OSHRC Docket No. 458

Occupational Safety and Health Review Commission

April 10, 1972


Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners



  VAN NAMEE, COMMISSIONER: On March 9, 1972, Judge Herbert E. Bates, Occupational Safety and Health Review Commission, issued his recommended final order in this case.   He recommended that the Commission dismiss the notice of contest filed by the Respondent, Hamilton Metal Products, Inc., (hereinafter "Hamilton") and affirm the citation and proposed penalty issued by the Complainant, Secretary of Labor (hereinafter "Secretary").

By a letter dated March 13, 1972, Hamilton moved for reconsideration of the recommended final order. The case having been transmitted to the Commission, Commissioner Van Namee, in accordance with the provisions of section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.; 84 Stat. 1590), directed review.

For the reasons given hereinafter, the Commission, upon review of the record as a whole, concurs with the Judge's decision to dismiss Hamilton's notice of contest and affirm the Secretary's citation and proposed penalty and therefore, to that extent, affirms the recommended decision.

Hamilton timely filed its notice of contest on January 19, 1972,   [*2]   but failed to serve a copy upon affected employees in accordance with the requirements of the   Commission's Rules of Procedure (29 CFR 2200).   Rule 2200.7(b) requires that a party filing a notice of contest aver therein the identity of parties served and the manner of such service, and Rule 2200.7(i) further requires that any party filing a pleading or document in a case serve a copy thereof on all other parties to the case.   Affected employees or authorized employee representatives are parties to proceedings before this Commission (Rule 2200.5).   Accordingly, by letter dated January 26, 1972, Hamilton was informed of the service requirements, provided with a copy of the Rules, and given additional time to effect service on its employees.

Hamilton replied on January 31, 1972, stating that it had posted a copy of the Secretary's complaint on its bulletin board.   Such posting of the complaint was not the posting of the notice of contest required and Hamilton was so advised on February 3, 1972.   Hamilton was given additional time, and on February 10, 1972, assurance was received that the notice of contest had been served on affected employees.

Thereafter, the Secretary, on [*3]   February 17, 1972, filed a motion to dismiss the contest on the ground that Hamilton had not filed an answer to the complaint.   Hamilton replied, saying it had answered.   The reply did not provide proof of service on affected employees (29 CFR 2200.7(i)).   On February 29, 1972, Judge Bates, having reviewed the case and not finding an answer therein issued a show cause order where Hamilton was required to either answer the complaint or show cause why the Secretary's motion should not be granted.

The Respondent replied to the show cause order on March 6, 1972 and stated in part: ". . . the violations were only minor . . . were removed immediately when our attention was drawn to them, we should have received   a warning, but not a fine." This reply, like the letter of February 23, failed to provide proof of service on affected employees. (It should also be noted that Hamilton's letter of March 13 requesting reconsideration of the recommended final order also failed to provide proof of service on affected employees.)

In making his recommendation, Judge Bates concluded that the Respondent had not filed an answer to the Secretary's complaint.   The Commission agrees that the letter [*4]   of March 10, 1972 was not a proper answer.   Had the Commission construed Hamilton's reply of March 6, 1972 to be an "answer," its failure to certify service upon affected employees provides an independent basis for affirming Judge Bates' decision.   In view of the repeated correspondence with Hamilton concerning its failure to serve the notice of contest on affected employees there could be no excuse for its failure to also serve other documents (including the correspondence it described as an answer) on affected employees.

Accordingly, IT IS ORDERED, (1) that Hamilton's notice of contest is dismissed, and (2) the citation and proposed penalty of the Secretary is affirmed as the final order of the Commission.

[The Judge's decision referred to herein follows]

BATES. JUDGE, OSAHRC: The Respondent failed to file an Answer to the Petitioner's Complaint as required by the Commission Rules, whereupon the Petitioner moved for an Order adjudging the Respondent in default for said failure.   The undersigned Hearing Examiner affored the Respondent additional time within which to either file the required Answer or to show cause why the Petitioner's motion should not be granted.

  In [*5]   view of the Respondent's failure to comply with the said rules and the Hearing Examiner's aforementioned Order, the Petitioner's motion for an Order adjudging the Respondent in default for said failure to answer is hereby and herewith granted.

Accordingly the Notice of Contest filed by the Respondent is hereby dismissed, and the Secretary of Labor's Citation, proposed penalty and abatement dates are hereby affirmed in all respects.