UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 79–3136
CONSOLIDATED FREIGHTWAYS,
Respondent.

April 27, 1981

DECISION

Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

The Secretary of Labor (‘the Secretary’) has moved to vacate the administrative law judge’s decision granting the Secretary’s motion to vacate the citation. The Respondent, Consolidated Freightways (‘CF’), opposes the motion and has filed a motion to dismiss the Secretary’s motion and to affirm the judge’s decision. We deny the Secretary’s motion and affirm the judge’s decision.

I

On May 30, 1979, the Secretary issued a citation alleging that CF violated section 5(a)(1), 29 U.S.C. § 654(a)(1), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). The inspection that gave rise to the citation was apparently precipitated by a complaint from a CF employee, Mr. Raymond Carpenter. The citation alleged that seats in four of CF’s trailer-pulling tractors did not provide protection from injury because a steel bar that extends along the rear edge of the seat was not ‘properly covered.’ CF contested the citation and certified that a copy of the notice of contest was served upon ‘Teamsters Local 413’ in Columbus, Ohio. A complaint and answer were later filed.

After discussions were held between counsel for the Secretary and counsel for CF, the judge, on December 28, 1979, received from CF a motion by the Secretary to vacate the citation under Federal Rule of Civil Procedure 41(a)(2).[1] CF certified that the motion to vacate was posted at the worksite where the alleged violation occurred. The notice that was apparently posted with the motion stated that any employee or an authorized employee representative ‘should communicate . . . objections [to the motion] within ten (10) days of the posting of this Agreement’ to the Commission’s Executive Secretary, Ray H. Darling, Jr.[2]

On January 11, 1980, Administrative Law Judge James D. Burroughs issued and filed a decision granting the Secretary’s motion to vacate the citation. The judge noted that [p]rior to the scheduled hearing, the parties advised that all matters in dispute had been amicably resolved.’

On January 7, 1980, the Commission’s Executive Secretary received a letter from Mr. Carpenter, which was also signed by four Mr. Carpenter’s fellow employees. The letter requested that the vacation of the citation be reconsidered. It stated in part that ‘[t]here is a definite problem here that should get a ‘day in court’. To do otherwise is vacating the intent as well as substance of OSHA, . . . and the faith of working men and women that they do indeed have a right to ‘a safe place to work’.’ The letter represented that the cited condition had injured Mr. Carpenter as well as another employee. The Executive Secretary forwarded the letter to Judge Burroughs, who received it on January 15, 1980. Judge Burroughs then sent a memorandum to the Commission’s Associate General Counsel for the Division of Central Review suggesting that ‘the Commission may want to consider the objection by the employees prior to letting the order to vacate become a final order.’

On February 11, 1980, Commissioner Cottine signed, and the Executive Secretary received, a direction for review under section 12(j) of the Act, 29 U.S.C. § 661(i). The direction stated that the following issues were to be considered:

1. Whether the Order Granting Complainant’s Motion to Vacate should be vacated and the case remanded for further proceedings because objections to the motion from affected employees were not considered by the administrative law judge.*

2. Whether the objections of affected employees were timely filed.

3. Whether the affected employees in this case are ‘represented’ by an authorized employee representative within the meaning of Commission Rule 22(c), 29 C.F.R. § 2200.00(c).

4. If affected employees are represented by an authorized employee representative, whether these employees are precluded by Commission Rule 22(c), 29 C.F.R. § 2200.22(c), from individually filing objections to the Complainant’s Motion to Vacate.

5. Whether affected employees have been afforded a sufficient opportunity to be heard before the Judge on the Complainant’s Motion to Vacate.

*The objections were not considered by Judge Burroughs because they were filed with the Executive Secretary of the Commission rather than with the judge.

II

On January 9, 1981, the Secretary filed a motion to vacate the judge’s decision. The Secretary asserted that he ‘now wishes to withdraw his Motion to Vacate.’ He noted that affected employees have objected to the vacation of the citation. He explained that although his motion to vacate the citation was based upon his belief that he could not satisfy his burden of proof under any circumstances, he has since ‘discovered additional information which convinces him that the citation can be sustained if it is amended to allege a violation of 29 C.F.R. § 1910.132(a),’ the protective equipment standard. The Secretary also moved to amend the citation to allege a violation of the standard at section 1910.132(a).

