OSHRC Docket No. 12

Occupational Safety and Health Review Commission

February 22, 1972


Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners




VAN NAMEE, COMMISSIONER: On October 28, 1971, the Hearing Examiner issued his recommended order   in the above-captioned case.   The parties entered into a stipulated withdrawal of the notice of contest.   The Hearing Examiner recommended that the Commission adopt his order approving such disposition.

The Commission will give hospitable consideration to stipulated withdrawals of notice of contest where the record reflects (1) the date on which abatement of the violation has been or will be accomplished; (2) assurance by the respondent of continuing compliance; (3) tender of payment of the penalty proposed by the Secretary of Labor, and; (4) evidence that the affected employees or their authorized representatives have been afforded an opportunity to participate in the proceedings.

The record in this case does not contain such evidence.   Accordingly, the Commission does not adopt the Hearing Examiner's recommended order and the cause is remanded for the purpose of adducing evidence concerning the matters set forth above, and a determination made as to whether the penalty proposed   [*2]   and the stipulated settlement are consistent with the Act and comport with its public interest objectives.

[The Judge's decision referred to herein follows]

MARSHALL, JUDGE, OSAHRC: Based upon the Stipulation by and between both counsel of record, on file herein, which Stipulation is consistent with the provisions of the Act, and for good cause shown.

It is ORDERED that the Citation and Notice of Proposed Penalty, both dated July 13, 1971, heretofore issued against Dawson Bros.   Mechanical Contractors, be deemed a final order of the Commission and not subject to review by any court or agency within the meaning of section 10(a) of the Occupational Safety and Health Act of 1970; 29 U.S.C. 651 et seq.