J. I. HASS COMPANY, INC.

OSHRC Docket No. 79-6864

Occupational Safety and Health Review Commission

July 31, 1981

COUNSEL:

[*1]

Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Robert S. Peckar, for the employer

OPINION:

ORDER

This case is before the Commission on remand from the United States Court of Appeals for the Third Circuit. J. I. Hass Co. v. OSHRC and the Secretary of Labor, No. 80-2017 (3d Cir, May 7, 1981). The Court reversed the Commission's decision and remanded the case n1 to the Commission to ascertain the facts concerning the delivery of citations and notices of penalties to Respondent, J.I. Hass Company, decide whether "receipt of the notice(s)" occurred, and determine whether Respondent may obtain relief pursuant to Rule 60(b) n2 of the Federal Rules of Civil Procedure.

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n1 In this case, Assistant Chief Administrative Law Judge Irving Sommer ruled that the Respondent's notice of contest was not timely filed and, accordingly, the uncontested citations became a final order of the Commission. Judge Sommer's decision became a final order of the Commission pursuant to 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678, when no Commissioner directed the judge's decision to be reviewed.

n2 The Federal Rules of Civil Procedure will be used in Commission proceedings unless the Commission has adopted a different rule. Section 12(g), 29 U.S.C. 661(f), of the Act. In reliance upon the court's decision in Hass, the Commission has recently held that it will apply Fed. R. Civ. P. 60(b) in considering untimely notices of contest.

[*2]

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Accordingly, the case is remanded to Administrative Law Judge Irving Sommer to take evidence and render a decision consistent with the decision of the court in this case. SO ORDERED.