May 31, 1984), the Commission re-examined its precedent relating to employee participation in light of a number of appellate court decisions on this subject.  Pan Am overruled Mobil and held that a union that has elected party status may object only to the reasonableness of the abatement date in a settlement; it may not object to the abatement methods agreed upon in the settlement.  See also Willamette Iron & Steel Co., No. 78-4198 (May 31, 1984)(union may not object to characterization of violation in settlement).  In reaching this holding, we relied on numerous court decisions that had reviewed the respective roles of the Commission and the Secretary and had held or implied that a union-party may not object to the Secretary's withdrawal of 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).  Inasmuch as we agree with these courts of appeals, we overrule Republic Steel and hold that a union-party may not object to a motion by the Secretary to withdraw a citation.

In view of this, it would serve little or no purpose to inform a union that is not a party of the motion to withdraw, for even if it were to elect party status it would have no right to object to the motion.  We therefore hold that a motion to withdraw a citation need not be posted and served upon employees or unions who are not parties.  Ceres Terminals and all other cases to the contrary are overruled. [[4]]

We emphasize that where unions or affected employees are parties, Commission Rule 7(a) continues to require that they be served with all filed papers.  Service of a motion to withdraw a citation on employees and unions who are parties affords them notice that the proceeding is being terminated.  There is, however, no need to provide such notice to those who have neither participated nor sought to participate in the proceeding.

Accordingly, the judge's decision is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: JUN 28 1984

CLEARY, Commissioner, dissenting:

The facts of this case are that the Secretary cited American Bakeries Company for a violation of the Occupational Safety and Health Act and the employees and their bargaining representatives were presumably notified of the citation as required by section 9(b) of the Act, 29 U.S.C. § 658(b).  Subsequently, the employer filed a notice of contest, and again employees or their employee representatives were presumably notified as required by Rule 7(g) of this Commission's rules of procedure.  Finally, the Secretary determined that he no longer wished to prosecute this action, and filed a motion to withdraw the citation.  Yet, this latter document has not been made known to the employees or their representatives even though the employees and their representatives have the right to become a party to this action.  As employees, they would have an interest paramount above all others in the determination of this case because they are the ones who would be affected by unsafe conditions.

I have always maintained that employees have the right, at a minimum, to object to the withdrawal of a citation.[[5]] They are in the best position to know if a violation exists, and are in a position to give evidence to a judge or to the Secretary, as any number of cases illustrates.  See, e.g., Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir.), cert. denied, 449 U.S. 1061 (1980); Consolidated Freightways, 81 OSAHRC 46/E9, 9 BNA OSHC 1822, 1981 CCH OSHD ¶ 25,369 (No. 79-3136, 1981); Penn Central Transportation Co. and Daniel Tarasevich, 1976-77 CCH OSHD ¶ 20,832 (No. 11581, 1976)(ALJ).  Indeed, if American Bakeries' employees had been informed that the Secretary wishes to no longer prosecute this citation, they may have exercised their right to become parties under section 10(c) of the Act, 29 U.S.C. § 659(c).   The Commission's own rules afford them an unqualified right to do so at any time before a hearing commences.  See Commission Rule 20(a).  In view of the right of employees to become parties and the impact on employees of the outcome, a notification of withdrawal is more than a mere courtesy; it is a right.

This Commission, long ago, dealt with this exact question in Pacific Intermountain Express Co., 74 OSAHRC 67/F10, 2 BNA OSHC 1228, 1974-75 CCH OSHD ¶ 18,718 (No. 4303, 1974).  The Commission there said that "[w]here employers have moved to withdraw their notices of contest, we require that a copy and a motion be served on affected employees by posting."  The requirement was imposed because favorable treatment of the motion would terminate the proceedings, and thus terminate the right of employees to participate under section 10(c).  The majority then went on to say:

We see no reason why the same requirement should not be imposed on complainant when he moves to withdraw before the commencement of a hearing.   Complainant's status as a party before this Commission is co-equal with that of a party employer, and simple fairness requires that both be treated equally.  In any event, the reason for service of the motion has equal application to both situations.

