OSHRC Docket No. 865

Occupational Safety and Health Review Commission

November 6, 1972


Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners



  BURCH, COMMISSIONER: On October 4, 1972, Judge Paul E. Dixon issued a "Stipulation and Order" in this case sustaining the stipulation between respondent and the Secretary.

Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651, et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), I am hereby directing that the Judge's decision be reviewed by the Commission.

The Commission has reviewed the record in this case noting that on May 1, 1972, respondent was issued a citation for a serious violation of the Act together with a proposed penalty of $500.   Upon receipt of a timely notice of contest, the Secretary served and filed his complaint which incorrectly stated the situs of the alleged violation.   That complaint served to amend the citation.   However, the Secretary subsequently moved for leave to file an amended complaint to reflect the correct address of the alleged violation.   No ruling was entered on that motion by Judge Dixon.

The parties thereafter submitted a stipulated withdrawal of notice of contest wherein respondent certified compliance with those [*2]   conditions precedent essential to hospitable consideration by the Commission of such motions.

Accordingly, it is ORDERED that the Judge's order   is amended to provide that the Secretary's motion to file an amended complaint so as to reflect the proper address of the violation set forth in the citation is granted; that respondent's motion to withdraw notice of contest is granted; and the Secretary's citation in its initial posture and notification of proposed penalty are affirmed.

[The Judge's decision referred to herein follows]

DIXON, JUDGE, OSAHRC: This case is properly before the Judge upon assignment for hearing by the Occupational Safety and Health Review Commission.

By Stipulation of October 2, 1972, Respondent moved to withdraw its Notice of Contest previously filed on May 3, 1972, to contest Citation for serious violation and Notification of Proposed Penalty heretofore issued to Respondent on May 1, 1972, by the U.S. Department of Labor, Occupational Safety and Health Administration.   Total Proposed Penalty in the amount of $500.00 was assessed.

Respondent by Stipulation avers:

(a) It has tendered payment of the Proposed Penalty of $500.00 to the Secretary   [*3]   of Labor.

(b) Respondent has complied and will continue to comply with the abatement requirements of the Citation.

(c) A copy of the Stipulation for Withdrawal of Respondent's Notice of Contest has been served upon the employees' representatives, Roofers Local Union No. 182 and on other affected employees by posting as provided by Sections 29 CFR 2200.1(f) and 29 CFR 2200.7(i).

Complainant stipulates that it acknowledges receipt   of payment of the aforesaid proposed penalty and agrees that, based upon the representations of Respondent, an order may be entered allowing Respondent to withdraw its Notice of Contest and affirming the Citation and Notification of Proposed Penalty previously issued.

No objections having been received from any authorized representative of employees or affected employees, and upon showing by Stipulation of correction, abatement, payment of proposed penalties and continuing compliance, the Stipulation of Respondent, joined in by the Department of Labor, should be sustained and it is so ordered.