OSHRC Docket No. 647

Occupational Safety and Health Review Commission

May 5, 1972


Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners



  BURCH, COMMISSIONER: On April 21, 1972, Judge Benjamin Worcester issued an order granting Respondent's motion to withdraw its notice of contest, dismissing the notice of contest, and affirming the Secretary's citation and proposed penalty in the amount of $25.

Thereafter, on April 28, I directed review in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act").

The Commission has reviewed the entire record in this case and notes that by letter dated April 5, the Respondent moved to withdraw its notice of contest indicating that the violations had been corrected; the employer would comply with the Act in the future; and payment was being tendered for the proposed penalty. Although Respondent stated that a copy of the letter was sent to all parties to the proceeding, there is no evidence of record to indicate service upon the affected employees (Commission Rule 2200.7(i)).   The Commission also notes that Respondent failed to comply with the March 21 and April 6 directives from the Commission's Executive [*2]   Secretary advising that the notice of contest was subject to dismissal for failure to provide proof of service (Commission Rule 2200.7(b)).

The Commission has on numerous occasions stated that one of the conditions precedent to granting motions   for withdrawal is proof of service of that pleading upon all parties, including affected employees or their authorized representative (e.g., OSHRC Docket Numbers 252, 269 and 274).

In view of the foregoing, it is ORDERED that: (1) the Judge's order granting Respondent's motion to withdraw be set aside; (2) the motion to withdraw is denied; (3) the notice of contest is hereby dismissed; and (4) the Secretary's citation and notification of proposed penalty are affirmed as the final order of the Commission.

[The Judge's decision referred to herein follows]

WORCESTER, JUDGE, OSAHRC: The Respondent has, on April 10, 1972, filed a Motion dated April 5, 1972, to withdraw its Notice of Contest, tendering with it the sum of $25.00, as payment in full of a proposed penalty for violations of the Occupational Safety and Health Act of 1970 and applicable regulations.

It is stated in said Motion that all alleged violations set forth in the [*3]   Citation dated January 31, 1972, were fully abated by February 1, 1972 and that continued compliance with applicable safety and health standards is intended.   The Respondent has posted a copy of the Complaint as required by law.   No objection to the granting of this Motion has been filed by the Complainant or any other proper party.

The Respondent's Motion to Withdraw is granted.   Its Notice of Contest is dismissed.   The Secretary's determination that there were violations of the Act as set forth in the Citation of January 31, 1972, and that a proposed penalty of $25.00 should be assessed is affirmed.