OSHRC Docket No. 83-0986


Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

The question in this case is whether Administrative Law Judge Irving Sommer should have dismissed Barretto Granite Company's notice of contest of a citation alleging two repeated violations as untimely.[[1]]

Compliance officers of the Occupational Safety and Health Administration inspected Barretto's workplace from April 26, 1983, to August 16, 1983.  Discussions between Barretto and the compliance officers took place during and following the inspection but, according to Barretto, both parties remained "adamant on their original contentions."  On August 17, 1983, the Secretary issued two citations, which were received by Barretto on August 18.  Barretto met with representatives of the Secretary at an informal conference on September 7, 1983, and again disputed the Secretary's position.  This conference took place within the fifteen working-day period within which a citation must be contested under the Act.  Barretto, which appeared pro se at the conference, disputed the validity of the citations.  On October 6, 1983, Barretto sent letters confirming its discussion with the Secretary.  The judge treated these letters as a notice of contest and dismissed it as untimely because the letters were sent more than fifteen working days after the citation had been received.

We hold that, under the circumstances of this case, Barretto should not be denied a hearing.  Our ruling is in keeping with the Commission's policy of favoring a full hearing on the merits of disputed citations.  See Elmer Construction Corp., 84 OSAHRC, 12 BNA OSHC 1002, 1984 CCH OSHC 27,050 (No. 83-040, 1984); Seminole Distributors, Inc., 77 OSAHRC 211/D9, 6 BNA OSHC 1194, 1977-78 CCH OSHD 22,412 (No. 15671, 1977).  We therefore set aside the judge's order and remand this matter for proceedings on the merits.  See Con-Lin Construction Co., 83 OSAHRC / , 11 BNA OSHC 1757 (No. 83-371, 1983); Merritt Electric Co., 81 OSAHRC 75/D4, 9 BNA OSHC 2088, 1981 CCH OSHD 25,556 (No. 77-3772, 1981).




DATED:  November 30, 1984



[[1]] Under section 10(a) of the Act, 29 U.S.C. 659(a), an employer must notify the Secretary that it intends to contest the citation or proposed penalty within 15 working days of its receipt of the notification of proposed penalty that accompanied the citation.

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