“SECRETARY OF LABOR,Complainantv.ELMER CONSTRUCTION CORPORATIONRespondent.OSHRC Docket No. 83-0040_DECISION _BEFORE: BUCKLEY, Chairman; RADAR 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 Jerome C. Dieterhad erred in dismissing Elder’s notice of contest to the Secretary’scitation and proposed penalty of $320 on the ground that Elder’s letterstating it wished to contest was filed two days after the expiration ofthe 15-day contest period prescribed in section 10 of the Act, 29 U.S.C.? 659.[[1]] We found Elder’s contest to be valid because Elder’sattorney within the 15-day contest period had orally advised thesupervisor of the OSHA area office that he wished to contest thecitation but delayed in filing his letter confirming that intent becausein his conversation with OSHA’s supervisor he became confused as to whenthe contest period expired. We noted that at one point in theirconversation the OSHA supervisor speculated that the time for contestinghad already elapsed. We held that in these circumstances Elmer shouldnot be denied a hearing, and accordingly we remanded for proceedings onthe merits.On remand before Judge Dieter, the Secretary contended that, contrary toour decision, the citation had become a final order under the Act as aresult of Elder’s \”failure to timely file a notice of contest . . . . \”The Secretary therefore declined to file a complaint and to presentevidence as required by our remand order. Accordingly, Judge Dietervacated the Secretary’s citation and proposed penalty with prejudiceunder Federal Rule of Civil Procedure 41(b) (dismissal for failure toprosecute). Chairman Buckley thereafter directed review on the issue ofwhether an oral notice of an employer’s intent to contest subsequentlyconfirmed in writing constitutes a valid notice of contest under the Act.Our decision in Pa-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 in circumstances such is those present in this case. Wetherefore adhere to our prior decision that Elder’s notice of contestwas valid. Accordingly, we affirm Judge Dieter’s order vacating thecitation and proposed penalty for failure of the Secretary to prosecutethis matter. See Gill Hague, 77 OSAHRC 182\/G3, 5 BNA OSHC 1956, 1977- 78CCH 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, 1976-77CCH OSHD ? 21,470 (No. 6031, 1977), aff’d, 615 F.2d 1156 (6th Cir. 1980).FOR THE COMMISSIONRay H. DarlingExecutive SecretaryDATED: August 28, 1986————————————————————————SECRETARY OF LABORComplainantv.ELMER CONSTRUCTION CORPORATIONRespondent.OSHRC DOCKET No. 83-0040Appearances: Jay S. Burke, Regional Solicitor U. S. Department of LaborAttorney for Complainantby William G. Staten, Esq., of CounselBiaggi and EhrlichAttorney for Respondentby Richard M. Biaggi, Esq., of Counsel_MEMORANDUM AND ORDER_On June 10, 1983, after a hearing on Complainant’s motion to dismiss,Judge Jerome C. Dieter entered an order dismissing Respondent’s noticeof contest as untimely filed.On September 18, 1984, the Commission, after a review of the order ofJudge Jerome C. Dieter rendered a decision setting aside the Judge’sorder, reinstating Respondent’s notice of contest and remanding the casefor a hearing on the merits.Upon remand, an order was entered on October 3, 1984, which scheduled ahearing for November 27, 1984, and, among other matters, requiredComplainant to file a Complaint by October 17, 1984.On October 17, 1984, Complainant by letter of his counsel, stated hewould not comply with the order of October 3rd. He con-tended that,contrary to the Commission’s decision of September 18, 1984, thecitation had become a final order because Respondent’s notice of contestwas untimely filed. Therefore the citation was not subject to review byany court or agency (Item J-2A of file).On October 22, 1984, Respondent by letter of its counsel, in response toComplainant’s letter of October 17, 1984, requested that the case bedismissed (Item J- 3A of file).Based on Complainant’s letter of October 17, 1984 and Respondent’sresponse of October 22, 1984, a hearing was held on November 2, 1984,requiring Complainant to show cause why the citation in this actionshould not be dismissed.At the hearing Complainant through his counsel, reiterated his positionthat the citation was a final order of the Commission not subject toreview by any court or agency; that he would not file a complaint asrequired by the order of October 3, 1984; that if he was required toappear at the hearing scheduled for November 27, 1984, he would appearbut would not prosecute the merits of the case at that time or any othertime (T. 4-6).Respondent in response to Complainant’s position and statements, movedto dismiss the action pursuant to Rule 41(b) of the Federal Rules ofCivil Procedure (T. 7-10).Based on the position and statements of the Secretary at the hearing,and on his refusal to obey the order of October 3. 