SECRETARY OF LABOR,
Complainant,

v.

PAV-SAVER MANUFACTURING COMPANY, Respondent.

OSHRC Docket No. 84-0733

DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 651-78 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions brought by the Secretary Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. § 659(c).

I.

The issue presented is whether Chief Administrative Law Judge Paul A. Tenney erred in granting the Secretary's motion to dismiss Pav-Saver's notice of contest for having been untimely filed. For the reasons that follow, we conclude that Respondent did timely contest the citations and penalties proposed. We set aside the judges order and remand for proceedings on the merits.

On May 23, 1984, the Secretary issued citations to Pav-Saver alleging a number of serious and nonserious violations of the Act, for which a total penalty of $3820 was proposed. As evidenced by a return receipt, Pav-Saver received of $3820 was proposed. As evidenced by a return receipt, Pav- Saver received the citations and accompanying notification of proposed penalty on May 29, 1984. Therefore, under section 10(a) of the Act[[1]] Pav-Saver had until June 19 to contest. On July 10 and again on July 19 Pav-Saver filed a written notice of contest was not timely filed, the Secretary moved for dismissal.[[2]]

Following Judge Tenney's dismissal order,[[3]] Pav-Saver filed a petition for review with the Commission requesting that the 15-day contest period be "waived"
because "we did file for a hearing in Peoria [the location of the area office which issued the citations], the rehearing was allowed and all violations were corrected [and] proof in the form of pictures were [sic] submitted to OSHA [and] accepted as proof of compliance." The petition also disputed the appropriateness of the penalties in view of the type of violations, their prompt correction, and Pav- Saver's financial condition and previous compliance with the Act. Chairman Buckley then directed review on the issues whether Pav-Saver's request for a "rehearing" placed the Secretary on notice within 15 working days of May 29 that Pav-Saver intended to contest either the citations or proposed penalties and whether Pav-Saver's actions were sufficient to constitute a timely notice of contest or entitled Pav-Saver to relief under Federal Rule of Civil Procedure 60(b).

In its response to the Commission Pav-Saver reiterated its reliance on its meeting with the Secretary's agents, stating "[f]or a first time violation and in light of the fact that all violations were cured by the time of the Peoria, Illinois [rehearing] (June 13, 1984, according to the time schedule file by Complainant). This was proven and accepted as true by the OSHA people in Peoria on 6/13/84." Pav-Saver also contended that it was denied due process by being precluded from challenging the propriety of the penalties proposed. The Secretary in turn filed an affidavit by the area director stating that at Pav-Saver's request an informal conference was held on June 13, 1984. Paragraph 9 of the affidavit further stated as follows:

During the informal conference the Pav-Saver officials indicated that they had abated all of the violations noted in the citations, explained the methods by which they had abated, and presented photographs depicting some of the abated conditions. Based upon the presentation by the Pav-Saver representatives, it was my understanding that they had attended the informal conference to seek approval of their abatement action. After the presentation was made by the Pav-Saver officials, I indicated agreement with the methods of abatement of the cited conditions. The Pav-Saver representatives appeared to be satisfied and terminated the conference. At no time during the conference was the subject of the validity of the citations or penalties mentioned by Pav-Saver officials. At no time during the informal conference did Pav-Saver representatives indicate any confusion with respect to their contest rights under the OSH Act of that Pav-Saver believed that evidence of abatement or any other factor would result in the withdrawal or amendment of the citations proposed penalties. At no time during the informal conference the informal conference did any OSHA representative indicate that abatement of violations would result in the withdrawal or amendment of the citations or proposed penalties.

Pav-Saver in turn disputed these assertions, stating that "paragraph 8 and part of nine are incorrect and wrong."[[4]] Pav-Saver also submitted a document styled "Answer to Affidavit"[[5]] which states in pertinent part as follows:

Paragraph eight of the Gravatt affidavit is incorrect totally. Gravatt at no time at that conference explained anything to the Pav-Saver people, in fact we were amazed at the almost complete silence of the OSHA people, except for the "good mornings," "lets go into the conference room" and "you asked for the informal conference (Pav-Saver) so go ahead." We did proceed, showed our compliance with the infractions, gave Gravatt pictures of proof (which they kept) and the meeting ended with their apparent approval.

