” SECRETARY OF LABOR,Complainant,v.BARRETTO GRANITE CORPORATION,Respondent.Docket No. 83-0986_ORDER_This case is here on remand from the United States Court of Appeals forthe First Circuit. _Secretary of Labor v. Barretto Granite_ _Corp_.,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). Inaccordance with the First Circuit’s decision, the Review Commissiondismisses Barretto Granite Corporation’s notice of contest as untimelyfiled, and reinstates the Secretary’s citations.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: December 9, 1988————————————————————————SECRETARY OF LABOR,Complainant,v.BARRETTO GRANITE CORPORATION,Respondent.OSHRC Docket No. 83-0986_DECISION_BEFORE: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).This case is before the Commission for the second time. In our previousdecision, we concluded that Administrative Law Judge Irving Sommer haderred in dismissing Barretto’s notice of contest to the Secretary’scitation and proposed penalty of $240 on the ground that Barretto’sletters stating its intent to contest were filed beyond the expirationof the 15-day contest period prescribed in section 10 of the Act, 29U.S.C. ? 659.[[1]] We found Barretto’s contest to be timely becauseBarretto had orally disputed the Secretary’s position at an informalconference at the OSHA area office conducted within the 15-day contestperiod. We noted that Barretto’s letters, which the judge dismissed forbeing untimely, confirmed its discussions with the Secretary. Weconcluded that in the circumstances Barretto should not be denied ahearing, and accordingly we remanded for proceedings on the merits.On remand, the Secretary advised Administrative Law Judge 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. Accordingly, Judge Knight vacated the citation for failure of theSecretary to prosecute. Chairman Buckley thereafter directed review onthe issue of whether Barretto had validly contested the Secretary’scitation.Our decision in _Pav-Saver Manufacturing Co_., No. 84-733 (August 28,1986), holds that an oral notification within the statutory time periodof an employer’s intent to contest is acceptable as a valid notice ofcontest, especially when the failure to timely contest in writing is dueto confusion, uncertainty, or misunderstanding on the part of theemployer. One of Barretto’s letters to the OSHA area director states,\”[a]s requested, we are confirming the discussion at the conference heldat your office on September 7, 1983. We contend that the penaltiesassessed…are unfair for violations that are unproven and suggestedremedies a definite overkill.\” It is evident that Barretto believed ithad contested the citation and proposed penalty at the informalconference and that, based on statements by the area director, it neededonly thereafter to prepare a written confirmation of the substance ofthe informal conference. We therefore conclude that Barretto’s failureto file a formal written notice contest within the 15-day contest periodis excusable under the rule of _Pav-Saver_. Accordingly, we affirmJudge Knight’s order vacating the citation and proposed penalty forfailure of the Secretary to prosecute this matter.[[2]] _See GilHaugan_, 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: August 28, 1986————————————————————————SECRETARY OF LABOR,Complainantv.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 moves to clarify thenotice of hearing (dated January 15, 1985) by limiting it to the meritsof the alleged violations and deleting any reference to the propriety ofthe notice of contest which was brought into issue by my letter to theparties dated December 26, 1984.Originally, the citations were affirmed because the notice of contestwas dismissed as being filed too late. That order was set aside uponreview and remanded for \”a full hearing on the merits of the disputedcitations.\” Respondent had appeared at an informal conference with thecomplainant’s area director and disputed the citation. Later, and toolate, it filed its contest. Under these circumstances, the Commissionruled that it \”should not be denied a hearing.\” See Commission Decisiondated November 30, 1984.The complainant, in its motion, contends that this decision finallydecides that respondent’s actions here were sufficient to constitute acontest under the statute. Therefore, this issue is closed and thehearing should be restricted to the merits of the citations. Further,complainant, at the hearing intends to offer no evidence as to thecitations themselves. The hearing, therefore, should be cancelled; theCommission should enter an appropriate final order (I assume vacatingthe citations for a failure to prosecute); and the matteradministratively closed and ripe for judicial review.The Commission’s policy is one favoring full hearings as stated in itsDecision. But this policy, at one point, took effect only when therewas some action by the Secretary’s representative which could beinterpreted as misleading a respondent so that its notice of contest isfiled late because of that action. See _Elmer Construction_, 84 OSAHRC,BNA 12 OSHC 1002, CCH ? 27,050, _Seminole_ _Distributors_, 77 OSAHRC211\/D9, BNA 6 OSHC 1194, CCH ? 22,412, and _Merritt Electric_, 81 OSAHRC75\/D4, BNA 9 OSHC 2088, CCH ? 25,556. These are cited by the Commissionin its Decision here as is _Con-Lin Construction_, 83 OSAHRC __ \/ __,BNA 11 OSHC 1757. This case removes the necessity of deception andholds that an informal conference with the Secretary’s representativesduring the 15-day contest period where a respondent orally disputes thevalidity of an alleged violation alone is sufficient to constitute aproper contest even though the written contest is filed beyond the15-working-day period mandated by the act, 29 U.S.C. ? 