Circumstances have not changed since Pacific Intermountain was decided.

Even if I agreed, arguendo, that employees have no right to raise objections to a motion to withdraw a citation, I would still require posting and service for the benefit of affected employees and their representatives who have not yet become parties.   The Secretary and the Commission are charge with serving the public interest in enforcement of health and safety rights.  These are public, not private rights, and public rights should be pursued in public view.  Employees have no private cause of action under the Occupational Safety and Health Act; they must rely on the Secretary to initiate action for their benefit.  Therefore, the Commission should require the Secretary to apprise them as to whether, when, and how he has acted on their behalf.

This is more then a general principle of good government; it is a requirement of the Act.  Section 6 (e), 29 U.S.C. § 655(e), requires that the Secretary take all significant action in full public view:  "Whenever the Secretary promulgates any standard, makes any rule, order, or decision, grants any exemption or extension of time, or compromises, mitigates, or settles any penalty assessed under this Act, he shall include a statement of the reasons for such action, which shall be published in the Federal Register."  Section 9(b) provides that "[e]ach citation issued under this section...shall be prominently posted, as prescribed in regulations issued by the Secretary, at or near each place a violation referred to in the citation occurred."  If employees have a right to see the citation, it surely follows that they have a concomitant right to know that the citation is being withdrawn.   This principle is evinced elsewhere in the Act.  Section 8(f)(1), 29 U.S.C. § 657(f)(1), requires the Secretary to notify employees and employee representatives in writing of his denial of their request for a special inspection.  Similarly, section 8(f)(2), 29 U.S.C. § 657(f)(2), requires the Secretary to furnish employees and their representatives a written statement of the reasons for the Secretary's refusal to issue a citation with respect to conditions alleged by the employees or representatives, before or during an inspection, to violate the Act.  Certainly, there is no less reason for notification of the Secretary's action in this case.

I would require that employees and their representatives be notified when a case is abandoned by the Secretary.

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]] Commission Rule 7(h) states:

Service and notice.

(h) The authorized employee representatives, if any, shall be served with the notice set forth in paragraph (g) of this section and with a copy of the notice of contest.

The notice set forth in Rule 7(g) informs employees of their right to participate as parties.

[[2]] 29 U.S.C. § 659(c), section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, permits affected employees and unions to file a notice of contest as to the reasonableness of the abatement date in the citation.   Commission Rule 20, 29 C.F.R. § 2200.20, also permits affected employees and unions to elect party status.  See also Commission Rule 21, 29 C.F.R. § 2200.21.

[[3]] See also Georgia Pacific Corp., 83 OSAHRC 30/E9, 11 BNA OSHC 1374, 1983 CCH OSHD ¶ 26,521 (No. 82-993, 1983); National Railroad Passenger Corp., 83 OSAHRC 30/E2, 11 BNA OSHC 1375, 1983 CCH OSHD ¶ 26,511 (N0. 82-785, 1983).

[[4]] This holding is consistent with the Commission's Rules of Procedure, which do not require service of motions to withdraw on those who are not parties.   Commission Rule 7(a), 29 C.F.R. § 2200.7(a), requires papers to be served only upon parties and intervenors.  See also Commission Rule 37, 29 C.F.R. § 2200.37 (affording parties and intervenors time to reply to motions).  Commission Rule 100(c), 29 C.F.R. § 2200.100(c), provides an exception to the general rule of Commission Rule 7(a), but because it applies only to settlements, it is not relevant here.

[[5]] 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, 1982 CCH OSHD ¶ 26,296 (No. 76-1188, 1982), pets. for rev. filed, Nos. 82-3771 & 82-3773 (6th Cir. Dec 1 & 2, 1982).