1984, or to proceedfurther in this action, Respondent’s motion to dismiss the actionpursuant to Rule 41(b) of the Federal Rules of Civil Procedure, is granted_ORDER_Due deliberation having been had on the whole record, it is herebyORDERED that Respondent’s motion to dismiss this action is granted, itis furtherORDERED the citation herein is dismissed with prejudice, it is furtherORDERED that the proposed penalty is vacated.JEROME C. DIETERJUDGE, OSHRCDated: December 20, 1984 New York, New York————————————————————————SECRETARY OF LABORComplainant,v.ELMER CONSTRUCTION CORP.,Respondent.OSHRC Docket No. 83-0040_DECISION _Before: BUCKLEY, Chairman; CLARE 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 the administrative law judgeproperly dismissed Elmer Construction Company’s notice of contest forbeing untimely. We reverse the administrative law judge’s decision andremand the case for a hearing on the merits.On September 21, 1982, an OSHA compliance officer inspected Elder’s NewYork City workplace. On October 6, 1982, the Secretary issued a citationalleging serious violations of two OSHA standards and proposing apenalty of $320. Elmer received the citation on October 20. On October26, Elmer sent a check for $320 in full payment of the penalty.Toward the end of October, Elmer hired Richard Biaggi as its attorney.On November 1, Biaggi called the New York OSHA office and spoke toLawrence Climate, the Safety Supervisor. According to Climate, the tenorof the conversation was that Biaggi \”would like to contest the violationthat was issued against (Elmer) on October 6.\” Climate told Biaggi thatElmer had paid the $320 penalty and that the case was ready to beclosed. Biaggi expressed surprise that Elmer had paid the penalty.Testimony at the hearing indicated that the president of Elmer hadlimited skills in English and this might have led to some of the confusion.Biaggi and Climate also discussed when Biaggi would have to submit anotice of contest.[[1]] At the time of the conversation, neither manknew when Elmer had received the citation. Climate knew that thecitation had been issued on October 6 and, assuming that Elmer hadreceived the citation within a few days, speculated to Biaggi that thetime for the notice had already passed.In fact, this assumption was not true. Since Elmer had received thecitation on October 20, under section 10(a) of the Act Elmer had untilNovember 10 to notify the Secretary that it contested the citation.In a letter dated November 12, Biaggi wrote the New York OSHA office that,. . . it is the position of my client, Elmer Construction Corporation,that it has not violated any act, statute or regulation concerning theabove captioned matter. I write this letter knowing that ElmerConstruction Corporation has issued a check in payment of saidviolations. I first became aware of the payments on November 1st when Ispoke with Larry Climate of your office. On that date I called tocontest the violations.Please do not consider said payments as an admission of wrongful conductby my client. Mr. Oregano of Elmer Construction Corporation was notfully aware of his right to contest the violations.Climate did not consider the November 12 letter a notice of contest.Rather, he testified that he considered the letter \”a disclaimer ofguilt,\” which he said are fairly common. The letter was added to thecase file.The 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). See Con-in Construction Co., 83 OSAHRC , 11 BNA OSHC1757, 1983 CCH OSHD ? (No. 83-371, 1983); Merit Electric Co., 81 OSAHRC75\/D4, 9 BNA OSHC 2088, 1981 CCH OSHD ? 25,556 No. 77-3772, 1981). Thisis in keeping with the Commission’s policy in favor of allowingemployers an opportunity for a full hearing on the merits. See SeminalDistributors, Inc., 77 OSAHRC 211\/D9, 6 BNA OSHC 1194, 1977-78 CCH OSHD? 22,412 (No. 15671, 1977).We find that Elmer should not be denied a hearing under thecircumstances of this case. The conversation between Climate and Biaggiwas confusing. Climate inadvertently may have given Biaggi theimpression that the time for filing a notice of contest had passed.This, in turn, may have caused Elmer to submit the notice of contestlate. Compounding this confusion are the limited language skills ofElder’s president and the problems Biaggi had in communicating with hisclient.Given these circumstances, we set aside the administrative law judge’sdecision and remand the case for proceedings on the merits of thealleged violations.