J. R. STEEL, INC., A SUBSIDIARY OF AMERICAN AGENCIES CO., INC.  

OSHRC Docket No. 186

Occupational Safety and Health Review Commission

May 4, 1972

  [*1]  

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

  BURCH, COMMISSIONER: On April 7, 1972, Judge Saul issued an order granting the Secretary's motion to dismiss the respondent's notice of contest for his failure to file an answer to the Secretary's complaint and affirming the Secretary's citations for serious and other than serious violations and notification of proposed penalty in the amount of $753.

Thereafter, I directed review in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 24 Stat. 1590, hereinafter referred to as "the Act").

The Commission has reviewed the rulings of the Judge and finds no prejudicial error.   The Commission has also reviewed the entire record.   We note that, on October 15, 1971, the Secretary issued citations to the respondent for serious and other than serious violations together with a notification of proposed penalty of $955.   Thereafter, on November 26, the Secretary filed a complaint with the Commission and, on December 13, an amended complaint in which a number of items in the other than serious citation and the proposed penalties therefor totalling $202 were deleted.   [*2]   These pleadings constituted amendments.   The Judge's order reflects only the amendments of the proposed penalty.

Accordingly, it is ordered that the citation for   serious violations, the amended citation for other than serious violation and the amended notification of proposed penalty are affirmed as the final order of the Commission.

[The Judge's decision referred to herein follows]

SAUL, JUDGE, OSAHRC: This case is properly before me upon assignment for hearing by the Occupational Safety and Health Review Commission.

Motion having been made by complainant, Secretary of Labor, to impose sanctions against the respondent for failure to file timely answer to the complaint, and to dismiss respondent's notice of contest and affirm the citations and penalties issued by the Secretary of Labor, the record before me for consideration discloses the following:

1.   The Secretary of Labor issued one Citation for Other Than Serious Violation, which consisted of 14 items listed on three pages of OSHA-2, and one Citation for Serious Violation, to respondent J.R. Steel, Inc., a subsidiary of American Agencies Co., Inc., on October 15, 1971.

2.   The Secretary of Labor issued a notification [*3]   of proposed penalty to respondent in the total amount of $955.00 in relation to the above-referred citations on October 15, 1971, which notification of proposed penalty was later amended on December 9, 1971, to a total of $753.00.

3.   The Secretary of Labor filed a complaint with the Occupational Safety and Health Review Commission on November 26, 1971, and an amended complaint on December 9, 1971.   Two copies of said complaint and amended complaint were sent to respondent on the   same dates by certified mail. According to certified mail return receipts numbers 194045 and 194074, said copies of the complaint and amended complaint were received by respondent on November 26, 1971, and December 13, 1971, respectively.

4.   On February 3, 1972, the Secretary of Labor filed a motion with the Occupational Safety and Health Review Commission, asking for the dismissal of respondent's notice of contest and for the affirmance of the citations and proposed penalties issued against respondent, such motion being based on respondent's alleged failure to answer petitioner's complaint.   Two copies of said motion were sent to respondent on February 4, 1972, and certified mail return receipt [*4]   number 287417 indicates that the transmittal of said motion was received by respondent on February 10, 1972.

5.   On February 7, 1972, the Secretary of Labor's motion was referred to me for appropriate action.

6.   To the date of this order, respondent has not filed any answer with the Occupational Safety and Health Review Commission, or on the petitioner.

ORDER

It appearing that respondent, J.R. Steel, Inc., a subsidiary of American Agencies Co., Inc., a corporation, is in default for failure of said respondent to answer, or otherwise defend, as required by law and by the Rules of Procedure adopted by the Occupational Safety and Health Review Commission pursuant to section 12(g) of the Occupational Safety and Health Act of 1970 (84 Stat. 1604 et seq.; 29 U.S.C. 651, et seq. ),

WHEREFORE, cause having been shown, the complainant's   motion is granted and it is ORDERED that:

1.   The notice of contest filed by the respondent be, and is hereby, dismissed;

2.   The Citation for Other than Serious Violation issued by the Secretary of Labor be, and is hereby, affirmed;

3.   The Citation for Serious Violation issued by the Secretary of Labor be, and is hereby, affirmed;   [*5]  

4.   The proposed penalty assessed against respondent in the total amount of $753.00 be, and is hereby, affirmed; and

5.   Respondent shall, within thirty (30) days from the date hereof, pay to the Secretary of Labor, by means of either a certified or bank cashier's check, the assessed penalty of $753.00.