” American Home Products, Docket No.3var gAgent = navigator.userAgent.toLowerCase()var gWindows = ( (gAgent.indexOf( \”win\” ) != -1 ) || ( gAgent.indexOf( \”16bit\” ) != -1 ) )var gIE = ( gAgent.indexOf( \”msie\” ) != -1 )var bInlineFloats = ( gWindows && gIE && ( parseInt( navigator.appVersion ) >= 4 ) )var floatwnd = 0var WPFootnote1 = ‘\u00a0\u00a0L. Jaffe, Judicial Control of the Administration Action 25-26 (1965).\\’var WPFootnote2 = ‘\u00a0References hereinafter have the following meanings:\\R. p. 1\u2014That document, bearing page number 1 on its lower right hand corner, appearing in the file\\of the Occupational Safety and Health Review Commission.\\R. p. H\u20131\u2014That document, bearing page number H\u20131 on its lower right hand corner, received or\\issued by the Hearing Examiner and made a part of the record in this matter.\\Exh. A\u2014Exhibit A, a three page stipulation entered into by counsel for the Complainant and the\\Respondent dated August 16, 1971.\\Exh. B\u2014Exhibit B, a three page affidavit of the authorized employee representative, dated\\September 22, 1971.\\Exh. C\u2014Exhibit C, a one page affidavit of an officer of the Respondent, dated September 29, 1971.\\For ease of reference, Exhibits A, B, and C are attached hereto.\\’function WPShow( WPid, WPtext ){ if( bInlineFloats ) eval( \”document.all.\” + WPid + \”.style.visibility = ‘visible’\” ); else { if( floatwnd == 0 || floatwnd.closed ) floatwnd = window.open( \”\”, \”comment\”, \”toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1\” ); floatwnd.document.open( \”text\/html\”, \”replace\” ); floatwnd.document.write( \”\\\” ); floatwnd.document.write( \” p { margin-top:0px; margin-bottom:1px; } \\\” ); floatwnd.document.write( \”\\\” ); floatwnd.document.write( WPtext ); floatwnd.document.write( ‘Close’); floatwnd.document.write( \”\” ); floatwnd.document.close(); floatwnd.focus(); }}function WPHide( WPid ){ if( bInlineFloats ) eval( \”document.all.\” + WPid + \”.style.visibility = ‘hidden’\” );}p{\tmargin-top: 0px;\tmargin-bottom: 1px}table{\tborder-collapse: collapse;\tborder-spacing: 0pt;\tborder-color: black;\tempty-cells: show;\tfont-family: \”Calibri\”, sans-serif;\tfont-size: 11pt;\tfont-weight: normal;\tfont-style: normal}td{\tborder-color: black}td.table1column1{\tpadding-left: 0.075in;\tpadding-right: 0.0816667in}td.table1column2{\tpadding-left: 0.075in;\tpadding-right: 0.075in}span.WPFloatStyle{\tvisibility: hidden;\tposition: absolute;\tleft: 10px;\tright: 10px;\tbackground-color: rgb(255, 255, 225);\tborder-width: 1px;\tborder-style: solid;\tborder-color: black;\tmargin-top: 25px;\tpadding: 6px;\tline-height: normal}span.WPNormal{\tfont-family: \”Calibri\”, sans-serif;\tfont-size: 11pt;\tfont-weight: normal;\tfont-style: normal;\tfont-variant: normal;\ttext-align: left;\ttext-decoration: none;\tcolor: black;\tvertical-align: middle;\ttext-indent: 0in}hr{\theight: 0.0125in;\tbackground-color: black}td.table2column1{\tpadding-left: 0.075in;\tpadding-right: 0.0816667in}td.table2column2{\tpadding-left: 0.075in;\tpadding-right: 0.075in}body{\tfont-family: \”Calibri\”, sans-serif;\tfont-size: 11pt;\tfont-weight: normal;\tfont-style: normal;\tmargin-left: 0.075in;\tpadding-left: 0.1in}UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONSECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0v. OSHRC DOCKET NO. 3AMERICAN HOME PRODUCTS\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.\u00a0\u00a0February 28, 1972\u00a0Before MORAN, Chairman; VAN NAMEE and BURCH, CommissionersBY THE COMMISSION:\u00a0Having reviewed the record in this case the Commission concludes that under all thecircumstances therein, approval of the Hearing Examiner\u2019s proposed disposition of the casecomports satisfactorily with the purposes of the Act.Therefore, the Hearing Examiner\u2019s order is AFFIRMED.