The Baltimore & Ohio Railroad Co. (Commission decision, September 30, 1982)

Plain-English summary

The railroad withdrew its notice of contest after the Secretary reported that the dispute had been resolved. The affected employees' union had already elected party status, but the judge did not learn that fact until after affirming the citation and cancelling the hearing. The union maintained that all matters were not resolved and still wanted to participate. The Commission set aside the judge's order and remanded so the union's objections could be considered.

Decision snapshot

• Cited standard(s): None identified in the Commission order.
• Outcome: The judge's order was set aside and the case remanded for consideration of the union's apparent objections and any appropriate further proceedings.
• Key point: On this record, the Commission could not conclude that the union had an adequate chance to participate, so it returned the case for consideration of its objections.

Full text (OSHRC public release)

Docket No. 82-458

THE BALTIMORE & OHIO RAILROAD COMPANY

OSHRC Docket No. 82-458

Occupational Safety and Health Review Commission

September 30, 1982

COUNSEL:

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Office of the Solicitor, USDOL

William S. Kloepfer, Assoc. Reg. Sol., USDOL

Stevens B. Garfunkel, Assistant General Solicitor, Chessie System Railroads, for the employer

H. H. Gahr, Brotherhood Railway Carmen of the United States & Canada and William D. Crawford, Gen. Vice Pres., Brotherhood Railroad Carmen of the United States & Canada, for the employees

OPINION:

ORDER

A September 3, 1982 letter from the Authorized Employee Representative (hereafter "union") to the Commission was construed as a petition for discretionary review and granted by Commissioner Cleary on September 17, 1982.

The record indicates that on May 11, 1982, the union sent the Secretary a notice of intent to participate in the hearing in this case.

This letter is properly construed as an election of party status.

See IMC Chemical Group, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 2076 n. 4, 1978 CCH OSHD P23,149, p. 27,989 n. 4 (No. 76-4761, 1978) rev'd on other grounds, 635 F.2d 544 (6th Cir. 1980).

On August 9, 1982, having been advised by the Secretary that "all matters in dispute had been amicably resolved," Administrative Law Judge Burroughs cancelled the hearing which was scheduled for the next [*2]

day, August 10.

On August 18, the citation was affirmed based on Respondent's motion to withdraw its notice of contest.

By letter dated August 18, the Secretary for the first time notified Judge Burroughs that the union had elected party status in this case.

The Judge then notified the Authorized Employee Representative that prior to granting the Respondent's motion to withdraw he had been unaware of the union's election of party status.

He advised the union that any objection to the disposition of the case should be filed with the Commission.

The union asserts in its September 3 letter that "all matters [have not] been resolved" in this case and expresses its continuing desire to take part in a hearing.

We cannot conclude on the present record that the union has had an adequate opportunity to participate as a party in these proceedings.

Accordingly, we set aside the Judge's order of August 18, 1982, and remand the case to him to consider the union's apparent objections * and for any further proceedings that may be appropriate.

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• For the reasons stated in his dissenting opinion in Mobil Oil Co., 10 OSHC 1905, 1982 CCH OSHD P26,187 (No. 77-4386, 1982), Chairman Rowland believes that the only cognizable objections the union may raise relate to the period for abatement contained in the citation.

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IT IS SO ORDERED.