” Suddath of South Florida, Docket No.106var 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 = ‘\u00a0The penalties listed in para. IV A of the complaint actually total $75. It is assumed that credit is\\being given for the penalty of $12.50 proposed for the violation described in para. IV G and\\withdrawn by the stipulation.\\’function WPShow( WPid, WPtext ){ if( bInlineFloats ) eval( \”document.all.\” + WPid + \”.style.visibility = ‘visible’\” ); else { if(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}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}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}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. 106SUDDATH OF SOUTH FLORIDA,\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\u00a0March 17, 1972Before MORAN, Chairman; VAN NAMEE and BURCH, CommissionersBY THE COMMISSION:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On March 7, 1972, Hearing Examiner David H. Harris transmitted the file in this case tothe Commission. In an accompanying letter, the Hearing Examiner stated that the file wastransmitted for \u2018use by the Commission in the event the complainant appeals from theundersigned\u2019s Order dated March 6, 1972.\u2019\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The order denied a request for reconsideration filed by the Secretary of Labor in whichthe Secretary requested that the Examiner reconsider his denial of a request for withdrawal ofnotice of contest filed by Respondent with the concurrence of the Secretary.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The record in this case indicates that Respondent has abated each of the violations forwhich it was cited, has tendered payment of the penalty proposed by the Secretary and hascertified that the affected employees or their authorized representatives were afforded anopportunity to participate in the proceedings.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0While the record in this case was transmitted to the Commission in a manner and at astage of the proceedings for which there is neither precedent nor rule, final disposition of thecase at this time comports with the purposes of the Act. Accordingly, we will construe theHearing Examiner\u2019s letter of transmittal as certification of the case to the Commission on hisown motion.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In 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 ofnotice of contest 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 in theproceedings.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0While the record in this case does not reflect specific assurance of continuing complianceby 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 withthe purposes of the Act is, of course, unquestioned. In any case, the essential actions have beentaken and we may regard the record in the case as complete. In short we do not believe thatremanding the case to the Hearing Examiner for certification of a routine and nonessentialassurance by Respondent would comport with the purposes of the Act, but that final dispositionherein is appropriate. Accordingly, the citations and proposals of penalties issued by theSecretary on September 22, 1971, with the exception of Item 2 of citation 2, are AFFIRMED asthe final order of the Commission.\u00a0VAN NAMEE, COMMISSIONER, dissenting:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The facts and circumstances of this case are essentially similar to those obtaining inSecretary of Labor, U.S. Department of Labor v. Exacto Products Corporation, OSHRC DocketNo. 192.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0My dissent in this case is based upon the reasoning set forth in Exacto.\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. 106SUDDATH OF SOUTH FLORIDA,\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\u00a0March 6, 1972HARRIS, JUDGE, OSAHRC:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant, by motion dated January 31, 1972, and filed on February 2, 1972, movesthe undersigned to reconsider a request for the following items of information contained in aletter to the parties dated January 17, 1972:6. Where the citation alleges a violation which has been specifically determinedto be not of a serious nature, the facts, circumstances and considerations uponwhich such determination was based, in accordance with Section 17(c) of theOccupational Safety and Health Act of 1970.\u00a07. The information which was considered with respect to the size of the businessof the employer-respondent, the gravity of the violation, the good faith of suchemployer and the history of previous violations in the determination of theproposed penalty pursuant to Section 17(j) of the said Occupational Safety andHealth Act of 1970.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The action herein was commenced by the issuance by complainant of two citations datedSeptember 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. 1charges 7 items, each being a violation of a specified standard in 29 CFR Part 1910, promulgatedpursuant to Section 6 of the Act. Citation No. 2 charges 2 items, each being a violation of aspecified standard in said 29 CFR Part 1910. On the same date complainant issued a Notificationof Proposed Penalty (hereinafter NPP), pursuant to Section 10(a) of the Act, wherein heproposed 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\u2018Regulation (was) not in effect until February 15, 1972\u2019 and proposes penalties aggregating $160on the remaining items in both Citations. However, the total shown is the sum of $80. Amemorandum in the record, dated October 18, 1971, by the Area Director, Occupational Safetyand Health Administration, United States Department of Labor (hereinafter OSHA) explains thatthe proposed penalties listed are the \u2018basic amounts and the 50% abatement credit is notreflected. However, the total for all alleged violations is the correct amount. The typistinadvertently copied from the wrong column.\u2019\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Both Citation No. 1 and Citation No. 2 aver that the violations of the Act charged are notof a serious nature.