OSHRC Docket No. 1309

Occupational Safety and Health Review Commission

February 11, 1974


Before VAN NAMEE and CLEARY, Commissioners



  VAN NAMEE, COMMISSIONER: This matter arose upon a single citation alleging four non-serious violations which was issued by Complainant pursuant to the provisions of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").   Complainant proposed an aggregate penalty of $150.   Judge Bates affirmed the citation in its entirety and assessed a penalty of $50 for item 1 contained therein. n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 We note that the parties submitted this matter for decision upon a stipulated record of material facts.   It was stipulated, inter alia, that "Respondent does not now contest Items 1, 3, or 4 of the Citation . . . nor the proposed penalty of $50 for Item 1. . .." Respondent has at no time admitted the violations alleged in Complainant's citation.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Review was directed on the issue of whether the trial Judge committed reversible error in concluding that Respondent was in violation of item 2, 29 C.F.R. 1904.5, of the citation under [*2]   the circumstances of this case.

Complainant responded to the direction for review by submitting a document styled "Notice of Withdrawal of Citation and Proposed Penalty" in which he stated that he was withdrawing the citation and penalty proposed.   In the circumstances of this case, however, Complainant has no power unilaterally to withdraw the citation.

Both section 12(g) of the Act and Commission Rule 2(b) (29 C.F.R. 2200.2(b)) provide that in the absence of a specific Commission rule, proceedings before the   Commission shall be in accordance with the Federal Rules of Civil Procedure.   Since we have adopted no rule regarding the withdrawal of a citation, the provisions of Federal Rule 41(a)(2) n2 have particular application.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 In pertinent part the Rule is as follows: ". . . an action shall not be dismissed at the [complainant's] instance save upon the order of the court and upon such terms and conditions as the court deems proper. . . ."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Complainant's withdrawal (which we treat as a motion) is unsupported [*3]   by statements of fact, reason, and argument.   Respondent here has been put to the expense of preparation of trial memoranda and has incurred the costs usually incident thereto.

In the circumstances we do not reach the issue on review.   The interests of justice are best served by vacating the citation with prejudice.

Accordingly, it is ORDERED that the citation be and the same is hereby vacated with prejudice.

[The Judge's decision referred to herein follows.]

BATES, JUDGE, OSAHRC: Through the medium of a Citation (other than serious) issued August 7, 1972 the captioned Respondent-employer was advised that he had violated the Occupational Safety and Health Act of 1970, (29 U.S.C. 651) as follows:

Date on which


Standard or

Description of alleged violation

alleged violation


regulation allegedly

must be corrected



CFR-29, 1903.2

Failure to display OSHA Poster.


(July 31, 1972, 1:30 p.m.)

upon receipt of



CFR-29, 1904.5

Failure to maintain OSHA


Form 102 & Post for 1971.   (July

upon receipt of

31, 1972, 1:30 p.m.)



CFR-29, Subpart L

Failure to properly mount fire



extinguisher.   (July 31, 1972,

upon receipt of

1:30 p.m.)



CFR-29, Subpart D

Failure to maintain service

August 14, 1972


room in clean and orderly man-

ner.   (July 31, 1972, 2:30 p.m.)


  The Complainant proposed a penalty of $50.00 for Item 1, above; a penalty of $100.00 for Item 2, and no penalties for the remaining items.

The Respondent timely contested the charges embodied in the Citation (supra) and a Complaint was duly issued thereon.   No objection to these proceedings was raised by any affected employees who were apprised thereof by proper service and posting.

Thereafter the parties entered into a Stipulation which contains an agreement on all jurisdictional facts, and prays for a disposition of the matter on the basis of the Complaint, Briefs of the parties and the said Stipulation with the formal hearing waived.

The matter was duly assigned to the undersigned Judge, sitting as Motions Judge, who on the basis of the entire stipulation, as referred to below, and the supporting briefs, expresses the following judgment:

1.   Inasmuch as Paragraph 8 of the Stipulation reflects that the Respondent does not now contest Items 1, 3 and 4 of the Citation, nor the proposed penalty of $50.00 for said Item 1, those items and the proposed penalty are affirmed in all respects.

2.   The sole issue for determination therefore remains as outlined in Paragraph [*5]   12 of the Stipulation and relates to Item 2 of the Citation (above), whether the Respondent's conduct as alleged therein violated the Act and 29 CFR Section 1903.5(sic) [obviously a typographical error, correct specification should be "1904.5"] and secondly whether the proposed penalty of $100.00 should be affirmed by the Commission.

  In regard to this sole issue, the Respondent in Paragraph 11 of the Stipulation admitted that it had not, during 1972, up to the time of the instant OSHA inspection of July 31, 1972, properly prepared and posted "OSHA Form 102," nor maintained in its records the said form up to the time of inspection. The Stipulation reflected that the reason for the Respondent's non-compliance with the requirements of 29 CFR 1904.5 regarding the aforementioned form which is in fact an Annual Summary of Occupational Injuries and Illnesses was that "no occupational injuries or illnesses had occurred to employees of respondent at the said retail drug store during the calendar year 1971."

Paragraph 10 of the Stipulation reflects that the Respondent has abated all violations alleged in the said Complaint and represents that the Respondent will in the future comply [*6]   with all the applicable requirements of the Act and its regulations.

There is no dispute then, as to the conclusion that the Respondent violated Section 5(a)(2) of the Act, and 29 CFR 1904.5 as charged in the Citation and Complaint, and the undersigned so finds.

In regard to the companion issue of the $100.00 proposed penalty for the said violation however, it is my judgment based on the Respondent's representations as referred to above and in Paragraph 11 of the stipulation, that the Respondent's patent failure to comply with 29 CFR 1904.5 was, as its brief indicates "based on a good faith belief that such (compliance) was not required under Section 1904.5 in the instance where no occupational accidents or illnesses occurred during the reporting period." In light of this judgment the proposed penalty of $100.00 is not appropriate to the circumstances herein, and will not as far as I can see, in any way effectuate the overriding purpose of the Act or the purpose of the regulation which the Respondent   admittedly violated, and the said penalty should be vacated.


In view of the foregoing, and good cause appearing therefore it is ORDERED that:

1.] Complainant's citation [*7]   charging violations of:

1).   29 CFR 1903.2.

2).   29 CFR 1904.5.

3).   29 CFR Subpart L, 1910.157(a)(5)

4).   29 CFR Subpart D, 1910.22(a)(1), be and the same is hereby affirmed.

2.] The proposed penalty for violation of the standard specified in Item 1 of the Citation in the amount of $50.00, be and the same is hereby affirmed.

3.] The proposed penalty for violation of the standard specified in Item 2 of the Citation in the amount of $100.00, be and the same is hereby vacated.