“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 192 EXACTO PRODUCTS CORPORATION,? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 March 17, 1972Before MORAN, Chairman;VAN NAMEE and BURCH, CommissionersBY THE COMMISSION:??????????? On March 3, 1972, Hearing Examiner David H. Harristransmitted the file in this case to the Commission. In an accompanying letter,the Hearing Examiner stated that the file was transmitted for ?use by theCommission in the event the complainant appeals from the undersigned?s Orderdated March 3, 1972.???????????? The order denied a request for reconsideration filed bythe Secretary of Labor in which the Secretary requested that the Examinerreconsider his denial of a request for withdrawal of notice of contest filed byRespondent with the concurrence of the Secretary.??????????? The record in this case indicates that Respondent hasabated each of the violations for which it was cited, has given assurance ofcontinuing compliance, has tendered payment of the penalty proposed by theSecretary and has certified that the affected employees or their authorizedrepresentatives were afforded an opportunity to participate in the proceedings.There appears to be no disagreement between the parties that withdrawal is nowan appropriate disposition of this case.??????????? While the record in this case was transmitted to theCommission in a manner and at a stage of the proceedings for which there isneither precedent nor rule, final disposition of the case at this time comportswith the purposes of the Act. Accordingly, we will construe the HearingExaminer?s letter of transmittal as certification of the case to the Commissionon his own motion.??????????? In Secretary of Labor v. Dawson Brothers MechanicalContractors, OSHRC Docket No. 12, Commissioner Van Namee,speaking for the Commission in an order of remand, stated:The Commissionwill give hospitable consideration to stipulated withdrawals of notice ofcontest where the record reflects (1) the date on which abatement of theviolation has been or will be accomplished; (2) assurance by the respondent ofcontinuing compliance; (3) tender of payment of the penalty proposed by theSecretary of Labor; and, (4) evidence that the affected employees or theirauthorized representatives have been afforded an opportunity to participate inthe proceedings.???????????? The record in this case so affirms. The good faith of theSecretary in issuing his citations and proposed penalties in accordance withthe purposes of the Act is, of course, unquestioned. Accordingly, the notice ofcontest is dismissed and the citations and proposals of penalties issued by theSecretary on October 28, 1971, are affirmed as the final order of theCommission.?VAN NAMEE, COMMISSIONER,dissenting:??????????? The decision of the majority cannot be supported by thelaw, or by the facts of this case, and I must dissent.??????????? This case presents again the question of whether theCommission and its judges may require the parties to a proposed stipulateddisposition to adduce evidence sufficient to produce a complete record. Myviews regarding that question are set forth at length in my dissent filed in Secretaryof Labor, U.S. Department of Labor v. American Home Products Corporation,OSHRC Docket No. 3 (February 23, 1972).??????????? In my view, the Commission should give hospitableconsideration to stipulated settlements where the record reflects abatement byRespondent of the violative conditions, assurance of his continuing compliancewith the Act?s requirements, tender by him of the proposed penalty, and anopportunity by his employees?or their authorized representatives?forparticipation in the proceedings. That consideration must include suchquestions as whether the violations were serious or non-serious in nature andwhether the penalty proposed by the Secretary is appropriate. See Sections17(b), 17(c), and 17(j) of the Act. The majority?s decision in this case deniesthe Judge?s right to make an initial determination of these questions and tosubmit his final report in accordance with section 12(j) of the Act.??????????? In this case, Judge David H. Harris, following receipt ofthe parties? stipulations to permit the Respondent to withdraw its notice ofcontest, ordered the Secretary to submit information to substantiate findingsof the following facts, inter alia:??????????? 1. Whether Respondent?s employees?or their collectivebargaining representative?had been served with copies of the Secretary?scomplaint and the Respondent?s motion to withdraw its notice of contest.??????????? 2. Whether an inspection by the Secretary had beenconducted subsequent to the inspection which revealed the violations, and, ifso, whether that inspection confirmed abatement of the hazards by therespondent and confirmed his continuing compliance with the law.??????????? 3. The facts and circumstances upon which the Secretarybased his determination that the violations cited are not of a serious nature.??????????? Certain of the information was needed by the Judge todetermine whether there had been compliance with the Commission?s rules (e.g.,rule 7(i)). Other items of the information which theJudge sought to have adduced relate to that needed for his certification inaccordance with rule 23 of the Commission?s rules of procedure.??????????? Rather than submit the information the Secretary movedfor reconsideration of the order. The motion was denied, and the Judge, amongother things, granted leave to appeal. Presumably he meant to grant leave tofile an interlocutory appeal since his order did not finally dispose of thecase. He did not, however, certify that his ruling on the motion ?. . .involves an important question of law concerning which there is a substantialground for difference of opinion; and [that] an immediate appeal from theruling will materially expedite the ultimate disposition of the proceeding(OSHRC Rules of Procedure, Rule 12(c); 29 CFR 2200.12(c)).??????????? Judge Harris then returned the file to the Commission.His cover letter reads as follows:Enclosed herewithplease find the file in the above matter. The file is being returned for use bythe Commission in the event the complainant appeals from the undersigned?sOrder dated March 3, 1972 (H?7). I assume that in the event the complainantfails to appeal from the Order in question, the file will be returned to me forfurther handling. Also enclosed herewith are five additional copies of the