OSHRC Docket No. 2069

Occupational Safety and Health Review Commission

March 22, 1973


Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners



  BURCH, COMMISSIONER: On February 13, 1973, Judge Henry K. Osterman issued his recommended order in this case granting the Secretary's motion to withdraw his citation and notification of proposed penalty.

On February 28, 1973, 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), I directed that the Judge's order be reviewed by the Commission.

The Commission has reviewed the record in this case and notes that on January 3, 1973, the Secretary issued to respondent a citation for an other than serious violation of the Act together with a notification that no penalty was proposed.

Subsequent to the filing of a timely notice of contest the Secretary moved to withdraw the citation on the basis that he lacked evidence necessary to prove the violation alleged.

Further review of the record discloses that although United Plant Guard Workers of America, Amalgamated Plant Guards, Local 112, is the representative of respondent's affected employees, service of the within motion was not perfected as to them.

Accordingly, it is ORDERED that the Judge's order is affirmed unless the authorized employee representative files objection hereto within 10 days of the receipt of this order.  




  MORAN, CHAIRMAN, concurring in part, dissenting in part: I concur with the affirmance of the Judge's order, but dissent from the condition attached to it by the Commission.

The Secretary of Labor is solely responsible for policing compliance with the requirements of this Act.   He does not share that responsibility with this Commission.   He decides what employers are to be inspected and cited.   He also may change his mind and cancel a previously-issued citation.   No one can force the Secretary to issue a citation against Employer.   A if the Secretary does not think a citation is warranted.   By the same token, if he has issued a citation against Employer A, then later decides that the citation is not warranted, no one can force the Secretary to prosecute his action against the employer.   The Secretary has an absolute and unconditional right to rescind any disputed citation or penalty proposal which is pending before this Commission.   To hold otherwise is to hold that the Act's enforcement responsibilities are not exclusively vested in the Secretary of Labor.

To demonstrate the folly of such a ruling, one only has to contemplate what would happen if the employee representative in this case objected to the withdrawal of this action by the Secretary of Labor.   The case would then have to go to hearing.

Since the Secretary has stated that he lacks the evidence necessary to prove the violations alleged, and the Commission has no power to force the Secretary to produce evidence, a point conceded in Secretary v. Thorlief Larsen and Son, Inc., OSAHRC No. 370, decided January 17, 1973, it is quite unlikely that the Secretary will engage in an exercise in futility by prosecuting when he admittedly lacks the evidence.   His response to the Commission's Order to produce   evidence in the above-cited case vividly demonstrates this point. n1

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n1 In the Thorleif Larsen case, supra, the Secretary of Labor and the employer agreed upon the amount of the penalty to be assessed and no evidence on that issue was introduced.   The Commission objected to the absence of evidence on this matter and remanded the case in order to obtain such evidence.   Counsel for the Secretary of Labor thereupon declined to adduce further evidence, forcing the Commission to assess no penalty rather than the $550 which was agreed upon.   That decision is presently pending in the United States Court of Appeals for the Seventh Circuit (cause No. 73-1232).


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To merely recite the foregoing is to show how senseless it is to attempt to restrict the prosecutor from withdrawing his action by attaching conditions thereto.

[The Judge's decision referred to herein follows]

OSTERMAN, JUDGE, OSAHRC: Ruling on the Secretary's motion to withdraw citation and notification of proposed penalty. Granted.