UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

ORDER OF REINSTATEMENT

July 17, 1972

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

BURCH, COMMISSIONER:

On June 15, 1972, Judge Bates issued his recommended order in this case granting the Secretary’s motion to dismiss respondent’s notice of contest because respondent failed to furnish proof of service on the Occupational Safety and Health Administration as required by Commission rule 2200.7(i)(2) within the statutory 15 working day period.

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

A review of the record by the Commission reveals that on April 3, 1972, respondent received a citation for seven non-serious violations of the Secretary’s safety and health standards together with notification of a proposed penalty of $90. On April 25, the Area Director requested payment of the proposed penalties since notice of contest had not been received. On May 3, respondent forwarded a copy of a notice of contest allegedly sent on April 7 to the Area Director. In response to the Commission’s Executive Secretary’s request for certification of service on affected employees or their authorized representative pursuant to Commission rule 2200.7(b)(1), respondent replied that all notices were posted. The complaint subsequently filed by the Secretary indicated that there was an authorized employee representative and that respondent had not technically complied with the rule.

On May 26, the Secretary forwarded his motion to dismiss respondent’s notice of contest. It was unopposed.

Commission rule 2200.7(i)(2) provides that unless otherwise specified herein service shall be personally or by certified or registered mail (emphasis supplied). Commission rule 2200.7(c)(1) provides that filing of a notice of contest shall be in accordance with Secretary’s regulation 1903.17. There is no provision in that regulation requiring registered or certified mail, only that the notice of contest be postmarked within 15 working days of receipt of the notification of penalty.

Moreover, the instructions to employers for filing notice of contest contained in the penultimate paragraph of the Notification of Proposed Penalty require only that it be submitted in writing to the Area Director.

Under the circumstances herein, we grant the respondent the opportunity for a hearing on the merits, without prejudice to the Secretary’s renewing his motion before the Judge to dismiss respondent’s notice of contest for untimeliness.

Accordingly, it is ordered that the Judge’s order be set aside, the case is reinstated, the Secretary’s motion is denied, provided respondent certifies service of notice of contest upon the authorized employee representative in accordance with Commission rule 2200.7(b)(1) within 10 days of the receipt of this letter.

NOTE: Having filed proof of service in accordance with the Commission’s Order stated above the Respondent’s Notice of Contest was reinstated by the Executive Secretary by Order of the Commission.

 [The Judge’s decision referred to herein follows]

BATES, JUDGE, OSAHRC:

The Petitioner, through the medium of a Motion to Dismiss the Respondent’s Notice of Contest filed on May 26, 1972, (reiterated in Paragraph VIII of his Complaint) urges that the Secretary’s Citation and Notification of Proposed Penalty should be recognized as a final order of the Commission pursuant to Section 10(a) of the Occupational Safety and Health Act of 1970, and in support thereof, asserts the following:

(1) On March 29, 1972, the Secretary served on the respondent by certified mail a citation for a serious violation and a proposed penalty.

(2) The citation and proposed penalty were received by the respondent on April 3, 1972.

(3) The respondent mailed to the Secretary a notice of contest dated May 3, 1972, and it was received by the Secretary on May 4, 1972.

(4) By use of the method designated in section 2200.9 of the Occupational Safety and Health Commission Rules of Procedure April 24, 1972, was the last day in which the respondent could file his notice of contest. Section 29 C.F.R. 1903.17 states ‘Such notice of intention to contest shall be postmarked within 15 working days of the receipt by the employer of the notice of proposed penalty.’ By the Commission rules and section 10(a) of the Act, the respondent filed an untimely notice of contest. The mailing of the notice of contest on May 3, 1972 was not within the 15 working days of the receipt of the citation and proposed penalty.

(5) The Secretary’s citation and proposed penalty are a final order of the Commission. Section 10(a) states ‘If, within fifteen working days from receipt of the notice issued by the Secretary, the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty . . . the citation and the assessment, as proposed shall be deemed a final order of the Commission and not subject to review by any court or agency.’

