“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 1150 E.F. HOUGHTON & CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 22, 1973ORDEROF REMANDBefore Moran,Chairman; VAN NAMEE and BURCH, CommissionersVAN NAMEE,COMMISSIONER:OnNovember 20, 1972, Judge Herbert E. Bates issued an Order granting Respondent?smotion to withdraw its notice of contest in the above-captioned matter.OnDecember 20, 1972, I directed review of the proposed Order pursuant to theauthority 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 ?theAct?). For the reasons given hereinafter we reverse and remand.OnOctober 25, 1972, Respondent submitted the aforementioned motion to withdraw.Respondent stated that the controverted items of the citation (numbers 11 and13) had not been abated pending the outcome of a request for a variance fromthe Secretary of Labor. It was further represented that the Respondentunderstood there would be no reinspection of its plant ??????????? Complainant responded to this motionon October 30, 1972, stating that he had not given any assurance that he wouldnot reinspect the plant during the pendency of the variance request to be filedby the Respondent. Complainant also indicated that Respondent was notified ofthe Complainant?s position both by telephone and by the forwarding of a copy ofthe letter containing its response.Thereafteron November 1, 1972, Respondent submitted a letter in response to the Complaintfiled herein. In paragraph two of this letter Respondent stated that it deniedall allegations of the complaint.TheCommission has on numerous occasions stated that one of the conditionsprecedent to the granting of a motion to withdraw is certification thatabatement of the violation has been or will be accomplished. It is clear fromthe record in this case that the subject motion does not comport with thisbasic requirement for hospitable consideration. Therefore, Judge Bateserroneously granted Respondent?s motion.TheCommission is of the opinion that Respondent?s letter of November 1, 1972,submitted after oral notification of the Secretary?s response to its motion, isa general denial of each and every allegation in the Complaint. We alsoconstrue this pleading, in the circumstances of this case, as being a requestto 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, andthe case is remanded for further proceedings absent the submission byRespondent of a proper motion to withdraw certifying abatement of the allegedviolations.?MORAN, CHAIRMAN,dissenting:Idissent because the Commission is here requiring an employer to do something ithas no power to require the employer to do and because the erection of barriersto an employer?s withdrawal from a case is unnecessary, burdensome to both theGovernment and the employer, and unwarranted.Theonly reason for the existence of this Commission is to hear issues in disputeand render decisions thereon. The Commission was created by a statute[1] and has only those powersspecifically granted by that statute.Thosepowers come into being only when an enforcement action, initiated by theSecretary of Labor under the Act, is contested by the employer against whom itis initiated, or by any of his employees, or by any representative of hisemployees.Thepowers granted the Commission upon the existence of such an event are to(a) afford anopportunity for a hearing . . . in accordance with section 554 of title 5,United States Code, and thereafter?(b) issue anorder, based on findings of fact, affirming, modifying, or vacating theSecretary?s citation or proposed penalty, or directing other appropriaterelief.\u00a0Theforegoing is the full extent of the Commission?s power. Not only are there nopolice powers or enforcement responsibility invested in this tribunal, but thestatute clearly and specifically grants such authority to someone else?theSecretary of Labor. It is, therefore, beyond the jurisdiction of thisCommission to require an employer to certify?as this decision does??thatabatement of the violation has been or will be accomplished.?Ascertainingcompliance with an abatement order is an enforcement responsibility of theSecretary 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.Ialso do not think it is right to prohibit an employer who commenced a case withthis Commission by filing a notice of contest from discontinuing his caseunless he first complies with certain requirements imposed by the Commission.??????????? I concede that I have in the pastassented to decisions which included an erroneous rule of this kind.[2] The position taken hereresults from a clearer understanding of the aforementioneddivision between the adjudicatory responsibilities of the Commission andthe enforcement authority of the Secretary of Labor.??????????? An employer can originate a casewith this Commission simply by asserting his right to contest an enforcementaction. He ought to be able to discontinue the case just as simply?bywithdrawing that assertion.Morethan 25% of all case dispositions issued by this Commission to date haveresulted from the withdrawal by an employer of his objection to the enforcementaction initiated against him. A great deal of time has been expended by manypeople who serve this agency, the Department of Labor, various employers andrepresentatives of employees in unnecessary letter-writing, notice-posting, andpaper-pushing because of these withdrawal conditions and the difficulty inexplaining and understanding them. Absolutely no benefit to anyone results fromthe Commission?s insistence on these requirements. They should be discarded.Theirexistence is the result of the Commission relegating to itself responsibilitywhich Congress has given to the Secretary of Labor.Myviews 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 anenforcement action.3.When such a notice of contest is subsequently withdrawn by its author, thereare no longer any issues in dispute and the Commission?s jurisdiction over thatcase is terminated.4.The filing of a notice of contest creates a case for this Commission. Theperson who created the case has the unconditional right to terminate it at anytime prior to its final disposition by filing a discontinuance.\u00a0\u00a0\u00a0?UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 1150 E.F.HOUGHTON & CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0November 20, 1972BATES, JUDGE,OSAHRC:Ruling on theRespondent?s motion to withdraw Notice of contest. Granted.[1] The OccupationalSafety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590)[2]My positionon 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 Causewhich 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 tocontest the merits of a citation (a right which the Act places exclusively inhis hands through the provisions of Section 10(c)), is, by this order put onnotice that his exercise of that exclusive right places the review processbeyond his control?even in the event that he experiences a change of mind orheart and wishes immediately to do all that the Secretary requires. Surely, atentative prayer for relief should not be transmuted into the summoning of anavenging angel. Secretary v. American Home Products Corporation, OSAHRSNo. 3.”