United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor 

Washington, DC 20036-3457 

 

SECRETARY OF LABOR,

Complainant, 

v. OSHRC DOCKET NOS. 

# 16-1899 (inspection no. 1149674), 

# 16-2006 (inspection no. 1151844) 

FUYAO GLASS AMERICA, INC., 

 Respondent. 

 

ORDER DENYING REQUEST FOR PARTY STATUS 

By letter dated December 14, 2016, the International Union, United Automobile, 

Aerospace & Agricultural Implement Workers of America – UAW requested election of party 

status on behalf of workers of Fuyao Glass America, Inc., Respondent herein, regarding the 

above captioned cases, inspection numbers 1149674 and 1151844 (Request).1 Respondent 

objected (Objection). The Secretary filed a brief response taking no position regarding 

Respondent’s objection.

2

 For the reasons discussed below, the UAW’s December 14, 2016 

Request for party status in the above captioned cases is denied. 

 

1

 The December 14, 2016 election of party status was a resubmission of the UAW’s November 14, 2016 

request for party status, regarding OSHA inspection numbers 1149674 and 1151844. The November 14, 

2016 request inadvertently was not properly served on Respondent’s representatives. On December 8, 

2016, due to an apparent administrative error, the UAW’s November 14, 2016 request for party status 

inadvertently was granted. Respondent objected to the grant of party status. By Order, also dated 

December 8, 2016, the Order granting party status was vacated by Chief Judge Rooney. 

2 The Secretary’s response states that “nothing in the Commission’s Rules of Procedure places the onus 

upon the Secretary to notify parties about an employee representative’s decision to elect party status.” 
2 

Background 

The Cincinnati Ohio Area Office of the Occupational Safety and Health Administration 

(OSHA) conducted an inspection of the Fuyao Glass America, Inc. worksite, located at 2801 

Stroop Road, Moraine, Ohio 45439, between May 24, 2016 and September 21, 2016. The 

designated OSHA inspection number is 1149674. On October 6, 2016, OSHA issued a two

item serious citation, a one item other than serious citation, and a notification of penalty 

(citation). The citation alleges violations of general industry standards regarding the use of 

personal protective equipment for hands (29 C.F.R. § 1910.132(a)), maintenance and ready 

accessibility to the material safety data sheet for Betaseal Glass Primer (29 C.F.R. 

§ 1910.1200(g)(8)), and written certification of the required workplace hazard assessment 

regarding required personal protective equipment: gloves (29 C.F.R. § 1910.132(d)(2)). The 

total penalty proposed is $23,160.00. 

Respondent filed a timely notice of contest on November 8, 2016. Respondent’s notice 

of contest was docketed with the Occupational Safety and Health Review Commission 

(Commission) on November 15, 2016, as case no. 16-1899. Thereafter, the Complaint was filed 

on December 5, 2016. The Answer was filed on December 8, 2016. 

OSHA conducted another inspection at the same Fuyao worksite, located in Moraine, 

Ohio, between May 24, 2016 and October 27, 2016. The designated OSHA inspection number is 

1151844. On October 31, 2016, OSHA issued an eleven item serious citation, with subparts, and 

a notification of penalty (citation). The citation alleges violations of general industry standards 

regarding stair treads on fixed industrial stairs (29 C.F.R. § 1910.24(f)), exit signage (29 C.F.R. 

§ 1910.37(b)(4)(5)), protective helmets where there is a potential for head injuries from falling 

objects (29 C.F.R. § 1910.135(a)(1)), machine specific procedures for the control of potentially 

hazardous energy (29 C.F.R. § 1910.147(c)(4)(i)), locks and tags to attach to energy isolating 

devices (29 C.F.R. § 1910.147(c)(5)(i)), employee training on the safe application, usage and 

removal of energy isolating devices (29 C.F.R. § 1910.147(c)(7)(i)), following established 

procedures for the application of energy control (the lockout or tagout procedures) (29 C.F.R. 

§ 1910.147(d)), machine guarding (29 C.F.R. § 1910.212(a)(1)), working space for electrical 

equipment likely to require examination, adjustment, servicing, or maintenance while energized 

(29 C.F.R. § 1910.303(g)(1)(i)), ready accessibility to an overcurrent device (29 C.F.R. 

§ 1910.304(f)(1)(iv)), and portable electric equipment and flexible cords used in highly 
3 

conductive work locations (29 C.F.R. § 1910.333(a)(4)). The total penalty proposed is 

$131,836.00. 

Respondent filed a timely notice of contest on November 15, 2016. Respondent’s notice 

of contest was docketed with the Commission on December 1, 2016, as case no. 16-2006. 

Thereafter, the Complaint was filed on December 5, 2016. The Answer was filed on December 

8, 2016. 

