UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

April 4, 1984

REMAND ORDER

  An order of Administrative Law Judge Ralph B. Maxwell dismissing the notice of contest filed by employee Anthony Lester is before the Commission for review. For the reasons that follow, we set aside the judge’s order.

  The judge concluded that under the Commission’s rules employee Lester could not appear before the Commission as an individual because affected employees “are represented in the proceedings relating to the citations herein” by an authorized employee representative.1 The record reflects, however, that Lester’s objections relate to citations and to amendments to citations negotiated informally among the OSHA area director, the employer, and Lester’s union within the 15-day contest period prescribed by the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–78. By this agreement the employer waived its right to file a notice of contest. Accordingly, contrary to the judge’s order, the Commission had not acquired jurisdiction, and there was no proceeding pending before the Commission at the time Lester filed his notice of contest. We therefore conclude that the judge erred since his order misconstrues an informal agreement prior to the filing of a notice of contest as a proceeding before the Commission.

  The judge’s order is set aside and this matter is remanded for consideration of the employee’s contest of the abatement dates prescribed in the citations and amended citations.2

FOR THE COMMISSION

Ray H. Darling

Executive Secretary

April 4, 1984

CLEARY, Commissioner, dissenting

  That this case was settled before a notice of contest was filed and before the Commission had jurisdiction is not relevant. The notice of contest filed by Lester invoked Commission jurisdiction, and it is at this point that the question whether the employees of Ladish Company are represented by a labor organization becomes relevant. The record establishes that Lester is a member of local 1862 of the I.A.M.A.W. and that the I.A.M.A.W. is the authorized employee representative as defined in Commission Rule 1(g), 29 C.F.R. § 2200.1(g).3 Accordingly, only the union has standing to invoke Commission jurisdiction on behalf of affected employees. It is not necessary that the local have previously entered an appearance in Commission proceedings.

  Representation in Commission proceedings is governed by Commission Rule 22(c), 29 C.F.R. § 2200.22(c), “[a]ffected employees who are represented by an authorized employee representative may appear only through such authorized representative.” The term “represented” refers to representation for collective bargaining purposes, and not representation in Commission proceedings. Thus in my opinion if employees of the Respondent are represented by a labor organization, an individual may not assume representation of the interests of employees and invoke Commission proceedings. U.S. Steel Corp., 83 OSHRC 28/D12, 11 BNA OSHC 1361, 1983 CCH OSHD ¶ 26,523 (No. 80–2455, 1983) (Cleary, C., dissenting).

  One of the primary functions of a union is to act as the employees’ collective bargaining agent on matters of workplace safety and health. If individuals can bypass their unions on OSHA matters, collective bargaining power is lost. Where unions exist they are in a better position to advance workplace safety and health than are individual employees; this is the truth in numbers. By allowing individuals to override unions, the Commission takes safety and health issues out of the hands of those most likely to cause improvement and places them where there is less likelihood for improvement.

  To permit one member of a union to override the union leads to chaos and does violence to the very concept of “authorized employee representative.” If any individual can object, there is no authorized employee representative. The effect of the majority decision is that every settlement either before or after a notice of contest must, unless it escapes the notice of members, have the one hundred percent endorsement of the members of a labor organization (and employees) before the Commission can approve a settlement.

  The majority decision accomplishes nothing except to foster dissension in labor organizations, and frivolous objections as is the case here. The majority will only consider objections to abatement dates, yet at the time of Lester’s notice of contest all abatement dates were immediate, except for one item which allowed 10 days for abatement. This abatement date was changed in the settlement to May 1, 1984. It seems doubtful if Lester’s objection can be heard before the period of abatement runs its course.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

February 21, 1984

ORDER GRANTING MOTION TO STRIKE NOTICE OF CONTEST

  The Secretary having filed a motion to strike the Notice of Contest filed by Anthony Lester, an employee of the Respondent’s Ladish Company; and it appearing that Mr. Lester has failed to respond to said motion within the time allowed by the Rules; and it further appearing that the affected employees are represented in the proceedings relating to the citations herein by an authorized employee representative; and it further appearing that under Rule 22 of the Commission Rules of Procedure affected employees who are represented by an authorized representative may appear only through such authorized employee representative; it is now

  ORDERED, that the aforesaid motion to strike Notice of Contest is granted and the above entitled proceedings are hereby dismissed.

Ralph B. Maxwell

Judge, OSHRC

February 21, 1984

1 The judge also found that Lester had not filed a timely response to the Secretary’s motion to strike Lester’s notice of contest. We note that Lester filed his response within the period prescribed by Commission Rule 37 for responding to motions but filed his response directly with the Commission rather than with the judge.

2 Employee Lester’s notice of contest relates to other matters in addition to the abatement dates. Under 29 U.S.C. § 659(c), however, the Commission may review only the reasonableness of the abatement dates in an employee-initiated contest. International Union, UAW v. OSHRC, 557 F.2d 607, 609 (7th Cir.1977). Commission Rule 35 prescribes procedures for processing employee contests of abatement dates.

3 Section 1(g) provides:

“Authorized employee representative” means a labor organization which has a collective bargaining relationship with the cited employer and which represents affected employees.