Wean-Pori, Inc.

Plain-English summary

Wean-Pori, Inc. was issued a serious citation on May 10, 1978 alleging an electrical-grounding violation of 29 C.F.R. § 1910.309(a) (incorporating the National Electrical Code), with a proposed penalty of $420. The company timely contested, and the United Steelworkers local elected party status as the affected employees' representative. The Secretary later concluded there was insufficient evidence and moved to withdraw the citation, which Judge James D. Burroughs granted, vacating the citation and penalty. Commissioner Cottine directed review on his own motion because the judge had ruled before the 10-day response window in Commission Rule 37 had expired, raising the question whether the employee representative had a chance to be heard. The Commission, through Chairman Cleary, held the timing error harmless: the union responded and stated it did not object to the withdrawal, so it had in fact had an opportunity to be heard. The Commission affirmed the judge's order, leaving the citation and penalty vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.309(a) (incorporating National Electrical Code § 250.43(a), NFPA 70-1971)
• Outcome: Vacated. The Commission affirmed the ALJ's order granting the Secretary's motion to withdraw; the serious citation and $420 proposed penalty remain vacated.
• Key point: A judge's ruling on a withdrawal motion before Rule 37's response period expires is harmless error when the employee representative later responds and states no objection, confirming it had an opportunity to be heard.

Full text (OSHRC public release)

[Transcriber's note: The official OSHRC HTML release of this 1979 decision contains Unicode replacement characters (U+FFFD) where the section symbol (§), the CCH paragraph symbol (¶), possessive apostrophes, hyphens in docket and code-section numbers, and quotation marks originally appeared; these were lost in the source file. They are restored here from their unambiguous legal-citation context. No wording has been added or changed. The source file is named for docket 78-1468 but its text concerns docket 78-2161.]

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

    Complainant,

    v.

OSHRC DOCKET NO. 78-2161

WEAN-PORI, INC., RESPONDENT, AND UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL UNION 6082, DISTRICT 28, AUTHORIZED EMPLOYEE REPRESENTATIVE,

June 29, 1979

DECISION

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

CLEARY, Chairman:

Respondent, Wean-Pori, Inc., was issued two citations on May 10, 1978, for alleged violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (hereinafter "the Act"). Respondent, by letter dated May 12, 1978, timely contested Citation No. 1, which alleged a serious violation of 29 CFR § 1910.309(a) [1] and section 250.43(a) [2] of the National Electrical Code, NFPA 70-1971. A penalty of $420 was proposed. On May 19, 1978, the United Steelworkers of America, AFL-CIO and Local Union 6082 elected party status [3] as the authorized employee representative of the affected employees. Commission Rule 20, 29 CFR § 2200.20.

Upon further investigation, the Secretary determined that there was "insufficient evidence to establish a violation of the standard alleged. . . ." Accordingly, on July 18, 1978, the Secretary moved to withdraw the Citation and proposed penalty. In an accompanying letter to the judge, the Secretary stated that copies of the Notice of Withdrawal of Citation had been mailed both to the respondent and to the authorized employee representative. In his Order dated July 25, 1978, Judge James D. Burroughs granted the Secretary's Motion to Withdraw, and thus vacated the alleged serious Citation and proposed penalty.

On August 24, 1978, Commissioner Cottine directed the judge's Order for review sua sponte in accordance with section 12(j) of the Act, 29 U.S.C. § 661(i). The parties were requested to brief the issue of whether the authorized employee representative, having elected party status, had an opportunity to be heard on the Secretary's motion to withdraw Citation No. 1. The direction for review stated that the record failed to indicate whether the authorized employee representative assented to the withdrawal, but did reveal that the judge had ruled on the motion before the expiration of the time limit for response accorded parties under Commission Rule 37, 29 CFR § 2200.37. [4]

Although the 10-day period accorded parties by Commission Rule 37 for response to a motion had not expired before the judge granted the Secretary's motion to withdraw, it is clear from the employee representative's September 8, 1978, response to the direction for review [5] that the authorized employee representative does not object to the Secretary's withdrawal, and consequently the error in this case is harmless. [6] In the employee representative's response, the union explained that it received a copy of the Secretary's Notice of Withdrawal of Citation No. 1 on July 19, 1978, and that counsel for the Secretary advised the union of the basis for the withdrawal. On the basis of this notice, the union decided not to file any objections to the withdrawal of the Citation. The union further stated that it had therefore been "furnished with the opportunity to be heard on this question." Since the authorized employee representative has had an opportunity to be heard on the Secretary's motion for withdrawal of Citation No. 1 and has no objection to the motion, we affirm the judge's order granting the Secretary's motion. [7]

So ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: JUN 29, 1979

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

    Complainant,

    v.