(6) Under section 10(c) of the Act, the Commission is without jurisdiction in this proceeding. The Commission’s jurisdiction is contingent on whether or not the notice of contest was properly filed under section 10(a) or 10(b).

The respondent did not oppose the above motion. In a letter dated May 3, 1972, the respondent insists that he wished to contest the Citation issued on March 29, 1972, and in fact did so by a letter purported to be dated on April 7, 1972 (See Exhibits appended to Complainant’s Motion, Docket Item 6).

A review of the file reflects no proof of service of this letter on the Administration, as required by section 2200.7(i)(2) of the Commission Rules, and absent such proof of a proper and timely Notice of Contest by the respondent, I have no alternative other than to hold that the respondent by and through its Notice of Contest dated May 3, 1972, failed to comply with section 10(a) of the Act, and section 1903.17 of the Commission Rules, a copy of which had been previously furnished to him.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

January 17, 1973

CHODES, JUDGE, OSAHRC:

This matter is before the undersigned Judge upon the request of Respondent, made on November 15, 1972, to withdraw its Notice of Contest. The record shows that a Citation and Notification of Proposed Penalty of $90 was issued on March 29, 1972, and received by the Respondent on April 3, 1972. A Notice of Contest dated April 7, 1972, was addressed by the Respondent to the Area Director of the Department of Labor, but there is no record of its receipt by the Area Director within 15 working days from receipt by the Respondent of the Notice of Proposed Penalty. However, according to a letter dated May 3, 1972, from the Respondent’s president, Paul Petras, the Notice of Contest dated April 7, 1972, referred to above was sent at the time to the Area Director, because of a desire to contest ‘these unfair penalties.’ Accordingly, it is concluded that jurisdiction of this case by the Occupational Safety and Health Review Commission is established.

The Citation in the instant case was for non-serious violation of Section 5(a)(2) of the Occupational Safety and Health Act of 1970, (29 U.S.C. 651, et seq.). The specific violations alleged were that on March 21, 1972, the Respondent failed to provide tool rests or work rests on a bench grinder; failed to provide foot treadle guards on ‘Lubow’ bending, forming, and welding machines and on a ‘Lubow’ forming press; failed to post ‘No Smoking’ signs at entrance of paint booth; failed to guard live electric parts of a ‘Sterling’ butt welder and two ‘Sterling’ spot welders; failed to ground two ‘Lubow’ trimming machines, a bench grinder and a drill press; failed to require employees to wear suitable eye protection at welding machines; and failed to maintain the self-closing feature of a fire door at entrance to paint booth.

In a letter dated November 15, 1972, the Respondent stated that it had abated all of the items (violations) charged in the Citation, that the penalty of $90 had been paid, and that a copy of the request to withdraw had been posted.

In a letter dated November 22, 1972, the Solicitor stated that a copy of the Respondent’s motion to withdraw was forwarded to the employees’ representative, Local #810, United Wire, Metal and Machine. In the same letter the Solicitor also stated that the $90 penalty had been received and that the Secretary had no objection to the granting of the Respondent’s motion to withdraw its Notice of Contest.

While Respondent did not specifically provide assurance of continuing compliance with the provisions of the Occupational Safety and Health Act, the Judge is of the opinion that Respondent’s correspondence bespeaks an intention to comply.

A reasonable time has elapsed since the posting and service of the Respondent’s motion to withdraw its Notice of Contest and no objections to the proposed action has been received from affected employees or their representative.

The granting of the Respondent’s motion to withdraw its Notice of Contest is considered to be consistent with the provisions of the Occupational Safety and Health Act of 1970.

Accordingly, it is ORDERED that the Respondent’s motion to withdraw its Notice of Contest is hereby granted; and it is further

ORDERED that the Citation and the Proposed Penalty of $90 are hereby affirmed.