CAR AND TRUCK DOCTOR, INC.  

OSHRC Docket No. 79-454

Occupational Safety and Health Review Commission

July 30, 1980

  [*1]  

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

COUNSEL:

Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Jim Barke, President, Car and Truck Doctor, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Irving Sommer is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Judge Sommer dismissed the notice of contest of Respondent, Car and Truck Doctor, Inc., due to its failure to provide certification that affected employees had been apprised of the case by the posting of a copy of the notice of contest at the worksite. The judge's decision was directed for review by Commissioner Barnako.   We set aside Judge Sommer's decision and remand for further proceedings.

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n1 29 U.S.C. §   661(i).

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Following the issuance of two citations to Respondent, and before his complaint was filed, the Secretary of Labor ("the Secretary")   [*2]   moved to withdraw the citations.   Chief Administrative Law Judge Paul A. Tenney issued an order deferring action on the Secretary's motion to withdraw and ordered Respondent to show cause why its notice of contest should not be dismissed for its failure to certify to the Commission that a copy of the notice of contest had been posted at the workplace to inform affected employees of the pending action. n2 There being no response to Chief Judge Tenney's show cause order, Judge Sommer dismissed Respondent's notice of contest.

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n2 Commission Rule 7(g), 29 C.F.R. §   2200.7(g), requires, among other things, that a respondent post a copy of its notice of contest.

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Section 10(c) of the Act, 29 U.S.C. §   659(c), provides affected employees or their representatives the right "to participate as parties to hearings." In the absence of posting of the notice of contest, affected employees are deprived of knowledge of the pending case and are thus effectively pecluded from exercising their rights under the Act. n3

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n3 In its decisions, the Commission has held that these rights include the right to elect party status, Commission Rule 20(a), 29 C.F.R. §   2200.20(a), the right to meaningful participation in the settlement process, ITT Thompson Industries, Inc., 78 OSSHRC 70/D10, 6 BNA OSHC 1944, 1978 CCH OSHD P22,944 (Nos. 77-4174 & 77-4175, 1978), and the right to question the Secretary's withdrawal of citations, IMC Chemical Group, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1978 CCH OSHD P23,149 (No. 76-4761, 1978), appeal filed, No. 79-3041 (6th Cir. January 16, 1979).

Commissioner Barnako's views differ from those of the majority as to affected employees' right of meaningful participation in the settlement process, see, e.g., Reynolds Metals Co., 79 OSAHRC 4/A2, 2 BNA OSHC 1042, 1979 CCH OSHD P23,295 (No. 78-2485, 1979) (concurring and dissenting opinion), and as to their right to challenge the Secretary's withdrawal of citations, IMC Chemical Group, Inc., supra (dissenting opinion).

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It is possible that Respondent [*4]   failed to respond to the show cause order because it had received the Secretary's motion to withdraw the citations and concluded that the case had been resolved in its favor.   Nevertheless, the record in this case is silent as to whether Respondent's notice of contest was posted at the workplace. n4

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n4 The record also lacks a signed certified mail receipt demonstrating that Respondent received the show cause order.

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The posting of the notice of contest at the worksite by the contesting employer is necessary to protect the rights of affected employees. In this case however, the Respondent's failure to post the notice of contest may have been prompted by the Secretary's motion to withdraw. Under these circumstances we conclude that affirming the alleged violations, which the Secretary seeks to withdraw, is unwarranted.

Accordingly, the case is remanded to the judge for the purpose of ordering Respondent to post its notice of contest, and submit proof of posting. The judge's order should note that if these actions [*5]   are not taken, Respondent's notice of contest will be dismissed and the effect of this will be to uphold the citations and proposed penalties.   The order also should note that the judge cannot act on the Secretary's motion to withdraw the citations unless Respondent posts its notice of contest and provides proof of posting.

SO ORDERED.