UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 1150 |
|
E.F.
HOUGHTON & CO., |
|
|
Respondent. |
|
February 22, 1973
ORDER
OF REMAND
Before Moran,
Chairman; VAN NAMEE and BURCH, Commissioners
VAN NAMEE,
COMMISSIONER:
On
November 20, 1972, Judge Herbert E. Bates issued an Order granting Respondent’s
motion to withdraw its notice of contest in the above-captioned matter.
On
December 20, 1972, I directed review of the proposed Order pursuant to the
authority of 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’). For the reasons given hereinafter we reverse and remand.
On
October 25, 1972, Respondent submitted the aforementioned motion to withdraw.
Respondent stated that the controverted items of the citation (numbers 11 and
13) had not been abated pending the outcome of a request for a variance from
the Secretary of Labor. It was further represented that the Respondent
understood there would be no reinspection of its plant
Complainant responded to this motion
on October 30, 1972, stating that he had not given any assurance that he would
not reinspect the plant during the pendency of the variance request to be filed
by the Respondent. Complainant also indicated that Respondent was notified of
the Complainant’s position both by telephone and by the forwarding of a copy of
the letter containing its response.
Thereafter
on November 1, 1972, Respondent submitted a letter in response to the Complaint
filed herein. In paragraph two of this letter Respondent stated that it denied
all allegations of the complaint.
The
Commission has on numerous occasions stated that one of the conditions
precedent to the granting of a motion to withdraw is certification that
abatement of the violation has been or will be accomplished. It is clear from
the record in this case that the subject motion does not comport with this
basic requirement for hospitable consideration. Therefore, Judge Bates
erroneously granted Respondent’s motion.
The
Commission is of the opinion that Respondent’s letter of November 1, 1972,
submitted after oral notification of the Secretary’s response to its motion, is
a general denial of each and every allegation in the Complaint. We also
construe this pleading, in the circumstances of this case, as being a request
to withdraw the motion to withdraw the notice of contest.
Accordingly,
it is ORDERED that the Judge’s Order be and the same is hereby set aside, and
the case is remanded for further proceedings absent the submission by
Respondent of a proper motion to withdraw certifying abatement of the alleged
violations.
MORAN, CHAIRMAN,
dissenting:
I
dissent because the Commission is here requiring an employer to do something it
has no power to require the employer to do and because the erection of barriers
to an employer’s withdrawal from a case is unnecessary, burdensome to both the
Government and the employer, and unwarranted.
The
only reason for the existence of this Commission is to hear issues in dispute
and render decisions thereon. The Commission was created by a statute[1] and has only those powers
specifically granted by that statute.
Those
powers come into being only when an enforcement action, initiated by the
Secretary of Labor under the Act, is contested by the employer against whom it
is initiated, or by any of his employees, or by any representative of his
employees.
The
powers granted the Commission upon the existence of such an event are to
(a) afford an
opportunity for a hearing . . . in accordance with section 554 of title 5,
United States Code, and thereafter
(b) issue an
order, based on findings of fact, affirming, modifying, or vacating the
Secretary’s citation or proposed penalty, or directing other appropriate
relief.
The
foregoing is the full extent of the Commission’s power. Not only are there no
police powers or enforcement responsibility invested in this tribunal, but the
statute clearly and specifically grants such authority to someone else—the
Secretary of Labor. It is, therefore, beyond the jurisdiction of this
Commission to require an employer to certify—as this decision does—‘that
abatement of the violation has been or will be accomplished.’
Ascertaining
compliance with an abatement order is an enforcement responsibility of the
Secretary of Labor, whether such an order resulted from a decision of a court,
a decision of this Commission, or from a citation not in litigation.
I
also do not think it is right to prohibit an employer who commenced a case with
this Commission by filing a notice of contest from discontinuing his case
unless he first complies with certain requirements imposed by the Commission.
I concede that I have in the past
assented to decisions which included an erroneous rule of this kind.[2] The position taken here
results from a clearer understanding of the aforementioned
division between the adjudicatory responsibilities of the Commission and
the enforcement authority of the Secretary of Labor.
An employer can originate a case
with this Commission simply by asserting his right to contest an enforcement
action. He ought to be able to discontinue the case just as simply—by
withdrawing that assertion.
More
than 25% of all case dispositions issued by this Commission to date have
resulted from the withdrawal by an employer of his objection to the enforcement
action initiated against him. A great deal of time has been expended by many
people who serve this agency, the Department of Labor, various employers and
representatives of employees in unnecessary letter-writing, notice-posting, and
paper-pushing because of these withdrawal conditions and the difficulty in
explaining and understanding them. Absolutely no benefit to anyone results from
the Commission’s insistence on these requirements. They should be discarded.
Their
existence is the result of the Commission relegating to itself responsibility
which Congress has given to the Secretary of Labor.
My
views on this matter can be summarized rather succinctly:
1.
The Commission’s only power is to hear and decide issues in dispute.
2.
There is no issue in dispute until a notice of contest is filed to an
enforcement action.
3.
When such a notice of contest is subsequently withdrawn by its author, there
are no longer any issues in dispute and the Commission’s jurisdiction over that
case is terminated.
4.
The filing of a notice of contest creates a case for this Commission. The
person who created the case has the unconditional right to terminate it at any
time prior to its final disposition by filing a discontinuance.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 1150 |
|
E.F.HOUGHTON
& CO., |
|
|
Respondent. |
|
November 20, 1972
BATES, JUDGE,
OSAHRC:
Ruling on the
Respondent’s motion to withdraw Notice of contest. Granted.