Yaffe Iron & Metal Co., Inc.

Plain-English summary

This case turned on who is allowed to represent an employer in a proceeding before the Review Commission. Yaffe Iron & Metal Co. wanted to be represented by Mike Seney, a private safety consultant who was neither a lawyer nor one of the company's own officers or employees. Administrative Law Judge Chalk, acting on his own motion, ruled that a party may be represented only by an attorney or by a regular officer or employee, and he denied Seney leave to appear. The company petitioned the Commission for review, and the Secretary of Labor did not object. The Commission reversed, reading its own Rule 22 (and the Administrative Procedure Act) to allow a party to appear through a non-attorney representative, and noting that nothing in the record suggested Seney was unqualified or that his appearance would make the proceeding unfair. It vacated the judge's order and sent the case back for further proceedings. The takeaway: an employer before the Commission may choose a qualified non-attorney representative and is not limited to a lawyer or its own staff.

Decision snapshot

• Cited standard(s): None; the decision turns on Commission Rule 22 (29 C.F.R. § 2200.22) and 5 U.S.C. § 555(b), not an OSHA safety standard.
• Outcome: Procedural. The Commission vacated the ALJ's order denying the non-attorney representative and remanded the case for further proceedings.
• Key point: Under Commission Rule 22, a party may be represented by a qualified non-attorney who is not one of its own officers or employees.

Full text (OSHRC public release)

Docket No. 76-4063

YAFFE IRON & METAL COMPANY, INC.
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OSHRC Docket No. 76-4063

Occupational Safety and Health Review Commission

February 23, 1977

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Mike Seney, President United Founders Tower

OPINION:

DECISION

BY THE COMMISSION:

On October 28, 1976, Administrative Law Judge Joseph L. Chalk issued an order in this case in which he construed a document entitled "entry of appearance as representative," filed for respondent by Mr. Mike Seney, as a motion for leave to represent respondent and denied the motion.
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Respondent filed petition requesting review of the order by the Commission.
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The Secretary, responding by letter, regarded respondent's petition as an interlocutory appeal and stated that there was no objection by the Secretary to the Commission considering the issue raised by respondent.
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The Commission granted respondent's petition and invited the submission of briefs.
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The issue before us is the propriety of Judge Chalk's ruling that a respondent employer may not be represented in proceedings before this Commission by a person who is neither an attorney nor a regular officer or employee of that respondent.
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Only respondent has filed a brief.

Judge Chalk's [*2]
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order was upon his own motion on the basis of respondent's answer and an entry of appearance having been filed by Mr. Seney, President of Professional Safety, Inc.
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Seney is a private consultant who is neither an attorney nor a regular employee of respondent.
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There has been no objection by the Secretary to respondent's choice of representative.
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On the basis of Commission Rule 22, n1 which allows but does not require a party to be represented by an attorney, the Judge ruled that a party cannot be represented by ". . . any representative not legally qualified." He found the intent of the rule to be that a respondent may only be represented by an attorney or a non-attorney who is one of its regular officers or employees.
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No reasons were advanced in support of this qualification placed upon Rule 22(a).
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Judge Chalk stated only that, "[t]he Review Commission is the sole judge of the right of other qualified representatives to appear," citing 5 U.S.C. �
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555(b).

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 Commission Rule 22, 29 CFR �
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2200.22, states in relevant part as follows:

Rule 22.
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Representatives of Parties and intervenors

(a) Any party or intervenor may appear in person or through a representative.

(d) Nothing contained herein shall be construed to require any representative to be an attorney at law.

The Advance Notice of Proposed Rulemaking published by the Commission at 41 Fed. Reg. 26707 (1976) leaves unchanged those parts of the current Rule 22 relevant to this case.
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See Proposed Rule 32, 41 Fed. Reg. 26711 (1976).

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The Administrative Procedure Act clearly accords this Commission the discretion to decide who may appear before us as a representative of a party or intervenor. At 5 U.S.C. �
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555(b) it is stated that, "[t]his subsection does not grant or deny a person who is not a lawyer the right to appear for or represent others before an agency or in an agency proceeding." It also states that a party may be represented by counsel ". . . or, if permitted by the agency, by other qualified representative." The Commission has by rule decided that a party may appear through a representative who is not an attorney at law.
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See note 1 supra. Commission Rule 1(h), 29 CFR �
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2200.1(h), defines a "representative" as ". . . any person, including an authorized employee representative, authorized by a party or intervenor to represent him in a proceeding." n2

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n2 The Advance Notice of Proposed Rulemaking suggests no change in this definition.
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See Proposed Rule 1(i), 41 Fed. Reg. 26709 (1976).

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                                Footnotes- - - - - - - - - - - - - - - - -

There is nothing before us indicating that respondent's chosen representative is not qualified, n3 or that his representation would detract from the fairness of the proceeding since respondent has been afforded the right to have counsel. n4 We hold that the representative is entitled to appear on behalf of respondent pursuant to Rule 22.

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n3 We note that the Judge has not intimated that Mr. Seney is unqualified to represent respondent by reason of deficiencies in ability or experience, but only because he is not an attorney or an employee of respondent.

n4 Local Union No. 742, Unit. Broth. of Carpenters & Joiners of America v. N.L.R.B., 377 F.2d 929 (D.C. Cir. 1967); cert. denied, 389 U.S. 843 (1967).

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Accordingly, it is ORDERED that the Judge's order be vacated and the case be remanded for further proceedings.
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