OSHRC Docket No. 2939

Occupational Safety and Health Review Commission

November 6, 1973


Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners



  VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision of Judge Herbert E. Bates, vacating Complainant's amended citations charging three serious and 33 non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").

The issue on review was whether the Judge committed reversible error in vacating the citations on the ground that they had not been issued with reasonable promptness as required by section 9(a) of the Act.

In response to this direction for review Complainant submitted a document styled "Notice of Withdrawal of Citation" in which he stated that he was withdrawing the citations and penalties proposed for all violations contested by Respondent. n1 Complainant asserted also that, as a result of such withdrawal, the Commission no longer has jurisdiction over this matter. n2

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n1 Respondent did not contest 30 of the 33 items of the citation for non-serious violation.   Pursuant to section 10(a) of the Act, the uncontested items have become a final order of the Commission.

n2 This contention is contrary to the express language of the Act.   Jurisdiction is vested in the Commission upon the filing of the employer's notice that it intends to contest a citation alleging violations of the Act or a notification of penalty proposed to be assessed.   Our jurisdiction cannot be divested at the Complainant's pleasure, since section 10(c) of the Act provides that a proceeding under the Commission's jurisdiction can be terminated only upon the order of the Commission "affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief . . ."


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  In the circumstances of this case, however, Complainant has no power unilaterally to withdraw the citations.

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 no rule regarding the withdrawal of a citation, the provisions of Federal Rule 41(a)(2) n3 have particular application.

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n3 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 . . . ."

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By its notice (which we will treat as a motion) Complainant declares that withdrawal is appropriate for reasons of fact.   He does not state the reasons.   It may be that he now believes he cannot prove the alleged violations, or it may be   that he agrees with Respondent's allegations that it was unfairly misled by Complainant's area director.   Complainant does express his disagreement with the Judge's reasons for vacation.

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

Accordingly, it is ORDERED that the three citations for serious violation and items 10, 15, and 21 of the citation for non-serious violation be and the same are hereby vacated with prejudice.

[The Judge's decision referred to herein follows]

BATES, JUDGE, OSAHRC: The Respondent herein, moves to dismiss the Complaint filed in the captioned   case on the ground that the Secretary of Labor failed to act with "reasonable promptness" as required by Section 9(a) of the Occupational Safety and Health Act of 1970 (the Act), in the issuance of the Citations which initiated the contest here involved.   In this motion, the Respondent alleges that, "Although an inspection was conducted on November 13-17, 1972 amended citations and proposed penalties with regard to all citations were not issued until April 4, 1973, a total of 131 days after the completion of said inspections." The Respondent further alleged that he had assumed in January (1973) that no complaint or citation would be issued and that he would be prejudiced in attempting to prepare his defense because "of employee turnover and passage of time since incident."

The Docket File does not contain any response by the Complainant to the above motion and the allegations on which it is grounded, and the record substantiates the Respondent's position concerning the time lapse as noted above.   In the absence of any response by the Complainant, my independent inspection of the record does not reflect any factors which might be considered as "exceptional" or mitigating in respect to the aforementioned time lapse in issuing citations.

In addition the Respondent in his "Motion to Sever" alleges that the Secretary in effect "lulled" him in to waiving his right to contest Serious Citations 2 and 3 and Item 21 of the Non-Serious Citation.   The docket file is silent on this point also, and does not contain any response or rebuttal by the Secretary in this regard.   The Respondent prays that this matter be severed from other issues for independent hearing.   Because of my disposition of   the Motion ot Dismiss, below, it will not be necessary for me to rule on the severance motion on the grounds of mootness.

In view of all the above, plus the interpretation of   Section 9(a) of the Act urged by the Respondent herein, and unrebutted by the Complainant, I am constrained to conclude, based on the facts contained in the record before me, that the abnormally long delay between the inspection and the citation issuance is contrary to the provisions of Section 9(a) of the Act, which commands that the citation be issued with "reasonable promptness."

In coming to this conclusion I am not unaware of the Commission's decision in Silver Skillet Food Products Co.   I conclude however, that the delay involved in the captioned case, apparently unexcused by an exceptional or mitigating circumstances, and characterized by the Respondent as prejudicial because of "employee turnover and passage of time" does not constitute a reasonably prompt citation issuance consonant with the language and spirit of Section 9(a) of the Act, as envisioned by Congress when it enacted such Legislation.

As partial support for the above conclusion, I incorporate by reference herein, those references to the pertinent legislative history (with which my research compels me to agree) as are embodied in Chairman Moran's dissenting opinion in the Silver Skillet case supra. I find additional support also in Judge John C. Castellis' decision in Borton, Inc. (OSHRC Docket Number 1482, February 26, 1973), as applicable to the captioned case, where he found that the issuance of a citation 128 days after inspection, in the absence of mitigating factors, did not comport with the "reasonable promptness" contemplated by Congress when it enacted Section 9(a) of the pertinent legislation,   and with that part of Judge Abraham Gold's decision in E.C. Ernst, Inc.,

In view of the foregoing I am constrained to rule that the Respondent's Motion to Dismiss the Complaint herein, should be, and is, hereby granted.

It is ORDERED that the Complainant in the captioned case be and is hereby dismissed, and that the amended citations originally issued on March 16th and 19th, 1973, and the penalty notifications proposed for the violations so cited, be and are, vacated.