August 29, 1978

Decision and Order on Interlocutory Appeal

Before Cleary, Chairman and Cottine, Commissioner[*]:

Cleary, Chairman:

            As a result of a series of inspections of its Bethlehem, Pennsylvania, plant, respondent was issued citations and notifications of proposed penalty.  A timely notice of contest was filed.  After the complaint and answer were filed, a pre-hearing conference was held at which certain items were settled.  There remain for adjudication approximately 36 items. 

            Respondent, joined by the Secretary, requested that Administrative Law Judge Joseph A. Chalk, to whom the case is assigned, set the hearing to be held in Allentown, Pennsylvania.  In support of its request respondent made the following assertions:

            (1) Respondent, the Secretary and the United Steelworkers of America each anticipate calling in excess of 20 witnesses;

            (2) All of these witnesses are employed and/or reside in the Bethlehem and/or Allentown, Pennsylvania area;

            (3) Philadelphia is more than 50 miles from respondent’s plant;

            (4) The courthouses (one Federal, one county) are approximately six miles from respondent’s plant;

            (5) All of respondent’s witnesses except three are supervisory employees who are responsible for the day-to-day operations of certain departments and they should be close by in the event that they are needed;

            (6) Because of its collective bargaining agreement, respondent is required to pay the different between witness fees and employee’s wages for those employees subpoenaed by the Secretary.

            Although Judge Chalk did not consider the request to set the hearing in Allentown to be a motion and issue a ruling on it, he did issue a notice setting the hearing for Philadelphia, Pennsylvania.  It is from this notice that respondent wishes to appeal.  We grant the request to file an interlocutory appeal and proceed to address the substantive merits of that appeal.

            We note initially that hearings under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., are to be held in accordance with section 554 of Title 5, U.S.C., the Administrative Procedure Act (APA).  Section 554(b) states in relevant part:

In fixing the time and place for hearings, due regard shall be had for the convenience and necessity of the parties or their representatives.


            It has been the Commission’s policy that the “due regard” mandated by section 554(b) of the APA requires that the hearing be set as near to the site of the alleged violations as possible.  The site selected for the hearing in this case is not consistent with that policy.

            Accordingly, we vacate the notice of hearing to the extent that it sets the hearing for Philadelphia, Pennsylvania and order Judge Chalk to hold the hearing in this case in Allentown, Pennsylvania.

[ALJ order not available].

[*] Commissioner Barnako did not participate in this decision.