SECRETARY OF LABOR,

Complainant,

v.

VERN'S MANUFACTURING, INC.,

Respondent.

OSHRC Docket No. 89-3082

ORDER

Before the Commission for review is a decision and order of Administrative Law Judge James A. Cronin, Jr., granting the Secretary's Motion to Vacate Late Notice of Contest.

Vern's Manufacturing, Inc. is a family-run livestock equipment manufacturer in Wessington, South Dakota, appearing in this case without counsel, or pro se. As a result of an inspection of Vern's facility by a representative of the Occupational Safety and Health Administration on July 14, 1988, the Secretary of Labor issued to Vern's a notification of failure to abate a violation of the machine guarding standard at 29 C.F.R. 1910.212(a)(3)(ii). More specifically, the Secretary alleged that Vern's had not guarded the points of operation of two Dvorak iron worker machines in its fabrication shop, as required by an earlier uncontested citation. She proposed an additional penalty of $2,100 for this alleged failure to abate.

Under section 10(b) of the Act, 29 U.S.C. 659(b), an employer who wishes to contest a failure-to-abate notification must do so "within fifteen working days from the receipt of notification must do so "within fifteen working days from the receipt of notification."   At Vern's request, the OSHA Area Director in Bismarck, North Dakota, held an informal conference with Vern's representatives on September 7, 1988, during the fifteen-day contest period. Vern's representatives brought one of the machines at issue to the informal conference and, according to the Secretary, the Area Director again explained to them how to properly guard the machine.

Over the next year, the Secretary sent notices to Vern's that the penalty of $2,100 was due. Vern's sent copies of these notices to the Commission, as well as other documents in which it indicated that it considered the informal conference to have constituted its notice of contest. On the basis of those submissions, the Commission docketed the case. The Secretary filed a Motion to Vacate Late Notice of Contest. Vern's filed a document in opposition to this motion, generally responding to the assertions in the Motion with its own view of the events and introducing a letter that it had written to the OSHA Area Director stating its position that the informal conference and phone calls to him served as a notice of contest.

The judge concluded that Vern's failed to notify the Secretary in a timely manner of its intent to contest the notification of failure to abate. He therefore granted the Secretary's Motion and dismissed the notice of contest.

Vern's then filed documents with the Commission that we construe as a Petition for Discretionary Review, and on March 23, 1990, Chairman Foulke directed review of the case.

Because there has been no hearing in this case, nor any affidavits filed, the record lacks sufficient facts upon which to base a determination as to whether the informal conference, phone calls, and letter satisfied the requirement of a timely notice of contest. See Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476, 478 (5th Cir. 1975). Cf. Pav-Saver Manufacturing Co., 12 BNA OSHC 2001, 2002-03, 1986-87 CCH OSHD 27,676 (No. 84-733, 1986), appeal filed, No. 87-1418 (7th Cir. Mar. 18, 1987) (notice of contest found sufficient based on affidavit and response admitted into evidence); Merritt Electric Company, Inc., 9 BNA OSHC 2088, 1981 CCH OSHD 25,556 (No. 77-3772, 1981) (notice of contest found sufficient based on testimony as to employer's misunderstanding).

Moreover, if it is found that Vern's did not meet the notice of contest requirements of section 10(b) of the Act, then the judge should determine whether Vern's is entitled to relief under Rule 60(b) of the Federal Rules of Civil Procedure due to factual circumstances arising during the informal conference.

Because the record in this case lacks the facts necessary for proper consideration of these issues, and especially considering the pro se status of the cited employer, we remand this case to the judge for him to hold a hearing, take evidence in the form of sworn affidavits, or follow whatever other procedures that he considers appropriate to have the evidence introduced into the record. If the judge determines that Vern's has filed a timely notice of contest or is otherwise entitled to relief from the final judgment, he should then reach a determination on the merits as quickly as possible. To facilitate matters, we order that all further proceedings in this case be expedited in accordance with Rule 103 of the Commission Rules of Procedure, 29 C.F.R. 2200.103.

Accordingly, we set aside the judge's decision and order dismissing the notice of contest, and remand this case to the judge for proceedings as set forth above.

Edwin G. Foulke,Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: October 12, 1990


SECRETARY OF LABOR,

Complainant,

v.

VERN'S MFG., INC.,

Respondent.

OSHRC DOCKET

NO. 89-3082

DECISION AND ORDER

The Secretary of Labor moves to dismiss respondent's so-called "late notice of contest" to the Notification of Failure to Abate Alleged Violation issued to respondent on August 26, 1988.

Section 10(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq.; hereafter called the "Act") provides that an employer in receipt of a Notification of Failure to Abate Alleged Violation has fifteen working days from receipt of the notification within which to notify the Secretary that he wishes to contest the Secretary's notification or the proposed assessment of penalty. The Act further provides that if the employer fails to so notify the Secretary within the fifteen working day period, the notification and the proposed penalty shall be deemed a final order of the Commission and not subject to review by any court or agency.

On November 7, 1985, respondent was issued a citation alleging a violation of 29 C.F.R. 1910.212(a)(3)(ii), failure to guard the points of operation of two Dvorak iron worker machines. Respondent did not contest the citation but did request modification of the abatement date on four separate occasions; the final abatement date was March 13, 1987. As a result of a follow-up inspection by OSHA on July 13, 1987, a Notification of Failure to Abate Alleged Violation with a proposed $2,100.00 penalty was issued to respondent for failing to provide proper guards on the two Dvorak iron workers. Respondent contested this notification on September 8, 1987. This case was settled on November 4, 1987, when the Secretary withdrew the Notification of Failure to Abate Alleged Violation and the proposed penalty of $2,100.00.

On July 14, 1986, OSHA re-inspected respondent's place of business. As a result of this inspection, respondent was issued on August 26, 1988, another Notification of Failure to Abate Alleged Violation and a proposed penalty of $2,100.00 for the alleged failure to guard the same two Dvorak iron workers which were the basis of the 1985 citation and the 1987 Notification of Failure to Abate Alleged Violation. Respondent requested an informal conference between its representative and the OSHA Area Director, and this informal conference was held on September 7, 1988. Respondent, however, never filed a notice of contest to the August 26, 1988, Notification of Failure to Abate Alleged Violation or proposed penalty.

After receiving a number of documents from respondent on November 3, 1989, including the August 26, 1988, Notification of Failure to Abate Alleged Violation, this Commission docketed this case. The Secretary then filed her Motion to Vacate Late Notice of Contest.

Because of respondent's failure to notify the Secretary of Labor of its intent to contest the August 26, 1988, Notification of Failure to Abate Alleged Violation or the proposed assessment of the $2,100.00 penalty within 15 working days of its receipt (sometime between August 26, 1988, and September 7, 1988,) the notification and the assessment of the penalty, as proposed, became a final order of this Commission.

Consequently, the Secretary's motion is granted, and this case is dismissed.

SO ORDERED.

James A Cronin, Jr.
Judge, OSHRC

Dated: February 12, 1990