saidOrder dated March 3, 1972.???????????? Clearly this case is not before the Commission. Judge Harrisrequested the return of the file for action by him ?. . . in the event thecomplainant fails to appeal . . .? to the Commission. Two conclusions may bedrawn: (1) Judge Harris believed the case to be pending before him; and (2) hebelieved that it was necessary for the complainant to file an appeal before thematter could come before the Commission for review. There is no notice ofappeal in the record. Nevertheless, my colleagues, in complete disregard of theabove-emphasized language, choose to treat the language of Judge Harris? coverletter as being a ?. . . certification of the case to the Commission on his ownmotion . . .? It is interesting to note that they also admit that there is ?. .. neither precedent nor rule . . .? for Commission review of the case.??????????? Indeed, there cannot be precedent or rule for theCommission?s action because Judge Harris? letter cannot be said to comply withthe requirements of Rule 12(c). As said above the rule requires a certificationthat the ruling involves an important question of law and that resolution ofthe question will materially expedite the ultimate disposition of theproceeding. Clearly these requirements are not met by the content of JudgeHarris? letter.??????????? Moreover, Rule 12(d) allows discretionary interlocutoryappeals following certification by the Judge if ?. . . a petition is made to itwithin 5 days after such certification . . .? As noted above, the recorddiscloses no such petition. And, Rule 12(d) also specifies that the petition ?.. . shall not stay the proceedings before the [Judge] for more than 5 daysunless otherwise ordered by the Commission for extraordinary circumstances.? Inthis case Judge Harris? letter was received by the Commission on March 7, 1972,and the Commission acted on March 17, 1972, that is, five days after theautomatic stay would have expired had all other requirements for aninterlocutory appeal been fulfilled. Of course, the Commission did not issue astay on March 12, 1972 thus under Rule 12(d) the matter (again assuming allother requirements had been fulfilled) would have reverted to Judge Harris.??????????? A reading of Rule 12 indicates clearly that aninterlocutory appeal will be allowed by the Commission only in extraordinarycircumstances. It was indeed that intention of the Commission which led to theinclusion in that rule of such exclusionary words as ?only? and ?extraordinarycircumstances.? The fact is that the first several drafts of the rules?beforetheir adoption?contained no provision at all for an appeal from aninterlocutory ruling of a Judge.??????????? Thus it is obvious that the question of the correctnessof the Judge?s order of March 3 simply is not before the Commission at thistime, and, by its own rules, the Commission is precluded from considering thatquestion unless the Judge makes the required certification and the Secretarypetitions for a review within 5 days thereafter. My colleagues? willingness to?construe? the Judge?s letter of transmittal as certification of the questionand as a petition for an interlocutory appeal ?on his own motion? is not onlyhighly irregular and directly contrary to the Commission?s rules, butregrettably may serve as a precedent to deny the Commission?s Judges thatdegree of independence which is rightfully accorded to them by theAdministrative Procedure Act. See David, Administrative Law Treatise,vol. 2, sec. 10.02.??????????? The interlocutory ruling involved here is not of suchmoment as to require consideration by the Commission prior to the submission bythe Judge of his final report in accordance with section 12(j) of the Act (84Stat. 1605; 29 U.S.C. 661(j)).\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ?????????????????????????????????? ??????????Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 192 EXACTO PRODUCTS CORPORATION,? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0March 3, 1972HARRIS, JUDGE, OSAHRC:??????????? Complainant, by motion dated February 11, 1972 andforwarded on February 16, 1972, moved the undersigned to reconsider a requestfor the following 5 items of information contained in a letter to the partiesdated January 3, 1972:??????????? 1. Whether the Regional Solicitor at Chicago, Illinois,is in accord with the respondent?s proposed offer to withdraw its Notice ofContest.??????????? 2. The facts and circumstances upon which theOccupational Safety and Health Administration made the specific determinationsthat the alleged violations of the standards, as they appear in the Citation,are not of a serious nature.??????????? 3. Whether the Occupational Safety and HealthAdministration has made an inspection of the respondent?s premises on orsubsequent to November 19, 1971. If so, the results of that inspection.??????????? 4. Proof of service of the complaint herein upon theaffected employees of the respondent or upon the labor organization which isthe certified bargaining representative of said affected employees.??????????? 5. Proof of service of a copy of the ExactoProducts letter of December 14, 1971, upon its affected employees or upon thecertified bargaining representative of such employees.??????????? The said request for additional information wasoccasioned by a letter dated December 14, 1971, written by respondent in whichit seeks approval to withdraw its notice of contest dated November 11, 1971,and filed on November 19, 1971, in opposition to complainant?s citation, datedOctober 28, 1971, charging violations of four specific standards, all of whichare deemed to be not of a serious nature and his Notification of ProposedPenalty thereon aggregating $93.75.??????????? Complainant filed his complaint herein on November 26,1971. The respondent has failed to file any answering pleading to thecomplaint.??????????? The factual situation presented is generally similar tothat 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 a Order denying the same isattached 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 DocketNo. 193, and good cause therefore appearing, it is ORDERED that:??????????? 1. Complainant?s motion for reconsideration be and thesame is hereby denied.??????????? 2. Complainant is given leave to appeal to the Commissionfrom the within Order denying his motion for reconsideration.[NOTE: SECRETARY V. NEWYORK PACKAGING CORPORATION, 1 OSAHRC 169]\u00a0\u00a0”