Spildie Construction Company

Plain-English summary

OSHA cited Spildie Construction for 20 non-serious violations and proposed $445 in penalties for 12 items. The company contested only the penalties, then moved to withdraw and tendered the full amount. The Commission found that the withdrawal papers did not certify correction of the cited conditions. It held that continuing-compliance language was not essential, but abatement certification was central because workplace correction is the Act's primary purpose. The Commission ordered dismissal of the contest and affirmance of the citation and penalties unless Spildie certified abatement within 10 days. The official release states that the certification was accomplished.

Decision snapshot

• Cited standard(s): No specific OSHA standard number is identified in the decision.
• Outcome: The citation and $445 proposed penalty remained affirmed, with withdrawal conditioned on timely abatement certification that the release says was completed.
• Key point: Paying a penalty did not substitute for confirming that the cited workplace conditions had been corrected.

Full text (OSHRC public release)

Docket No. 646

SPILDIE CONSTRUCTION COMPANY

OSHRC Docket No. 646

Occupational Safety and Health Review Commission

August 23, 1972

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Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

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BURCH, COMMISSIONER: On July 21, 1972, Judge Winters issued his recommended order in this case granting 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, hereinafter referred to as "the Act"), I am herewith directing that the Judge's recommended order be reviewed by the Commission.

The Commission has reviewed the record in the case and notes that on March 1, 1972, respondent was issued a citation for twenty other than serious violations of the Secretary's safety and health standards together with a notification of proposed penalty for twelve of the violations in the amount of $445.
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Respondent filed a timely notice of contest, with an assertion that only the notification of proposed penalty was being contested. After the Secretary's complaint and respondent's answer had been filed, but prior to hearing, respondent moved to withdraw its notice of contest alleging service of the motion on all parties as well as tender of the proposed [*2]
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penalty. The Secretary joined in respondent's motion.

The Commission has repeatedly set forth the criteria essential to its hospitable consideration of motions to
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Respondent's withdrawal motion failed to reflect compliance with either of these criteria.

While we do not view the failure to assert continuing compliance as fatal to respondent's motion, certification of abatement is of primary importance.
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As we stated in
Secretary of Labor
v.
J.E. Chilton Millwork and Lumber Company, Inc.,
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The record is absent any evidence indicating that such purpose has been achieved.

Accordingly, it is ORDERED that the Judge's order is set aside, the respondent's motion to withdraw the
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notice of contest is denied, the notice of contest is dismissed, and the citation and notification of proposed penalty are affirmed in all respects, unless within 10 days of the receipt of this order respondent certifies to the Commission that the contested violations have been abated.

[Certification of abatement accomplished]

[The Judge's decision referred to herein follows]

WINTERS, JUDGE, OSAHRC: This matter comes on for consideration on the motion of Respondent to withdraw its notice of contest, filed July 10, 1972, and
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on the reply of the Secretary consenting to such withdrawal, filed July 20, 1972; and this Judge, being fully advised in the premises, finds as follows:

(1) This case is properly before this Judge upon assignment for hearing by the Commission;

(2) The Respondent has contested only the notification of proposed penalty and has not contested the citation which formed the basis of the proposed penalty;

(3) Respondent has tendered the sum of $445 to the Secretary, which sum is in full satisfaction of the proposed penalty, and Respondent is now desirous of withdrawing its notice of contest;

(4) The Secretary, through its representative, joins in Respondent's [*4]
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motion; and

(5) Respondent's motion should be granted.

Accordingly, it is ORDERED that motion of Respondent to withdraw its notice of contest be, and it is hereby, granted.

There being no further contest in this case, it is recommended that this order be made the order of the Commission.
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