OSHRC DOCKET NO. 78-2161

WEAN-PORI, INC., RESPONDENT, AND UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL UNION 6082, DISTRICT 28, AUTHORIZED EMPLOYEE REPRESENTATIVE,

July 25, 1978

ORDER GRANTING COMPLAINANT'S MOTION TO WITHDRAW

Respondent, by letter dated May 12, 1978, timely contested a serious citation issued to it on May 10, 1978. The citation alleged a violation of 29 C.F.R. § 1910.309(a), and Section 250.43(a) of the National Electrical Code, NFPA 70-1971. A penalty was proposed in the amount of $420.

On July 20, 1978, a motion to withdraw the citation was received from the complainant. The motion having been read and considered, it is

ORDERED:

1. That the motion is granted; and

2. That the serious citation and proposed penalty issued to respondent on May 10, 1978, are vacated.

Dated this 25th day of July, 1978.

JAMES D. BURROUGHS,

Judge

[1] Section 1910.309 National Electrical Code.

(a) The requirements contained in the following articles and sections of the National Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968) shall apply to all electrical installations and utilization equipment:

Sections

250-43(a) . . . Fixed equipment, Grounding, Specific.

[2] 250.43. Fixed Equipment—Specific.

Exposed noncurrent-carrying metal parts of the following kinds of equipment, regardless of voltage, shall be grounded:

(a) Frames of motors as specified in section 430-142

[3] Rule 20 Party Status

(a) Affected employees may elect to participate as parties before the commencement of the hearing before the Judge, unless, for good cause shown, the Commission or the Judge allows such election at a later time. . . .

[4] Rule 37 Response to motions.

Any party or intervenor upon whom a motion is served shall have 10 days from service of the motion to file a response.

[5] In a letter received by the Commission on September 20, 1978, the Secretary stated that he did not intend to file a brief in response to the direction for review. Instead, the Secretary explained why he had sought to withdraw the Citation, and relied on the employee representative's response to the direction for review as grounds for affirming the judge's order.

[6] In Reynolds Metals Co., 79 OSAHRC 4/A2, 7 BNA OSHC 1042 n.9, 1979 CCH OSHD ¶23,295 n.9 (No. 78-2485, 1979), the Commission noted that "parties are entitled to rely on the period allowed for the filing of responses and it is error for the judge to take action on the motion prior to the expiration of this period."

[7] Commissioner Barnako's views with respect to the right of employee representatives who have elected party status to participate in proceedings involving a motion by the Secretary to withdraw a citation are set forth in his dissenting opinion in IMC Chemical Group, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1978 CCH OSHD ¶23,149 (No. 76-4761, 1978), petitions for review docketed, Nos. 79-3018 and 79-3041 (6th Cir., Jan. 11 and 16, 1979). See also Reynolds Metals Co., 79 OSAHRC 4/A2, 7 BNA OSHC 1042, 1979 CCH OSHD ¶23,295 (No. 78-2485, 1979) (concurring and dissenting opinion); Kaiser Aluminum & Chemical Corp., 78 OSAHRC 103/A2, 6 BNA OSHC 2172, 1978 CCH OSHD ¶23,200 (No. 76-2293, 1978) (dissenting opinion), petition for review docketed, No. 79-7047 (9th Cir., Feb. 2, 1979); ITT Thompson Industries, Inc., 78 OSAHRC 70/D10, 6 BNA OSHC 1944, 1978 CCH OSHD ¶22,944 (Nos. 77-4174 & 77-4175, 1978) (concurring opinion).