SECRETARY OF LABOR,
Complainant,

v.

STRIPE-A-ZONE, INC.,
Respondent.

OSHRC Docket No. 79-2380


_DECISION
_
Before: BUCKLEY, Chairman; CLEARY, Commissioner.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is
an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration. It was established to
resolve disputes arising out of enforcement actions brought by the
Secretary of Labor ("Secretary") under the Act and has no regulatory
functions. See section 10(c) of the Act, 29 U.S.C. § 659(c).

This case arises from an inspection of Respondent, Stripe-A-Zone, Inc.
("Stripe-A-Zone"), by the Secretary of Labor when Respondent was engaged
in installing ceramic buttons and stripes in a traffic zone on a highway
pursuant to a contract between Stripe-A-Zone and the Texas State
Department of Highways and Public Transportation. Federal funds from the
U.S. Department of Transportation ("DOT") were used to finance the
project. The Secretary cited

Stripe-A-Zone for four violations of the Act, all related to traffic
safety control procedures, practices and training.

In its answer and its Motion to Dismiss filed with Administrative Law
Judge Louis G. LaVecchia, Stripe-A-Zone asserted that DOT exercises
statutory authority to prescribe or enforce safety standards concerning
the working conditions involved in the citations. Stripe-A-Zone
contended that, under section 4(b)(1) of the Act,[[1]] the Secretary was
without authority to issue the citations. The Secretary opposed the
Motion to Dismiss, arguing that section 4(b)(1) does not apply since
Stripe-A-Zone has no Federal obligation to comply with DOT traffic
safety standards or regulations. Judge LaVecchia granted Stripe-A-Zone's
Motion to Dismiss, concluding that "the argument made by the respondent
comports with the position taken by the Review Commission in pertinent
decisions."

The judge's dismissal order was not accompanied by any findings of fact
or conclusions of law. Aside from a general reference to Commission
precedent which did not mention any specific cases, the judge's order
did not give any reason supporting the conclusion that the citations
should be dismissed. In granting the Motion to Dismiss, the judge should
have provided findings of fact and a sufficient statement of reasons or
a basis for his decision. Section 10(c) of the Act, 29 U.S.C. § 659(c);
section 8(b) of the Administrative Procedure Act, 5 U.S.C. § 557(c);
Commission Rules 66(i) and 90(a), 29 C.F.R. §§ 2200.66(i) and
2200.90(a); P & Z Co., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1977-78 CCH
OSHD, ¶ 22,413 (No. 76-431, 1977). See also Syntron, Inc., 82 OSAHRC
39/E9, 10 BNA OSHC 1848, 1982 CCH OSHD ¶ 26,145 (No. 81-1491, 1982). We
therefore vacate the decision and remand this case to the judge for
appropriate findings of fact and conclusions of law.

On remand, the judge should also hold a hearing on the merits of the
Secretary's citations. The inspection in this case occurred on November
6 through November 13, 1978. This is the third time that the case has
been before the Commission and no hearing on the merits has yet been
held.[[2]] Because of the amount of time that has passed since the
inspection, and to prevent further delay, on remand the parties should
proceed to a hearing on the merits.

Accordingly, the judge's order is vacated and the case is remanded for
further proceedings consistent with this opinion.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: FEB 8 1985

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FOOTNOTES:

[[1]] Section 4(b)(1) of the Act, 29 U.S.C. § 653(b)(1), provides in
pertinent part:

Nothing in this chapter shall apply to working conditions of employees
with respect to which other Federal agencies. . . . exercise statutory
authority to prescribe or enforce standards or regulations affecting
occupational safety or health.

[[2]] In addition to the order now on review, Judge LaVecchia previously
granted two other motions to dismiss filed by Stripe-A-Zone. In each
case the Commission reversed these rulings and remanded the case to the
judge for further proceedings. Stripe-A-Zone, Inc., 80 OSAHRC 111/D12, 9
BNA OSHC 1040, 1980 CCH OSHD ¶ 24,912 (No. 79-2380, 1980), petition for
review dismissed on other grounds, 643 F.2d 230 (5th Cir. 1981) (denial
of motion to dismiss which alleged that the citations were barred by res
judicata); 82 OSAHRC 31/E13, 10 BNA OSHC 1694, 1982 CCH OSHC ¶ 26,069
(1982) (denial of motion to dismiss which alleged that the citations
were not issued with reasonable promptness).