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: September 18, 1984————————————————————————SECRETARY OF LABOR,Complainant,v.ELMER CONSTRUCTION CORPORATION,Respondent.OSHRC DOCKET NO. 83-0040Appearances: Patricia M. RodenhausenActing Regional SolicitorU. S. Department of Labor New York, New Yorkby William G. Staten, Esq., of CounselBiaggi & EhrlichNew York, New York Attorney for Respondentby Richard M. Biaggi, Esq., of Counsel_DECISION AND ORDER _Dieter, J.:Complainant by motion dated February 7, 1983, moved to dismissRespondent’s notice of contest as untimely filed. On March 4, 1983,Richard M. Biaggi, Esq., counsel for Respondent, filed a response inopposition to the motion. A hearing on the motion was scheduled for andheard on April 4, 1983._Background_As a result of an inspection of Respondent’s workplace on September 21,1982, located at 684 Broadway, New York, New York, Respondent was issuedon October 6, 1982, a citation for serious violations of 29 CFR ?1926.28(a) and 1926.451(g)(2), and a notification of a total proposedpenalty of $320.00 (Citation).Respondent received the citation and notification on October 20, 1982(Exh. C-4). Respondent had fifteen (15) working days from October 20,1982, to file a written notice of contest to the citation andnotification of proposed penalty. The last day to file a timely noticeof contest was November 10, 1982. No notice of contest was filed on orbefore November 10, 1982, but one was formally filed by Respondent’scounsel on January 18, 1983 (Exh. C-3).In his written opposition to the motion (J-3 of file), Respondent’scounsel stated that he telephoned the Manhattan office of OSHA, onNovember 1. 1982, and spoke with a Mr. Larry Climate. He told Mr.Climate that he wished to contest the citation and penalty onRespondent’s behalf. He also inquired about the fifteen working daystime limitation and its relationship to the October 6, 1982, issuingdate of the citation. He claimed that Mr. Climate told him thatRespondent had fifteen working days from October 6, 1982, to contest thecitation, and that Respondent’s time had elapsed. He told Mr. Climatethat if the citation was received by Respondent on October 8th or 11th,the last day to file would be November 1, 1982. He further stated to Mr.Climate that Respondent’s president, a Mr. Arleen, could not speak orunderstand the English language, and never received any instructionbooklet from OSHA relating to an employer’s rights and responsibilities.Mr. Biaggi also stated that Mr. Climate informed him that Respondent hadpaid the $320.00 penalty. Mr. Biaggi was not aware of this payment.On November 12, 1982, Mr. Biaggi sent a letter to OSHA, to establishRespondent’s position as to the citation and penalty. He received noresponse to this letter and on January 18, 1983, he sent another letterto OSHA, formally contesting the citation.Mr. Biaggi concluded that he was unintentionally misled by Mr. Climate’smisrepresentation that Respondent’s time to file a notice of contest hadexpired on November 1, 1982, and therefore, did not file a notice ofcontest on or before November 10, 1982, the last day to file.Based on the motion and Respondent’s counsel response, a hearing washeld on the motion on April 4. 1983, at New York, New York._The Hearing_At the hearing, Lawrence Climate, safety supervisor for OSHA’s ManhattanArea Office, testified that he did receive a telephone call from Mr.Biaggi on November 1, 1982, in which Mr. Biaggi stated he wanted tocontest the citation for Respondent. Mr. Climate informed Mr. Biaggithat the contest had to be in writing, and further informed him thatRespondent had paid the $320.00 penalty (T. 3, 6, 17). Mr. Climate alsostated that there was some conversation with Mr. Biaggi about theOctober 6th date and the fifteen working days time limitation. He didnot recall any conversation with Mr. Biaggi, in which he told Mr. Biaggithat Respondent’s time to file a notice of contest had expired onNovember 1, 1982. Mr. Climate further stated that he could not havegiven Mr. Biaggi an expiration date because at the time of theconversation (November 1, 1982), he did not know when Respondentreceived the citation and therefore, could not calculate when thefifteen working days period began to run (T. 9, 10, 16). He testifiedthat a citation is sent to an employer by certified mail. When thereturn receipt is returned to OSHA by the postal service, the receiptindicates the day the citation was received by the employer and permitsOSHA to calculate the time in which a notice of contest must be filed bythe employer. Mr. Climate stated that Mr. Biaggi did tell him thatRespondent’s president spoke Spanish and understood very little English(T. 10, 11, 12, 18; Exh. C-4). The November 1, 1982, telephone callended with Mr. Biaggi stating he would call Mr. Climate back (T. 