Bethlehem Steel Corporation (Commission decision, February 22, 1982)

Plain-English summary

In January 1979 the Secretary issued Bethlehem Steel a serious general duty clause citation. The allegation was that operators of Hyster straddle carrier number 260, used in the structural steel yard, could not see adequately from the cab to the front and the right side.

Judge Alfieri vacated the citation in January 1980. He found that the limited visibility did create a hazard and that Bethlehem knew about it, but held that the Secretary had not established the feasibility and likely utility of the proposed abatement, which was mounting mirrors on the carrier.

No party asked for review. Commissioner Cottine directed the case for review on his own motion in February 1980 to examine whether the judge was wrong to find the Secretary had not carried his burden. The Commission issued a briefing notice in December 1981.

The parties then reviewed the record together and concluded it supports the judge. The Secretary agreed to withdraw the citation and proposed penalty, relying in part on Bethlehem's showing that the carrier is conspicuous in size and shape and carries devices that warn employees of its approach. Bethlehem withdrew its notice of contest. The employees' representative, Local 2599 of the United Steelworkers, did not object. The Commission approved the stipulated notice of dismissal.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1), the general duty clause.
• Outcome: Stipulated notice of dismissal approved. Citation and proposed penalty withdrawn.
• Key point: A case directed for review on a Commissioner's own motion can
  still end by party stipulation, with the citation withdrawn and the notice of contest withdrawn together.

Full text (OSHRC public release)

Docket No. 79-746

Bethlehem Steel Corporation

OSHRC Docket No. 79-746

Occupational Safety and Health Review Commission

February 22, 1982

COUNSEL:

[*1]

Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

George B. Levasseur, Bethlehem Steel Corp., for the employer

Nicholas Kiak, Pres., United Steelworkers of America, Local 2599, for the employees

George Schrader, Sfty. Coordinator, United Steelworkers of America, for the employees

OPINION:

ORDER

The Parties' Stipulated Notice of Dismissal is Approved.

STIPULATED NOTICE OF DISMISSAL

Raymond J. Donovan, Secretary of Labor, United States Department of Labor, Complainant, Bethlehem Steel Corporation, Respondent, Local 2599, United Steelworkers of America, Authorized Employee Representative, parties to the above-captioned matter, in order to resolve the contest herein agree and stipulate as follows:

1.

On January 17, 1979, Complainant issued to Respondent a serious citation for an alleged violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C.

654(a)(1).

The citation specified the violation as follows:

Operators of "Hyster" straddle carrier number 260 which was operated and stored in the Structural Steel and Auxiliary Structural Steel Yard, did not have adequate vision from the carrier cab to the front and right sides of the [*2]

carrier, November 22, 1978 to January 5, 1979.

2.

Respondent timely contested the citation and the matter was referred to the Occupational Safety and Health Review Commission ("the Commission") for adjudication.

3.

The Authorized Employee Representative elected and was accorded party status before the Commission.

4.

A hearing was held before the Commission's Administrative Law Judge Alfieri who, thereafter on January 24, 1980, filed a Decision and Order with the Commission.

In his Decision Judge Aflieri vacated the citation for several reasons including his finding that while limited carrier visibility created a hazard and while Respondent had knowledge of the hazard, nonetheless the evidence did not establish the feasibility and likely utility of the Secretary's suggested means of abatement, i.e., mirrors mounted on the carrier.

5.

None of the parties petitioned the Commission for review of the judge's decision.

Nevertheless, Commissioner Cottine, on February 25, 1980, directed the judge's decision for review to consider:

Whether the Judge erred in vacating the citation alleging a violation of 29 U.S.C.

654(a)(1) on the basis that "the Secretary did not carry his burden [*3]

of proof that Respondent violated the general duty clause."

6.

On December 10, 1981, the Commission issued a briefing notice to the parties.

7.

Since the issuance of the briefing order the parties have discussed the case and the record.

From this review the parties have determined that the record supports the decision of the judge.

Complainant, in view of the foregoing and in reliance on respondent's assertions that the carrier, in addition to its clearly visible size and shape, is equipped with certain devices intendend to alert employees to the approach of the carrier, agrees to withdraw the citation and notification of proposed penalty.

Respondent, in view of the foregoing agrees to withdraw its notice of contest.

The Authorized Employee Representative has no objections to the above withdrawals.

WHEREFORE, in the light of the foregoing the parties agree that there is no longer any contest or controversy as to this case and agree to the dismissal or this matter and the entry of a final order in accordance with the terms herein.