\u00a0VAN NAMEE, COMMISSIONER, dissenting:These proceedings were initiated by the respondent\u2019s notice of contest, dated June 28,1971. On September 1, in accordance with section 12(j) of the Occupational Safety and HealthAct of 1970 (84 Stat. 1590; 29 U.S.C. 651, et seq.), hereinafter referred to as the Act, thisCommission unanimously directed a review of the Hearing Examiner\u2019s report of August 19which tacitly approved a proposed stipulated disposition of the proceedings by the parties. By itsorder of September 1, the Commission unanimously remanded the case to the Hearing Examinerfor his initial determination of specific factual and legal questions, viz., (1) whether therespondent\u2019s affected employees had been apprised of their rights to participate as parties tothese proceedings, (2) whether such employees were in agreement with the proposed stipulateddisposition, and (3) whether the proposed stipulated settlement of the issues herein is consistentwith the provisions of the Act.The Hearing Examiner\u2019s decision on remand answered these questions affirmatively.That decision was reviewed by the Commission at my direction, and that review resulted in anorder to the parties, dated November 16, to show cause why the Commission\u2019s final order shouldnot be a modification of the Secretary\u2019s citations, proposed penalties, or both, or be a direction ofother appropriate relief.In his response to that order the Secretary addressed himself solely to the questionwhether the Commission has the right to take any action in this instance except perfunctorily toapprove the agreement of the parties that the citations and proposed penalties are unimpeachable.The respondent shares the Secretary\u2019s view that the Commission\u2019s adjudicatory role does notinclude the right to determine whether a proposed stipulated disposition of its proceedings isconsistent with the purposes of the Act and accords with public policy.I cannot accept that conclusion for it is clearly not supported by law.In his dissenting opinion of November 16, the Chairman attempts to rely upon theAdministrative Procedure Act to support his view that the parties to an administrative proceedingare to be afforded an opportunity for a hearing only \u2018. . . to the extent that the parties are unableto determine a controversy by consent\u2019 5 U.S.C. 554(c)(2). This reliance is misplaced as inignores the preceding subsection which provides that such parties shall be given an opportunityfor \u2018the submission . . . of offers of settlement, or proposals of adjustment when time, the natureof the proceedings, and the public interest permit.\u2019 5 U.S.C. 554(c)(1), emphasis added.It is well settled that an attempt to compromise a controversy \u2018. . . may be disregardedwhere it is illegal, is against public policy, or in contravention of a statute or the policy thereof . ..\u2019 45A Corpus Juris Secundum, sec. 5, p. 262 (Compromise and Settlement). Appellateprocedures follow the same established rule:Although it has been held that dismissal cannot be allowed without the sanctionof the court, ordinarily an appeal may be dismissed where both parties so requestor agree, if the dismissal will not affect the rights of others and no question ofpublic interest is involved. 5 C.J.S., sec. 1349, p. 396 (Appeal and Error),emphasis added.\u00a0I must specifically disavow the view that the Commission has neither sole nor primaryresponsibility to \u2018fret about \u2018whether the stipulated disposition is consistent with the provisionsof the Act and accords with the public interest.\u2019\u2019 (The Chairman\u2019s dissent of November 16,1971). The effectiveness of the Commission emanates from the expertise which reposes in itsmembers. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote1 ); document.write( ‘Close’ ); document.write( ” ); } Presumably that was one of the reasons Congress though it wise to divideresponsibilities for the enforcement of the Act and for the adjudication of controversiesconcerning that enforcement. That administrative agencies, such as this Commission, arecharged with the responsibility of deciding controversies consistent with the public interest isunmistakenly decided in Scenic Hudson Preservation Conference, et al., v. Federal PowerCommission, 354, F.2d 608, 620 (2 Cir., 1965):In this case, as in many others, the Commission has claimed to be therepresentative of the public interest. This role does not permit it to act as anumpire blandly calling balls and strikes for adversaries appearing before it; theright of the public must receive active and affirmative protection at the hands ofthe Commission.