“big>Complainant, v. BARRETTO GRANITE CORPORATION, Respondent.OSHRC Docket No. 83-0986DECISIONBEFORE:\u00a0 BUCKLEY, Chairman; RADER and WALL,Commissioners. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act,29 U.S.C. ? 659(c).This case is before the Commission for the secondtime.\u00a0 In our previous decision, we concluded that Administrative Law Judge IrvingSommer had erred in dismissing Barretto’s notice of contest to the Secretary’s citationand proposed penalty of $240 on the ground that Barretto’s letters stating its intent tocontest were filed beyond the expiration of the 15-day contest period prescribed insection 10 of the Act, 29 U.S.C. ? 659.[[1]]\u00a0 We found Barretto’s contest to betimely because Barretto had orally disputed the Secretary’s position at an informalconference at the OSHA area office conducted within the 15-day contest period.\u00a0 Wenoted that Barretto’s letters, which the judge dismissed for being untimely, confirmed itsdiscussions with the Secretary.\u00a0 We concluded that in the circumstances Barrettoshould not be denied a hearing, and accordingly we remanded for proceedings on the merits.On remand, the Secretary advised Administrative LawJudge David J. Knight, to whom the case had been assigned, that he would decline topresent evidence on the merits as required by our remand order.\u00a0 Accordingly, JudgeKnight vacated the citation for failure of the Secretary to prosecute.\u00a0 ChairmanBuckley thereafter directed review on the issue of whether Barretto had validly contestedthe Secretary’s citation.Our decision in Pav-Saver Manufacturing Co.,No. 84-733 (August 28, 1986), holds that an oral notification within the statutory timeperiod of an employer’s intent to contest is acceptable as a valid notice of contest,especially when the failure to timely contest in writing is due to confusion, uncertainty,or misunderstanding on the part of the employer.\u00a0 One of Barretto’s letters to theOSHA area director states, \”[a]s requested, we are confirming the discussion at theconference held at your office on September 7, 1983. We contend that the penaltiesassessed…are unfair for violations that are unproven and suggested remedies a definiteoverkill.\”\u00a0 It is evident that Barretto believed it had contested the citationand proposed penalty at the informal conference and that, based on statements by the areadirector, it needed only thereafter to prepare a written confirmation of the substance ofthe informal conference.\u00a0 We therefore conclude that Barretto’s failure to file aformal written notice contest within the 15-day contest period is excusable under the ruleof Pav-Saver.\u00a0 Accordingly, we affirm Judge Knight’s order vacating thecitation and proposed penalty for failure of the Secretary to prosecute this matter.[[2]]\u00a0 See Gil Haugan, 77 OSAHRC 182\/G3, 5 BNA OSHC 1956, 1977-78 CCH OSHD ?22,248 (No. 14,675, 1977), aff’d, 586 F.2d 1263 (8th Cir. 1978); Monroe &Sons, Inc., 77 OSAHRC 14\/B7, 4 BNA OSHC 2016, 1976-77 CCH OSHD ? 21,470 (No. 6031,1977), aff’d, 615 F.2d 1156 (6th Cir. 1980).FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 August 28, 1986SECRETARY OF LABOR, Complainant v. BARRETTO GRANITE CORPORATION, RespondentOSHRC DOCKET NO. 83-0986ORDER ON COMPLAINANT’S MOTION(1) TO CLARIFY THE NOTICE OF HEARING AND (2) CANCEL THAT HEARINGBy motion filed January 28, 1985, complainant movesto clarify the notice of hearing (dated January 15, 1985) by limiting it to the merits ofthe alleged violations and deleting any reference to the propriety of the notice ofcontest which was brought into issue by my letter to the parties dated December 26, 1984.Originally, the citations were affirmed because thenotice of contest was dismissed as being filed too late.\u00a0 That order was set asideupon review and remanded for \”a full hearing on the merits of the disputedcitations.\”\u00a0 Respondent had appeared at an informal conference with thecomplainant’s area director and disputed the citation.\u00a0 Later, and too late, it filedits contest.\u00a0 Under these circumstances, the Commission ruled that it \”shouldnot be denied a hearing.\”\u00a0 See Commission Decision dated November 30, 1984.The complainant, in its motion, contends that thisdecision finally decides that respondent’s actions here were sufficient to constitute acontest under the statute.\u00a0 Therefore, this issue is closed and the hearing should berestricted to the merits of the citations.\u00a0 Further, complainant, at the hearingintends to offer no evidence as to the citations themselves.\u00a0 The hearing, therefore,should be cancelled; the Commission should enter an appropriate final order (I assumevacating the citations for a failure to prosecute); and the matter administratively closedand ripe for judicial review.The Commission’s policy is one favoring full hearingsas stated in its Decision.