Republic Steel Corp. (Commission decision, November 30, 1982)

Plain-English summary

The Secretary of Labor asked to withdraw a citation he had issued to Republic Steel, saying there was not enough evidence to prove the violation at the time and place alleged. United Steelworkers Local 1200, which had entered the case as the authorized employee representative, objected: withdrawing the citation would leave the hazardous conditions described in it uncorrected, and the union said it was ready to put on evidence proving the violation itself. Administrative Law Judge James D. Burroughs denied the withdrawal motion on those two grounds, and the case came to the Commission on interlocutory appeal.

The Commission split the question in two. On the union's standing it sided with the judge. An authorized employee representative that elects party status in time is not confined to arguing about the reasonableness of the abatement period, and as a party it may object to a motion to withdraw a citation. On the procedure it reversed him. The judge should have deferred ruling until he held a hearing on the union's objections and determined whether the withdrawal is consistent with the provisions and objectives of the Act. The Commission set aside his order and sent the case back for that hearing, noting that if he again denies the motion he must then schedule a hearing on the merits.

The union had also moved to enforce the citation in full. The Commission denied that motion: Republic had not withdrawn its notice of contest and no hearing on the merits had been held, so there was nothing to support an order affirming the citation. Chairman Rowland dissented, adhering to his view that the decision to withdraw a citation rests in the Secretary's prosecutorial discretion, and would have granted the motion outright.

Decision snapshot

• Cited standard(s): The decision does not identify the cited standard; it resolves only who may object to withdrawal and how the judge must proceed.
• Outcome: The judge's order denying withdrawal was set aside and the case remanded for a hearing on the union's objections.
• Key point: An employee party can block a quick withdrawal long enough to be heard, but the judge must decide the objection on a record rather than on the fact of the objection alone.

Full text (OSHRC public release)

Docket No. 81-656

REPUBLIC STEEL CORPORATION

OSHRC Docket No. 81-656

Occupational Safety and Health Review Commission

November 30, 1982

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

Gerald F. Penca, for the employer

John Mroczkowski, Staff Rep., USWA District No. 27, Local Union 1200, for the employees

Rudy Kogut, President, Local Union 1200, USWA, for the employees

OPINION:

DECISION

BY THE COMMISSION:

This case is before the Commission on interlocutory appeal n1 of an order entered by Administrative Law Judge James D. Burroughs denying a motion by the Secretary of Labor ("the Secretary") to withdraw a citation previously issued to and contested by Respondent, Republic Steel Corporation ("Republic").

The Secretary had based his motion on the ground that there was insufficient evidence to establish a violation of the cited standard at the time and place alleged in the citation.

However, the United Steelworkers of America, Local Union 1200 ("the Union"), an authorized employee representative, had objected to the Secretary's motion on the ground that withdrawal of the citation would leave the hazardous conditions described in the citation uncorrected.

The judge denied the Secretary's motion because (1) the Union [*2]

had objected and (2) it had asserted that it was prepared to offer evidence to establish the alleged violation.

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

n1 See Commission Rule 75, 29 C.F.R.

2200.75.

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

The judge implicitly rejected the arguments raised by the Secretary and Republic in opposition to the Union's right to object.

We affirm his disposition of these issues.

The interests of an authorized employee representative that has elected party status in a timely manner are not restricted, as Republic argues, to the reasonableness of the abatement period.

Mobil Oil Corp., 82 OSAHRC    , 10 BNA OSHC 1905, 1982 CCH OSHD P26,187 (No. 77-4386, 1982).

The Union, as a party in this case, may object to the Secretary's motion to withdraw the citation.

Cuyahoga Valley Railway Co., Docket No. 76-1188 (October 29, 1982).

Nevertheless, we conclude that the judge erred in denying the Secretary's motion to withdraw. The judge should have deferred ruling on the Secretary's motion until a hearing could be held on the Union's objections and a determination [*3]

could be made as to whether the Secretary's motion is consistent with the provisions and objectives of the Act. n2 See Cuyahoga Valley Railway Co., supra.

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

n2 If the judge again denies the Secretary's motion after a hearing on the Union's objections, he must then schedule the case for a hearing on the merits.

If the Secretary declines to prosecute the case on the merits, Commissioner Cleary would permit the Union to prosecute. Mobil Oil Corp., supra (concurring opinion).

Commissioner Cottine presumes that the Secretary will proceed appropriately on the merits if the Union's objections are found to be meritorious and the withdrawal motion is denied.

See Dunlop v. Bachowski, 421 U.S. 560, 574-76 (1975).

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

After the judge had certified this case for interlocutory appeal, the Union filed a motion to immediately enforce the citation in full.

In response, we entered an order in which we reserved a ruling on that motion pending a decision on the merits of this interlocutory appeal. Because

[*4]

Republic has not withdrawn its notice of contest of the citation and no hearing has been held on the merits of the alleged violation, we cannot enter an order affirming the citation at this time.

For this reason, the Union's motion is denied.

Accordingly, we set aside the judge's order and remand the case n3 to Judge Burroughs to consider the Union's objections to the withdrawal of the citation. n4

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

n3 We note that Commission Rule 61, 29 C.F.R.

2200.61, places strict limitations on the postponement of a hearing by a judge.

n4 Chairman Rowland adheres to his position in Mobil Oil Corp., supra (dissenting opinion) and in Cuyahoga Valley Ry. Co., supra, slip op. at p. 6 n.6.

The Chairman believes that the decision to withdraw a citation is within the prosecutorial discretion of the Secretary.

For this reason, he would reverse Judge Burroughs' order and grant the Secretary's motion to withdraw the citation.

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

SO ORDERED.