6).Mr. Climate further testified that he received a letter from Mr. Biaggion November 11, 1982, in which Mr. Biaggi stated that the payment of thepenalty by Respondent was not to be deemed an admission by Respondent,of the violations involved in the citation. Mr. Climate considered theletter to be a disclaimer by Respondent (T. 7. Exh. C-2).Mr. Climate had no further communication on this case until January 19,1983, when he received another letter from Mr. Biaggi, formallycontesting the citation (T. 7-8; Exh. C-3). Upon receipt of the January19th letter, Mr. Climate assembled the case file and forwarded it to theRegional Solicitor’s office of the Department of Labor. He had no othercommunications from Respondent or his counsel since that time (T. 8).At the hearing Mr. Climate testified that it was the normal course ofbusiness of his office, and customary practice, to send with thecitation, a booklet describing the rights and responsibilities of anemployer. This booklet was sent to Respondent along with the citation(T. 12, 17).At the conclusion of Mr. Climate’s testimony, Complainant rested hiscase. Counsel for Respondent also rested and produced no witnesses orother evidence on Respondent’s behalf. Counsel stated that he believedthe hearing was solely for the purposes of oral argument, and that hisclient’s president could not understand or speak English too well (T.14, 20, 23-24, 26).Counsel for Respondent did represent to the Court that he was retainedby Respondent a few days before November 1, 1982, either during thethird or fourth week of October; that he read the citation andunderstood it and the information relating to the fifteen working daystime limitation; and that he could have sent out a notice of contest onNovember 1, 1982, but was unintentionally misled by Mr. Climate’sstatement that Respondent’s time to file had expired on November 1, 1982(T. 20-24, 25)._OPINION _The issue involved is whether Respondent’s counsel, Richard M. Biaggi,Esq., was unintentionally misled by Mr. Climate’s alleged statement tohim on November 1. 1982, that Respondent’s time to file a notice ofcontest had expired on November 1, 1982.The credible evidence establishes that Mr. Climate did have a telephoneconversation with Mr. Biaggi on November 1, 1982; that there was someconversation between them concerning the October 6, 1982 issuing date ofthe citation, and its relationship to the fifteen working days timeperiod for filing a written notice of contest; and that Mr. Climate didnot inform or represent to Mr. Biaggi that Respondent’s time to file anotice of contest had expired on November 1, 1982.Mr. Climate could not have given Mr. Biaggi an expiration date ofNovember 1, 1982, since he did not know on November 1, 1982, whenRespondents received the citation and therefore, could not calculate thedate when Respondent’s time to file a notice of contest, would expire.Respondent’s counsel represented that he received the citation fromRespondent either during the third or fourth week of October 1982; andthat he read the citation and understood it and the fifteen working daystime limitation. There was ample time prior to the call of November 1,1982, for counsel to have sent by mail or personal service, a notice ofcontest on Respondent’s behalf. No reason was given by Mr. Biaggi as towhy this was not done, or why he waited until November 1, 1982, to callOSHA, or why after the call, even believing that the time to file hadexpired, he did not send out a notice of contest on November 1, 1982.The evidence also establishes that Respondent received the citation onOctober 20, 1982, and paid the penalty to OSHA, on October 26, 1982.There is no evidence, other than Mr. Biaggis’ representation, thatRespondent did not receive OSHA’s booklet describing an employer’srights and responsibilities.Based on the evidence of record, Respondent’s counsel, Mr. Biaggi, wasnot misled by any statement of Mr. Climate, which caused Mr. Biaggi tofile an untimely notice of contest.Respondent has not sought relief pursuant to Rule 60(b)(1) and (6) ofthe Federal RuIes of Civil Procedure, nor is there any ground for thisCourt to grant such relief based on the record herein.Complainant’s motion to dismiss Respondent’s notice of contest asuntimely filed, is GRANTED. The citation and penalties are affirmed.SO ORDERED.JEROME C. DIETERJUDGE, OSHRCDated: June 10, 1983New York, New York FOOTNOTES:[[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.[[1]] Pursuant to section 10(a) of the Act, 29 U.S.C. ? 659(a), anemployer must notify the Secretary that it intends to contest thecitation or proposed penalty within 15 working days of its receipt ofthe notification of proposed penalty that accompanies the citation.”