TRANSAMERICA DELAVEL, INC.

OSHRC Docket No. 80-4718

Occupational Safety and Health Review Commission

May 28, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

Marshall H. Harris, Reg. Sol., USDOL

Robert D. Moran, for the employer

Raymond Keaton, Staff Rep., United Steelworkers of America, District 23, for the employees

OPINION:

DECISION

BY THE COMMISSION:

An order of Administrative Law Judge Wallace Tannenbaum is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Judge Tannenbaum granted the Secretary of Labor's ("Secretary") motion to dismiss the notice of contest filed by Respondent, Transamerica Delaval, Inc., as being untimely filed. Former Commissioner Barnako directed that the judge's order be reviewed by the Commission. We reverse and remand for further proceedings.

On June 16, 1980, Respondent received from the Secretary certain amended citations with accompanying proposed penalties. Pursuant to section 10(a) of the Act, 29 U.S.C. 659(a), Respondent had fifteen working days to contest the citations and proposed penalties or they would become final orders of the Commission and not subject to review by any court or agency. The last day of this fifteen working day period [*2] was July 7, 1980. Respondent mailed to the Secretary a notice of contest, which was dated July 7, 1980 but was postmarked July 11, 1980.

In concluding that the notice of contest was untimely, the judge held that the postmark date controlled the timeliness of the notice. This was error. The postmark date is prima facie evidence of the mailing date, but an employer may rebut this with evidence that the notice was placed in the mail on a date other than that shown by the postmark. Stone Container Corp., supra.

In this case, Respondent's petition for discretionary review requests a hearing on the timeliness of its notice of contest. Respondent is entitled to such a hearing. Id. Accordingly, the judge's order is set aside, and the case is remanded for a hearing on the timeliness of Respondent's notice of contest. If the judge determines that the notice of contest was timely, he shall then conduct further proceedings on [*3] the merits of the contested citations and proposed penalties. If he determines that the notice of contest was untimely, he shall grant the Secretary's motion to dismiss the notice of contest. SO ORDERED.