OSHRC Docket Nos. 454; 723; 1070 (Consolidated)

Occupational Safety and Health Review Commission

April 25, 1975


Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners



  VAN NAMEE, COMMISSIONER: This matter is before us on the joint motion of the parties to reconsider our decision of December 26, 1974. *

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* [See 14 OSAHRC 402 - Ed. ]

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Respondent who among other things is an interstate carrier of goods received multiple citations for non-serious violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ) because it failed to block or chock the wheels of trucks while they were being boarded by powered industrial trucks. The Secretary alleged that the said conditions were violative of his regulations.

Respondent defended affirmatively and among other things said that it was not obligated to comply with the Secretary's standards in view of 29 U.S.C. 653(b)(1) because it said its activities are regulated by the Department of Transportation (DOT).   It expressly waived the defense at trial, and therefor we did not consider it when deciding this case (slip op. at note 4).

The   [*2]   petition for reconsideration indicated that both parties thought that Respondent's waived defense is meritorious as to the citations in this case in view of our decision in Mushroom Transportation Co., 5 OSAHRC 64, BNA 1 OSHC 1390, CCH E.S.H.G. para. 16,881 (1973).   They agreed that there is no evidence of record on the issue (which isn't surprising in view of the waiver), and they agreed that the matter could be remanded in order that evidence could be adduced.

On reconsideration the parties say that a remand is unnecessary because the Mushroom Transportation decision controls.   They ask that we vacate the citations.   Because it appears that the parties agree that violations did not occur, they have essentially   settled the case, and vacation is in order.   Dale M. Madden Const. Inc. v. OSHRC et al., 502 F.2d 278 (9th Cir., 1974).

Accordingly, our decision of December 26, 1974 is vacated; the citations and notices of proposed penalties are vacated, and it is so ORDERED.  



  MORAN, CHAIRMAN, concurring: I agree with the disposition in this case.

CLEARY, COMMISSIONER, concurring: I concur in the result.   By way of clarification, however,   [*3]   I note that the respondent pleaded the Secretary's lack of authority in its answer as an affirmative defense, but expressly waived it at the hearing.

The lead opinion does not state whether section 4(b)(1) is jurisdictional in nature, or must be pleaded affirmatively as a defense.   This is proper because the resolution of this issue is unnecessary to the result.   I too hesitate to use the term "jurisdiction" because, as Justice Frankfurter observed, "it is a verbal coat of too many colors." United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 39 (1952) (dissenting opinion).

I cannot concur, however, with the lead opinion's conclusion that "[b]ecause it appears that the parties agree that violations did not occur, they have essentially settled the case, and vacation is in order" (emphasis added).   The reasoning implicit in this holding may be inconsistent with our dispositions in International Terminal Operating Co., Inc., No. 2340 (August 8, 1974) and Brown and Kerr, Inc., No. 3055 (August 20, 1973).   I note, however, that granting the joint motion would be proper inasmuch as Mushroom Transport. Co., Inc., No. 1588 (November 7, 1973) would seem to support [*4]   vacation. Indeed, the Secretary's instructions to his Assistant Regional Directors reflects a considered policy judgment in this area which I would not disturb in the absence of good cause.   See Field Information Memorandum No. 75-25 (March 17, 1975), CCH Employ. S. & H. Guide para. 9732.   Also, the joint motion may be treated as a stipulation of dismissal pursuant to F.R.C.P. 41(a), but I need not rest my concurrence on this ground.

Accordingly, I concur.