On December 12, 2016, Chief Judge Rooney issued an Order consolidating the above 

captioned cases with four additional cases pending before the Commission, involving the same 

parties. Further, this Order transferred the consolidated cases to Mandatory Settlement 

Proceedings. 

The UAW’s Party Status Request 

In the December Request, the UAW stated that it was electing party status on behalf of 

the workers at Fuyao Glass America in Moraine, Ohio, regarding OSHA inspection numbers 

1149674 and 1151844. The Request stated that Andrew Comai, Assistant Director Health & 

Safety Department International Union, UAW, is “the designated personal representative for 

health and safety issues of eleven employees at the Fuyao facility, including complainant 

Cynthia Harper.” Further, “[t]hese employees’ written designation of Mr. Comai as their 

personal representative [was] submitted to Ken Montgomery, Area Director of OSHA’s 

Cincinnati office, on August 10, 2016. These employees seek to participate in the hearing over, 

and possible resolution of, the citations in this case.” See UAW Request, p. 2, ¶ 1. 

In addition, the UAW noted that pursuant to Commission Rule 22(c)3 employees who are 

not members of a collective bargaining unit may elect to participate in proceedings before the 

Commission. “[A]ffected employees may effectuate their statutory rights via a representative 

such as Mr. Comai.” See UAW Request, p. 2, ¶ 2. 

Respondent’s Objection 

Respondent asserts that the UAW is not an “authorized employee representative” of 

Respondent’s employees pursuant to the Commission Rules. The UAW has no collective 

bargaining relationship with Respondent’s employees. The UAW has not obtained 

representative status of Respondent’s employees. There is no collective bargaining agreement 

between Fuyao and the UAW. See Objection p. 2. See also Commission Rules 1(g); 22(b).

 

3

 Occupational Safety and Health Review Commission Rules of Procedure, 29 C.F.R. § 2200.00 et seq. 
4 

Also Respondent asserts that the allegedly affected Fuyao employees, referenced in the 

UAW’s December Request, have not made an individual appearance in the above captioned 

Commission proceedings. There is no filing in the Commission proceedings stating that these 

Fuyao employees agreed to be represented by UAW Attorney Ava Barbour or Andrew Comai. 

Respondent states that the allegedly affected Fuyao employees are not identified by name or 

other identifier and there is no evidence that the alleged Fuyao employees are “affected 

employees” pursuant to the Commission Rules. See Objection pp. 3-4. See also Commission 

Rules 1(e); 22(a) and (c).

Discussion 

 The Occupational Safety and Health Act4 provides that affected employees or 

representatives of affected employees shall have the opportunity to participate in proceedings 

before the Commission. “The rules of procedure prescribed by the Commission shall provide 

affected employees or representatives of affected employees an opportunity to participate as 

parties to hearings under this subsection.” Section 10(c) of the Act; 29 U.S.C. § 659(c). 

Commission Procedural Rules5 effectuate this directive. Commission Rule 20(a) “Party 

status” states: “Affected employees. Affected employees and authorized employee 

representatives may elect party status concerning any matter in which the Act confers a right to 

participate.” 

Affected employees and representatives of affected employees have the right to 

participate as parties in Commission hearings. Further, Commission precedent accords affected 

employees and their authorized representatives, who have elected party status, the right to 

“meaningful participation” in the settlement process. See Boise Cascade Corp., 14 BNA OSHC 

1993, 1994-99 (No. 89-3087, 1991)(consolidated); Gen. Elec. Co., 14 BNA OSHC 1763, 1764-

66 (No. 88-2265, 1990); Kaiser Aluminum & Chem. Corp., 6 BNA OSHC 2172, 2173 (No. 76-

2293, 1978). See also Commission Rule 100(c). 

Commission Rules define the terms “affected employee” and “authorized employee 

representative.” Commission Rule 1(e) states: “Affected employee means an employee of a cited 

employer who is exposed to or has access to the hazard arising out of the allegedly violative 

circumstances, conditions, practices or operations.” 

 

4

 Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (the Act). 

5 See note 3 above. 
5 

Commission Rule 1(g) states: “Authorized employee representative means a labor 

organization that has a collective bargaining relationship with the cited employer and that 

represents affected employees. “ 

Commission Rules describe the election of party status by affected employees in a 

collective bargaining unit, as follows: 

Affected employees in collective bargaining unit. Where an authorized employee 

representative [see Commission Rule 1(g)] elects to participate as a party, affected 

employees who are members of the collective bargaining unit may not separately 

elect party status. If the authorized employee representative does not elect party 

status, affected employees who are members of the collective bargaining unit may 

elect party status in the same manner as affected employees who are not members 

of the collective bargaining unit. See [Commission Rule 22(c)]. 

