JOSTEN-WILBERT VAULT CO.  

OSHRC Docket No. 12549

Occupational Safety and Health Review Commission

August 4, 1976

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

T. A. Housh, Jr., Regional Solicitor

John R. McDowill, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

A May 23, 1975 order of Review Commission Judge Joseph L. Chalk is before this Commission for review pursuant to 29 U.S.C. 661(i).   Judge Chalk granted the Secretary's motion to dismiss Respondent's notice of contest. For the reasons which follow, we affirm.

The facts are these: Following an inspection of Respondent's Lincoln, Nebraska workplace on January 22, 1975, the Secretary issued three citations and a notification of proposed penalty which were dated January 29, 1975.   The Secretary mailed these documents to the plant manager of Respondent's Nebraska facility and sent copies of them to Respondent's president at its Sioux Falls, South Dakota office.   The citations and notification were received at both addresses on January 30, 1975.   On March 4, 1975, Respondent filed a letter contesting the proposed penalty. In the letter, it recognized that the statutory period for contest had elapsed.   However, it defended its late filing on the ground that the citation had been sent to its Nebraska workplace instead [*2]   of the South Dakota corporate office.   Respondent contended that, as a result, the corporate office was unable to file a notice of contest within the fifteen workday period specified by 29 U.S.C. 659(a).

Thereafter, the Secretary filed a motion to dismiss the notice of contest on the basis that it was untimely filed.   Respondent opposed the motion essentially for the reasons it had asserted in the notice of contest. On May 13, 1975, the Secretary mailed a Request for Admissions to Respondent.   However, before Respondent answered, Judge Chalk granted the Secretary's motion to dismiss. Two Jays after that ruling, Respondent filed its answer to the Request for Admissions.   By its answer, Respondent admitted that the Sioux Falls office had been served with the citation and notification of proposed penalty on January 30, 1975.

Commissioner Moran subsequently directed review on whether the citation was properly served in accordance with Buckley & Co., Inc. v. OSAHRC, 507 F.2d 78 (3rd Cir. 1975). Respondent has not filed a brief on review in response to this direction.

Having examined the record in its entirety, we hold that the Judge properly granted the Secretary's motion [*3]   to dismiss the notice of contest.

Respondent's notice of contest was not timely filed.   Pursuant to Section 10(a) of the Act, n1 Respondent had fifteen working days from receipt of the notice of proposed penalty to contest the citation or proposed penalty. The evidence shows that Respondent's Sioux Falls office received the notice on January 30, 1975.   Respondent did not file a notice of contest by February 21, 1975, the date on which the citation and proposed penalty became a final order. Therefore, the Commission does not have jurisdiction to review the merits of the citation or proposed penalty. American Airlines, Inc., 13 OSAHRC 99, BNA 2 OSHC 1326, CCH OSHD para. 18,908 (1974).   But see Atlantic Marine Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975).

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n1 Section 10(a) states, in pertinent part:

"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 of penalty, and no notice is filed by any employee or representative of employees under subsection (c) within such time, the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency."

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Accordingly, We affirm the Judge's order.   It is so ORDERED.  

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

In view of respondent's admission, in a letter filed with the Commission after the issuance of Judge Chalk's order, that the citations were received by respondent's bookkeeper on January 30, 1975, I concur with the disposition of this case.