Wymac Ent., Inc., dba Work Shop Denver

Plain-English summary

OSHA cited Wymac Enterprises for an alleged construction-safety violation and proposed a $1,630 penalty. The Secretary withdrew the citation one day before the initial pretrial conference. Wymac then filed motions seeking sanctions, compliance with prior orders, and a stay of the withdrawal. The judge held that the Secretary’s withdrawal was self-executing, ended the case immediately, and was not reviewable by the Commission. Any later pleadings were void, and the judge noted that a request for attorney fees would have to proceed under the Equal Access to Justice Act.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.20(b)(2)
• Outcome: Citation withdrawn by the Secretary; case closed and proposed $1,630 penalty eliminated.
• Key point: The Secretary may withdraw an OSHA citation at any stage, and the Commission cannot block or review that decision.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW
C OMMISSION

U.S. Custom
House

721 19 th
Street, Room 407

Denver,
CO
80202-2517

SECRETARY OF LABOR,

Complainant,

v.

OSHRC
D ocket No.
1 7-0903

WYMAC ENT, INC. dba WORK SHOP OF DENVER and its Successors

Respondent.

ORDER

The Occupational Safety and Health Administration (OSHA) commenced this action by the issuance a Citation and Notification of Penalty on April 19, 2017 (Citation). In the Citation, OSHA alleged Respondent had violated 29 CFR § 1926.20(b)(2) and proposed a penalty of $1,630.00. Respondent filed a Notice of Contest on May 12, 2017. The case was docketed with the Occupational Safety and Health Review Commission (Commission) on June 27, 2017. The Chief Administrative Law Judge designated this case to proceed pursuant to the simplified proceedings rules of the Commission on June 27, 2017.
See
29 C.F.R. § 2200.203(a).

The Court scheduled an initial pre-trial conference with the parties to be held on September 12, 2017.
Prior to the conference call, on September 11, 2017, Complainant withdrew the Citation
(Withdrawal).

Approximately three hours after the
Withdrawal, Respondent filed two Motions (Motions) entitled as follows:

· Statement of Position and Factual Information by Respondent; and

· Statement of Position and Factual Information by Respondent and Request for Sanctions and/or to Compel Complainant’s Compliance with Hon. Judge’s Order, and Request for an Order Staying the Acceptance of any Premature Withdrawal by Complainant as an Avenue to Escape its Duties; and Other Orders or Notices to Preserve Respondent’s Rights and Appropriate Jurisdiction of this Court.

The Court, via an Order dated September 12, 2017, required Complainant to answer the Motions by September 18, 2017. Complainant filed his Response to the Motions on September 18, 2017. On September 20, 2017, Respondent filed a Status Report indicating that he intended to file a rebuttal response.

Commission Rule 102, 29 C.F.R. § 2200.102, provides Complainant may withdraw a citation “at any stage of the proceeding. The notice of withdrawal shall be served in accordance with § 2200.7(c)[.]” The Supreme Court in
Cuyahoga Valley Railway Co. v. United Transportation
Union , 474 U.S. 3, 7 (1985), held, “the Secretary’s decision to withdraw a citation against an employer under the Act is not reviewable by the Commission.” Under
Cuyahoga , this Court does not have the authority to grant or deny Complainant’s
Withdrawal of
the
Citation. Heave Ho
Crane Co ., 24 BNA OSHC 2058, 2061 (No. 14-0250, 2014). The
Withdrawal
filed by Complainant is self-effectuating and terminates the case in and of itself; no order of the Court is needed or required.
Qureshi v. United States , 600 F.3d 523, 525 (5th
Cir. 2010);
Am. Cyanamid
Co. v. McGhee , 317 F.2d 295, (5th
Cir. 1963). See also In re
Amerijet
Int’l, Inc . 785 F.3d 967, 973 (5th Cir. 2015) and
Otis Elevator Co ., 23 BNA OSHC 1664 (No. 10-1057, 2011). While this Court issues an Order acknowledging Complainant’s
Withdrawal
and closing the case, this action is a ministerial function only – not a substantive one.
Cuyahoga , 474 U.S. at 7.

The Court gives immediate effect to Complainant’s
Withdrawal of the Citation. Any pleadings filed by Respondent after the filing of the Withdrawal, are
void ab initio
and require no action by the Court.

Respondent’s sole course for attorney fees – as requested in one of the Motions – is through the Equal Access to Justice Act, 5 U.S.C. § 504, and implementing Commission regulations at 29 C.F.R. § 2204.101 et seq.

SO ORDERED.

/s Patrick B. Augustine

Patrick B. Augustine

Judge - OSHRC 

Dated:
September 25, 2017

Denver, CO

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