February 22, 1973


Before Moran, Chairman; VAN NAMEE and BURCH, Commissioners


On November 20, 1972, Judge Herbert E. Bates issued an Order granting Respondent’s motion to withdraw its notice of contest in the above-captioned matter.

On December 20, 1972, I directed review of the proposed Order pursuant to the authority of 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’). For the reasons given hereinafter we reverse and remand.

On October 25, 1972, Respondent submitted the aforementioned motion to withdraw. Respondent stated that the controverted items of the citation (numbers 11 and 13) had not been abated pending the outcome of a request for a variance from the Secretary of Labor. It was further represented that the Respondent understood there would be no reinspection of its plant

            Complainant responded to this motion on October 30, 1972, stating that he had not given any assurance that he would not reinspect the plant during the pendency of the variance request to be filed by the Respondent. Complainant also indicated that Respondent was notified of the Complainant’s position both by telephone and by the forwarding of a copy of the letter containing its response.

Thereafter on November 1, 1972, Respondent submitted a letter in response to the Complaint filed herein. In paragraph two of this letter Respondent stated that it denied all allegations of the complaint.

The Commission has on numerous occasions stated that one of the conditions precedent to the granting of a motion to withdraw is certification that abatement of the violation has been or will be accomplished. It is clear from the record in this case that the subject motion does not comport with this basic requirement for hospitable consideration. Therefore, Judge Bates erroneously granted Respondent’s motion.

The Commission is of the opinion that Respondent’s letter of November 1, 1972, submitted after oral notification of the Secretary’s response to its motion, is a general denial of each and every allegation in the Complaint. We also construe this pleading, in the circumstances of this case, as being a request to withdraw the motion to withdraw the notice of contest.

Accordingly, it is ORDERED that the Judge’s Order be and the same is hereby set aside, and the case is remanded for further proceedings absent the submission by Respondent of a proper motion to withdraw certifying abatement of the alleged violations.


MORAN, CHAIRMAN, dissenting:

I dissent because the Commission is here requiring an employer to do something it has no power to require the employer to do and because the erection of barriers to an employer’s withdrawal from a case is unnecessary, burdensome to both the Government and the employer, and unwarranted.

The only reason for the existence of this Commission is to hear issues in dispute and render decisions thereon. The Commission was created by a statute[1] and has only those powers specifically granted by that statute.

Those powers come into being only when an enforcement action, initiated by the Secretary of Labor under the Act, is contested by the employer against whom it is initiated, or by any of his employees, or by any representative of his employees.

The powers granted the Commission upon the existence of such an event are to

(a) afford an opportunity for a hearing . . . in accordance with section 554 of title 5, United States Code, and thereafter


(b) issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary’s citation or proposed penalty, or directing other appropriate relief.


The foregoing is the full extent of the Commission’s power. Not only are there no police powers or enforcement responsibility invested in this tribunal, but the statute clearly and specifically grants such authority to someone else—the Secretary of Labor. It is, therefore, beyond the jurisdiction of this Commission to require an employer to certify—as this decision does—‘that abatement of the violation has been or will be accomplished.’

Ascertaining compliance with an abatement order is an enforcement responsibility of the Secretary of Labor, whether such an order resulted from a decision of a court, a decision of this Commission, or from a citation not in litigation.

I also do not think it is right to prohibit an employer who commenced a case with this Commission by filing a notice of contest from discontinuing his case unless he first complies with certain requirements imposed by the Commission.

            I concede that I have in the past assented to decisions which included an erroneous rule of this kind.[2] The position taken here results from a clearer understanding of the aforementioned division between the adjudicatory responsibilities of the Commission and the enforcement authority of the Secretary of Labor.

            An employer can originate a case with this Commission simply by asserting his right to contest an enforcement action. He ought to be able to discontinue the case just as simply—by withdrawing that assertion.

More than 25% of all case dispositions issued by this Commission to date have resulted from the withdrawal by an employer of his objection to the enforcement action initiated against him. A great deal of time has been expended by many people who serve this agency, the Department of Labor, various employers and representatives of employees in unnecessary letter-writing, notice-posting, and paper-pushing because of these withdrawal conditions and the difficulty in explaining and understanding them. Absolutely no benefit to anyone results from the Commission’s insistence on these requirements. They should be discarded.

Their existence is the result of the Commission relegating to itself responsibility which Congress has given to the Secretary of Labor.

My views on this matter can be summarized rather succinctly:

1. The Commission’s only power is to hear and decide issues in dispute.

2. There is no issue in dispute until a notice of contest is filed to an enforcement action.

3. When such a notice of contest is subsequently withdrawn by its author, there are no longer any issues in dispute and the Commission’s jurisdiction over that case is terminated.

4. The filing of a notice of contest creates a case for this Commission. The person who created the case has the unconditional right to terminate it at any time prior to its final disposition by filing a discontinuance.



















November 20, 1972


Ruling on the Respondent’s motion to withdraw Notice of contest. Granted.

[1] The Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590)

[2] My position on control of the litigation process is the same as it was in November 1971, however. At that time I wrote in a dissenting opinion to an Order to Show Cause which sought further information on a case the parties had settled:

. . . the Act constitutes the cited employer dominus litus. Thus, an employer who seeks to preserve his right to contest the merits of a citation (a right which the Act places exclusively in his hands through the provisions of Section 10(c)), is, by this order put on notice that his exercise of that exclusive right places the review process beyond his control—even in the event that he experiences a change of mind or heart and wishes immediately to do all that the Secretary requires. Surely, a tentative prayer for relief should not be transmuted into the summoning of an avenging angel. Secretary v. American Home Products Corporation, OSAHRS No. 3.