CF filed a memorandum in opposition to the Secretary’s motion. CF argues that the effect of the Secretary’s motion is to vest affected employees ‘with a right of private action in their favor.’ It cites Marshall v. OSHRC (IMC Chemical Group, Inc.), 635 F.2d 544 (6th Cir. 1980), and Taylor v. Brighton Corp., 616 F.2d 256 (6th Cir. 1980), for the proposition that the Act does not create such a right of action. CF maintains that neither the Secretary’s motion nor the employees’ objection to the judge’s decision were filed within 10 days after the posting of ‘the agreement to vacate.’ CF objects to the Secretary’s motion to amend on the grounds that: (1) it states ‘an additional and separate distinct basis for liability’ that is barred by the six-month limitations period in section 9(c) of the Act, 29 U.S.C. § 658(c); and (2) it fails to meet the requirements of Commission Rule 33(a)(3), 29 C.F.R. § 2200.33(a)(3), in that it does not set forth the reason for the requested amendment or state with particularity the change sought. CF claims that it has been prejudiced by the delay in the amendment ‘both in fact relative to the production of witnesses and other evidence and in law in that this matter was legally ‘dismissed’.’ It cites Cornell & Co. v. OSHRC, 573 F.2d 820 (3d Cir. 1978). CF also argues that ‘the Secretary is barred from relitigating that which has already been litigated.’ It points to the conference between counsel for CF and counsel for the Secretary, the preparation for a hearing (including discovery), negotiations, and the judge’s decision vacating the citation. It cites the Sixth Circuit’s IMC decision for the proposition that neither the Commission nor affected employees may question the Secretary’s exercise of prosecutorial discretion, i.e., his motion to vacate the citation. CF argues that it therefore follows that the Secretary may not on review reverse his original position, and that the principle of res judicata applies. It also argues that to now allow the Secretary to reverse his position ‘would be tantamount to a confirmation and approval of a gross abuse of prosecutorial discretion by the Secretary and/or this Commission.’ Finally, CF maintains that Commissioner Cottine’s direction for review was untimely because it was filed on the thirty-first day after the judge’s decision was filed.

III

We first consider CF’s claim that the direction for review is untimely. The judge’s decision was filed on January 11, 1980. The thirtieth day thereafter, February 10, 1980, was a Sunday. The direction for review was received by the Executive Secretary on the next business day, Monday, February 11, 1980.

Section 12(j) of the Act, 29 U.S.C. § 661(i), states that a judge’s report ‘shall become the final order of the Commission within thirty days after such report . . ., unless within such period any Commission member has directed that such report shall be reviewed by the Commission.’ Commission Rule 90 implements and substantially interprets section 12(j). The rule states:

§ 2200.90 Decisions and reports of Judges.

(a) Upon completion of any proceeding, the Judge shall prepare a decision. When a hearing is held the decision shall comply with 5 U.S.C. 557. Copies of the decision shall be mailed to all parties. Thereafter, the Judge shall file with the Executive Secretary a report consisting of his decision, the record in support thereof, and any petitions for discretionary review of his decision, or statements in opposition to such petitions, that may be filed in accordance with § 2200.91. The Judge shall file his report on the day following the close of the period for filing petitions for discretionary review, or statements in opposition to such petitions, but no later than the twenty-first day following the date of the mailing of the decision to the parties.

(b) (1) Promptly upon receipt of the Judge’s report, the Executive Secretary shall docket the case and notify all parties of that fact. The date of docketing shall be the date that the Judge’s report is made for purposes of section 12(j) of the Act (29 U.S.C. 661).

(2) On or after the date of docketing of the case, all pleadings or other documents that may be filed in the case shall be addressed to the Executive Secretary.

(3) In the event no Commission Member directs review of a decision on or before the thirtieth day following the date of docketing of the Judge’s report, the decision of the Judge contained therein shall become a final order of the Commission.

Subsection (b)(3) of the rule does more than merely reiterate the thirty-day review period in section 12(j). It interprets the last day of the review period provided in section 12(j) to be ‘the thirtieth day following the date of docketing of the Judge’s report.’ Commission Rule 4(a), 29 C.F.R. § 2200.4(a), which applies to ‘any period of time prescribed or allowed in these rules’ and therefore applies to the time period prescribed by Commission Rule 90(b)(3), states in part:

§ 2200.4 Computation of time.

(a) In computing any period of time prescribed or allowed in these rules, the day from which the designated period begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or Federal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or Federal holiday . . ..

Together these rules provide a uniform and well-understood method for computing time periods in Commission proceedings that comports with the usual rule in administrative and federal practice.[3] For example, by reading the rules together with section 12(j), parties are apprised that in computing the last day of the thirty-day review period, the date of docketing of the judge’s decision is not included, and that if, as in this case, the last day falls on a Sunday, the next working day is considered the thirtieth day of the review period.

