ALLAN ELECTRIC COMPANY, INC.  

OSHRC Docket No. 4323

Occupational Safety and Health Review Commission

May 22, 1974

  [*1]  

Before VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

  CLEARY, COMMISSIONER: On February 14, 1974, Administrative Law Judge David G. Oringer approved a stipulation of settlement in which respondent withdrew its notice of contest to complainant's citation and proposed penalties as amended.

On March 18, 1974, review of the Judge's decision by the Commission was directed pursuant to section 12(j) of the Occupational Safety and Health Act (29 U.S.C. §   651 et seq.) to determine whether notice of the settlement had been served on the employees' authorized representative, Local 164 of the International Brotherhood of Electrical Workers.

Thereafter, on April 26, 1974, respondent filed an affidavit averring that it has so notified the authorized employee representative.   ACCORDINGLY, the Judge's decision is affirmed.  

CONCURBY: VAN NAMEE

CONCUR:

  VAN NAMEE, COMMISSIONER, concurring: I concur in the disposition.   Respondent posted the settlement agreement, and Judge Oringer's decision granting settlement was therefore proper.

[The Judge's decision referred to herein follows]

ORINGER, JUDGE OSAHRC: This is a proceeding by the Secretary of Labor under the Occupational Safety and Health Act,   [*2]   29 U.S.C. Section 651 et seq., for an order affirming a Citation and proposed penalties. The   parties have entered into a stipulation of settlement. The record reveals that a Citation for "serious" violation was issued against the Respondent by a Complainant together with a Notification of Proposed Penalty in the sum of $600.00, on or about August 22, 1973.   Thereafter the Respondent filed a timely Notice of Contest. A Complaint and Answer were subsequently filed, the Complaint alleging a "serious violation of that standard found at 29 CFR 1926.400(c)(1), together with a demand proposing a penalty of $600.00.   The Respondent in its Answer denied existence of the violation and, of course, the appropriateness of the penalty.

Thereafter the parties entered into a stipulated settlement of this cause requesting approval by the Commission of the same.   The settlement agreement related that the Secretary amended his Complaint and the Citation was amended so as to reflect the fact that the violation was "nonserious" and the proposed penalty was reduced to $300.00 by giving the Respondent a fifty percent abatement credit.   The reduction from "serious" to "nonserious" was based [*3]   on the deletion of the language from the Complaint that the Respondent "knew, or could, with the exercise of reasonable diligence, have known of the presence of the violation."

After such action, and in consequence thereof, the Respondent withdrew its Notice of Contest and Answer to the amended Citation, proposed penalty and Complaint, as modified.

The Respondent further affirmatively stated that the stipulation of settlement has been posted where the affected employees could see it; that all violations alleged in the Complaint had been abated; and that it intended to comply with the Act in the future.   It further stated that it will pay the amended proposed penalty in the amount of $300.00.

  Sufficient time having elapsed, I find in view of the foregoing, that the disposition of this case in accordance with the stipulation and settlement is consonant with the purposes of the Act, congruent with the public interest; and no further justiciable controversy appearing before me, stipulation of settlement is herewith approved, and the Citation and proposed penalty, as amended, are herewith affirmed.

SO ORDERED.   <