The silence of the OSHA people at the conference was strange and we both commented on it on the way back home, but we were pleased that they indicated thru [sic] their actions or in-action that OSHA accepted our compliance with all infractions, but at no time did Gravatt or anyone else at the conference explain anything to us of the rules, regulations, our rights or anything else and this we will both swear to as correct and that Gravatt is wrong, dead wrong....

In paragraph nine of the Gravatt affidavit, we were satisfied, we did abate all the violations and presumed because no one said otherwise, that the OSHA people being satisfied that they had been abated, would dismiss everything and that the entire matter was ended then [and] there, permanently.[[6]]
(emphasis in original)

II.

The filing of a notice of contest is a statutory prerequisite to Commission jurisdiction. Uncontested citations are self-executing and automatically become final orders of the Commission by operation of law. Marshall v. Sun Petroleum Products Co., 622 F.2d 1176, 1184 (3d Cir.), cert denied, 449 U.S. 1061 (1980). See Marshall v. Monroe & Sons, Inc., 615 F.2d 1156 (6th Cir. 1980); Brennan v. OSHRC (Bill Echols Trucking Co.), 487 F.2d 230 (5th Cir. 1973). There is no dispute that Pav-Saver's formal written notice of contest dated July 10 was beyond the 15-day contest period prescribed by the Act. The question before us in this case is whether Pav-Saver's oral request for[[7]] and participation in an informal conference with the area director within the 15-day period are sufficient to constitute a contest and thereby prevent the citations from becoming final. The Secretary's position is that the informal conference and request therefor do not constitute a notice of contest because oral statements cannot be used to establish an employer's intent to contest. In any event, the Secretary also contends that assuming an employer is permitted to make its contest orally, Pav-Saver did not do so. Rather, the Secretary asserts, Pav-Saver did not at the conference express any desire or intention to contest either the citations or penalties and could not reasonably have thought that the discussions regarding abatement were sufficient to put the Secretary on notice that a contest was intended.

The Secretary relies on Keppel's, Inc., 79 OSAHRC 43/A2, 7 BNA OSHC 1442, 1979 CCH OSHD 23,622 (No. 77-3020, 1979). In that case the Commission by a divided vote held that a requirement that notices of contest be in writing was consistent not only with regulations promulgated by both the Secretary and the Commission[[8]] but also with the other filing provisions set forth in the Act. The

Commission in Keppel's also concluded that the remedial purposes of the Act and the need to ascertain clearly and without doubt when a notice of contest is filed further justify a requirement for a writing.

As explained more fully below, we conclude that Pav-Saver intended to put the validity of the citations into issue at its informal conference with the area director and that its statements at the informal conference are sufficient to constitute an oral notice of contest. We have reconsidered the rule of Keppel's that a notice of contest must be filed in writing. We conclude that the rule is not sound, cannot be reconciled with the holdings of both prior and subsequent cases, is not required by the Act itself, and creates an injustice in circumstances similar to those here.

In reaching the question whether oral notices of contest are sufficient to invoke Commission jurisdiction, our first inquiry is with the language of the statute itself. Section 9(a) of the Act, 29 U.S.C. § 658(a), pertaining to the issuance of citations, expressly requires that each citation "shall be in writing." Section 10(a), 29 U.S.C. § 659(a), similarly requires that the accompanying notification of proposed penalties be written, since it provides that the employer is to be notified of the proposed assessment "by certified mail." In contrast, employers in order to contest citations or proposed certified mail." In contrast, employers in order to contest citations or proposed penalties need only "notify" the Secretary of such intent, 29 U.S.C. § 659(a), (c). The term "notify" obviously is sufficiently broad to include an oral notification. However, employees or their representatives, who under the Act have the right to contest the length of time prescribed in a citation for abatement of violative conditions, are required to "file" a "notice" to exercise that right.

The Secretary concedes before us here, as the Commission majority had observed in Keppel's, that the Act does not explicitly require that an employer's notice of contest be written. However, the Secretary contends that, since the terms "file" and "notice" regarding employee contests imply a written document, equal treatment of the Secretary, employees, and employers justifies requiring that employers file written notices of contest as well. Accordingly, the Secretary argues that the Commission should defer to his regulation as a reasonable interpretation of the statute. These arguments basically parallel the conclusions the Commission reached in Keppel's.

