OSHRC Docket No. 812

Occupational Safety and Health Review Commission

September 25, 1972


Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners



  BURCH, COMMISSIONER: On September 6, 1972, Judge Alan M. Wienman issued his recommended order in this case granting the Secretary's motion to dismiss the complaint and citation, thereby vacating the citation and notification of proposed penalty.

Pursuant to the authority vested in Members of the Commission by virtue of 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 order be reviewed by the Commission.

The Commission has reviewed the record herein and notes that on April 12, 1972, respondent was issued a citation for other than serious violation together with a notification of proposed penalty. Thereafter on April 18, respondent was issued an amended citation extending the abatement date from April 21 to May 25, 1972, together with an amended notification of proposed penalty.

Subsequent to the timely filing to notice of contest, complaint and answer, the Secretary moved to dismiss the complaint and citation because of insufficient evidence to support the allegations contained therein.   [Emphasis supplied.]   [*2]   Judge Wienman granted the motion.

Presumably it was the Secretary's intention to have the citation and notification of proposed penalty, as amended, vacated.

  Accordingly, it is ORDERED that the Judge's order is amended to provide that the Secretary's motion is granted and the citation and notification of proposed penalty, as amended, are vacated.

[The Judge's decision referred to herein follows]

WIENMAN, JUDGE, OSAHRC: Whereas, the Secretary of Labor, by Motion filed August 24, 1972, moved "to dismiss the Citation and the Complaint" and in support of said Motion represented "that there is insufficient evidence to support the allegations of the Citation and the Complaint".

And whereas the Secretary of Labor has filed a Certificate of Service representing that copies of said Motion have been served upon the Respondent and Mr. Richard Snook, Business Agent, Sheet Metal Workers, Local 541, and an additional copy sent to Respondent's counsel for service on affected employees not represented by said Local Union 541 by posting as provided in 29 CFR 2200.7(i);

And whereas a reasonable time has passed and no objection to said Motion has been received from any party, the undersigned [*3]   Judge finds that the Complainant's motion should be granted.

Now therefore, it is ORDERED that the Complaint heretofore filed in said cause be dismissed and the Citation and Notification of Proposed Penalty be vacated.

There being no further contest in this case, it is recommended that this order be made the order of the Commission.


May 26, 1972  

By Order of the Commission, the Executive Secretary reinstated the above captioned case.

BATES, JUDGE, OSAHRC: The Commission by letter dated April 25, 1972, returned to the Respondent its Notice of Contest in the captioned case, at the same time notifying the Respondent that the said Notice may be deemed waived if the Respondent within seven days did not certify to the Commission its compliance with the requirements concerning service of pleadings in accord with specific Commission rules referred to in the letter, a copy of which rules were enclosed therein.

A review of the docket file in the captioned case shows no evidence that the Respondent has complied with the Commission rules as directed, and under the premises the undersigned is constrained to hold that the Respondent's right to contest that [*4]   citation has accordingly been waived.   The proceeding is hereby dismissed, and the citation and proposed penalty affirmed in all respects.   It is so ORDERED.