\u00a0As recently as July 23, 1971, Judge J. Skelly Wright, speaking for the District ofColumbia Circuit Court, stated in a footnote:In recent years, the courts have become increasingly strict in requiring that federalagencies live up to their mandates to consider the public interest. They havebecome increasingly impatient with agencies which attempt to avoid or dilutetheir statutorily imposed role as protectors of public interest values beyond thenarrow concern of industries being regulated. Calvert Cliffs\u2019 CoordinatingCommittee, Inc., et al., v. United States Atomic Energy Commission, et al., 449F. 2d 1109, 1119, fn. 21.\u00a0See also Environmental Defense Fund, Inc., v. Ruckelhouse, 439 F. 2d 584 (D.C. Cir.;1971); Moss v. Civil Aeronautics Board, 430 F. 2d 891, (D.C. Cir. 1970); Power ReactorDevelopment Co., v. International Union of Electrical, Radio and Machine Workers, AFL-CIO,et al., 367 U.S. 396, 81 S. Ct. 1529 (1961).That the preservation of the nation\u2019s human resources (section 2 of the Act) is as much inthe public interest as provision for a healthful environment, equitable transportation costs, etc.,cannot seriously be denied. These judicial pronouncements, read and understood in light of theexpressed intent of the Congress, lead to no other conclusion than that the parties\u2019 argument isgrossly fallacious.The authority possessed by the Commission carries with it certain duties andresponsibilities for each member of the Commission. Acceptance of those responsibilitiesprecludes making a decision in this or any other case on the basis of an incomplete record. Therecan be no serious question about the Commission\u2019s duty to inquire into and carefully consider allthe relevant facts. No facts have been adduced in this case save those set forth in the scantystipulation intended to effect the settlement, and in affidavits regarding the employees\u2019representative\u2019s position. Indeed, the respondent\u2019s president makes assertions by affidavit, datedDecember 13, 1971, which contradict the Hearing Examiner\u2019s factual findings. Thus, it seemsthere is not unanimity regarding the essential facts. There is no way for the Commissionintelligently to determine whether the substantial number of conditions alleged in the onecitation constitute a single violation of section 5(a)(1) of the Act, or whether each hazard is aseparate violation; whether the conditions alleged in the second citation were properly classifiedby the Secretary as other than serious in nature, particularly in view of the Hearing Examiner\u2019sfactual finding (later refuted by respondent) that an amputation had previously resulted fromsuch conditions; whether the alleged violations were willful or repeated in nature, particularly inview of the Hearing Examiner\u2019s finding that seven amputations previously resulted from suchconditions; whether the penalties proposed by the Secretary are reasonable under all the factualcircumstances; or whether the stipulated settlement is consistent with the provisions of the Actand in conformity with its public interest objectives.Without a complete record any endeavor to apply the law in this instance can producenothing more than meaningless, if not misleading, rhetoric. The Commission should not refuseto address itself to the issues presented and to afford the Secretary and the public a meaningfuland candid disclosure of its views on substantial questions of policy and law.The court, in deciding Scenic Hudson Preservation Conference v. Federal PowerCommission (supra, at p. 621) quotes with obvious approval from Landis, The AdministrativeProcess:For [the administrative] process to be successful in a particular field, it isimperative that controversies be decided as \u2018rightly\u2019 as possible, independently ofthe formal record the parties themselves produce. The ultimate test of theadministrative is the policy that it formulates; not the fairness as between theparties of the disposition of a controversy on a record of their own making.\u00a0Likewise, the court has held:In viewing the public interest, the Commission\u2019s vision is not to be limited to thehorizons of the private parties to the proceeding. Michigan Consolidated GasCompany v. Federal Power Commission, 283 F. 2d 204 (D.C. Cir., 1960).