The statute's specific use of terms indicating a writing when describing citations and notifications issued by the Secretary is in contrast to the more general and less precise terms "file," "notice," and "notify" used to describe contests by both employers and employees. As a strict matter of statutory construction, the use of obviously different terminology within the statutory provisions is evidence of an intentional differentiation. Lankford v. LEAA, 620 F.2d 35 (4th Cir. 1980); United States v. Wong Kim Bo, 472 F.2d 720 (5th Cir. 1972). See FTC v. Sun Oil Co., 371 U.S. 505, 514-15 (1963). As the court stated in Bolt v. American Hydrocarbon Corp., 458 F.2d 229, 233 (5th Cir. 1972), when the legislature has employed a term in one section of a statute and excluded it in another, it should not be implied where excluded. Accordingly, we conclude that the requirements for a writing applicable to the Secretary do not indicate a similar requirement with respect to notices of contest. This conclusion is consistent with the particular purpose citations and penalty notifications serve under the Act, which is to give employers fair and adequate notice of the charges against them so that they can properly decide whether or not to contest.

On the other hand, we agree with the Secretary that nothing in the Act suggests that employees and their representatives should be treated differently from employers in terms of filing requirements of their respective notices of contest. However, since the Act is not explicit on this issue, but rather requires inferences to be drawn from the terms "file" "notice," and "notify," we conclude, as former Commissioner Barnako suggested in his separate opinion in Keppel's, that Congress had no particular intent with respect to oral versus written notices of contest. Indeed, the legislative history of the Act reflects that Congress simply did not consider the matter.[[9]] Accordingly, we conclude that Keppel's is erroneous insofar as it relies on the provisions of the Act as support for its conclusion that oral notices of contest have no validity. We must look beyond the wording of the statute itself to resolve the issue.

III.

The Commission as well as the courts have long recognized that the relatively short contest period prescribed by the Act together with the potential complexity of citations and penalty notifications create practical problems for employers faced with the decision whether to contest the Secretary's allegations or implement the corrective action sought by the Secretary. For example, in an early case, H.E. Lowdermilk Co., 74 OSAHRC 21/A2, 1 BNA OSHC 1663, 1973- 74 CCH OSHD (p) 17,656 (No. 133, 1974), the employer filed a notice of contest as to some but not all items of the Secretary's citation. At its hearing on the contested items it objected to a previously uncontested item after the Secretary's ambiguous penalty notification was clarified to indicate that, contrary to the employer's original belief, a penalty had been proposed for the item in question. The Commission ruled that in the circumstances the employer's oral contest should be accepted.

The principle of the Lowdermilk case--that an employer's overall course of dealing with the Secretary should be taken into consideration in determining if the employer has made a timely contest--is consistent with the subsequent holding of the Fifth Circuit in Atlantic Marine, Inc, v. OSHRC, 524 F.2d 476, 478 (5th Cir. 1975). In that case the court concluded that the 15-day contest period prescribed under section 10(b) of the Act for contesting a notification that a previous violation had not been abated[[10]] was not an "impenetrable barrier" to consideration of the employer's case. The court directed that the Commission make findings on whether the employer's failure to timely contest was due to deception on the part of the Secretary or the Secretary's failure to follow his procedural rules or those of the Commission.

Although Atlantic Marine involved the question whether a written notice untimely filed was nevertheless acceptable in the circumstances, the Commission subsequently concluded that the circumstances surrounding an employer's contact with the Secretary may be sufficient to justify allowing the contest to be made orally within the 15-day period when the oral contest is thereafter confirmed by a writing. In Wood Products Co., 78 OSAHRC 9/B13, 4 BNA OSHC 1688, 1976-77 CCH OSHD (p) 21,097 (No. 9206, 1976), the employer orally contested citations and amended citations in a timely manner. It then filed a written notice of contest beyond the 15-day period but within five days after being told by the area director that a notice of contest had to be in writing. Although there was no evidence of deception or improper conduct on the part of the Secretary, the Commission allowed the contest on the ground that the employer was confused by its many communications with the area office, including the personal meetings and several telephone calls. The Commission emphasized that, as in Lowdermilk, the employer promptly reacted after the area director corrected its mistaken impression that an oral notice of contest was sufficient. Similarly, in Florida Power & Light Co., 77 OSAHRC 45/B9, 5 BNA OSHC 1277, 1977-78 CCH OSHD (p) 21,715 (No. 76-2177, 1977), the employer orally contested at a meeting with the area director within the 15-day period. The employer was then told it could file a written notice on the following day, the last day of the contest period, but neglected to do so because of a company safety emergency. On the next day, one day after the expiration of the contest period, the area director stated that the notice would be accepted if delivered within two days or as soon as possible. Again, the Commission emphasized that the employer acted in a reasonable manner and was not dilatory in filing its written contest. In both cases, the Commission concluded that while the Secretary's rule restricting contests to those timely filed in writing is reasonable in view of administrative convenience, precise identity of the date of contest, and clarity as to what is being contested, that rule can not be construed to establish an absolute requirement in every case.

