John H. Boyson, dba Boyson Construction Co.

Plain-English summary

Boyson Construction moved to withdraw its contest after correcting the cited condition, tendering the $200 proposed penalty, and promising continuing compliance. The judge approved withdrawal even though the motion did not show that affected employees or their representative had received it. The Commission held that employee notice could not be omitted. It set aside the judge's order and directed dismissal of the contest and affirmance of the citation and penalty unless the company certified proper service within 10 days.

Decision snapshot

• Cited standard(s): No specific OSHA standard number is identified in the decision.
• Outcome: The citation and $200 proposed penalty were affirmed unless the employer timely certified service of the withdrawal motion on affected employees.
• Key point: Posting the final decision did not replace the requirement to serve or post the employer's withdrawal request before approval.

Full text (OSHRC public release)

Docket No. 971

JOHN H. BOYSON, d.b.a. BOYSON CONSTRUCTION CO.
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OSHRC Docket No. 971

Occupational Safety and Health Review Commission

August 14, 1972

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Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

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BURCH, COMMISSIONER: On July 13, 1972, Judge Chaplin issued his recommended order in this case granting the respondent's motion for withdrawal of notice of contest.

By virtue of the authority vested in Members of the Commission by section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651
et seq.,
84 Stat. 1590), I am herewith directing that the Judge's order be reviewed by the Commission.

Since the record is absent any evidence that the affected employees or their authorized representative have been served with said motion, it is ORDERED that the Judge's order is set aside; respondent's notice of contest is dismissed;
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and the citation and notification of proposed penalty are affirmed in all respects, unless within 10 days of the receipt of this order the respondent
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certifies to the Commission service of its withdrawal motion upon the affected employees or their authorized representative in accordance with Commission rule 2200.7(i).

[The Judge's decision referred to herein follows]

CHAPLIN, JUDGE, OSAHRC: The Respondent hereby by motion seeks to withdraw its Notice of Contest to the citation and proposed penalty issued by the Occupational Safety and Health Administration of the United States Department of Labor under the Occupational Safety and Health Act of 1970.

In support of said motion the Respondent, through its attorney, represents that the alleged violation was properly abated; that tender of the proposed penalty of $200.00 has been made to the Secretary of Labor; that it will maintain continuing compliance with the Act; and that it has fully conformed with the applicable filing and service requirements as fixed by the Commission rules regarding the Notice of Contest.

While the motion to withdraw (Attorney's letter of June 22, 1972) does not reflect whether it was posted or
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served as prescribed by 29 USC 2200.7(i), but all other essential actions have been taken, a demand for posting prior to final decision would serve no useful purpose and to permit the withdrawal is fully consistent with the public policy sought by the Act, now therefore it is ORDERED that:

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Respondent's motion to withdraw is granted.

2.
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The citation and proposed penalty are affirmed.

3.
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A copy of this decision shall be posted in a prominent place at Respondent's workplace for 5 days.
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