\u00a0 But this policy, at one point, took effect only whenthere was some action by the Secretary’s representative which could be interpreted asmisleading a respondent so that its notice of contest is filed late because of thataction.\u00a0 See Elmer Construction, 84 OSAHRC, BNA 12 OSHC 1002, CCH ? 27,050, SeminoleDistributors, 77 OSAHRC 211\/D9, BNA 6 OSHC 1194, CCH ? 22,412, and MerrittElectric, 81 OSAHRC 75\/D4, BNA 9 OSHC 2088, CCH ? 25,556.\u00a0 These are cited bythe Commission in its Decision here as is Con-Lin Construction, 83 OSAHRC __ \/ __,BNA 11 OSHC 1757.\u00a0 This case removes the necessity of deception and holds that aninformal conference with the Secretary’s representatives during the 15-day contest periodwhere a respondent orally disputes the validity of an alleged violation alone issufficient to constitute a proper contest even though the written contest is filed beyondthe 15-working-day period mandated by the act, 29 U.S.C. ? 659(a).\u00a0 Con-Linappears to go beyond the suggestion of Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476(5th Cir. 1976) that the Secretary’s failure to follow prescribed procedures could lead tothe acceptance of a late-filed contest.The Con-Lin position is reaffirmed in ElmerConstruction, supra, where the Commission cites Con-Lin for the propositionthatThe Commission has allowed a late notice of contest if the circumstances surrounding thelate notice warrant a relaxation of the 15-day rule of section 10(a) [29 U.S.C. ?659(a)].Thus, respondent here met with the Secretary’s representatives during the contest periodand informally disputed the alleged violations.\u00a0 Later, and beyond the allowedperiod, it filed its written contest.\u00a0 While there is no indication whatsoever thatthe Secretary misled respondent, [[1\/]] its actions are within the Commission’s policy andits notice of contest, although late-filed, must be allowed.Respondent is entitled to a hearing on the merits;complainant will not go forward with his burden to prove the alleged violations; and anyhearing, therefore, would simply be a waste of resources.Therefore, complainant’s motion is granted to:(1) Restrict any issue to that concerning the meritsof the alleged violations; and(2) Cancel the hearing because complainant refuses topresent any evidence as to these merits.Based on the foregoing, it is ordered that thecitation issued August 17, 1983, alleging repeated violations 29 CFR ? 1910.95(b)(1) and29 CFR ? 1910.243(c)(2) are vacated together with the proposed civil penalties therefore;and the hearing scheduled for February 6, 1985, is cancelled.David J. KnightJudge, OSHRCDated:\u00a0 February 19, 1985Boston, MassachusettsSECRETARY OF LABOR, Complainant, v. BARRETTO GRANITE CORPORATION, Respondent.Docket No. 83-0986ORDER This case is here on remand from the United StatesCourt of Appeals for the First Circuit.\u00a0 Secretary of Labor v. Barretto GraniteCorp., 830 F.2d 396, 401 (1st Cir. 1987), rev’g Barretto Granite Corp., 12BNA OSHC 2052, 1986-87 CCH OSHD ? 27,680 (No. 83-0986, 1986).\u00a0 In accordance withthe First Circuit’s decision, the Review Commission dismisses Barretto GraniteCorporation’s notice of contest as untimely filed, and reinstates the Secretary’scitations.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 December 9, 1983The Administrative Law Judge decision of ALJ Sommer in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).\u00a0FOOTNOTES: [[1]] The Act requires that an employer notify the Secretary of its intent to contestwithin 15 working days of receipt of the Secretary’s penalty notification.[[2]] Our prior decision remanding for proceedings onthe merits did not distinguish between two citations that were issued to Barretto.\u00a0We agree with Judge Knight and Judge Sommer that Barretto did not at any time contestcitation no. 2, for which no penalties were proposed.\u00a0 The uncontested citation is afinal order of the Commission pursuant, to 29 U.S.C. ? 659(a).[[1\/]] Complainant’s motion to dismiss the notice ofcontest, filed October 27, l984, states that, at the informal conference on September 7,1983, respondent was fully advised of the procedural requirements; and the necessity offiling a notice of contest. Further, that it is experienced in OSHA matters.\u00a0Respondent did not reply to this motion and in no further pleading did it ever claimthat it was misled at all.iling a notice of contest. Further, that it is experienced in OSHA matters.\u00a0Respondent did not reply to this motion and in no further pleading did it ever claimthat it was misled at all.”