UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION


SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 106

SUDDATH OF SOUTH FLORIDA,

 

                                              Respondent.

 

 

March 17, 1972

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

BY THE COMMISSION:

            On March 7, 1972, Hearing Examiner David H. Harris transmitted the file in this case to the Commission. In an accompanying letter, the Hearing Examiner stated that the file was transmitted for ‘use by the Commission in the event the complainant appeals from the undersigned’s Order dated March 6, 1972.’

            The order denied a request for reconsideration filed by the Secretary of Labor in which the Secretary requested that the Examiner reconsider his denial of a request for withdrawal of notice of contest filed by Respondent with the concurrence of the Secretary.

            The record in this case indicates that Respondent has abated each of the violations for which it was cited, has tendered payment of the penalty proposed by the Secretary and has certified that the affected employees or their authorized representatives were afforded an opportunity to participate in the proceedings.

            While the record in this case was transmitted to the Commission in a manner and at a stage of the proceedings for which there is neither precedent nor rule, final disposition of the case at this time comports with the purposes of the Act. Accordingly, we will construe the Hearing Examiner’s letter of transmittal as certification of the case to the Commission on his own motion.

            In Secretary of Labor v. Dawson Brothers Mechanical Contractors, Docket No. 12, Commissioner Van Namee, speaking for the Commission in an order of remand, stated:

The Commission will give hospitable consideration to stipulated withdrawals of notice of contest where the record reflects (1) the date on which abatement of the violation has been or will be accomplished; (2) assurance by the respondent of continuing compliance; (3) tender of payment of the penalty proposed by the Secretary of Labor, and (4) evidence that the affected employees or their authorized representatives have been afforded an opportunity to participate in the proceedings.

 

            While the record in this case does not reflect specific assurance of continuing compliance by the Respondent with the Act, we believe that it may be inferred from the other circumstances. The good faith of the Secretary in issuing his citations and proposed penalties in accordance with the purposes of the Act is, of course, unquestioned. In any case, the essential actions have been taken and we may regard the record in the case as complete. In short we do not believe that remanding the case to the Hearing Examiner for certification of a routine and nonessential assurance by Respondent would comport with the purposes of the Act, but that final disposition herein is appropriate. Accordingly, the citations and proposals of penalties issued by the Secretary on September 22, 1971, with the exception of Item 2 of citation 2, are AFFIRMED as the final order of the Commission.

 

VAN NAMEE, COMMISSIONER, dissenting:

            The facts and circumstances of this case are essentially similar to those obtaining in Secretary of Labor, U.S. Department of Labor v. Exacto Products Corporation, OSHRC Docket No. 192.

            My dissent in this case is based upon the reasoning set forth in Exacto.

 



 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION


SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 106

SUDDATH OF SOUTH FLORIDA,

 

                                              Respondent.

 

 

March 6, 1972

HARRIS, JUDGE, OSAHRC:

            Complainant, by motion dated January 31, 1972, and filed on February 2, 1972, moves the undersigned to reconsider a request for the following items of information contained in a letter to the parties dated January 17, 1972:

6. Where the citation alleges a violation which has been specifically determined to be not of a serious nature, the facts, circumstances and considerations upon which such determination was based, in accordance with Section 17(c) of the Occupational Safety and Health Act of 1970.

 

7. The information which was considered with respect to the size of the business of the employer-respondent, the gravity of the violation, the good faith of such employer and the history of previous violations in the determination of the proposed penalty pursuant to Section 17(j) of the said Occupational Safety and Health Act of 1970.

 

            The action herein was commenced by the issuance by complainant of two citations dated September 22, 1971, pursuant to Section 9(a) of the Occupational Safety and Health Act of 1970, 29 USC 651, et seq. (hereinafter the Act) and service thereof upon the respondent. Citation No. 1 charges 7 items, each being a violation of a specified standard in 29 CFR Part 1910, promulgated pursuant to Section 6 of the Act. Citation No. 2 charges 2 items, each being a violation of a specified standard in said 29 CFR Part 1910. On the same date complainant issued a Notification of Proposed Penalty (hereinafter NPP), pursuant to Section 10(a) of the Act, wherein he proposed penalties for each alleged violation. The NPP was thereafter served upon respondent. Said NPP proposes no penalty for violation of Item No. 1 in Citation No. 1 for the reason that the ‘Regulation (was) not in effect until February 15, 1972’ and proposes penalties aggregating $160 on the remaining items in both Citations. However, the total shown is the sum of $80. A memorandum in the record, dated October 18, 1971, by the Area Director, Occupational Safety and Health Administration, United States Department of Labor (hereinafter OSHA) explains that the proposed penalties listed are the ‘basic amounts and the 50% abatement credit is not reflected. However, the total for all alleged violations is the correct amount. The typist inadvertently copied from the wrong column.’

            Both Citation No. 1 and Citation No. 2 aver that the violations of the Act charged are not of a serious nature.

            The respondent filed a notice of contest which is dated October 14, 1971 and on October 25, 1971, the matter was referred to the Commission as the Act requires (respondent filed an additional notice of contest which is dated November 24, 1971).

