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OSHRC DOCKET NO. 2019\u00a0EASTERN KNITTING MILLS, 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 Respondent.\u00a0April 23, 1974Van Namee, Commissioner:\u00a0 \u00a0 \u00a0 \u00a0 This matter is before the Commission on my order directing review of a dispositive procedural ruling \u00a0made by Judge David H. Harris. We have reviewed the record. For the reasons given below, we reverse and remand.\u00a0 \u00a0 \u00a0 \u00a0 On July 31, 1972, Complainant issued his citation whereby he alleged that Respondent had committed 12 non-serious violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter \u201cthe Act\u201d). At the same time he issued a notification of proposed penalties.\u00a0 \u00a0 \u00a0 \u00a0 On August 16, 1\u00a0Respondent advised Complainant\u2019s representative, in writing, as follows:\u00a0In Regard [sic] to our citation, dated July 31, 1972, I wish to advise you that all violations are being or have been corrected, with the exception of number 10\u201d Washroom![sic] Failure to provide door interlock on American cascade tumbler\/washer.We have contacted the Walsh Company and American Cascade and have been unable to divise [sic] a way of doing this. \u00a0We would appreciate any suggestions or diagrams that you can supply us. \u00a0Thereafter, Complainant apparently demanded payment of the proposed penalty because August 25 Respondent wrote the following to Complainant:\u00a0In response to your certified letter which stated the proposed $400.00 penalty had become a final order of the Occupational Safety and Health Review Commission. \u00a0I ask you to refer to our letter of contestment which I found was misinterpreted. We were contesting eleven items instead of just the American Cascade (number 10).\u00a0On September 14 Complainant\u2019s Regional Solicitor forwarded both of Respondent\u2019s letters to the Commission. \u00a0In his opinion, , the letter dated August 16 was not a notice of contest. The matter was then referred to Judge Harris. \u00a0The referral notice indicated that the Area Director had untimely forwarded a notice of contest (Commission Rule 32)and requested that the Judge rule either to accept jurisdiction or vacate the citation for violation of the Commission rule.On January 23, 1973, Judge Harris made his ruling. \u00a0He noted that the letter of August 16, 1972, was confusing and could be construed as a confession of a violation. \u00a0However, he held that it was a notice of contest and that Complainant had not forwarded it within the time specified by our rule. \u00a0As required by our then existing precedents he vacated the citation and proposed penalties.\u00a0 \u00a0 \u00a0 \u00a0 Thereafter, we indicated that dismissal is an extreme sanction and should not be employed for a procedural default absent a showing of prejudice. \u00a0J. Dale Wilson, OSHRC Docket No. 1625, BNA 1 OSHC 1146, CCH Employ. S. & H. Guide, para. 15486 (Rev. Com\u2019n. 1973) ADM Grain Co. OSHARC Docket No. 1767, BNA 1 OSHC 1148, CCH Employ. S.& H. Guide para. 15, 487 (Rev. Com\u2019n. 1973). See also: Brennan v. O.S.H.R.C. & Bill Echols Trucking Company, 487 F.2d 230, 236 (5th Cir. 1973). \u00a0Accordingly, we will reinstate the citation and proposed penalties. \u00a0However, it would not be appropriate to affirm the citation.\u00a0 \u00a0 \u00a0 \u00a0 Section 9(a)2 provides that \u201c[e]ach citation shall \u2026 describe \u2026 the nature of the violation \u2026 [and] shall fix a reasonable time for the abatement of the violation.\u201d \u00a0Section 10(a)3 provides that after issuance of the citation an employer upon receipt of a notification of proposed penalties has 15 working days \u201cwithin which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty.\u201d \u00a0Since a citation includes two elements and since section 10(a) does not distinguish between elements a notice of contest filed as to either element is roughly sufficient to bring both into contest. \u00a0Moreover, it would be difficult if not impossible to separate the elements. \u00a0This is so because resolution of the issue of what is the reasonable time for abatement will necessarily require proof of facts concerning the nature of the violation.\u00a0 \u00a0 \u00a0 \u00a0 We now turn to the question of whether Respondent has filed a notice of contest in this case. \u00a0The rule is that writings filed with the Complainant during the 15 day working day period specified by section 10(a) are to be given \u201cliberal interpretation.\u201d Brennan v. O.S.H.R.C. & Bill Echols Trucking Company, supra, at 234. \u00a0In this case, Complainant would have required abatement of item 10 by August 25. \u00a0Respondent\u2019s timely reply was that after seeking assistance as it did not know how to abate item 10. \u00a0Clearly, Respondent was in the position of not being able to abate by the specified date. 4\u00a0Under the circumstances and in view of this rule, we believe that Respondent, by its letter of August 126, was saying that the abatement period for item 10 is unreasonable. \u00a0Accordingly, the letter is a notice of contest of that item.\u00a0 \u00a0 \u00a0 \u00a0 We turn now to the letter of August 25. \u00a0By its terms it clearly is a notice of contest. \u00a0However, we are unable to determine whether it was timely filed. \u00a0The record is silent as regards to the date Respondent received the notification and proposed penalties. Under the circumstances the parties should be heard on the issue. \u00a0And in order to avoid further delay Respondent should be afforded an opportunity for a hearing on the merits if there is any about concerning the question of the timeliness of the letter of August 25.