OSHRC Docket No. 1003

Occupational Safety and Health Review Commission

December 29, 1972


Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners



  VAN NAMEE, COMMISSIONER: On August 23, 1972, Judge Charles K. Chaplin issued his order in this case.   According to the terms of the order all items listed as violative of the requirements of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., hereinafter "the Act") in a citation issued by the Secretary to Respondent and the civil penalties proposed for said items were vacated. Judge Chaplin's order became the final order of the Commission in accordance with the terms of section 12(j) of the Act on September 22, 1972.

It appears that items 5, 6, 7, 8 and 9 of the citation and the penalties proposed therefor were not contested by Respondent.   According to the terms of section 10(a) of the Act such items and proposed penalties became a final order of this Commission upon passage of 15 working days from Respondent's receipt of the notification of proposed penalties. Judge Chaplin's order erroneously vacated the citation and proposed penalties to the extent that it vacated the aforesaid items and their corresponding penalties.

Accordingly, it is ORDERED that only items 1, 2, 3, 4 [*2]   and 10 of the citation and the penalties proposed therefore are vacated.

  [The Judge's decision referred to herein follows]

CHAPLIN, JUDGE, OSAHRC: On May 5, 1972, the Respondent was issued a citation and notification of proposed penalty. The citation was for 10 alleged non-serious violations of the Occupational Safety and Health Act of 1970 (29 USCA 651 et seq., 84 Stat. 1590) with proposed penalties, in the aggregate, of $310.00.

On May 19, 1972, the Respondent wrote to the Area Director of the Occupational Safety and Health Administration, Birmingham, Alabama.   He did not contest 7 of the alleged violations but with respect to alleged violations #1, 3 and 10, he objected to the imposition of penalties and denied that the violations existed.   There can be no argument with the clear intent of this letter.

For reasons not apparent from the record Respondent wrote to the same office on June 5, 1972, and said:

"We wrote to Mr. Joseph L. Camp on May 19, 1972, in reference to your citation roposed assessment of penalties. It was our understanding that this letter constituting (sic) a protest of these penalties."

The Acting Area Director, in a "Memorandum to File,"   [*3]   dated June 7, 1972, expressed the view that the May 19 letter had not been construed as a notice of contest. The record was then filed with the Review Commission.   However, 29 CFR 2200.7(c)(2) requires:

"Within 3 days after receipt of the notice of contest . . . the Secretary shall file, or cause to be filed, with the Commission the notice of contest. . . ."

On June 13, 1972, the Secretary served a complaint on Respondent and on June 21, 1972, Respondent replied that the cost of protesting the assessment of penalties exceeded the amount of the penalty and it,   therefore, would not pursue the matter further or file an answer.

On July 10, 1972, the Commission requested Respondent to comply with the posting requirements respecting its motion to withdraw.

Respondent now moves to withdraw its notice of contest, offering payment of all proposed penalties in the amount of $310.00, certifying that all alleged violations have been abated, that it will continue in compliance and the service requirements of Rule 2200.7(i) have been complied with.

Prior to considering Respondent's motion to withdraw, we must concern ourselves with the timeliness of the Secretary's forwarding of [*4]   Respondent's notice of contest. It is clear to the undersigned that the May 19, 1972, letter from Respondent was intended as a notice of contest and should be so interpreted.   This view is in accord with the order of the Review Commission in a similar situation ( Secretary of Labor v. Lennox Industries, Inc.,

Accordingly, it is held that the Secretary has failed to timely initiate a proceeding before the Review Commission as provided by Commission Rule 2200.7(c)(2) and 29 CFR 1903.17.   The citation and proposed penalty in this case are vacated and Respondent's failure to answer the complaint and his motion to withdraw are moot.