BOSTON ELEVATOR AND MACHINE COMPANY
OSHRC Docket No. 3088
Occupational Safety and Health Review Commission
September 13, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: On August 15, 1973, Judge Herbert E. Bates issued his recommended order granting respondent's unopposed motion to withdraw its notice of contest.
Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), I am directing that the recommended order be reviewed by the Commission.
The record shows the following procedural history:
The Secretary issued to respondent a citation for serious violation alleging failure to comply with an occupational safety and health standard, a citation for non-serious violation, and a notification of proposed penalty for both alleged violations. All of these documents were dated May 4, 1973. Respondent filed a timely notice of contest as to the "citations and proposed penalties referred to in your communication . . . of May 4, 1973. . . ."
On May 22, 1973, the Secretary issued an amended notification of proposed penalty withdrawing the penalty proposed for the non-serious violation.
The Secretary then filed a complaint in which he amended the citation for serious violation to allege a violation of section 5(a)(1) of the Act instead of section 5(a)(2). Respondent filed its answer and subsequently filed a motion to withdraw its notice of contest of ". . . the violation alleged in Citation No. 1 (serious) . . .," asserting compliance with those requirements necessary for hospitable consideration of such motion. On this basis, Judge Bates granted respondent's motion and affirmed ". . . the Citation issued on May 4, 1973 and its attendant amended Notification of Proposed Penalty."
From this statement of the history of this case, it is clear that the notice of contest of the nonserious violation has not been considered by the Judge, the Secretary, or respondent since it contested this citation.
The Commission does not believe that the purposes of the Act will be advanced by remanding the case to determine the intent of the parties with regard to the non-serious violation. As the Secretary did not include any reference to this citation in his complaint, the Commission deems the citation for non-serious violation withdrawn and herewith amends the Judge's order to reflect this withdrawal.
Accordingly, it is ORDERED that the citation for serious violation, as amended, is affirmed, a penalty of $600 is assessed therefor, and the citation for other than serious violation is dismissed.
[The Judge's decision referred to herein follows]
BATES, JUDGE, OSAHRC: This motion was assigned to the undersigned Judge by the Occupational Safety and Health Review Commission for disposition.
By motion the Respondent has requested permission to withdraw its Notice of Contest in the captioned case representing that the cited violations have been abated; that tender has been made to the Secretary of Labor for the penalty proposed therefor and that the Respondent has complied with the service requirements specified in the Commission Rules with respect to the said Notice of Contest and this motion.
No objections to the Respondent's motion having been received and it appearing that the granting of same is not inconsistent with the provisions and purposes of the Act, the Respondent's Motion to Withdraw Notice of Contest should be, and is hereby granted.
It is therefore ORDERED that the Respondent's Notice of Contest be, and is hereby withdrawn, and that the Citation issued on May 4, 1973 and its attendant amended Notification of Proposed Penalty be, and are, affirmed in all respects.
There being no further contest in this case, it is recommended that this Order be made the Order of the Commission.