The only Commission decision that refuses to allow an employer to establish a timely contest by means of oral statements to the Secretary is Keppel's, in which the Commission overruled Wood Products and Florida Power & Light. Despite its insistence in Keppel's that the language and purposes of the Act and the need for certainty and clarity demand that contests always be made in writing, the Commission thereafter retreated from this strict rule. In Merritt Electric Co., 81 OSAHRC 75/D4, 9 BNA OSHC 2088, 1981 CCH OSHD (p) 25,556 (No. 77-3772, 1981), the employer did not file a written notice of contest until it received a penalty collection letter some 3 months after the citation was issued. Merritt's letter back to OSHA stated that the employer had previously sought to contest the citation and still wished to do so. This letter referred to a conversation with the collection letter some 3 months after the citation was issued. Merritt's letter back to OSHA stated that the employer had previously sought to contest the citation and still wished to do so. This letter referred to a conversation with the area director within the 15- day contest period when the employer requested that the compliance officer reinspect the allegedly violative conditions. The employer's impression was that the informal conference could be used as a means for establishing its contest. The Commission concluded that this belief was reasonable because the area director had not specifically instructed the employer to file a written notice in order to effectuate its contest. Although the specific holding of the Commission was that the late-filed written notice was valid, it is clear that this holding was premised on the fact that the employer's written notice confirmed its prior oral conversations with the area director. See also Con-Lin Construction Co., 83 OSAHRC 49/A13, 11 BNA OSHC 1757, 1983-84 CCH OSHD (p) 26,729 (No. 83-371, 1983) (finding contest valid where the employer disputed the Secretary's position at an informal conference and regarded the conference as a contest).

The holding of Merritt is also analogous to other decisions issued after Keppel's in which the Commission took into consideration statements made during discussions with the Secretary's agents in determining whether to accept a written notice of contest filed beyond the 15-day period. In B.J. Hughes, Inc., 79 OSAHRC 49/E6, 7 BNA OSHC 1471, 1979 CCH OSHD (p) 23,675 (No. 76-2165, 1979), the Secretary's agents erroneously computed the time period for filing based on an assumption as to when the employer had received the citation and penalty notification. The Commission found valid a notice of contest filed within the period advised by the Secretary. Although the Secretary's statements were not made with intent to deceive the employer, the Commission concluded that they were made with the intent that the employer rely on them. Similarly, in Henry C. Beck Co., 80 OSAHRC 50/A2, OSHC 1395, 1980 CCH OSHD (p) 24,484 (No. 11864, 1980), the area director at an informal conference promised to reconsider the citation. The employer urged that the reconsider the citation. The employer urged that the reconsideration be completed before the expiration of the contest period and stated what the employer thought to be the final contest date. This date was in fact outside the 15-day period because the employer was mistaken as to when it had received the citation. The area director did not correct the employer's misimpression. The Commission held that the employer's contest filed untimely was nevertheless valid because the final contest date was a critical factor at the informal conference, and the employer relied on the area director's silence as to the final contest date.

Although these cases did not directly involve oral contests made during the 15-day period, they clearly demonstrate that oral statements within that period may not be disregarded in the determination of whether an employer has properly contested. In our view, there is little practical difference, if any, between the use of conversations with an area director for the purpose of determining whether an untimely written contest should be allowed and the acceptance of an oral expression of a contest when, as here, such an oral contest is thereafter followed by a writing.

