John Hicks Oldsmobile, Inc.

Plain-English summary

OSHA cited John Hicks Oldsmobile for seven non-serious violations and proposed penalties totaling $155. The company and the Secretary stipulated to withdrawal of the contest, payment of the penalties, and more time to correct item 4. The Secretary also agreed to provide an interpretation of the spray-finishing standard that the company could rely on during abatement. The Commission corrected omissions and a typographical error in the judge's order. It extended item 4's abatement date to December 26, 1972, and affirmed the citation as amended and all proposed penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.107(b)(5)(iv)
• Outcome: All seven citation items and $155 in penalties were affirmed, with item 4's abatement date extended to December 26, 1972.
• Key point: The Commission corrected the settlement order so it accurately included item 4's penalty and the Secretary's promised interpretation of the cited standard.

Full text (OSHRC public release)

Docket No. 1076

JOHN HICKS OLDSMOBILE INC.
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OSHRC Docket No. 1076

Occupational Safety and Health Review Commission

November 27, 1972

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Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

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BURCH, COMMISSIONER: On October 24, 1972, Judge J. Marker Dern issued an order in this case extending the abatement period of the citation to December 26, 1972; granting respondent's motion to withdraw notice of contest; and affirming all other items of the citation and notification of proposed penalty in all respects.

Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651,
et seq.,
84 Stat. 1590, hereinafter referred to as "the Act"), I am hereby directing that the Judge's decision be reviewed by the Commission.

The Commission has reviewed the record in this case.
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On June 16, 1972 respondent was issued a citation for seven non-serious violations of the Act together with a notification of proposed penalty in a total amount of $155.
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Respondent filed a timely notice of contest and issue was joined with exchange of the Secretary's complaint and respondent's answer.

Thereafter by stipulation, respondent moved to withdraw its notice of contest and the parties agreed to an extension of the abatement period as to item 4 of the citation.
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Judge Dern thereupon issued his [*2]
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order.

The Commission notes that in rendering his order, Judge Dern failed to affirm the penalty proposed for item 4.
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We also note that the paragraph numbered three on page two of the Judge's order does not conform
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to the stipulation agreement and is an obvious typographical error.

Accordingly, it is ORDERED that:

1.
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The abatement date for the violation set forth as item 4 of the citation is extended to December 26, 1972.

2.
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The Judge's order is amended to provide that respondent's motion to withdraw its notice of contest is granted and the citation, as amended, and the notification of proposed penalty are affirmed.

3.
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The paragraph numbered three on page two of the Judge's order is amended to read as follows: "The complainant shall provide respondent with an interpretation of the standard at 29 CFR 1910.107(b)(5)(iv), which interpretation, complainant agrees, may be relied upon by respondent in abating the violation of said standard as alleged at item 4 of the citation issued to respondent on June 16, 1972."

[The Judge's decision referred to herein follows]

DERN, JUDGE, OSAHRC: This case was assigned for hearing by the Occupational Safety and Health Review Commission,
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and a hearing began on September 21, 1972, at Chattanooga, Tennessee.
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The respective parties were represented by counsel.

The hearing was postponed indefinitely upon submission of joint stipulation and motion to withdraw the notice of contest filed June 29, 1972.
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The stipulation was reduced to writing and certification was made by the respondent that the stipulation and motion to withdraw the notice of contest were posted at respondent's place of business in order to insure notification to affected employees.

The joint stipulation provides that:

1.
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The respondent has tendered to the complainant
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payment of the penalty of $155 proposed to be assessed against respondent in the instant proceeding.

2.
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The period in which to correct the violation set out at Item 4 of the citation issued to respondent on June 16, 1972, shall be and the same hereby is, subject to the approval of Judge J. Marker Dern and the Occupational Safety and Health Review Commission, extended by 60 days from and after entry of the order of Judge J. Marker Dern granting respondent's motion to withdraw notice of contest or by 30 days from and after entry herein of the final order of th Occupational
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[*4]
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Safety and Health Review Commission, whichever is longer.

3.
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The complainant shall provide respondent with an interpretation, complaint agrees, may be relied upon by respondent in abating the violation of said standard as alleged at Item 4 of the citation issued to respondent on June 16, 1972.

4.
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This stipulation may be, and the same shall be, attached to, and made a part of the respondent's motion to withdraw Notice of Contest to be filed herein, and said motion and attached stipulation shall be, and remain, posted at respondent's place of employment at 2022 South Broad Street, Chattanooga, Tennessee, for a period of not less than 10 calendar days.

No objection to the relief sought has been filed and the settlement is consistent with the provisions of the Occupational Safety and Health Act of 1970.
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Accordingly, it is ORDERED that:

1.
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The abatement period for correction of the violation alleged in Item 4 of the Citation is extended to December 26, 1972.

2.
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The Motion to Withdraw the Notice of Contest is granted and all other items of the citation and notification of proposed penalty issued to Respondent on June 16, 1972, are affirmed in all respects.
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