Muller Boat Works, Inc.

Plain-English summary

Muller Boat Works asked to withdraw its contest after abating the cited conditions and tendering the proposed penalty. The judge approved the request based on assurances of compliance and employee participation. The Commission found that the record did not show that the withdrawal motion itself had been served on affected employees. It held that missing employee service required denial, although a missing promise of future compliance ordinarily would not. The Commission dismissed the contest and affirmed the citation and proposed penalty as the final order.

Decision snapshot

• Cited standard(s): No specific OSHA standard number is identified in the decision.
• Outcome: Withdrawal was denied, the contest was dismissed, and the citation and proposed penalty were affirmed.
• Key point: General employee participation did not replace the requirement to serve affected employees with the specific withdrawal motion.

Full text (OSHRC public release)

Docket No. 553

MULLER BOAT WORKS, INC.
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OSHRC Docket No. 553

Occupational Safety and Health Review Commission

June 20, 1972

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[*1]
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Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

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VAN NAMEE, COMMISSIONER: On May 3, 1972, Judge David H. Harris issued an order granting Respondent's motion to withdraw its notice of contest and affirming the Secretary's citation and proposed penalty.

Thereafter, on June 9, 1972, I directed review in accordance with Section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651
et seq.,
84 Stat. 1590, hereinafter referred to as "the Act").

The Commission has reviewed the entire record in this case and cannot agree with the recommended order.
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We believe that the notice of contest should be dismissed.

In
Secretary of Labor
v.
Dawson Brothers Mechanical Contractors,

Thereafter we denied a motion to withdraw when the record showed [*2]
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compliance with three of the criteria but did not evidence service of the
motion
upon the affected employees.
Secretary of Labor
v.
Meyco Products, Incorporated,

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Similarly, the record in the present case does not evidence service of the motion to withdraw upon the affected employees (Commission Rule 2200.7(i)).
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It is for this reason that the motion must be denied.
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We also note that Respondent has not given assurance of continuing compliance.
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In the usual case, the failure to give such assurance should not result in a denial of the motion.

In view of the foregoing, it is ORDERED, that: (1) the Judge's order granting Respondent's motion to withdraw be set aside; (2) the motion to withdraw is denied; (3) the notice of contest is hereby dismissed; and (4) the Secretary's citation and proposed penalty are affirmed as the final order of the Commission.

[The Judge's decision referred to herein follows]

HARRIS, JUDGE, OSAHRC: This matter comes on before me on a request for withdrawal of notice of contest filed by Respondent with the concurrence of the Secretary of Labor (hereinafter Secretary).

The record in this case indicates that Respondent [*3]
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has abated each of the violations for which it was cited; has given assurance of continuing compliance; has tendered payment of the penalty proposed by the Secretary and has certified that the affected employees or their authorized representatives were afforded an opportunity to participate in the proceedings.
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The good faith of the Secretary in issuing his citation and proposed penalty in accordance with the purposes of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651
et seq.,
is not questioned and there appears to be no disagreement between the parties that withdrawal of the notice of contest is now an appropriate
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disposition of the case.
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See
Secretary of Labor v. Dawson Bros., etc.,
Secretary of Labor
v.
Suddath of South Florida, Inc.,
Secretary of Labor
v.
Exacto Products Corp.,

Now therefore it is ORDERED, that:

1.
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The notice of contest heretofore filed herein by the Respondent be and the same is withdrawn.

2.
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The citations and proposals of penalty issued by the Secretary herein be and they are affirmed as the final order of the Occupational Safety and Health
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[*4]
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Review Commission.
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