HEALY-KRUSE (A JOINT VENTURE)

OSHRC Docket No. 4651

Occupational Safety and Health Review Commission

July 3, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: On January 11, 1974, Judge Henry K. Osterman issued his decision and order granting respondent's motion to withdraw its notice of contest.

On February 11, 1974, review of the decision and order was directed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").

The Commission has reviewed the entire record in this case. We adopt the Judge's decision to the extent that it is consistent with the following.

On September 7, 1973, respondent was issued one citation for non-serious violation together with a notification that a penalty of $150 was proposed. Respondent timely filed a notice of contest on September 13, 1973.

On October 5, 1973, respondent moved to withdraw its notice of contest. In accordance with Commission procedure, respondent certified that it had abated the alleged violations, that it had paid the proposed penalty, and that it would continue to comply with the Act. n1 Respondent's motion did not, however, certify that a copy of its motion had been posted at the worksite or served upon [*2] the authorized employee representative.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 See Dawson Brothers Mechanical Contractors, No. 12 (February 22, 1972; Baroco Electric Construction Co., No. 2806 (August 30, 1973).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Subsequent to the Commission's direction for review, respondent's attorney notified the Commission by letter that the motion to withdraw had been posted at the worksite. The Commission has recently ruled that posting of a motion to withdraw is sufficient notice to affected employees when no affected employees have elected party status. Newspaper Agency Corp., No. 1902 (May 6, 1974). That case is controlling. n2 Respondent has now completed the items necessary for the granting of a motion to withdraw a notice of contest.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 Commissioner Cleary dissents from this decision for the reasons set forth in his dissenting opinion in Newspaper Agency Corp. In addition to posting, he would require that a motion to withdraw be served upon the authorized representative of affected employees.

[*3]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, it is ORDERED that respondent's motion to withdraw its notice of contest is granted.

[The Judge's decision referred to herein follows]

OSTERMAN, JUDGE, OSAHRC: This matter is before me on Respondent's motion to withdraw its Notice of Contest filed in the above-captioned matter on September 17, 1973.

The record discloses that on September 7, 1973 a Citation alleging four(4) non-serious violations was issued to Respondent together with a Notice of Proposed Penalty in the total amount of $150.00. The motion to withdraw discloses, in effect, that the violations charged have been abated; that Respondent is now in full compliance with the Occupational Safety and Health Act of 1970 and the regulations issued thereunder and will remain so in the future; that the proposed penalty of $150.00 is being tendered to the Secretary of Labor; and that all parties to this proceeding have been served with copies of Respondent's motion. There has been no objection made to the Respondent's application.

Accordingly, it is ORDERED:

1. That Respondent's motion to withdraw its Notice of Contest [*4] filed in the above-captioned matter on September 17, 1973 be, and the same hereby is, GRANTED.

2. That the Citation and the Proposed Penalties herein be, and the same hereby are, affirmed.