UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 1333
KARL KEHM CONSTRUCTION CO.
Respondent.

ORDER OF REMAND

April 27, 1973

Before VAN NAMEE and BURCH, Commissioners

VAN NAMEE, COMMISSIONER:

On October 11, 1972, Judge Leon J. Moran issued an order granting respondent’s motion for dismissal of complainant’s citation and proposed penalty. The motion was predicated on the ground that complainant had failed to forward respondent’s notice of contest to the Commission within three days of receipt as required by Commission interim Rule 7(c)(2) (29 CFR 2200.7(c)(2)), and had failed to file its complaint within 10 days, as required by interim Rule 7(d)(1) (29 CFR 2200.7(d)(1)).

Pursuant to the authority vested in the members of the Commission by section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the ‘Act’), I directed review of the Judge’s order on November 10, 1972. For reasons given hereafter we reverse and remand.

We have reviewed the record and note that by letter dated August 21, 1972, complainant’s Area Director represented that he did not timely file a notice of contest received by him on August 7, 1972 because he inadvertently mistook it for a duplicate of a notice of contest contesting another citation previously issued to the same employer. The complainant reiterated the error and reason for same in his complaint, and he requested that the provisions of 29 CFR 2200.7(c)(2) and (d)(1) relating to time for filing be waived.

The record discloses that Respondent was issued a citation dated July 21, 1972 and a notification of proposed penalties dated July 25, 1972. Thereafter Respondent was issued a second citation and notification of proposed penalties relating to a second alleged violation and dated July 31, 1972. Respondent then filed notices of contest as to each citation. Both notices of contest were received by the Area Director on August 7, 1972. Said notices of contest are identical in form and nearly identical in content. The notice relating to the citation dated July 21 was instituted as OSHRC Docket No. 1209, and it was timely filed with the Commission. We also note that Respondent by its motion requests that we vacate the Secretary’s citation of July 25. We presume Respondent refers to the first citation which is the citation with regard to which there has been compliance with our rules.

In view of the fact that Respondent is itself unable to distinguish between its own notices of contest there can be no doubt that the Area Director could also commit the same error and consider one notice of contest to be a duplicate of the other. Error of this kind clearly constitutes an excusable mistake or inadvertence for which the extreme sanction of vacation of the citation should not be applied.

In the past we have applied the extreme sanction in those instances of vacation where an Area Director has not forwarded a notice of contest because in his view the employer’s writing was not a notice of contest. (Secretary of Labor v. Pleasant Valley Packing Co., Inc., OSHRC Docket No. 464; Secretary of Labor v. Brent Towing Co., Inc., OSHRC Docket No. 1003, Pet. for Jud. Rev., Docket No. 72–3511, filed November 21, 1972, 5th Cir.; Secretary of Labor v. Lennox Industries, Inc., OSHRC Docket No. 1106.) We used the sanction in these cases because the function of determining the legal sufficiency of a notice of contest is an adjudicatory function, and the action of the Area Director operated to deprive an employer of his statutory right to a hearing as provided for by section 10(c) and to usurp the responsibility of this Commission to provide the hearing. The present case is clearly distinguishable.

Accordingly, it is ORDERED that: (1) the Judge’s order be and the same is hereby set aside, (2) the Respondent’s motion to dismiss is denied, and (3) the case is remanded for further proceedings.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 1333
KARL KEHM CONSTRUCTION CO.
Respondent.

October 11, 1972

MORAN, JUDGE, OSAHRC:

Ruling on the Respondent’s motion to dismiss the Secretary’s citation and proposed penalty granted.