UNITED SHEET METAL CO.
OSHRC Docket No. 1025
Occupational Safety and Health Review Commission
November 27, 1972
[*1]
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
OPINIONBY: BURCH
OPINION:
BURCH, COMMISSIONER: On October 25, 1972, Judge Louis J. Rubin issued an "order" dismissing respondent's notice of contest with respect to item 1 of the citation and granting respondent's motion to withdraw notice of contest with respect to items 2, 3, 4 and 5.
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, hereinafter referred to as "the Act"), I am hereby directing that the Judge's decision be reviewed by the Commission.
The Commission has reviewed the record in this case noting that on June 2, 1972, respondent was issued a citation for five non-serious violations of the Act together with notification of proposed penalties in the amount of $22. Respondent timely filed a notice of contest with respect to item 1 of the citation and the proposed penalty therefor, and the penalties of items 2, 3, 4 and 5. The Secretary thereupon filed his complaint and therein amended the citation to conform to the complaint.
By letter dated June 26, 1972, respondent moved to withdraw notice of contest with respect to items 2, 3, 4 and 5 and stated [*2] therein compliance with those conditions precedent essential to hospitable consideration by the Commission of such motions with respect to those items. By a second letter dated September 25, 1972, respondent moved to withdraw the notice of contest with respect to item 1, whereupon the Judge issued his order granting the motion to withdraw as to items 2, 3, 4 and 5 but denying the motion as to item 1.
The Commission notes that by letter dated October 27, 1972, respondent perfected his motion of September 25 by certifying compliance with abatement, payment of penalty, and service and posting requirements with respect to item 1.
Accordingly, it is ORDERED that respondent's motion to withdraw notice of contest as to all items of the citation is granted. The citation, as amended, and notification of proposed penalties are affirmed.
[The Judge's decision referred to herein follows]
RUBIN, JUDGE, OSAHRC: On June 2, 1972, Respondent was issued a citation for five non-serious violations of the Occupational Safety and Health Act of 1970 together with a notification of proposed penalty in the total amount of $225.
Respondent filed notice of intent to contest item 1 of the citation [*3] and proposed penalty therefore, and the penalty alone with respect to items 2, 3, 4 and 5. By letter dated June 26, 1972, construed as an Answer to the Complaint, Respondent withdrew his contest to items 2, 3, 4 and 5 representing he had paid the proposed penalty of $200 for these four items.
In a subsequent letter dated September 25, 1972, Respondent advised: "we want to withdraw our notice of contest in the aforementioned docket number." He was then informed by the Secretary on October 2, 1972, that a motion for withdrawal should be filed together with representations as to abatement of the violations, continuing compliance, payment of penalty, and compliance with specified service and posting requirements. The Secretary's letter included a copy of the Commission rules. Respondent is not represented by counsel and assistance was offered by counsel for the Secretary. Respondent has not replied to the October 2, 1972 letter.
Since Respondent's letters of June 26 and September 25, 1972 express a clear intent to withdraw the notice of contest, they are construed as motions for withdrawal. The former letter pertains solely to withdrawal of items 2, 3, 4 and 5 of the [*4] citation. The letter dated September 25, 1972 is deemed to pertain to the remaining violation, item 1. The record with respect to items 2, 3, 4 and 5 shows: (1) abatement has been accomplished; (2) the proposed penalty has been paid; and (3) Respondent has complied with the service and posting requirements. The record does not show Respondent has met these conditions precedent for granting his motion dated September 25, 1972.
IT IS THEREFORE ORDERED, That:
1. Respondent's motion dated June 26, 1972, to withdraw the notice of contest with respect to items 2, 3, 4 and 5 is granted. The citation and proposed penalty pertaining thereto are affirmed.
2. Respondent's motion dated September 25, 1972, is denied. The notice of contest with respect to item 1 is dismissed. The citation and proposed penalty for item 1 are affirmed.