SWIFT TRUCKING COMPANY
OSHRC Docket No. 1267
Occupational Safety and Health Review Commission
December 6, 1972
[*1]
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
OPINIONBY: BURCH
OPINION:
BURCH, COMMISSIONER: On November 6, 1972, Judge Harold A. Kennedy issued a "Decision and Order" granting respondent's request for withdrawal of notice of contest.
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 in order to conform that decision with established Commission policy.
The Commission has reviewed the record in this case noting that on July 13, 1972, respondent was issued a citation for a serious violation of the Act together with notice of proposed penalty of $550. A timely notice of contest was filed and issue was joined with exchange of the Secretary's complaint and respondent's answer.
The respondent thereafter submitted a motion to withdraw 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 [*2] notice of contest is granted and the Secretary's citation and notice of proposed penalties are affirmed.
[The Judge's decision referred to herein follows]
KENNEDY, JUDGE, OSAHRC: On October 24, 1972, Respondent herein filed with the undersigned a document designated "Withdrawal of Notice of Contest." The request to withdraw is not opposed.
The Secretary of Labor on July 13, 1972, issued a Citation for Serious Violation charging Respondent with violating Section 5(a)(1) of the Occupational Safety and Health Act of 1970. The citation alleges that "binders used to secure the load of logs . . . were removed before the loading machine was in place . . ." A Notification of Proposed Penalty, aso dated July 13, 1972, proposed assessment of a penalty of $550.00 against Respondent. A Notice of Contest, Complaint and Answer were duly filed, and a hearing was thereafter scheduled for October 25, 1972.
In support of its request to withdraw, Respondent represents:
1. Abatement of the violation alleged in the Complaint has been achieved in accordance with the Act and the standards promulgated thereunder.
2. Respondent reaffirms its policy to cooperate in every way possible with [*3] the Occupational Safety and Health Administration to achieve continuing compliance with the Act and standards promulgated thereunder and to effect abatement as quickly as possible as to items cited as alleged violations.
3. Respondent has tendered to the attorney for the Secretary the sum of $550, the amount set forth in the Notification of Proposed Penalty, dated July 13, 1972, and prayed for in the Secretary's Complaint.
4. Certification of posting and service of this withdrawal of Notice of Contest on all parties is attached hereto.
Counsel for the Secretary advises that he does not object to Respondent's request to withdraw. The Employee Representative referred to in the Complaint (IWA, Local No. 3-246, Springfield, Oregon) has not filed any objection to the request to withdraw. No employee has filed any objections.
Under the circumstances, the undersigned finds that the requirements for hospitable consideration for a withdrawal of contest have been met and that granting of the request would comport with the public interect of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ). Accordingly, Respondent's request to withdraw is hereby granted. [*4] There being no further contest in the case, it is recommended that this order be made the order of the Commission.