\u00a0I would, therefore, again REMAND this case to the Hearing Examiner for further actionconsistent with these views.\u00a0ORDER TO SHOW CAUSENovember 16, 1971BY THE COMMISSION:Mindful that in assessing civil penalties the Act mandates that it give due considerationto the appropriateness of the penalty with respect to the size of the business of the employercharged, the gravity of the violation, the good faith of the employer, and the history of previousviolations, the Commission finds the record as a whole inadequate for the purpose of making afinal determination of these questions. Thus, this inadequacy leaves the Commission in doubtconcerning whether the stipulated disposition is consistent with the provisions of the Act andaccords with the public interest.The parties are, therefore, ORDERED TO SHOW CAUSE, if any there by, why theCommission\u2019s order, based on findings of fact, should not be a modification of the Secretary\u2019scitation, proposed penalties, or both, or be a direction of other appropriate relief. The partiesshall have 30 days from the date of this order to submit written briefs treating the followingquestions:(1) whether the conditions alleged in citation numbered 1 constitute a single violation ofsection 5(a)(1) of the Act, or whether each hazard is a separate violation; (2) whether theconditions alleged in citation numbered 2 were properly classified by the Secretary as other thanserious in nature (particularly in view of the factual finding that an amputation had previouslyresulted from such conditions); (3) whether a citation for other than serious violations can beissued under the general duty clause (section 5(a)(1)) of the Act; (4) whether the allegedviolations were willful or repeated in nature (particularly in view of the seven amputations whichpreviously had resulted from such conditions); (5) whether the penalties proposed by theSecretary are reasonable under all the factual circumstances; (6) whether the stipulatedsettlement is consistent with the provisions of the Act and in conformity with its public interestobjectives; and (7) whether a hearing should be held.The Commission may thereafter, upon reasonable notice to the parties, require oralargument regarding these and other pertinent questions.MORAN, CHAIRMAN, dissenting:The Secretary of Labor, the employer, and the duly authorized representative of theemployees entered into a stipulated settlement of this case. I have reviewed the record and see noreason why a decision of this Commission should not be entered approving that agreement.The sure and speedy concessions, the abatement of hazard and the saving of theCommission\u2019s and the Secretary\u2019s resources which a settlement achieves outweigh, in my mind,the possibility that an employer may be made to smart more appropriately by a heavier or morepropitious penalty.Nor should the Commission fret about \u2018whether the stipulated disposition is consistentwith the provisions of the Act and accords with the public interest.\u2019 In my opinion, theCommission does not have sole or even primary responsibility in this area. The Secretary ofLabor\u2019s responsibilities include the determination of employer compliance with the Act (Sec.9(a)) and he also has both inherent authority, as well as implicit authority within the Act itself, tocompromise, mitigate and settle actions initiated by him (see, for example, Sec. 6(e)). Of course,he also may conduct a subsequent inspection at any time and initiate such action as he deemsthen to be warranted. In view of the Secretary\u2019s enormous responsibility and authority foroccupational safety and health, I find his assent to the stipulated settlement of this case mostpersuasive.I am also persuaded that this show cause order is rendered inappropriate by the fact that the Actconstitutes the cited employer dominus litus. Thus, an employer who seeks to preserve his rightto contest the merits of a citation (a right which the Act places exclusively in his hands throughthe provisions of Section 10(c)), is, by this order, put on notice that his exercise of that exclusiveright immediately places the review process beyond his control\u2014even in the event that heexperiences a change of mind or heart and wishes immediately to do all that the Secretaryrequires. Surely, a tentative prayer for relief should not be transmuted into the summoning of anavenging angel.