            On October 29, 1971, complainant filed his complaint pursuant to the rules of the Occupational Safety and Health Review Commission (hereinafter Commission) which was duly served upon respondent. The complaint fails to charge Item No. 1 in Citation No. 1 and Item No. 1 in Citation No. 2. No reason appears for the omission of the latter. However, the NPP proposes a penalty of $10 thereon to which no reference is made in the complaint.

            On November 10, 1971, respondent filed its answer wherein it fails to admit any jurisdictional fact; admits the violation charged in Items No. 2, 3 and 7 in Citation No. 1 (paragraphs IV A; IV B and IV F of the complaint); but denies the violations charged in Items No. 4, 5 and 6 of Citation No. 1 and Item No. 2 of Citation No. 2 (paragraphs IV C; IV D; IV E and IV G of the complaint).

            On December 21, 1971, the matter was assigned to the undersigned for hearing who thereupon fixed January 19, 1972, as the date of hearing and designated Fort Lauderdale, Florida, as the place thereof.

            On January 12, 1972, counsel for complainant advised that an agreed disposition of the matter was likely. On January 17, 1972, the undersigned issued the letter request which is here being contested. On January 18, 1972 the respondent filed a Notice of Withdrawal of its notice of contest which is dated January 13, 1972, and on the same date the hearing was adjourned sine die.

            Thereafter the parties filed a stipulation, also dated January 13, 1972, executed by the attorneys for the complainant and the attorney for the respondent, in which the parties agree that: (1) respondent is engaged in the ‘moving and storage business;’ (2) an inspection at respondent’s workplace was made by an OSHA employer; (3) two Citations were issued on September 22, 1971 as was a NPP and that complainant filed his complaint on October 29, 1971; (4) Respondent represents that the ‘conditions alleged by the Secretary, to have been in violation of the Act in paragraphs IVA, B, C, D, E and F of the complaint’ (Items 2, 3, 4, 5, 6 and 7 in Citation No. 1) ‘have been and will remain abated;’ (5) that respondent has paid the ‘penalties proposed in paragraph VIA of the complaint in the total amount of $62.50;’ (6) that paragraph IV G of the complaint (Item No. 2 in violation No. 2) is withdrawn by the complainant for the reason that the facts alleged therein ‘do not constitute a violation’ of the standard specified; Footnote (7) that respondent has heretofore filed a notice of withdrawal of notice of contest; (8) that there is no certified bargaining employee representative; and (9) that a copy of the stipulation was posted at respondent’s place of business.

            On January 24, 1972, the undersigned reiterated his request for the information requested in his letter dated January 17, 1972 and on February 2, 1972, as aforesaid, complainant filed his motion for reconsideration. Paragraph 3 of the motion, wherein the complainant takes the position that ‘evidence requested in paragraphs 6 and 7 of the aforesaid letter and order dated January 17, 1972 . . . go beyond recognized legal and judicial practices with respect to matters disposed of by agreed disposition,’ squarely raises the issues of the extent and nature of the Commission’s jurisdiction to adjudicate matters wherein its jurisdiction has been invoked by the service of a notice of protest pursuant to Section 10(c) of the Act.

            The complainant does not, it seems, argue that the ‘agreed disposition’ and the notice of withdrawal of the notice of contest by the respondent, ipso facto, place the respondent in the position of not having filed a notice of contest since it is not maintained that the Citations and the proposed penalties in the NPP shall become the final order of the Commission pursuant to Section 10(a) of the Act. The position adopted by the complainant appears to be that an ‘agreed disposition’ at any stage of a proceeding operates to divest the Commission of jurisdiction to affirm, modify or vacate any Citation and such an ‘agreed disposition’ must be ratified by the Commission without review and that any penalty agreed upon by the parties must be adopted by the Commission and assessed as its own determination.

            Assuming, but not deciding, that complainant is justified in withdrawing the violation charged in paragraph IV G of the complaint (Item No. 2 in Citation No. 2), no effort has been made to remedy the seeming defect in Item No. 1 of Citation No. 1, which is the statutory pleading, beyond omitting the item from the complaint, nor has the omission of Item No. 1 in Citation No. 2 from the complaint been explained.

            Neither the record, the pleadings nor the stipulation of the parties supply any information which will support a specific finding by the Commission that the violations alleged in the citations are not of a serious nature as is required by Section 17(c) nor do they furnish any information concerning the gravity of the violations, the good faith of the respondent, the history of its previous violations or the size of its business, factors which are required by Section 17(j) of the Act to be considered by the Commission in assessing penalties.

            The factual situation presented is therefore generally similar to that in Hodgson v. New York Packaging Corporation, OSHRC Docket No. 193. The motion for reconsideration in that case was denied by Order dated March 2, 1972, and a copy of the Order denying the same is attached to and made a part hereof.

            For the reasons expressed in the Order dated March 2, 1972 in the matter of Hodgson v. New York Packaging Corporation, OSHRC Docket No. 193, and good cause therefore appearing, it is ORDERED that:

            1. Complainant’s motion for reconsideration be and the same is hereby denied.

            2. Complainant is given leave to appeal to the Commission from the within Order denying his motion for reconsideration.