OSHRC Docket No. 1187

Occupational Safety and Health Review Commission

November 27, 1972


Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners



  VAN NAMEE, COMMISSIONER: On October 27, 1972, Judge Joseph L. Chalk issued an Order granting Complainant's motion to strike Respondent's notice of contest in the above-captioned matter.   This motion was based on the ground that Respondent failed to file an Answer to the Secretary's Complaint as required by the Commission's Rules of Procedure.

Pursuant to the authority vested in the members of the Commission by 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.

We have reviewed the record and note that the Complainant submitted on behalf of the Respondent a motion to withdraw notice of contest and a stipulation executed by the parties in support of said motion.   The motion was submitted to the Commission under cover letter of October 30, 1972 and of course was not part of the record in this case when Judge Chalk rendered is dispositive Order.

The Commission is of the opinion that the motion to withdraw and accompanying stipulation submitted jointly by the Complainant [*2]   and the Respondent is, in effect, a withdrawal by the Complainant of his previously submitted motion to strike the notice of contest.   Furthermore, a review of the substituted motion to   withdraw and supporting stipulation indicates that it complies with all conditions precedent set forth by the Commission for hospitable consideration of a motion to withdraw a notice of contest.

Accordingly, it is ORDERED that (1) the Judge's Order granting Secretary's motion to strike is set aside, (2) the notice of contest is reinstated (3) the Respondent's motion to withdraw its notice of contest is granted, and (4) the Secretary's citation and proposed penalties are affirmed as the final order of the Commission.

[The Judge's decision referred to herein follows]

CHALK, JUDGE, OSAHRC: Ruling on Secretary's motion to strike notice of contest granted.