We also conclude that this view of section 12(j) is a permissible one. Although Congress wrote into the Act various time periods, there is no indication that it intended the thirty-day period in section 12(j) to be treated any differently than similar periods are treated under other statutes. Indeed, Congress itself made permissible the application of the usual rule embodied in Federal Rule of Civil Procedure 6(a), supra note 2, for in section 12(g) of the Act, supra note 1, it made the federal rule applicable ‘unless the Commission has adopted a different rule.’ See Union National Bank v. Lamb, 337 U.S. 38, 40–41 (1949). We therefore hold that the direction for review was timely.

IV

We now turn to the questions posed by the direction for review. We disregard the letter filed by the affected employees because it appears from the employees’ letter and from CF’s certification of posting of the notice of contest that Teamster’s Local 413 is the authorized representative of the affected employees. Under Commission Rule 22(c), 29 C.F.R. § 2200.22(c),[4] these employees may not represent themselves in Commission proceedings. See Babcock & Wilcox Co., 80 OSAHRC 95/A2, 8 BNA OSHC 2102, 2106, 1980 CCH OSHD ¶ 24,812 at pp. 30,565–6 (No. 78–446, 1980). We also note that Teamster’s Local 413 has never elected party status or intervened under Commission Rules 20(a) or 21, 29 C.F.R. §§ 2200.20(a) and 2200.21(a). Inasmuch as Commission Rule 7(a), 29 C.F.R. § 2200.7(a), requires papers to be served only upon parties and intervenors, the lack of service upon affected employees and their union does not furnish a ground for reversal. Furthermore, the exception to the general rule of Commission Rule 7(a) found in Commission Rule 100(c), 29 C.F.R. § 2200.100(c),[5] does not apply here because that rule applies only to settlements. The Secretary therefore was not required to serve the motion to vacate the citation upon the affected employees or Teamsters Local 413, nor was Judge Burroughs obliged to give them an opportunity to object to the motion.

V

We deny the Secretary’s motion to vacate the judge’s decision. The Secretary does not allege that the judge erred in granting the Secretary’s motion to vacate the citation, nor does the Secretary claim that he had good cause for not discovering that there was ground to support his case while the matter was before the judge. The Secretary did not file a petition for discretionary review with the Commission alleging that he had newly discovered evidence warranting a resumption of prosecution, and review of that issue was not ordered in the direction for review. The Secretary’s change of mind simply has come too late.

The Secretary’s responsibility as a litigant required him to evaluate the merits of his case when this case was before the judge. Commission Rule 92(d), 29 C.F.R. § 2200.92(d), under which this case was directed for review, states a common rule of orderly procedure: ‘Except in extraordinary circumstances, the Commission’s power to review is limited to issues of law or fact raised by the parties in the proceedings below.’ Commission Rule 91(b)(4), 29 C.F.R. § 2200.91(b)(4), expresses disfavor upon a party’s attempt to repudiate before the Commission a disposition that he consented to before the judge. The rule states that ‘[i]n the case of proposed settlements or other proposed dispositions by consent of all parties, petitions for discretionary review shall not be allowed, except for good cause shown.’ The Secretary did not even attempt to come under this rule by filing a petition for discretionary review within the time to do so, and we can find no extraordinary circumstances that would warrant consideration on review of the new matter raised by the Secretary. Not only does the Secretary’s motion not allege good cause for not discovering the merits of his case when it was before the judge, the record does not colorably indicate good cause. From all that appears in the record, the Secretary’s belated attempt to change course was precipitated by the protest of affected employees to the Commission.

While it is the Secretary’s duty to defend employee safety and health, it is the Commission’s responsibility to ensure that cases brought under the Act are impartially adjudicated in a manner consistent with orderly procedure. The Secretary should remain mindful that there is a substantial public interest in orderly procedure, and that his goal of ensuring employee safety and health is not likely to be achieved if the Commission’s adjudication process does not work smoothly and impartially. Although we have long stressed the public interest in deciding cases on their merits, that interest is outweighed in this case by the need for finality. See Seattle Crescent Container Service, 79 OSAHRC 91/A2, 7 BNA OSHC 1895, 1899, 1979 CCH OSHD ¶24,002, p. 29,133 (No. 15242, 1979).[6]

Accordingly, the motion to vacate the judge’s decision is denied, and the judge’s decision is affirmed.

SO ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: APR 27 1981

COTTINE, Commissioner, Concurring in part and dissenting in part:

I concur in Part III of the lead opinion and its holding that the direction for review was timely. However, I dissent from Parts IV and V of the majority opinion concluding that the letter of protest from the affected employees must be disregarded and the Secretary’s motion to vacate the judge’s decision should be denied.

