OSHRC Docket No. 1006

Occupational Safety and Health Review Commission

August 25, 1972


Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners



  BURCH, COMMISSIONER: On July 24, 1972, Judge Weil issued his recommended order in this case approving the amended citation and dismissing the Secretarys' complaint.

Pursuant to the authority vested in Members of the Commission by virtue of section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590), I am herewith directing that the Judge's order be reviewed by the Commission.

The Commission has reviewed the record herein and notes that on May 8 and May 18, 1972, respectively, the Secretary issued respondent a citation and amended citation alleging a number of other than serious violations of the Secretary's safety and health standards.   Respondent filed a timely notice of contest, wherein its protest was directed only to item 6 of the citation and amended citation and the penalty of $30 proposed therefor.   The record discloses that the violation alleged in item 6 was the same in both the citation and the amended citation.   Subsequent to the filing of a complaint and answer which were limited to the contested item 6 and its proposed penalty, the Secretary moved [*2]   to further amend the citation and amended citation and to dismuiss the complaint, there being "insufficient evidence to support the violation charged in complainant's complaint." The Secretary's motion to amend is deemed a motion to vacate.

  Accordingly, it is ORDERED that the Judge's order is amended to provide that the Secretary's motions to vacate item 6 and its proposed penalty and to dismiss the complaint are hereby granted, and the amended citation and the notification of proposed penalty as further amended are affirmed.

[The Judge's decision referred to herein follows]

WEIL, JUDGE, OSAHRC: It appearing that respondent maintains a workplace at Belvidere, Illinois, where respondent acts as an "employer," employing "employees" within the meaning of Sec. 3 of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq.; and

It appearing further that petitioner inspected said workplace and issued to respondent a citation and an amended citation; and

Respondent having given notice that it contested Item 6 of said citation as amended, and petitioner having duly notified the Commission of such contest; and

A complaint and an answer having been duly served and [*3]   filed herein; and

Complainant having, on July 13, 1972, given due notice to all parties herein that he would move that his amendment of the citation herein be approved, but that his complaint be dismissed on the ground that he had concluded, on the basis of reexamination, that there is insufficient evidence to prove the allegations of violations set forth in the complaint; and no party having given notice of opposition to the motion; and

It appearing from said motion and from all the other pleadings and proceedings herein that the public   interest will be served by the granting of said motion; it is ORDERED that:

(1) The amendment of the citation as above set forth is approved and as so amended the citation is approved; and

(2) The complaint is dismissed.