OSHRC Docket No. 2253

Occupational Safety and Health Review Commission

August 14, 1973


Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners




VAN NAMEE, COMMISSIONER: On June 28, 1973, Judge Donald K. Duvall issued an order granting Respondent's motion to withdraw. In so doing, he indicated his understanding that Respondent had complied with our requirement that such motions be served on affected employees.

Thereafter, I directed review of the Judge's order in accordance with the authority granted by section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ).

We have searched the record to find the basis upon which the Judge predicated his understanding.   The search has been in vain.   Accordingly, the order is contrary to Commission precedent.   Secretary of Labor v. Dawson   Brothers -- Mechanical Contractors, Secretary of Labor v. Muller Boat Works, Inc., Secretary of Labor v. Meyco Products, Inc.,

Therefore, the Judge's order is amended as follows: Respondent's motion to withdraw its notice of contest is granted upon the condition that it certify service of the motion upon affected employees within 10 days of the receipt of this decision.   In the absence of such certification, the notice of contest will be deemed dismissed.   It is so ORDERED.  



  MORAN, CHAIRMAN, dissenting: It is virtually impossible to read this decision and the Judge's disposition in this case without concluding that the Commission is applying a double standard in its treatment of two opposing parties who are entitled to equal treatment before the bar of justice.

Complainant's citation against respondent contained 18 counts, 10 of which respondent contested. Six of those 10 were thereupon withdrawn by complainant.   This was accomplished by the filing of a document with the Commission simply stating that complainant has withdrawn items 2, 4, 9, 12, 16 and 17 of the citation.   There was no posting requirement -- no service requirement -- no seeking permission of the Commission -- just a brief written notification that complainant had changed his mind.

Three months later respondent changed its mind and decided to withdraw its objection to the 4 items of the citation remaining at issue.   With this decision the Commission is saying the respondent cannot get out of a case that easily.   It must undertake burdens the Commission chooses not to impose upon complainant.

I cannot associate myself with such preferential and inequitable treatment.   The principle of equal justice under law is demeaned by decisions like this.

My views on withdrawal by parties of issues previously disputed before this Commission are set forth in Secretary of Labor v. E.F. Houghton & Co.,   They are very simply stated.   Any party may, at any time prior to decision, withdraw any issue he put into dispute by simply saying so.

This Commission was created by Congress as an adjudicatory body.   It was given no authority or responsibility except to hear and decide issues in dispute.   Such issues arise in case like the one at bar because an employer has decided to assert his right to contest an enforcement action initiated by complainant.

When an employer, once having done so, later changes his mind and decides to withdraw his objection to the enforcement action, there no longer exists any issues in dispute.   The jurisdiction of this Commission thereupon ceases.   The same result occurs when complainant once having issued   a citation later decides to withdraw or cancel the same.

It is not our duty to impose conditions restricting respondent's ability to pursue his withdrawal. Any such action by the Commission constitutes an ultra vires expansion of authority into the area of enforcement, an area which is within the exclusive jurisdiction of the Secretary of Labor.

[The Judge's decision referred to herein follows]

DUVALL, JUDGE, OSAHRC: This matter is properly before the undersigned Judge by assignment of the Occupational Safety and Health Review Commission, which has jurisdiction of the parties and subject matter herein pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act).

By application filed by its legal counsel with the Commission on June 5, 1973, Respondent requests leave to withdraw its Notice of Contest with respect to Items 7, 10, 11 and 18 of the Citation and the corresponding proposed penalties issued to it by Complainant on January 19, 1973.   Items 2, 4, 9, 12, 16, and 17 of said Citation and the   proposed penalties corresponding thereto, were previously withdrawn by Complainant in its Complaint filed with the Commission on March 2, 1973, which also amended said Citation in certain other respects.   Items 1, 3, 5, 6, 8, 13, 14 and 15 of said Citation and the proposed penalties corresponding thereto, not having been timely contested by Respondent, are deemed to be a final order of the Commission pursuant to Section 10(a) of the Act.

In support of its motion for leave to withdraw its Notice of Contest respecting Item 7, 10, 11 and 18 of the Citation, as amended, Respondent asserts, inter alia, that it has abated each of the cited violation items within the abatement periods specified in said amended Citation.

In its response to Respondent's motion to withdraw Notice of Contest, filed with the Commission on June 4, 1973, Complainant asserts that Respondent has effected payment in full of the proposed penalty in the amount of $220.00 relating to the amended Citation Items numbered 7, 10, 11, and 18, that Respondent has otherwise met the Commission's requirements for favorable consideration of said motion, and that based upon Respondent's assurances, Complainant has no objection to offer respecting said motion.

It is further noted that according to the record herein Respondent's affected employees have no authorized employee representative and Respondent's Notice of Contest was duly posted at each place where the OSHA Citation is required to be posted. It is the undersigned Judge's further understanding that Respondent's application for leave to withdraw its Notice of Contest has been similarly posted for the information of Respondent's affected employees.

On consideration of the foregoing representations and submissions and the record as a whole, it is concluded that Respondent's request for leave to withdraw its Notice of Contest respecting amended Citation Items 7, 10, 11 & 18 should be granted as consistent with the applicable provisions of the Act and the Commissions Rules of Procedure, including Section 2200.50.

  It is so ORDERED, and said Notice of Contest with respect to said items is deemed withdrawn.

It is further ORDERED that Complainant's amended citation with respect to violation Items 7, 10, 11 and 18, and the corresponding proposed penalty in the amount of $220.00, be and hereby are affirmed.