OSHRC Docket No. 29

Occupational Safety and Health Review Commission

February 23, 1972


Before MORAN, Chairman; VAN NAMEE and BURCH Commissioners


  BY THE COMMISSION: Having reviewed the record in this case the Commission concludes that the stipulated settlement therein, including withdrawal of notice of contest, comports satisfactorily with the purposes of the Act.

Therefore, the Hearing Examiner's order is AFFIRMED.  



  VAN NAMEE, COMMISSIONER, dissenting: This matter is before the Commission as the result of my direction for review in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. 651, et seq. ), hereinafter referred to as the Act.

The Secretary's agent issued a citation on August 16, 1971, charging respondent with violation of certain standards promulgated pursuant to section 6 of the Act.   These violations were specifically determined not to be of a serious nature and no penalty was proposed (section 17(c) of the Act).   It was conceded that the standards which were the basis of the citation were not in effect on the dates of the inspections which revealed the alleged violations, July 29 and August 4, 1971, nor on the date of the issuance of the citation, but rather became effective [*2]   on August 27, 1971.   The parties agreed to consider the citation to have been   properly issued under the general duty clause (section 5(a)(1)) of the Act.

I have carefully considered the alleged violations and find that the hazards cited were not "causing or . . . likely to cause death or serious physical harm to . . . employees," and thus not violative of the general duty clause.   The record reveals nothing contrary to that finding.

The citation should have been withdrawn by the Secretary inasmuch as no violation of the Act was committed.   I would order the citation VACATED.

[The Judge's decision referred to herein follows]

BOROWIEC, JUDGE, OSAHRC: This case is properly before this Hearing Examiner upon assignment for hearing by the Occupational Safety and Health Review Commission.

Upon motion by respondent to withdraw its notice of contest and the respondent's representation that the violation contained in the Citation for Serious Violation, Citation Number 1, issued by the U.S. Department of Labor, Occupational Safety and Health Administration, has been fully abated; that the affected employees are not represented by a certified or other collective bargaining agent;   [*3]   that the citation and notice of intent to contest were duly posted by the respondent at the worksite in accord with Federal Regulations; that consent of the Secretary of Labor, through his authorized representatives, to respondent's motion of withdrawal of contest has been secured; and the representation to the Commission, through this Hearing Examiner, that the violation has been fully abated, with an affirmation of continuing compliance, this   Hearing Examiner finds that the motion of respondent should be granted and he so orders.

There being no further contest in this case, it is respectfully recommended that this order be made the order of the Commission.