Commission Rule 22(b). See Ga.-Pac. Corp., 15 BNA OSHC 1127, 1129 (No. 89-2713, 1991); 

United States Steel Corp., 11 BNA OSHC 1361, 1364 (No. 80-2425, 1983). See also Rules of 

Procedure, 51 Fed. Reg. 23184, 23185 (proposed June 25, 1986) (to be codified at 29 C.F.R. 

Part 2200) (proposing an expansion of the rule “to allow members of collective bargaining units 

to elect party status if the authorized employee representative does not so elect.”) 

Commission Rule 22(c) also specifically describes the election of party status by affected 

employees who are not in a collective bargaining unit. “Affected employees not in a collective 

bargaining unit. Affected employees who are not members of a collective bargaining unit may 

elect party status under [Commission Rule 20(a)]. If more than one employee so elects, the 

Judge shall provide for them to be treated as one party.” 

A conference call was held, on December 21, 2016, with Counsel for the Secretary Hema 

Steele, Counsel for Respondent Mary Lentz, Cassandra Rice and Micah Siegal, and Counsel for 

the UAW Ava Barbour, to discuss the UAW’s requested election of party status. During the call, 

Ms. Barbour confirmed that the UAW does not have a collective bargaining relationship with 

Fuyao, the cited employer. Absent a collective bargaining relationship between the UAW and 

Respondent, the UAW’s request for party status in the above captioned cases is denied. During 

the call, Ms. Barbour and counsel for the parties were so advised. 

It is the absence of a “collective bargaining relationship” between the UAW, a labor 

organization, and Fuyao, the cited employer, that precludes the grant of party status to the UAW 

in these cases. To elect party status the labor organization must have a collective bargaining 

relationship with the cited employer and the labor organization must represent affected 
6 

employees. See Commission Rules 1(g), 20, 22(b). Respondent’s contention is inaccurate that a 

labor organization must be able to “present a collective bargaining agreement” in order to appear 

as an authorized employee representative and elect party status in a Commission proceeding. 

Objection p. 2. 

Commission Rule 1(g) does not define “authorized employee representative” as a labor 

organization that has completed negotiations for a “collective bargaining agreement” with the 

cited employer. Rather, Commission Rule 1(g) defines “authorized employee representative” 

more broadly as a labor organization that has a “collective bargaining relationship” with the cited 

employer. A collective bargaining relationship describes the mutual obligation of an employer 

and the collective bargaining representative chosen by a majority of the employer’s employees, 

in an appropriate unit,

6 to collectively bargain with one another in good faith, regarding wages, 

hours, and other terms and conditions of employment.

7

 This collective bargaining relationship 

and mutual obligation to bargain of necessity begins before collective bargaining negotiations are 

completed and an agreement reached. 

Also discussed, during the December 2016 conference call, were the provisions in the 

Act and Commission Rules that affected employees may participate in proceedings before the 

Commission and request party status. See section 10(c) of the Act; Commission Rules 1(e), 20, 

22(c). Parties have the right to be represented during Commission proceedings. See

Commission Rule 22(a). 

The UAW’s December Request provides insufficient information to determine whether 

the employees generally identified are “affected employees” pursuant to the Commission Rules. 

Further, the UAW’s Request provides insufficient information to determine whether the 

employees generally identified have requested party status, in the above captioned cases, in

proceedings before the Commission. Reading the UAW’s December Request as a request to 

serve as the designated party representative, on behalf of alleged affected employees who elect 

 

6 When the representative for the purposes of collective bargaining is selected by the majority of the 

employer’s employees, in an appropriate unit, in a secret ballot election directed by the National Labor 

Relations Board, the Board shall certify the election results. See National Labor Relations Act (NLRA), 

section 9(a) - (c); 29 U.S.C. §§ 159(a)-(c). See generally, In re Perry, 859 F.2d 1043, 1045 (1st Cir. 

1988) (“[The Union] itself is not a party to the proceedings [before the Commission], because it has not 

been certified as the employees’ collective bargaining representative.”)

7 See NLRA, sections 8(a)(5), 8(b)(3), and 8(d); 29 U.S.C. §§ 158(a)(5), (b)(3), and (d). See generally, 

NLRB v. Borg-Warner Corp., Wooster Div., 356 U.S. 342 (1958). 
7 

party status, this request also is denied. During the call, Ms. Barbour and counsel for the parties 

were so advised. 

Order

The UAW’s December Request for party status on behalf of workers of Fuyao Glass 

America, Inc., in the above captioned cases, is denied. 

 

SO ORDERED.

Dated: January 4, 2017 Carol A. Baumerich

 Washington, D.C. Carol A. Baumerich

Judge, OSHRC