\u00a0\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONSECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0v. OSHRC DOCKET NO. 3AMERICAN HOME PRODUCTS\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.\u00a0\u00a0August 19, 1971BRENNAN, JUDGE, OSAHRC:This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970,Pub. Law 91\u2013596; 84 Stat. 1590 et seq; 29 U.S.C. 651 et. seq. (hereinafter referred to as the Act),to review two citations issued by the Secretary of Labor (hereinafter Secretary) pursuant toSection 9(a) of the Act and proposed assessments of penalties upon such alleged violationspursuant to Section 10(a) of the Act. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote2 ); document.write( ‘Close’ ); document.write( ” ); } On May 18 and 19, 1971, the Secretary, by and through two of its authorized complianceofficers, made an inspection and investigation of a work place known as the Ekco HousewaresCompany, located at 1949 North Cicero Avenue, Chicago, Illinois, a Division of America HomeProducts Corporation, 685 Third Avenue, New York, New York (hereinafter Respondent), todetermine compliance with the provisions of the Act. [Citations Nos. 1 and 2; R. pp. 1, 1a; Exh.A. pp. 1, 2, paras. 1\u20133]. On the basis of this inspection, the Respondent was notified by aCitation for Serious Violation (Citation No. 1) dated June 11, 1971, and by a second Citation(Citation No. 2) also dated June 11, 1971, of alleged violations of Section 5(a)(1) of the Act. [R.pp. 1, 1a]. The Complainant, by its Notification of Proposed Penalty dated June 11, 1971,notified the Respondent that pursuant to the provisions of Section 10(a) of the Act, a penalty ofseven hundred dollars ($700.00) was being proposed for the alleged violation set forth inCitation No. 1 and a penalty of seventy dollars ($70.00) was proposed for the other violations setforth in Citation No. 2. [Notification of Proposed Penalty R. p. 2]. By letter dated June 28, 1971,the Respondent gave notice of its intention to contest the above described Citations and theProposed Penalties. [R. p. 2]. By its notice dated July 9, 1971, the Occupational Safety andHealth Review Commission (hereinafter Commission), gave notice to the parties of record of itsreceipt of this case as forwarded by the Secretary and by its notice dated July 19, 1971, theCommission gave notice to the said parties of the assignment of this case to the undersignedHearing Examiner. [R. pp. 4, 5]. By letter dated July 22, 1971, addressed to the parties of record,this matter was set for hearing to begin on August 17, 1971, in Chicago, Illinois. Respondent\u2019srequest for postponement of this hearing was denied. [R. pp. H\u20131, H\u20135, H\u20138]. On August 16,1971, counsel for the Complainant and Respondent telephonically notified the Examiner that astipulation settling this case had been executed obviating the necessity for hearing. By letterdated August 17, 1971, counsel for Complainant filed with the Examiner this executedstipulation. [Exh. A; R. p. H\u201314]. On August 19, 1971, the Examiner returned the file in thismatter to the Commission and the Commission by its notice dated September 1, 1971, remandedthis case to the Examiner for the purpose of making specified determinations. [H\u201315, H\u201316,H\u201317, R. p. 8]. By letter dated September 22, 1971, counsel for the Complainant filed theaffidavit of the authorized employee representative, and by letter dated September 29, 1971,Respondent filed its affidavit of even date. [Exhs. B and C, R. pp. H\u201320, H\u201321]. Havingconsidered the entire record herein, the stipulation, affidavits, representations and admissions ofthe parties, it is concluded that the substantial evidence on the record considered as a whole,supports the following facts.FINDINGS OF FACT1. The Respondent herein, American Home Products Corporation, 685 Third Avenue,New York, New York, at all times involved in this matter was a Delaware Corporation, and saidRespondent owned, operated, and controlled its Division called the Ekco Housewares Company,doing business at 1949 North Cicero Avenue, Chicago, Illinois. [R. p. 1, 1a; Exh. A, paras. 