To the extent that Keppel's holds to the contrary, we think the case was incorrectly decided. As we have said, the language of the Act itself does not support the result the Commission reached in that decision. Furthermore, we do not agree, as the Commission stated in Keppel's, that the need for certainty and clarity as to the time and contents of a notice of contest requires a restriction of notices of contest of contest to those filed in writing. Our experience has demonstrated that even written notices of contest do not necessarily assure clarity and precision. As a result, the Commission has had a long-standing precedent that a notice of contest facially limited in scope will be construed broadly to effectuate the employer's actual intent if subsequent pleadings filed by the employer indicate that its notice of contest did not properly express its original intentions. Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD (p) 20,221 (N. 7413, 1975) (notice of contest apparently limited to the penalty will be construed as also contesting the underlying citation when the employer subsequently pleads that such was its intent during the contest period). Indeed, the filing of written notices of contest that do not clearly express the intent of employers has been persistent problem. E.g., Maxwell Wirebound Box Co., 80 OSAHRC 84/D11, 8 BNA OSHC 1995, 1980 CCH OSHD (p) 24,758 (No. 15965, 1980) (Turnbull applies to construe an initial request for relief limited solely to the abatement date prescribed in a citation as a contest of the violation allegation as well if subsequent pleadings show that at the time the notice of contest was filed the employer intended to contest the citation as a whole); Gil Haugan, 77 OSAHRC 182/G3, 5 BNA OSHC 1956, 1957, 1977-78 CCH OSHD (p) 22,248 (No. 14675, 1977), aff'd, 586 F.2d 1263 (8th Cir. 1978); Superior Boat Works, Inc., 76 OSAHRC 129/G2, 4 BNA OSHC 1764, 1976-77 CCH OSHD (p) 21,159 (No. 12463, 1976). See Monarch Water Systems, Inc., 86 OSAHRC, 12 BNA OSHC 1897, 1900, 1986 CCH OSHD (p) 27,632, p. 35,934 (No. 83-943, 1986). It is thus well-settled that uncertainty regarding the employer's intentions to contest cannot be avoided even with respect to written notices of contest. Penn-Dixie Steel Corp. v. OSHRC, 533 F.2d 1078 (7th Cir. 1977). Accordingly, while we appreciate the desirability of ensuring clarity and precision in employer contests, we do not consider this objective to be a sufficient reason for concluding that employers may never make their contests known by means other than a writing. Moreover, we think it is unfair and unjust to deny an employer an opportunity to be heard before the Commission when due to confusion, uncertainty, or misunderstanding the employer fails to file its written notice of contest within the statutory time period, but orally disputes the validity of citations or penalties in a timely manner and in good faith believes by so doing it has perfected a valid contest.[[11]]

In our view, to give an employer relief from a strict application of the Secretary's rule requiring a written notice of contest will not frustrate the remedial purposes of the Act. In the first place, as former Commissioner Barnako observed in his separate opinion in Keppel's, the purposes of the Act are not served by a final order affirming citations for, and thus requiring an employer to abate, conditions which, if the employer's contest were heard, the Commission might find not to be violative of the Act due to absence of proof by the Secretary or a defense on the part of the employer. Secondly, and contrary to the suggestion in the Secretary's brief, the rule we adopt here will not encourage laxity in employers making their contests known. Our experience demonstrates that the overwhelming majority of notices of contest are timely filed in writing. In those relatively few instances where timely notice of consequent writing from the employer evidencing the employer's intent. Such a rule is consistent with our previous case law on the subject and with the Act itself.

IV.

Turning to the facts of this case, the parties agree that at the informal conference the area director stated that he found Pav-Saver's abatement measures to be satisfactory. Pav-Saver clearly was under the impression that it had received a "rehearing," that is, a reconstruction of the citations by the area director, and that based on the area director's approval of its abatement methods the citations would be withdrawn. Therefore, Pav-Saver concluded that it had effectuated a contest of the citations. We find it unnecessary to resolve the conflict between the affidavits as to whether Pav-Saver was informed of its right to file a written notice of contest or to determine whether Pav-Saver in fact had received the OSHA informational booklet.[[12]] Regardless of the usual distinction between an informal conference and a notice of contest, Pav-Saver in effect interpreted its discussion with the area director as a disposition in its favor on the merits of the citations. Therefore, Pav-Saver could have reasonably concluded that a formal notice of contest to invoke the jurisdiction of the Commission was not necessary in the circumstances. See Merritt Electric Co.[[13]] While it appears that the Secretary was not aware of Pav-Saver's understanding of the substance and effect of the informal conference, there is nothing in the limited record before us to demonstrate that Pav-Saver did not have a genuine good faith belief that it had adequately communicated its objections to the citations.[[14]] See Henry C. Beck (area director's silence relied on as confirming employer's understanding of the substance of an informal conference). As we stated in Seminole Distributors, Inc., 77 OSAHRC 211/D9, 6 BNA OSHC 1194, 1977-78 CCH OSHD (p) 22,412 (No. 15671, 1977), the short period in which contests must be made favors a liberal policy of allowing employers a hearing.

