UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78-2829
SAFEWAY STORES, INC.,
Respondent.

October 16, 1978

ORDER OF REMAND

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

This matter is before the Commission on review of an order of Administrative Law Judge George O. Taylor, Jr. The judge had granted the Secretary of Labor’s motion to dismiss Respondent’s notice of contest for not having been filed within the time period prescribed by 29 U.S.C. 659(a). Thereafter, respondent wrote to the Commission contending, among other things, that it had never received one of the two citations involved in this proceeding. Specifically, Respondent contends that upon being informed by the Secretary’s area director that the citation and notification of penalty consisted of two pages, Respondent advised the area director that it had received only one page, which was numbered ‘page one of one.’ Respondent also referred to its prior correspondence with the Commission wherein it admitted it had not filed a timely notice of contest to a citation, but alleged certain circumstances which in its view justified its failure to timely file. It requests a hearing.

The record indicates that Complainant issued a citation for serious violation, labeled ‘citation 1’ and ‘page 1 of 1,’ that alleged two violations. Complainant also issued another citation labeled ‘citation 2’ and ‘page 1 of 1,’ that alleged a nonserious violation. We assume that citation 2 is the citation assertedly not received[1] and that Respondent had intended to contest citation 1. We hereby remand this case for consideration of Respondent’s assertion that it had not received one of the citations and for consideration of its representations as to why it had not filed a timely notice of contest. Atlantic Marine, Inc., v. OSHRC 524 F.2d 476 (5th Cir. 1975); Seminole Distributors, Inc., 77 OSAHRC 211/D9, 5 BNA OSHC 1194, 1977–78 CCH OSHD para. 22,412 (No. 15761, 1977).[2]

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATE: OCT 16, 1978

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78-2829
SAFEWAY STORES, INC.,
Respondent.

August 18, 1978

ORDER

Taylor, Judge:

The complainant’s motion to dismiss the respondent’s notice of contest because it was not timely filed is granted. Accordingly, Citation Number 1 for serious violations, Citation Number 2 for a nonserious violation, and the penalties proposed therein are final orders of the Commission by operation of law. 29 U.S.C. § 659(a).

GEORGE O. TAYLOR, JR.

Judge, OSHRC

Washington, D.C.

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[1] We note that citation 2 appears to be the basis for an alleged repeated violation presently pending before Judge Taylor in docket no. 78-3369.

[2] We emphasize, however, that clerical error by Respondent’s employees does not justify an employer’s failure to file a timely notice of contest. Womack Constr. Co., 77 OSAHRC 203/E12, 6 BNA OSHC 1125, 1977–78 CCH OSHD para. 22,354 (No. 76–1445, 1977), petition for review filed, No. 78–1178 (9th Cir. Jan. 25, 1978).