OSHRC Docket No. 3500

Occupational Safety and Health Review Commission

November 9, 1973


Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners



  CLEARY, COMMISSIONER: On August 15, 1973, Judge Herbert E. Bates issued his recommended order in this case granting the Secretary's motion to withdraw his citation and attendant notification of proposed penalty.

Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), I directed that the Judge's order be reviewed by the Commission.

The record shows that on June 13, 1973, the Secretary issued to respondent two citations.   The citation for serious violation contains two items and the citation for non-serious violation contains five items.   Penalties of $1,010 were proposed.   Subsequent to the filing of a timely notice of contest by respondent, the Secretary moved to withdraw the citation and notification of proposed penalties on the basis that he lacked evidence necessary to prove the alleged violations.

The direction for review was concerned with whether the Secretary was moving to withdraw one or both citations and notification of all penalties or only part of them.   The Commission was also concerned   that the record failed to show posting or service of the motion on affected employees or their authorized representative.

On September 25, 1973, a letter from respondent's counsel was received by the Commission, stating that the motion to withdraw had been posted for no less than three days.

  On October 16, 1973, the Commission received from the Secretary a motion to withdraw "both the Serious and Non-serious Citations . . . and the Notification of Proposed Penalty in its entirety." Attached to this motion is a certification of service on respondent's counsel and on the International Union of Operating Engineers.

On the representations of the parties, it is ORDERED that the motion of the Secretary to withdraw the citations for both serious and nonserious violations and the notification of proposed penalty is granted.  



  MORAN, CHAIRMAN, concurring: I concur with the disposition.   Theruling of Judge Bates was correct.

[The Judge's decision referred to herein follows]

BATES, JUDGE, OSAHRC: The Complainant's Motion to Withdraw the Citation and the Notification of Proposed Penalties attendant thereto, on the grounds therein alleged, is granted.

It is ORDERED that the said Citation and Notification be, and are withdrawn.

No further contest existing in the captioned case, it is recommended that this Order be made the Order of the Commission.