Accordingly, we set aside the judge's dismissal order and remand for proceedings on the merits of the citations and proposed penalties.[[15]]

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: AUG 28 1986

SECRETARY OF LABOR,
Complainant

v.

PAV-SAVER MANUFACTURING CO. Respondent

DOCKET NUMBER 84-0733

ORDER

1. The parties have filed nothing by way of written statements of reasons in support of or in opposition to the Secretary of Labor's motion to dismiss Respondent employer's notice of contest for untimely filing.

2. The Secretary's motion has been considered and is hereby granted upon the grounds stated in the motion.

So ORDERED.

PAUL A. TENNEY
Judge, OSHRC

Dated: October 30, 1984
Washington, D.C.


FOOTNOTES:


[[1]]Section 10(a) 29 U.S.C. § 659(a) provides in pertinent part as follows:
If, after an inspection or investigation, the Secretary issues a citation...he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed...and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of he wishes to contest the citation or proposed assessment of penalty. If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

[[2]]While acknowledging that his motion to dismiss relies on Pav-Saver's letter of July 19, the Secretary in his brief relies on the earlier letter for purposes of establishing the date of Pav-Saver's contest. Apparently only the second letter was transmitted to the Commission.

[[3]]Judge Tenney stated that Pav-Saver had not opposed the Secretary's motion for dismissal. The record reflects that Pav-Saver filed a response with the Secretary, and that Judge Tenney was not made aware of Pav-Saver's response. Pav-Saver opposed the motion on the same grounds it has argued to the Commission. It asserted that at the "hearing" at the area office it proved to OSHA's satisfaction that the violations had been corrected. Pav-Saver also opposed the Secretary's dismissal motion on the ground that it had not been notified of its rights "before, during, and after the hearing...."

[[4]]Paragraph 8 of the affidavit states that in accordance with the area director's usual procedure, he explained that an informal conference does not affect an employer's contest rights and that if Pav-Saver disagreed with the citations and penalties it was entitled to file a notice of contest in writing. The affidavit also asserts that at the time of the inspection Pav-Saver was given a copy of OSHA's informational booklet for employers, which states that a given a copy of OSHA's informational booklet for employers, which states that a notice of contest must be in writing and that an informal conference does not extend the time for filing a notice of contest. Finally, according to the affidavit, the citations were accompanied by the area director's cover letter which in pertinent part provides:

As indicated on page 2 of the booklet, you may request an informal conference with me during the 15-working- day notice of contest period. During the informal conference you may request any evidence or views which you believe would support an adjustment to the citation or the penalty.
If you have any questions about the enclosed citations and penalties, I would welcome further discussion at the informal conference; and, where warranted, I am authorized to enter into an informal settlement agreement which amicably resolves the matter without litigation or contest.

[[5]]The Secretary did not present any statement by the area director to the judge. Rather, the Secretary contends that until the direction for review referred to Pav-Saver's request for a "rehearing" he was not aware that the Commission considered the informal conference to have any significance. Therefore, the Secretary moved the Commission to reopen the record to allow the affidavit to be admitted, and he also filed a stipulation in which Pav-Saver agreed to the admission of the affidavit and its attachments. We conclude that the Secretary has complied with the requirements of Commission Rule 69 regarding the admission of affidavits in lieu of oral testimony, and we grant the motion. See Schulte Corp., 85 OSAHRC, 12 BNA OSHC 1222, 1225 n.6, 1984-85 OSHD (p) 27,210, p. 35,127 n.6 (No. 80-2666, 1985).

Although Pav-Saver's response to the affidavit is not sworn, the Secretary does not specifically object to its inclusion into the record. Accordingly, we reopen the record to allow the admission of Pav- Saver's response as well. See OSHD (p) 23,326, p. 28,215 (No. 78-2230, 1979).

[[6]]This answer also avers that Pav-Saver "does not know" whether Gravatt's statements that Pav- Saver was given a copy of the informational booklet and was sent the area director's cover letter are correct.

[[7]]Although Pav-Saver's petition for review states that it "filed" for a rehearing, the record does not contain any written request for an informal conference nor is there any contemporaneous written request for rehearing was made orally.