\u00a0 \u00a0 \u00a0 \u00a0 Accordingly, the decision to vacate is reversed, and the matter is remanded for further proceedings consistent with this decision. \u00a0It is so ORDERED.Concurring OpinionCleary, Commissioner, concurring:\u00a0 \u00a0 \u00a0 \u00a0 I concur in Commissioner Van Namee\u2019s opinion. \u00a0I add, however, \u00a0that it is difficult to determine in a case like this whether or not the notice of contest has been filed concerning reasonableness of an abatement period prescribed in a citation. \u00a0Until a notice of contest is filed, or until 15 working-days expire from the receipt of the Secretary\u2019s allegation by the employer, it would seem that the Secretary of Labor would have the power to amend his own citation with respect to an abatement period.\u00a0 \u00a0 \u00a0 \u00a0 In making the determination, it is proper to consider \u00a0the writing in its most favorable light. \u00a0Florida East Coast Properties, Inc., No. 2345 (February 5, 1974). \u00a0This does not mean, however, as the Fifth Circuit cautioned in \u00a0Brennan v. O.S.H.R.C. & Bill Echols Trucking, Inc., 487 F.2d 230, 234 (1973), that the Commission is empowered to say that \u201cnight is day\u201d, i.e. that a contest exists where plainly it does not. \u00a0In this case the respondent\u2019s subsequent letter of August 25th, suggests that at least an initial contest as to the abatement of item no. 10 was intended, and perhaps more. \u00a0Moreover, the initial letter may have been filed too late within the fifteen-day period to permit timely and effective relief from the Secretary. \u00a0This raises doubt as to whether relief from the Secretary was really sought in the first place.\u00a0 \u00a0 \u00a0 \u00a0 Because the short fifteen-day filing requirement is jurisdictional, I am inclined to resolve the doubt in favor of the respondent. \u00a0Also, because of the shortness of the contest period, I readily concur with Commissioner Van Namee\u2019s order to remand the case to determine whether or not the August 25thletter was also timely filed as a notice of contest.\u00a0 \u00a0 \u00a0 \u00a0 Finally, holding that a contest of an abatement period prescribed in the citation also puts in issue the portion of citation alleging the violation to be abated is not inconsistent with Florida East Coast Properties, Inc., supra. \u00a0 \u00a0 \u00a0 \u00a0 That decision held that a contest of a proposed penalty did not put in issue the citation itself, and accordingly there was no reason to toll the abatement of the hazards that were the subject of the citation. \u00a0Under the terms of section 10 of the Act there must be a tolling of the abatement period in issue that is the subject of the citation. \u00a0In this case, there is no reason under the Act for not examining the violation giving rise to the abatement description, and as my colleague observes, there are cogent reasons for that examination.Dissenting OpinionMoran, Chairman, dissenting:\u00a0 \u00a0 \u00a0 \u00a0 I believe Judge Harris correctly disposed of this case and his ruling should have been affirmed. \u00a0Subsequent cases have not altered the wisdom of that deposition. \u00a0\u00a0 \u00a0 \u00a0 \u00a0 It should not be forgotten that the statute requires the Secretary of Labor to forward employer notices of contest to this agency \u201cimmediately,\u201d 29 U.S.C. 659 (c). \u00a0There is good reason for such a requirement: the speedy disposition of possible job-safety infractions will lessen the time of an employee\u2019s exposure to hazardous conditions (if, in fact the Secretary\u2019s allegations are true). \u00a0In this case, the Secretary held the employer\u2019s letter for 21 days.\u00a0 \u00a0 \u00a0 \u00a0 The inspection of respondent\u2019s working conditions which formed the basis for the 12 alleged safety violations took place in July 1972. \u00a0It virtually goes without saying that 21 months later memories have faded and and conditions have changed. \u00a0To expect the responded to defend the merits of so many charges after such a lengthy period of time is unrealistic. \u00a0It also will not serve the purposes of the Act. \u00a0Perhaps a new inspection and the correction of presently existing non-complying conditions, if any, are in order. \u00a0That is not for this tribunal to decide, however.\u00a0 \u00a0 \u00a0 \u00a0 Problems such as those confronted in this case could easily be avoided. \u00a0Regrettably, the Secretary of Labor has not seen fit to pay heed \u00a0to the works of the U.S. Court of Appeals for the Fifth Circuit: \u2026We would be remiss\u2026 however, if, in the interest of minimizing the need of these parties for the future assistance of this Court, we did not suggest a simple means of eliminating ambiguity in notices of contest. If each citation or notification of proposed penalty sent to an employer were accompanied by a reply form on which the employer could check boxes indicating intent to contest the citation or proposed penalty, or neither or both, with space for listing reasons or making comments, no confusion need ever again arise on the part of either the Secretary or the Commission.5\u00a0The adoption of that well-taken suggestion would not only eliminate the time wasted by the judges a members of this agency plus assorted other personnel but, more importantly, it would permit an immediate resolution of the uncertainties arising out of the service of citations rather than a delay of 2 years or more which this case will produce.\u00a0 \u00a0 \u00a0 \u00a0 Given the remedial purposes of this Act, this tardy remand seems to me to have about as much remedial effects as the beating of a dead horse.1\u00a0The record is silent concerning the date of receipt of the notification of the proposed penalties. \u00a0The August 16th communication obviously was filed within the 15 working days period described by section 10(a) of the Act (29 U.S.C. 659 (a)).2\u00a029 U.S.C. 658(a).3\u00a029 U.S.C. 659(a).4\u00a0Respondent\u2019s failure to abate absent a good faith contest would make it liable for daily penalties. \u00a0See 29 U.S.C. 659(c) and 666(d).5\u00a0Brennan v. OSAHRC et al. (Bill Echols case) supra.”