1, 2;R. p. H\u201314].2. At all times involved in this case, the Respondent was engaged in the State of Illinoisin producing housewares for shipment in interstate commerce to States other than the State ofIllinois. [Exh. A, par. 2; R. p. H\u201314].3. The inspection of the Respondent\u2019s work place located at 1949 North Cicero Avenue,Chicago, Illinois, on May 18 and 19, 1971, by authorized compliance officers of the Secretary,revealed the following conditions existing at said work place:(a) As alleged in Citation No. 1, a substantial number of punch presses were not guardedat the point of operation and other presses were inadequately guarded at the point of operation.\u00a0(b) Further as alleged in Citation No. 2, a substantial number of foot operated powerpress pedals were inadequately guarded. [R. pp. 1, 1a; Exh. A, par. 4; R. p. H\u201314].4. The conditions found to exist as described in Finding 3(a) supra resulted in seriousphysical harm to employees of the Respondent, specifically, three employees suffered seven (7)amputations in the month of April, 1971. [R. p. 1; Exh. A, par. 4(a); R. p. H\u201314].5. The conditions found to exist as described in Finding 3(b) supra resulted in seriousphysical harm to an employee of the Respondent, specifically, one amputation in 1971. [R. p. 1a;Exh. A, par. 4(b)].6. Acknowledged, qualified experts in the field of Occupational Safety and Health are ofthe opinion, and it is hereby found that the conditions described in Finding 3 supra, constituterecognized hazards as described in Section 5(a)(1) of the Act. [Exh. A, par. 5; R. p. H\u201314].7. The conditions described in Finding 3(a) supra, found to exist at the place ofemployment, under the ownership, operation and control of Respondent, it is hereby foundconstitute a condition where there was a substantial probability that death or serious physicalharm could result to employees of the Respondent. [R. p. 1; Exh. A, par. 6; R. p. H\u201314].8. The conditions described in Finding 3(b) supra, found to exist as the place ofemployment under the ownership, operation and control of Respondent, it is hereby found had adirect and immediate relationship to the occupational safety and health of Respondent\u2019semployees. [R. p. 1a].9. The Respondent herein was properly notified pursuant to Section 9(a) of the Act of theconditions herein described by proper service of the Citation for Serious Violation, and CitationNo. 2, and further, pursuant to Section 10(a) of the Act, was notified of the proposed penalty byservice of a Notification of Proposed Penalty. [R. pp. 1, 1a, 2].10. The Respondent timely noted its intention to contest the violations alleged in theCitations and the penalties proposed to be assessed in the Notification of Proposed Penalty.Further, receipt of said Notice of Contest was acknowledged by the Secretary. [R. p. 3].11. The Respondent has represented that the conditions described in Finding 3 supra,have been fully abated and further has agreed to tender the amount of the proposed penalty,seven hundred and seventy dollars ($770.00) to the Government. [Exh. A, paras. 7, 8; R. p.H\u201314].12. The Respondent has agreed to withdraw its Notice of Contest filed herein and hasfurther agreed that the Citation and Assessment of Penalties as proposed, shall be deemed a finalorder of the Commission pursuant to the provision of Section 10(a) of the Act. [Exh. A, para. 9;R. p. H\u201314].13. On July 22, 1971, a compliance officer of the Secretary, accompanied by an attorneyrepresentative from the Office of the Solicitor, U.S. Department of Labor, visited the recordingsecretary and business representative of the sole certified bargaining agent and authorizedrepresentative of the Respondent\u2019s employees herein, at the Union offices located at 6185 WestRoosevelt Avenue, Berwyn, Illinois. On this date copies of the Citations, Notification ofProposed Penalty, and Notice of Contest, were delivered to the employee representative togetherwith a copy of the Act. Further, the employee representative was advised of the nature, of thisproceeding and that the Union, as the authorized representative of the Respondent\u2019s employees,had the right to participate in this proceeding pursuant to the applicable provision of the Act.