UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

July 10, 1974

Before MORAN, Chairman; VAN NAMEE and CEARY, Commissioners

BY THE COMMISSION:

On March 18, 1974, Judge Henry K. Osterman issued his decision and order granting respondent’s motion to withdraw its notice of contest.

On April 17, 1974, review of the decision and order was directed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter ‘the Act’).

The Commission has reviewed the entire record in this case. We adopt the Judge’s decision to the extent that it is consistent with the following.

  On November 5, 1973, respondent was issued one citation for non-serious violation together with a notification that a penalty of $80 was proposed. Respondent timely filed a notice of contest as to item 1 on November 13, 1973.

On March 8, 1974, respondent filed a motion to withdraw its notice of contest. In accordance with Commission procedure, respondent certified that it had abated the alleged violations, that it had paid the proposed penalty, that it had posted a copy of its motion to withdraw its notice of contest, and that it would continue to comply with the Act.1 Respondent’s motion did not, however, certify that a copy of its motion had been served upon the authorized employee representative, I.B.E.W. Local 103.

Subsequent to the Commission’s direction for review, the Commission ruled that posting of a motion to withdraw a notice of contest is sufficient notice to affected employees when no affected employees have elected party status. Newspaper Agency Corp., No. 1902 (May 6, 1974). That case is controlling.2 Respondent has thus completed the items necessary for the granting of a motion to withdraw a notice of contest.

Accordingly, it is ORDERED that respondent’s motion to withdraw its notice of contest is granted.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

March 18, 1974

OSTERMAN, JUDGE, OSAHRC:

This matter is before me on Respondent’s motion filed on March 12, 1974, to withdraw its Notice of Contest filed on November 15, 1973.

The record shows that on November 5, 1973, Respondent was issued a Citation charging three (3) non-serious violations of the safety standards promulgated by the Secretary of Labor. Total penalty proposed was $80.00.

In its motion to withdraw Respondent represents that it has paid the proposed penalty; that the violations have been abated; that all posting requirements have been met; and that in the future Respondent will comply with all safety and health regulations promulgated under the Occupational Safety and Health Act of 1970. The Regional Solicitor has no objection to the granting of Respondent’s motion.

Accordingly, it is ORDERED:

1. That the Citation and Notice of Proposed Penalty both issued on November 5, 1973 be, and the same hereby are, AFFIRMED.

2. That Respondent’s Motion to Withdraw its Notice of Contest be, and the same hereby is GRANTED.

1 See Dawson Brothers Mechanical Contractors, No. 12 (February 22, 1972); Baroco Electric Construction Co., No. 2806 (August 30, 1973).

2 Commissioner Cleary dissents from this decision for the reasons set forth in his dissenting opinion in Newspaper Agency Corp. In addition to posting, he would require that a motion to withdraw be served upon the authorized representative of affected employees.