Bethlehem Steel Corporation

OSHRC Docket No. 79-746

Occupational Safety and Health Review Commission

February 22, 1982

COUNSEL:

[*1]

Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

George B. Levasseur, Bethlehem Steel Corp., for the employer

Nicholas Kiak, Pres., United Steelworkers of America, Local 2599, for the employees

George Schrader, Sfty. Coordinator, United Steelworkers of America, for the employees

OPINION:

ORDER

The Parties' Stipulated Notice of Dismissal is Approved.

STIPULATED NOTICE OF DISMISSAL

Raymond J. Donovan, Secretary of Labor, United States Department of Labor, Complainant, Bethlehem Steel Corporation, Respondent, Local 2599, United Steelworkers of America, Authorized Employee Representative, parties to the above-captioned matter, in order to resolve the contest herein agree and stipulate as follows:

1. On January 17, 1979, Complainant issued to Respondent a serious citation for an alleged violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 654(a)(1). The citation specified the violation as follows:

Operators of "Hyster" straddle carrier number 260 which was operated and stored in the Structural Steel and Auxiliary Structural Steel Yard, did not have adequate vision from the carrier cab to the front and right sides of the [*2] carrier, November 22, 1978 to January 5, 1979.

2. Respondent timely contested the citation and the matter was referred to the Occupational Safety and Health Review Commission ("the Commission") for adjudication.

3. The Authorized Employee Representative elected and was accorded party status before the Commission.

4. A hearing was held before the Commission's Administrative Law Judge Alfieri who, thereafter on January 24, 1980, filed a Decision and Order with the Commission. In his Decision Judge Aflieri vacated the citation for several reasons including his finding that while limited carrier visibility created a hazard and while Respondent had knowledge of the hazard, nonetheless the evidence did not establish the feasibility and likely utility of the Secretary's suggested means of abatement, i.e., mirrors mounted on the carrier.

5. None of the parties petitioned the Commission for review of the judge's decision. Nevertheless, Commissioner Cottine, on February 25, 1980, directed the judge's decision for review to consider:

Whether the Judge erred in vacating the citation alleging a violation of 29 U.S.C. 654(a)(1) on the basis that "the Secretary did not carry his burden [*3] of proof that Respondent violated the general duty clause."

6. On December 10, 1981, the Commission issued a briefing notice to the parties.

7. Since the issuance of the briefing order the parties have discussed the case and the record. From this review the parties have determined that the record supports the decision of the judge.

Complainant, in view of the foregoing and in reliance on respondent's assertions that the carrier, in addition to its clearly visible size and shape, is equipped with certain devices intendend to alert employees to the approach of the carrier, agrees to withdraw the citation and notification of proposed penalty.

Respondent, in view of the foregoing agrees to withdraw its notice of contest.

The Authorized Employee Representative has no objections to the above withdrawals.

WHEREFORE, in the light of the foregoing the parties agree that there is no longer any contest or controversy as to this case and agree to the dismissal or this matter and the entry of a final order in accordance with the terms herein.