SPECTOR FREIGHT SYSTEM, INC.  

OSHRC Docket No. 3661

Occupational Safety and Health Review Commission

September 15, 1976

  [*1]  

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Herman Grant, Regional Solicitor

Nelson E. Schmidt, for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge George W. Otto, dated September 8, 1975, a copy of which is attached hereto as Appendix A, n1 is before this Commission for review pursuant to 29 U.S.C. §   661(i).

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n1 Chairman Barnako does not agree to this attachment.

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Having reviewed the record in its entirety, the Commission finds that the Judge properly decided the case and adopts his decision granting complainant's motion of withdrawal of citation and complaint by reason of lack of sufficient evidence, it being clear from the record that all appropriate notification on this matter has been accomplished.   Accordingly, the Judge's decision is hereby affirmed.

Appendix A

ORDER

In a decision issued June 10, 1975 the Occupational Safety and Health Review Commission remanded the above identified proceeding to the undersigned Judge.   On September 4, 1975 complainant [*2]   filed a document served September 4, 1975 entitled "Notice of Withdrawal of Citation and Complaint" . . . by reason of lack of sufficient evidence to sustain his burden as required by Review Commission Rules of Procedure 73.   Complainant has no authority to effect unilateral withdrawal.   However the document filed September 4, 1975 is deemed a motion for withdrawal.

Under Commission Rule 73(a) in all proceedings commenced by the filing of a notice of contest, the burden of proof shall rest with the Secretary.   No purpose is served by continuing this proceeding where the complainant by reason of lack of sufficient evidence to sustain his burden elects to file a motion to withdraw.

In support of the motion complainant submitted with the notice the affidavit of T. L. Patton, Director of Safety & Training of Spector Freight Systems, Inc.

The motion is granted.   Therefore the citation issued June 21, 1973 is hereby vacated, the complaint served July 16, 1973 is hereby dismissed and this proceeding is terminated.

George W. Otto, Judge, OSAHRC

Dated: September 8, 1975