OSHRC Docket No. 79-2380


Before: BUCKLEY, Chairman; CLEARY, Commissioner.

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor ("Secretary") under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. 659(c).

This case arises from an inspection of Respondent, Stripe-A-Zone, Inc. ("Stripe-A-Zone"), by the Secretary of Labor when Respondent was engaged in installing ceramic buttons and stripes in a traffic zone on a highway pursuant to a contract between Stripe-A-Zone and the Texas State Department of Highways and Public Transportation. Federal funds from the U.S. Department of Transportation ("DOT") were used to finance the project. The Secretary cited

Stripe-A-Zone for four violations of the Act, all related to traffic safety control procedures, practices and training.

In its answer and its Motion to Dismiss filed with Administrative Law Judge Louis G. LaVecchia, Stripe-A-Zone asserted that DOT exercises statutory authority to prescribe or enforce safety standards concerning the working conditions involved in the citations. Stripe-A-Zone contended that, under section 4(b)(1) of the Act,[[1]] the Secretary was without authority to issue the citations. The Secretary opposed the Motion to Dismiss, arguing that section 4(b)(1) does not apply since Stripe-A-Zone has no Federal obligation to comply with DOT traffic safety standards or regulations. Judge LaVecchia granted Stripe-A-Zone's Motion to Dismiss, concluding that "the argument made by the respondent comports with the position taken by the Review Commission in pertinent decisions."

The judge's dismissal order was not accompanied by any findings of fact or conclusions of law. Aside from a general reference to Commission precedent which did not mention any specific cases, the judge's order did not give any reason supporting the conclusion that the citations should be dismissed. In granting the Motion to Dismiss, the judge should have provided findings of fact and a sufficient statement of reasons or a basis for his decision. Section 10(c) of the Act, 29 U.S.C. 659(c); section 8(b) of the Administrative Procedure Act, 5 U.S.C. 557(c); Commission Rules 66(i) and 90(a), 29 C.F.R. 2200.66(i) and 2200.90(a); P & Z Co., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1977-78 CCH OSHD, 22,413 (No. 76-431, 1977). See also Syntron, Inc., 82 OSAHRC 39/E9, 10 BNA OSHC 1848, 1982 CCH OSHD 26,145 (No. 81-1491, 1982). We therefore vacate the decision and remand this case to the judge for appropriate findings of fact and conclusions of law.

On remand, the judge should also hold a hearing on the merits of the Secretary's citations. The inspection in this case occurred on November 6 through November 13, 1978. This is the third time that the case has been before the Commission and no hearing on the merits has yet been held.[[2]] Because of the amount of time that has passed since the inspection, and to prevent further delay, on remand the parties should proceed to a hearing on the merits.

Accordingly, the judge's order is vacated and the case is remanded for further proceedings consistent with this opinion.



Ray H. Darling, Jr.
Executive Secretary

DATED: FEB 8 1985



[[1]] Section 4(b)(1) of the Act, 29 U.S.C. 653(b)(1), provides in pertinent part:

Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies. . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

[[2]] In addition to the order now on review, Judge LaVecchia previously granted two other motions to dismiss filed by Stripe-A-Zone. In each case the Commission reversed these rulings and remanded the case to the judge for further proceedings. Stripe-A-Zone, Inc., 80 OSAHRC 111/D12, 9 BNA OSHC 1040, 1980 CCH OSHD 24,912 (No. 79-2380, 1980), petition for review dismissed on other grounds, 643 F.2d 230 (5th Cir. 1981) (denial of motion to dismiss which alleged that the citations were barred by res judicata); 82 OSAHRC 31/E13, 10 BNA OSHC 1694, 1982 CCH OSHC 26,069 (1982) (denial of motion to dismiss which alleged that the citations were not issued with reasonable promptness).