[[8]]The Secretary's regulation at 29 C.F.R. § 1903.17(a) provides that "[a]ny employer to whom a citation or notice of proposed penalty has been issued may, under section 10(a) of the Act, notify the Area Director in writing that he intends to contest such citation or proposed penalty before the Review Commission." (emphasis added). Commission Rule 32, 29 C.F.R. § 2200.32, requires that the Secretary "within 7 days of receipt of a notice of contest, transmit the original to the Commission, together with copies of all relevant documents."

[[9]]The Senate report, for example, merely reiterates the statutory language without attributing any significance to the difference in phrasing between an employer's contest and that of employees or their representatives. S. Rep. No. 1282, 91st Cong., 2d Sess. 33 (1970), reprinted in Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 172 (Comm. Print 1971). The House bill, which did not contain a provision for employer contests, was described as affording an employer a hearing if the employer "decides" to contest. H.R. Rep. No. 1291, 91st Cong., 2d Sess 40, Comm. Print at 870. The conference report referred to the employer giving "notice of his intention to contest" and employees having "the right to appeal the time allowed for abatement...." H.R. Rep. No. 1765, 91st Cong., 2d Sess. 38, Comm. Print at 1191.

[[10]]Section 10(b), 29 U.S.C. § 659(b), allows the Secretary, upon notice to the employer, to propose a penalty "[i]f the Secretary has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction...." The employer's contest rights are the same as those described for citations and penalty notifications in section 10(a).

[[11]]In one case involving the interpretation of a written notice of contest, the court suggested that ambiguity in notices of contest could easily be resolved if each citation and penalty notification were accompanied by a reply form with boxes the employer could check to indicate an intent to contest the citation, proposed penalty, both, or neither. Brennan v. OSHRC (Bill Echols Trucking Co.), 487 F.2d 230 (5th Cir. 1973). While we need not now consider whether adoption of this suggestion by the Secretary would reduce the incidence of employers seeking to contest citations orally, we share the court's concern that the Secretary's procedures for the filing of contests by employers facilitate rather than impede employers in the exercise of their contest rights. See Marshall v. Gil Haugan, 586 F.2d 1263, 1266 n.2 (10th Cir. 1978).

We also note that chapter XV.B.1.d of the OSHA Field Operations Manual states a follows:
A written communication from an employer containing objection, criticism or other adverse comment as to a citation or proposed penalty, may not appear to be a notice of contest. In such cases, the Area Director should contact the employer to clarify the nature of his communication. Such clarification must be accomplished within seven (7) days after receipt of the communication of the employer so that if, in fact, it is a notice of contest, the file may be forwarded to the Review Commission within the allowed time. The Area Director should not attempt to "talk the employer out of" his contest if he intends to contest; he should seek only to clarify whether the employer intends the document to be a notice of contest.
(emphasis in original)

While this provision deals with statements in conjunction with a contemporaneous written communication, it indicates that the Secretary does not construe his regulation as prohibiting the use of oral expressions of an intent to contest in all circumstances.

[[12]]See notes 4 and 6 supra.

[[13]]In this regard, we reject the Secretary's contention that Pav-Saver demonstrated a "cavalier attitude" toward the statutory contest procedure because it persistently viewed the Secretary as both the prosecutor and adjudicator of OSHA citations. We note that in the Commission and the Secretary. In any event, we are not inclined to attribute any significance to a pro se employer's misunderstanding of the respective roles of the Commission and the Secretary. Even the appellate courts have at times exhibited confusion as to the relationship between the Secretary and the Commission. See, e.g., Noranda Aluminum, Inc. v. OSHRC, 593 F.2d 811, 814 (8th Cir. 1979) (case remanded to the Secretary for reevaluation); D. Federico Co. v. OSHRC, 558 F.2d 614, 617 (1st Cir. 1977) (Commission referred to as prosecutor).

[[14]]We think this case is distinguishable from Arena Constr. Co. v. Marshall, 1978 CCH OSHD (p) 22,987 (S.D.N.Y. 1978), on which the Secretary relies. In Arena the court held that a letter stating that the employer had corrected violations did not constitute a valid notice of contest because it lacked "language indicating opposition or disagreement with the proposed action...." Id. at p. 27,789. In this case Pav-Saver did not intend merely to inform the Secretary of its compliance but rather expected relief from the citations based on the Secretary's acceptance of its abatement efforts. Thus, this case is factually different from Arena.

[[15]]In view of our decision to allow Pav-Saver's oral contest, we do not reach the question of whether Pav-Saver would also have been entitled to relief under Federal Rule of Civil Procedure 60(b).