Docket No. 2806

BAROCO INDUSTRIES, INC.

OSHRC Docket No. 2806

Occupational Safety and Health Review Commission

August 29, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: On July 30, 1973, Judge John J. Larkin issued an order granting Respondent's motion to withdraw. In so doing he indicated that no employee or employee representative had entered an appearance in the case; the Respondent had been advised to post the Judge's order; and that the Secretary of Labor interposed no objection to the motion.

Pursuant to the authority vested in the members of the Commission by Section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590), I am herewith directing that the Judge's order be reviewed by the Commission. The decision of the Judge is adopted to the extent it is consistent with the following.

The Commission on numerous occasions has stated that a motion to withdraw a notice of contest may be given hospitable consideration if the record indicates: 1) abatement of the violation has been or will be accomplished; 2) a tender of the proposed penalty has been made; 3) affected employees or their authorized representatives have been afforded an opportunity to participate in the proceedings; 4) Respondent has given assurance of continuing compliance. n1 See Secretary of Labor v. Dawson Brothers-Mechanical Contractors, Secretary of Labor v. Muller Boat Works Inc., OSHRC Docket No. 553 (1972); Secretary of Labor v. Meyco Products, Inc.,

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n1 In the usual case we will grant a motion to withdraw even though it lacks an assurance of continuing compliance. Secretary of Labor v. Muller Boat Works, Inc., Secretary of Labor v. Spildie Construction Company,

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We have reviewed the entire record in this case and note that it does not evidence compliance by the Respondent with any of the aforementioned requirements. Nevertheless, Judge Larkin granted Respondent's motion and thereby completely disregarded long-standing Commission precedent on this issue.

Therefore, the Judge's order is amended as follows: Respondent's motion to withdraw its notice of contest is granted upon the condition that it certify compliance with the aforesaid requirements within 10 days of the receipt of this decision. In the absence of such certification, the notice of contest will be deemed dismissed. It is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: I dissent for reasons given herein and in Secretary of Labor v. E.F. Houghton & Company,

This decision of the Commission is not only an exercise in sophistry but demonstrates a lack of understanding of the decision of the Court of Appeals in Brennan v. Occupational Safety and Health Review Commission, et al., C.A. 5, Nos. 72-3511, 73-1445, decided July 3, 1973. In that case the Court of Appeals for the Fifth Circuit vacated an order of this Commission where the Commission had proceeded to adjudicate a case notwithstanding the employer's attempt to withdraw his notice of contest and to pay the proposed penalty. The plain meaning of that decision is that when an employer decides to withdraw his notice of contest there is no further basis for the Commission to conduct proceedings.

It should be noted that there is a difference in the action ordered by the Commission in this case from that ordered in the Houghton case, although the fact situations are virtually identical. In the Houghton case the Commission denied the employer's request to withdraw and remanded the case for hearing. That case, which is still not concluded, has to date been under consideration by three different administrative law judges, plus the Members of this Commission and their legal staffs. It has been the subject of a hearing even though the employer never wanted to contest anything. A reading of the record of that case would be humorous if one were not aware of the huge and unnecessary waste of time and money it represents.

Perhaps the Commission, as a result, has seen the error of its ways and has not remanded this case. However, instead of abandoning its foray into the compliance area, which the Act reserves exclusively to the Secretary of Labor, the Commission has said it will dismiss the notice of contest rather than allow its withdrawal in the absence of certification of compliance.

There may be a difference between a case terminated because the employer withdrew his notice of contest and one terminated because the Commission dismissed the employer's notice of contest, but the Commission is silent on just what the difference might be. I submit however that there is not a dime's worth of difference in cases like this where the Secretary of Labor has agreed with the employer's desire to withdraw from the case.

I suspect that the action taken in this case by the Commission is not unlike the response of the frustrated employer to an employee who tenders his resignation; "you can't quit -- you're fired."

[The Judge's decision referred to herein follows]

LARKIN, JUDGE, OSAHRC: On July 19, 1973, Respondent filed a request to withdraw its notice of contest.

The Secretary of Labor's counsel has advised that he has no objection.

No employee or employee representative has entered an appearance in the case and Respondent has been advised to post this order pursuant to the requirements of 29 CFR 1903.16.

Wherefore, it is ORDERED:

That Respondent's motion to withdraw its notice of contest is granted and the citation and notice of proposed penalties in the amount of $150 issued on April 12, 1973, are affirmed.