My colleagues treat this case as involving little more than a series of missteps by the Secretary. They do this by completely disregarding the letter filed by the affected employees on the ground that under Babcock & Wilcox Co., 80 OSAHRC 95/A2, 8 BNA OSHC 2102, 1980 CCH OSHD ¶24,812 (No. 78–446, 1980), the affected employees have no right to be heard because they are represented for collective bargaining purposes by a union. The majority’s application of Babcock & Wilcox to this case confirms my view that this unfortunate precedent compromises the statutory right of participation for employees.

Section 10(c) of the Act, 29 U.S.C. § 659(c), requires this Commission to provide affected employees or their representatives with an opportunity to participate as parties.[7] This right was provided by Congress as a valuable mechanism to assure safe and healthful working conditions. Section 2(b), 29 U.S.C. § 651. Moreover, the statutory purposes of prevention and abatement of workplace hazards will be achieved in this case only if the participatory rights of the affected employees are given effect here. Accordingly, I would treat the letter filed by the affected employees with the Commission as a timely election of party status under Commission Rule 20(a), 29 C.F.R. § 2200.20(a), and I would consider the Secretary’s motion in light of the representations of the affected employees.[8]

The diligence of the affected employees in this case cannot be overlooked. This inspection was precipitated by a complaint to the Occupational Safety and Health Administration by Raymond Carpenter, one of the affected employees. It was only when the motion to vacate the citation was posted at their workplace that the affected employees learned that the Secretary would no longer pursue the citation resulting from the inspection. However, the notice that was apparently posted with the motion led the affected employees to believe that they should file their objections with the Commission’s Executive Secretary. As my colleagues observe in footnote 2 of their opinion, this notice was misleading because the Commission’s rules require papers to be filed with the judge, not the Commission, when the case is pending before the judge. In this case, the affected employees filed, and the Commission’s Executive Secretary received, their letter objecting to vacation of the citation before the judge acted on the Secretary’s motion to vacate.[9] Had the notice accompanying the motion to vacate the citation accurately informed the affected employees of where their objections should have been filed, Judge Burroughs would have had the views of the affected employees before him when he considered the Secretary’s motion. In addition, the Secretary’s trial attorney would have been able to consider the employees’ views before the judge acted.

My colleagues emphasize that the Secretary should diligently prosecute litigation and that there is a public interest in expeditiously bringing litigation to an end. I share this concern regarding finality, and I would join in their disposition if the Secretary had pursued this matter alone. But there is another statutory party before us who has attempted diligently and vigorously to participate in this litigation. Moreover, my colleagues concede that on the basis of the record it appears that, ‘the Secretary’s belated attempt to change course was precipitated by the protest of affected employees to the Commission.’ The public interest militates against viewing this case as a mere lack of prosecutorial diligence by the Secretary. First, it is the affected employees whose safety and health are at risk from the allegedly hazardous condition and whose participatory rights are guaranteed by the statute. Second, it is the longstanding practice of the Commission to favor the disposition of cases on their merits. See, e.g., Duquesne Light Co., 80 OSAHRC 32/B7, 8 BNA OSHC 1218, 1222, 1980 CCH OSHD ¶24,384 at p. 29,719 (No. 78–5034, 1980). This policy favoring decisions on the merits not only effectively preserves the parties’ opportunity to be heard, but also advances the primary purpose of the Act in preventing workplace hazards and resultant injuries, see, e.g., Marshall v. Western Electric, Inc., 565 F.2d 240, 245 (2d Cir. 1977); Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649, 653 (8th Cir. 1976).

According to the affected employees’ letter and the attached materials, CF employees drive tractor trailer trucks having seats that cause injury to the employees when the tractors are driven on rough roads. The seats are alleged to have inadequately padded steel parts that injured Mr. Carpenter and other drivers. The affected employees state:

‘I hit that bar so hard I thought I was going to pass out.’

‘I hit a hole in that yard out there and came down [on the seat] and busted my tailbone on that bar.’

‘I drove that [tractor] one day. The next, I turned it down. They might fire me, but I’m not going to drive it . . ..’

‘There is a severe pain up on the outside of my tailbone . . .. I’ve never had any problem with my tailbone before these seats . . .. I can’t sit on a stuffed cushion [now] . . .. I can’t lie on my back. It hits the spot.’

Indeed, the Secretary’s complaint characterized the alleged violation here as ‘serious’ because there was a ‘substantial probability that death or serious physical harm could result’ from the condition of the seats.

I would remand this case to the judge for further proceedings so that this case can be decided on its merits. As the affected employees state, ‘[t]o do otherwise is vacating the intent as well as the substance of [the Act], its regulations, and the faith of working men and women that they do indeed have a right to ‘a safe place to work’.’

