UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

ORDER OF REINSTATEMENT AND REMAND

September 8, 1972

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

BURCH, COMMISSIONER:

On July 20, 1972, Judge Solomon Goldman issued his recommended order in this case dismissing respondent’s notice of contest and affirming the Secretary’s citation and notification of proposed penalty.

Pursuant to the authority vested in Members of the Commission by virtue of section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590), I am herewith directing that the Judge’s order be reviewed by the Commission.

Review of the record discloses that on May 11, 1972, respondent was issued a citation for one alleged serious violation and one alleged other than serious violation, together with a notification of proposed penalty in the total amount of $780. A timely notice of contest was filed by respondent, pro se, which includes the contested citations and penalties and a statement explaining that the bases for contesting the citations are prompt abatement and good faith.

On June 12, 1972, within ten days of receipt of the Secretary’s complaint, respondent replied to the Solicitor, certifying the posting of pleadings and notices in the case and requesting assistance with respect to respondent’s procedural obligations in the matter.

Thereupon, without any communication of record with respondent, the Secretary moved to dismiss the notice of contest for failing to meet the answer requirements of Commission rule 2200.7(e).

It is clear that respondent’s reply to the Solicitor fails to meet the requirements of that rule by not giving a statement of the facts which constitute the basis of its reply and by failing to reply to the assertions in the complaint. However, respondent’s notice of contest together with its letter of June 12, 1972, may be construed as a general denial of the complainant’s assertions and as a statement of respondent’s prompt abatement and good faith. Respondent’s petition for discretionary review, filed August 4, 1972, establishes that it was respondent’s intention to answer the complaint by means of its June 12 correspondence.

Accordingly, the Judge’s order is set aside and the case is reinstated and remanded for further proceedings in accordance with this order.

[The Judge’s decision referred to herein follows]

GOLDMAN, JUDGE, OSAHRC:

This case is properly before this Hearing Examiner upon assignment for hearing by the Occupational Safety and Health Review Commission.

Motion having been made by complainant, Secretary of Labor, to impose sanctions against the respondent for failure to file timely answer to the complaint, and to dismiss respondent’s notice of contest and affirm the citations and penalties issued by the Secretary of Labor, the record before me for consideration discloses the following:

1.   The Secretary of Labor issued one citation for other than serious violation and one citation for serious violation to respondent Mayaguez Shoe Corporation, on May 11, 1972.

2.   The Secretary of Labor issued a notification of proposed penalty to respondent in the total amount of $780.00 in relation to the above-referred citations on May 11, 1972.

3.   The Secretary of Labor filed a complaint with the Occupational Safety and Health Review Commission on June 6, 1972. Two copies of said complaint were sent to respondent on the same date by certified mail. According to certified mail return receipt number 599141, said copies of the complaint were received by respondent on June 7, 1972.

4.   On July 7, 1972, the Secretary of Labor filed a motion with the undersigned Judge asking for the dismissal of respondent’s notice of contest and for the affirmance of the citations and proposed penalties issued against respondent, such motion being based on respondent’s alleged failure to answer petitioner’s complaint. Two copies of said motion were sent to respondent on the same date by certified mail as evidenced by receipt number 597887 and certificate of service.

5.   To the date of this order, respondent has not filed any answer with the Occupational Safety and Health Review Commission, or on the petitioner.

ORDER

It appearing that respondent, Mayaguez Shoe Corporation, a corporation, is in default for failure of said respondent to answer, or otherwise defend, as required by law and by the Rules of Procedure adopted by the Occupational Safety and Health Review Commission pursuant to section 12(g) of the Occupational Safety and Health Act of 1970 (84 Stat. 1604 et seq; 29 U.S.C. 651, et seq.),

WHEREFORE, cause having been shown, the complainant’s motion is granted and it is

ORDERED, That:

1. The notice of contest filed by the respondent be, and is hereby, dismissed;

2. The Citation for Other Than Serious Violation issued by the Secretary of Labor be, and is hereby, affirmed;

3. The Citation for Serious Violation issued by the Secretary of Labor be, and is hereby, affirmed;

4. The proposed penalty assessed against respondent in the total amount of $780.00 be, and is hereby, affirmed; and

5. Respondent shall, within thirty (30) days from the date hereof, pay to the Secretary of Labor, by means of either a certified or bank cashier’s check, the assessed penalty of $780.00.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

February 15, 1973

GOLDMAN, JUDGE, OSAHRC:

This case is before me upon assignment for hearing by the Occupational Safety and Health Review Commission.

At the prehearing conference held on October 20, 1972, motions were made, respectively, by the Secretary of Labor, hereinafter referred to as complainant, to amend his Complaint, and by Mayaguez Shoe Corporation, hereinafter referred to as respondent, to withdraw its Notice of Contest.

In explanation of his Motion to Amend, complainant stated that an evaluation of the evidence available as of October 20, 1972, had led him to conclude that the violations specified in paragraphs V(a), (b) and (c) of the Complaint should not be classified as serious violations within the meaning of section 17(k) of the Act. Complainant accordingly moved:

(1) To amend the Complaint to allege that the violations specified in paragraphs V(a), (b) and (c), had a direct and immediate relationship to safety and health but were not of a serious nature within the meaning of section 17(k) of the Act;

(2) To amend the Complaint further by reducing the penalty claimed therein for the violations charged in paragraphs V(a), (b) and (c), from $700.00 to $180.00, reducing the total claimed penalty from $780.00 to $260.00; and

(3) That the Citation for Serious Violations herein be deemed amended accordingly.

Respondent’s Motion for withdrawal of its Notice of Contest set forth that the only issue in dispute in this proceeding was the amount of penalty proposed, and that it had tendered the sum of $260.00 to complainant in full payment of penalty. Respondent also certified that the violations specified in the Complaint were abated shortly after the citations were received and that it is complying, and will comply in the future, with the provisions of the Occupational Safety and Health Act of 1970, and with the standards and regulations promulgated thereunder.

Respondent, thereafter, by letter dated October 25, 1972, notified the undersigned that posting of complainant’s Motion to Amend the Complainant and respondent’s Motion to Withdraw its Notice of Contest had been accomplished.

Complainant and Respondent have separately informed the undersigned that each has no objection to the Motion of the other. A reasonable time has elapsed since posting of the Motions on October 20, 1972, and no objections have been received from affected employees or their representatives.

In view of the foregoing, and upon the representations of the parties and the evidence of the witnesses at the pre-trial conference, it is hereby determined that the complainant should be permitted to amend his Complaint to reclassify the violations charged in paragraphs V(a), (b) and (c) to non-serious violations, and to reduce the penalties claimed therefor to $180.00, and that the respondent should be permitted to withdraw its Notice of Contest.

It is accordingly ordered:

(1) That the complainant’s Motion to amend his Complaint in the respects stated above be, and it hereby is, granted, and that the Citation and the Proposed Penalties herein be deemed amended accordingly;

(2) That the respondent’s Motion to withdraw its Notice of Contest be, and it hereby is granted; and

(3) That the Citation and the Proposed Penalties, as amended be, and they hereby are, affirmed.

There being no further contest in this case, it is respectfully recommended that this order be made the order of the Commission.