” Blue Ribbon Industries, Inc., Docket No.1302p{\tmargin-top: 0px;\tmargin-bottom: 1px}table{\tborder-collapse: collapse;\tborder-spacing: 0pt;\tborder-color: black;\tempty-cells: show;\tfont-family: \”Calibri\”, sans-serif;\tfont-size: 11pt;\tfont-weight: normal;\tfont-style: normal}td{\tborder-color: black}td.table1column1{\tpadding-left: 0.075in;\tpadding-right: 0.0816667in}td.table1column2{\tpadding-left: 0.075in;\tpadding-right: 0.075in}hr{\theight: 0.0125in;\tbackground-color: black}td.table2column1{\tpadding-left: 0.075in;\tpadding-right: 0.0816667in}td.table2column2{\tpadding-left: 0.075in;\tpadding-right: 0.075in}td.table3column1{\tpadding-left: 0.075in;\tpadding-right: 0.075in}td.table3column2{\tpadding-left: 0.075in;\tpadding-right: 0.075in}body{\tfont-family: \”Calibri\”, sans-serif;\tfont-size: 11pt;\tfont-weight: normal;\tfont-style: normal;\tmargin-left: 0.075in;\tpadding-left: 0.1in}UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONSECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0v. OSHRC DOCKET NO. 1302BLUE RIBBON INDUSTRIES INC.,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.\u00a0\u00a0ORDER OF REMANDApril 9, 1973Before MORAN, Chairman; VAN NAMEE and BURCH, CommissionersMORAN, CHAIRMAN:This case is dismissed on September 11, 1972, when Review Commission Judge HenryOsterman granted Complainant\u2019s motion to dismiss on the grounds that a notice of contestallegedly filed by Respondent on April 25, 1972, was not in fact filed until May 17, 1972, andwas therefore untimely. Thereafter, pursuant to Section 12(j) of the Occupational Safety andHealth Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act), Idirected that this decision be reviewed by the Commission.Subsequent to this direction for review, Complainant filed a brief with the Commissionindicating a change in position and recommending that the case be remanded for a factualfinding on the issue of whether the notice of contest was timely filed.The Commission agrees that this threshold question should be resolved as Complainantsuggests.In view of the preceding, the decision of the Judge is reversed and the case is remandedfor action consistent with the holdings herein.\u00a0[The Judge\u2019s decision referred to herein follows]OSTERMAN, JUDGE, OSAHRC:Ruling on Secretary\u2019s motion for dismissal of notice of contest as being untimely filed: Granted.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONSECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0v. OSHRC DOCKET NO. 1302BLUE RIBBON INDUSTRIES INC.,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.\u00a0\u00a0CHODES, JUDGE, OSAHRC:This matter is before this judge upon the motion of the Complainant, made on May 18,1973, to dismiss the Respondent\u2019s Notice of Contest dated April 25, 1972. A copy of the motionand an affidavit in support of the motion was mailed to the Respondent on May 18, 1973.The record shows that on April 5, 1972, a representative of the Complainant issued to theRespondent a Citation under the authority of Section 9(a) of the Occupational Safety and HealthAct of 1970. The Citation was for nonserious violations of Occupational Safety and HealthStandards promulgated by the Secretary of Labor by publication in the Federal Register andcodified in 29 CFR Part 1910. The Citation alleged that violations of the following itemizedstandards found at the Respondent\u2019s workplace at 96\u201317 Northern Boulevard, Corona, NewYork:Item NumberStandard Allegedly Violation and Description129 CFR 1910.242(b) in that air pressure used for cleaning exceeded 30 lbs.per square inch.229 CFR 1910.36(b)(4) by having an exit door locked thereby preventing freeand unobstructed egress from the building.329 CFR 1910.212(a) for failure to properly guard a compressor.429 CFR 1910.316(c) by using flexible cord as a substitute for the fixed wiringof the structure.On April 6, 1972 a Notification of Proposed Penalty was sent to Respondent informingthe Respondent that no penalty was proposed for Items 1 and 2 of the Citation. For Item 3 apenalty of $35 was proposed and for Item 4 a penalty of $65, for a total of $100.The case was set down by the Review Commission for hearing on May 29, 1973 todetermine whether the Notice of Contest was filed within the time limits prescribed by Section10(a) of the Act, that is, within 15 working days of the receipt of the Citation and Notice ofProposed Penalty. The hearing has been cancelled.In an Affidavit in Support of Motion, executed on May 18, 1973, Stephen D. Dubnoff,one of the attorneys of the Complainant, stated that he spoke to Respondent herein, and Mr.Schneider informed him that the letter dated April 25, 1972 from the Respondent, which hadbeen considered a Notice of Contest, was not intended as such by the Respondent. Rather, theRespondent intended the letter to state his displeasure with the enforcement aspects of the Act.Mr. Schneider stated that he did not wish to have a hearing before the Review Commission.Records in file indicate that the Respondent paid the $100 penalty to Complainant andhas abated the alleged violations.It appearing that the letter dated April 25, 1972, which was considered a Notice ofContest by the Review Commission, was not so intended by the Respondent, that the Respondenthas not opposed the Complainant\u2019s motion, that the Respondent has paid the penalty assessedagainst it, that the violation charged against Respondent have been abated, and that the grantingof the Complainant\u2019s motion is consistent with the provisions of the Occupational Safety andHealth Act of 1970, it isORDERED that the Complainant\u2019s motion to dismiss the Respondent\u2019s Notice of Contestis granted; and it is furtherORDERED that the Citation and the proposed penalty totaling $100 is affirmed.”