TRAILMOBILE DIVISION OF PULLMAN, INC.
OSHRC Docket No. 615
Occupational Safety and Health Review Commission
August 23, 1972
[*1]
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
OPINIONBY: BURCH
OPINION:
BURCH, COMMISSIONER: On August 2, 1972, Judge Worcester issued his recommended order in this case dismissing respondent's notice of contest and affirming contested item 7 of the citation for other than serious violations.
By virtue of the authority vested in Members of the Commission by section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590), I am herewith directing that the Judge's recommended order be reviewed by the Commission.
The Commission has reviewed the record herein and notes that on July 20, 1972, the Secretary and the respondent submitted a motion for withdrawal of notice of contest in which it alleged compliance with all the conditions necessary for hospitable consideration of such motions.
Accordingly, it is ORDERED that the Judge's order is amended to provide that respondent's motion for withdrawal of notice of contest is granted, and item 7 of the citation for other than serious violation is affirmed.
[The Judge's decision referred to herein follows]
WORCESTER, JUDGE, OSAHRC: This matter is before the Judge as the result of a notice of [*2] contest of a citation and proposed penalty for an alleged violation of the Occupational Safety and Health Act of 1970, hereinafter referred to as the Act. The Secretary of Labor under the authority of Section 9 of the Act issued a citation and proposed penalty on February 9, 1972, amended March 2, 1972, charging the Respondent with thirteen separate items of a violation of the Act and the regulations promulgated thereunder at a steel fabricating plant of the Respondent's subsidiary Trailmobile Division in North Kansas City, Missouri. On March 6, 1972, the Respondent invoked the jurisdiction of the Review Commission by the filing of a notice of contest of Item 7 of the amended violation as provided in Section 10(a) of the Act. All other items of alleged violation in the amended citation, namely, Items 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12 and 13 are found and determined to be the final order of this Commission and not subject to review by any court or agency under provisions of Section 10(a) of the Act. The foregoing listed violations and citation of penalties therefor, totalling $425.00, should be and hereby are affirmed in all respects.
The parties under the authority [*3] of 29 C.F.R. 2200.23 have entered into negotiations with respect to settlement of the alleged violation, Item Number 7, the only alleged violation in issue, and have submitted a settlement agreement for approval.
The Respondent, Pullman Incorporated, moves to withdraw its notice of contest of Item 7 of amended citation 1 and has entered into a stipulation consenting and agreeing to the withdrawal with the Complainant citing in support of said motion the following:
a. That respondent is now in compliance with the abatement requirements of the citation and will continue to remain in compliance with those abatement requirements of the citation which are continuing.
b. That a copy of this stipulation for withdrawal of notice of contest has been posted in the affected workplace.
c. That a copy of this stipulation for withdrawal of notice of contest has been served upon the representative of employees by counsel for the Secretary as set forth in the certificate of service below.
d. That no penalty was proposed for Item Number 7 of Amended Citation 1; and, therefore, no tender of payment of proposed penalty by respondent is necessary.
The Respondent has certified that [*4] a copy of the motion for withdrawal and the stipulation was served on the authorized employee representative as required under the provision of 29 C.F.R. 2200.7. The Complainant has verified this service and has certified that it has in fact been made. Upon consideration, the Judge finds that:
1. The conditions complained of have been abated.
2. There has been a satisfactory assurance of continued compliance with the Act by the Respondent.
3. There is no proposed penalty.
4. Notice of the stipulation and withdrawal motion together with the supporting statement has been served upon all parties to the proceeding.
5. No objection to the stipulation and settlement agreement has been made.
6. The stipulation and withdrawal are consistent with the provisions of the Occupational Safety and Health Act of 1970.
It is therefore, hereby ORDERED that:
1. The Respondent's notice of contest be dismissed.
2. The citation of violation of Item 7 of amended citation 1 is affirmed and is deemed to be a final order of the Commission.