OSHRC Docket No. 2857

Occupational Safety and Health Review Commission

November 2, 1973


Before VAN NAMEE and CLEARY, Commissioners



  CLEARY, COMMISSIONER: On July 26, 1973, Judge Bates issued his recommended decision and order in this case granting respondent's motion to withdraw its notice of contest and affirming the amended citation and its attendant notification of proposed penalty in all respects.

Thereafter, I directed review in accordance with 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").

The Commission has reviewed the record herein and notes that respondent was issued a citation for other than serious violation (4 items) and notification of proposed penalty on April 10, 1973.   Respondent timely contested only item 3 of the citation and its proposed penalty. Thereafter on April 25, 1973, the Secretary issued an amended citation which affected only items 1 and 2 of the April 10 citation.   Items 3 and 4 of the April 10 citation and the proposed penalties therefor were not altered or amended.   Nothing in the amended citation was at issue before the Judge.

Respondent has certified compliance with the Commission's requirements for hospitable consideration of a motion to withdraw notice of contest.

Accordingly, it is ORDERED that the Judge's recommended order granting respondent's motion to withdraw its notice of contest is affirmed.   Item 3 of the citation issued April 10, 1973, and the penalty proposed therefor are also affirmed.

  [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 stipulated motion which is hereby approved, 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 Occupational Safety and Health 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 amended Citation originally issued on April 10, 1973 and its attendant 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.