ANDERSON EXCAVATING & WRECKING CO., INC.
OSHRC Docket No. 1092
Occupational Safety and Health Review Commission
October 20, 1972
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
BURCH, COMMISSIONER: On September 18, 1972, Judge Paul E. Dixon issued a "stipulation and order" in this case sustaining the stipulation between respondent and the Secretary.
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 15, 1972, respondent was issued a citation for three other than serious violations of the Act together with a proposed penalty totalling $335.00. A timely notice of contest was filed and issue joined with the exchange of the Secretary's complaint and respondent's answer.
The parties thereafter submitted a stipulated withdrawal of notice of contest wherein respondent certified compliance with those conditions precedent essential to hospitable consideration by the Commission of such motions.
Accordingly, it is ORDERED that the Judge's order is amended to provide that respondent's motion to withdraw notice of contest is granted [*2] and the Secretary's citation and notification of proposed penalty are affirmed.
[The Judge's decision referred to herein follows]
DIXON, JUDGE, OSAHRC: This case is properly before the Judge upon assignment for hearing by the Occupational Safety and Health Review Commission.
By stipulation of September 11, 1972, Respondent moved to withdraw its Notice of Contest previously filed with reference to items 1, 2, and 3 of Citation 1 and the Notification of Proposed Penalties for said items of said Citation heretofore issued on June 15, 1972 by the U.S. Department of Labor, Occupational Safety and Health Administration. Total Proposed Penalties in the amount of $335.00 were assessed.
Respondent, by stipulation avers:
(a) It has tendered payment of the proposed penalty of $335.00 to the Secretary.
(b) Respondent is now in compliance with the abatement requirements of the Citation and will continue to remain in compliance with the abatement requirement of the Citation which is continuing.
(c) A copy of the stipulation for Withdrawal of Notice of Contest has been posted at the main office of Respondent, Respondent's work having been completed, and Respondent having no employees [*3] at the workplace.
Complainant joins in the stipulation and stipulates that it acknowledges receipt of the check in payment of the aforesaid Proposed Penalty and agrees that, based upon the representations of Respondent, an order may be entered allowing Respondent to withdraw its Notice of Contest and affirming the Citations and Notification of Proposed Penalties previously issued.
No objections having been received from any authorized representative of employees or affected employees, and upon showing by stipulation of correction, abatement, payment of proposed penalty and continuing compliance, the stipulation of Respondent joined in by the Department of Labor, should be sustained and it is so ordered.