659(a). _Con-Lin_ appears to go beyond the suggestion of _Atlantic Marine, Inc.v. OSHRC_, 524 F.2d 476 (5th Cir. 1976) that the Secretary’s failure tofollow prescribed procedures could lead to the acceptance of alate-filed contest.The _Con-Lin_ position is reaffirmed in _Elmer Construction_, supra,where the Commission cites _Con-Lin_ for the proposition thatThe Commission has allowed a late notice of contest if the circumstancessurrounding the late notice warrant a relaxation of the 15-day rule ofsection 10(a) [29 U.S.C. ? 659(a)].Thus, respondent here met with the Secretary’s representatives duringthe contest period and informally disputed the alleged violations. Later, and beyond the allowed period, it filed its written contest. While there is no indication whatsoever that the Secretary misledrespondent, [[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 notgo 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 merits of the allegedviolations; and(2) Cancel the hearing because complainant refuses to present anyevidence as to these merits.Based on the foregoing, it is ordered that the citation issued August17, 1983, alleging repeated violations 29 CFR ? 1910.95(b)(1) and 29 CFR? 1910.243(c)(2) are vacated together with the proposed civil penaltiestherefore; and the hearing scheduled for February 6, 1985, is cancelled.David J. KnightJudge, OSHRCDated: February 19, 1985Boston, Massachusetts————————————————————————SECRETARY OF LABOR,Complainant,v.BARRETTO GRANITE CORPORATION,Respondent.OSHRC Docket No. 83-0986_DECISION_Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).The question in this case is whether Administrative Law Judge IrvingSommer should have dismissed Barretto Granite Company’s notice ofcontest of a citation alleging two repeated violations as untimely.[[1]]Compliance officers of the Occupational Safety and Health Administrationinspected Barretto’s workplace from April 26, 1983, to August 16, 1983. Discussions between Barretto and the compliance officers took placeduring and following the inspection but, according to Barretto, bothparties remained \”adamant on their original contentions.\” On August 17,1983, the Secretary issued two citations, which were received byBarretto on August 18. Barretto met with representatives of theSecretary at an informal conference on September 7, 1983, and againdisputed the Secretary’s position. This conference took place withinthe fifteen working-day period within which a citation must be contestedunder the Act. Barretto, which appeared _pro_ _se_ at the conference,disputed the validity of the citations. On October 6, 1983, Barrettosent letters confirming its discussion with the Secretary. The judgetreated these letters as a notice of contest and dismissed it asuntimely because the letters were sent more than fifteen working daysafter the citation had been received.We hold that, under the circumstances of this case, Barretto should notbe denied a hearing. Our ruling is in keeping with the Commission’spolicy of favoring a full hearing on the merits of disputed citations. _See Elmer Construction Corp_., 84 OSAHRC, 12 BNA OSHC 1002, 1984 CCHOSHC ? 27,050 (No. 83-040, 1984); _Seminole Distributors, Inc._, 77OSAHRC 211\/D9, 6 BNA OSHC 1194, 1977-78 CCH OSHD ? 22,412 (No. 15671,1977). We therefore set aside the judge’s order and remand this matterfor proceedings on the merits. _See Con-Lin Construction Co_., 81OSAHRC 75\/D4, 9 BNA OSHC 2088, 1981 CCH OSHD ? 25,556 (No. 77-3772, 1981).FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: November 30, 1984————————————————————————SECRETARY OF LABORComplainantv.BARRETTO GRANITE CORPORATIONRespondentDOCKET NUMBER 83-0986_ORDER_By motion filed October 27, 1983, the Secretary of Labor moved todismiss the notice of contest herein as not being timely filed underSection 10 of the Act. No response to the motion has been filed by theRespondent.The record demonstrates that two citations were issued to the Respondenton August 17, 1983, and Respondent’s letter dated October 6, 1983,objecting to items 1 and 2 only of Repeat Citation No. 1, was consideredthe notice of contest. This notice of contest as to Repeat Citation No.1 was not filed \”within fifteen working days from receipt of the noticeissued by the Secretary as prescribed by the Act, 29 U.S.C. ? 659(a).\” There is no evidence that the delay in filing was caused by \”theSecretary’s deception or failure to follow proper procedures\”. _Atlantic Marine, Inc. v. OSAHRC and Dunlop_, 524 F.2d 476 (5th Cir. 1975).Accordingly, the Secretary’s motion to dismiss the notice of contest isgranted. Repeat Citation No. 1 is affirmed and the penalty of $240.00is assessed. Citation No. 2 for other than serious violations was notcontested and became a final order of the Commission by operation of law.Dated: December 9, 1983Washington, D.C.IRVING SOMMERJudge, OSHRCFOOTNOTES:[[1]] The Act requires that an employer notify the Secretary of itsintent to contest within 15 working days of receipt of the Secretary’spenalty notification.[[2]] Our prior decision remanding for proceedings on the merits did notdistinguish between two citations that were issued to Barretto. Weagree with Judge Knight and Judge Sommer that Barretto did not at anytime contest citation no. 2, for which no penalties were proposed. Theuncontested citation is a final order of the Commission pursuant, to 29U.S.C. ? 659(a).[[1\/]] Complainant’s motion to dismiss the notice of contest, filedOctober 27, l984, states that, at the informal conference on September7, 1983, respondent was fully advised of the procedural requirements;and the necessity of filing a notice of contest. Further, that it isexperienced in OSHA matters. Respondent did not reply to this motionand in no further pleading did it ever claim that it was misled at all.[[1]] Under section 10(a) of the Act, 29 U.S.C. ? 659(a), an employermust notify the Secretary that it intends to contest the citation orproposed penalty within 15 working days of its receipt of thenotification of proposed penalty that accompanied the citation. “