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The respondent filed a notice of contest which is dated October 14, 1971 and on October25, 1971, the matter was referred to the Commission as the Act requires (respondent filed anadditional notice of contest which is dated November 24, 1971).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On October 29, 1971, complainant filed his complaint pursuant to the rules of theOccupational Safety and Health Review Commission (hereinafter Commission) which was dulyserved 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 proposesa penalty of $10 thereon to which no reference is made in the complaint.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On November 10, 1971, respondent filed its answer wherein it fails to admit anyjurisdictional 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 ItemsNo. 4, 5 and 6 of Citation No. 1 and Item No. 2 of Citation No. 2 (paragraphs IV C; IV D; IV Eand IV G of the complaint).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On December 21, 1971, the matter was assigned to the undersigned for hearing whothereupon fixed January 19, 1972, as the date of hearing and designated Fort Lauderdale,Florida, as the place thereof.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On January 12, 1972, counsel for complainant advised that an agreed disposition of thematter was likely. On January 17, 1972, the undersigned issued the letter request which is herebeing contested. On January 18, 1972 the respondent filed a Notice of Withdrawal of its noticeof contest which is dated January 13, 1972, and on the same date the hearing was adjourned sinedie.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Thereafter the parties filed a stipulation, also dated January 13, 1972, executed by theattorneys for the complainant and the attorney for the respondent, in which the parties agree that:(1) respondent is engaged in the \u2018moving and storage business;\u2019 (2) an inspection at respondent\u2019sworkplace 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 \u2018conditions alleged by the Secretary, to have been in violation ofthe Act in paragraphs IVA, B, C, D, E and F of the complaint\u2019 (Items 2, 3, 4, 5, 6 and 7 inCitation No. 1) \u2018have been and will remain abated;\u2019 (5) that respondent has paid the \u2018penaltiesproposed in paragraph VIA of the complaint in the total amount of $62.50;\u2019 (6) that paragraphIV G of the complaint (Item No. 2 in violation No. 2) is withdrawn by the complainant for thereason that the facts alleged therein \u2018do not constitute a violation\u2019 of the standard specified; if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote1 ); document.write( ‘Close’ ); document.write( ” ); } (7)that respondent has heretofore filed a notice of withdrawal of notice of contest; (8) that there isno certified bargaining employee representative; and (9) that a copy of the stipulation was postedat respondent\u2019s place of business.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On January 24, 1972, the undersigned reiterated his request for the information requestedin his letter dated January 17, 1972 and on February 2, 1972, as aforesaid, complainant filed hismotion for reconsideration. Paragraph 3 of the motion, wherein the complainant takes theposition that \u2018evidence requested in paragraphs 6 and 7 of the aforesaid letter and order datedJanuary 17, 1972 . . . go beyond recognized legal and judicial practices with respect to mattersdisposed of by agreed disposition,\u2019 squarely raises the issues of the extent and nature of theCommission\u2019s jurisdiction to adjudicate matters wherein its jurisdiction has been invoked by theservice of a notice of protest pursuant to Section 10(c) of the Act.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The complainant does not, it seems, argue that the \u2018agreed disposition\u2019 and the notice ofwithdrawal of the notice of contest by the respondent, ipso facto, place the respondent in theposition of not having filed a notice of contest since it is not maintained that the Citations andthe proposed penalties in the NPP shall become the final order of the Commission pursuant toSection 10(a) of the Act. The position adopted by the complainant appears to be that an \u2018agreeddisposition\u2019 at any stage of a proceeding operates to divest the Commission of jurisdiction toaffirm, modify or vacate any Citation and such an \u2018agreed disposition\u2019 must be ratified by theCommission without review and that any penalty agreed upon by the parties must be adopted bythe Commission and assessed as its own determination.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Assuming, but not deciding, that complainant is justified in withdrawing the violationcharged in paragraph IV G of the complaint (Item No. 2 in Citation No. 2), no effort has beenmade to remedy the seeming defect in Item No. 1 of Citation No. 1, which is the statutorypleading, beyond omitting the item from the complaint, nor has the omission of Item No. 1 inCitation No. 2 from the complaint been explained.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Neither the record, the pleadings nor the stipulation of the parties supply any informationwhich will support a specific finding by the Commission that the violations alleged in thecitations are not of a serious nature as is required by Section 17(c) nor do they furnish anyinformation concerning the gravity of the violations, the good faith of the respondent, the historyof 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.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The factual situation presented is therefore generally similar to that in Hodgson v. NewYork Packaging Corporation, OSHRC Docket No. 193. The motion for reconsideration in thatcase was denied by Order dated March 2, 1972, and a copy of the Order denying the same isattached to and made a part hereof.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0For 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 thereforeappearing, it is ORDERED that:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a01. Complainant\u2019s motion for reconsideration be and the same is hereby denied.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a02. Complainant is given leave to appeal to the Commission from the within Orderdenying his motion for reconsideration.\u00a0″