[Exh. B, paras. 1, 2 and 3; R. p. H\u201320].14. The Union, in its capacity as the authorized representative of the Respondent\u2019semployees, knew that a hearing in this matter was scheduled to commence on August 17, 1971,at 219 South Dearborn Street, Chicago, Illinois, and of its right and opportunity to participatetherein. [Exh. B, par. 4; Exh. C, par. 3; R. pp. H\u201320, H\u201321].15. The Respondent herein, in accordance with and in the manner prescribed by theprovisions of the Act, posted copies of the Citations and Notification of Proposed Penalty for theperiod specified by the Act. [Exh. C, par. 3; R. p. H\u201321].16. The Union, in its capacity as the authorized representative of the Respondent\u2019semployees, has seen the stipulation entered into by the Complainant and Respondent herein,dated August 16, 1971, attached hereto as Exhibit A, and has no objection thereto. [Exh. B, par.5; R. p. H\u201320].CONCLUSIONS OF LAW AND DETERMINATIONS1. At all times involved in this matter, the Respondent herein was an employer engagedin a business affecting commerce within the meaning of Section 3(5) of the Act.2. At all times involved in this matter, the Respondent furnished employment to itsemployees and said employees engaged in said employment at a work place within the State ofIllinois, specifically at 1949 North Cicero Avenue, Chicago, Illinois. The Occupational Safetyand Health Act of 1970 is applicable to such employment within the meaning of Section 4(a) ofsaid Act.3. The Citations, Notification of Proposed Penalties, and Notice of Contest were servedby and upon the respective parties hereto in conformance with the provisions of Section 10 ofthe Act.4. Jurisdiction of the Secretary and of the Commission has been in fact conceded.5. The conditions found at the Respondent\u2019s place of employment on May 18 and 19,1971, as set forth in Citation No. 1 and No. 2 herein, constitute a violation of Section 5(a)(1) ofthe Act in that the employer herein on said dates did not furnish to each of his employees,employment and a place of employment which was free from recognized hazards that werecausing or were likely to cause death or serious physical harm to his employees.6. The penalties proposed by the Secretary, specifically, seven hundred dollars ($700.00)based on Citation No. 1 and seventy dollars ($70.00) based on Citation No. 2, totaling sevenhundred and seventy dollars ($770.00) are consistent with the provisions of Sections 10 and17(b) and (c) of the Act.7. The authorized representative of the affected employees of the Respondent wasinformed of its opportunity to participate as a party in this proceeding.8. The authorized representative of the affected employees of the Respondent hasexamined the stipulation entered into by the Complainant and the Respondent, dated August 16,1971, and has no objection to said stipulation.9. Provided the Respondent herein within ten days of the date of this report files a writtenwithdrawal of its Notice of Contest dated June 28, 1971, and provided further that payment ofthe assessed penalty in the full amount of seven hundred and seventy dollars ($770.00) is madein cash or by certified check within ten days of the date of this report, and further based upon theRespondent\u2019s representation that the violative conditions found to exist on May 18 and 19, 1971,have been fully abated, it is hereby found that the stipulation between the Complainant andRespondent is consistent with the provisions of the Act.ORDERBased upon the foregoing Findings of Fact, Conclusions of Law and Determinations, it ishereby ORDERED:That the Citation for Serious Violation (Citation No. 1) and Citation for a Non-SeriousViolation (Citation No. 2) and the penalties proposed herein by the Secretary are herebyaffirmed; provided however that the Respondent herein within ten days of the date of this Orderfile its formal withdrawal of its Notice of Contest and further, within the same time period, theRespondent shall tender to the Regional Solicitor, U.S. Department of Labor, in cash or bycertified check the full amount of the penalties assessed herein, seven hundred and seventydollars ($770.00).”