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 79–3136
CONSOLIDATED FREIGHTWAYS,
Respondent.

January 11, 1980

ORDER GRANTING COMPLAINANT’S MOTION TO VACATE

Respondent, by letter dated June 12, 1979, from its counsel, contested a serious citation issued to it on May 30, 1979. The citation alleged a violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 and proposed a penalty of $630.00.

Prior to the scheduled hearing, the parties advised that all matters in dispute had been amicably resolved. On December 28, 1979, a motion to vacate was received from counsel for the complainant. The motion having been read and considered, it is

ORDERED:

1. That the motion to vacate is granted;

2. That the serious citation issued to respondent on May 30, 1979, and the penalty proposed for the alleged violation are vacated.

Dated this 11th day of January, 1980.

JAMES D. BURROUGHS

Judge

---

[1] Section 12(g) of the Act, 29 U.S.C. § 661(f), states that ‘[u]nless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure.’ Commission Rule 2(b), 29 C.F.R. § 2200.2(b), states that ‘[i]n the absence of a specific provision, procedure shall be in accordance with the Federal Rules of Civil Procedure.’ Inasmuch as there is no Commission rule on voluntary dismissals, the Secretary proceeded under Federal Rule 41(a)(2).

[2] Commission Rule 8(a), 29 C.F.R. § 2200.8(a), provides that after a case is assigned to a judge and before the judge’s decision is issued, all papers should be filed with the judge. Only after the judge’s decision is issued are papers to be filed with the Executive Secretary.

[3] In Sherwood Brothers, Inc. v. District of Columbia, 113 F.2d 162, 163–4 (D.C. Cir. 1940) (tax statute; claim for refund filed with tax appeals board), the court stated:

Business practice and accepted legal principle, apart from statute, permit and in some instances require an act to be done on the following Monday where the last day upon which it should have been done falls on Sunday. That is the common-law, and it has become embedded in the habits and customs of the community, both from respect for religious considerations and by long-established legal and commercial tradition. It would be reasonable, therefore, to assume that Congress had the common-law rule in mind when it legislated, and to construe the statute accordingly. Various state courts have interpreted state temporal statutes in this manner. Many states have enacted statutes for computation of time which expressly exclude the final Sunday. The Federal Rules of Civil Procedure, 29 U.S.C.A. following section 723c, do likewise. Rule 6(a). And the only decisions of the Supreme Court bearing on the problem which have come to our attention follow the same rule. [Citations omitted.] It has the support, therefore, of controlling authority, as well as of tradition, fairness and convenience . . .. [Footnotes omitted.]

Federal Rule of Civil Procedure 6(a) is similar to Commission Rule 4(a), except that the federal rule also expressly applies to periods prescribed or allowed ‘by any applicable statute.’

[4] The rule states:

§ 2200.22 Representatives of parties and intervenors.

(c) Affected employees who are represented by an authorized employee representative may appear only through such authorized employee representative.

Commission Rule 1(g), 29 C.F.R. § 2200.1(g), defines ‘Authorized employee representative’ as ‘a labor organization which has a collective bargaining relationship with the cited employer and which represents affected employees.’

[5] The rule states:

§ 2200.100 Settlement

(c) Filing; service and notice. When a settlement proposal is filed with the Judge or Commission, it shall also be served upon represented and unrepresented affected employees in the manner prescribed for notices of contest in § 2200.7. Proof of service shall accompany the settlement proposal. A settlement proposal shall not be approved until at least 10 days following service of the settlement proposal on affected employees.

[6] Cf. Marshall v. Northern Concrete Block, Inc., 636 F.2d 26 (2d Cir. 1980) (no abuse of discretion in vacating citation for Secretary’s failure to diligently prosecute).-*

[7] In Babcock & Wilcox, I stated that the proper interpretation of the statute and the Commission’s rules of procedure is that individual employees are prevented from participating in our proceedings only when their authorized employee representative elects party status and actually represents the affected employees before the Commission. 8 BNA OSHC at 2109, 1980 CCH OSHD at p. 30,569.

[8] Commission Rule 20(a) freely permits affected employees to elect party status at any time before the hearing begins. Since no hearing has been held, they may freely elect party status. Furthermore, the affected employees’ letter is properly treated as an election of party status. See, e.g., IMC Chemical Group, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 2076 n.4, 1978 CCH OSHD ¶ 23,149, p. 27,989 n.4 (No. 76–4761, 1978), rev’d on other grounds, 635 F.2d 544 (6th Cir. 1980).

[9] Under Commission Rule 8(c), 29 C.F.R. § 2200.8(c), filing is effected upon mailing.