” J Dale Wilson Builder, Docket No.1625var gAgent = navigator.userAgent.toLowerCase()var gWindows = ( (gAgent.indexOf( \”win\” ) != -1 ) || ( gAgent.indexOf( \”16bit\” ) != -1 ) )var gIE = ( gAgent.indexOf( \”msie\” ) != -1 )var bInlineFloats = ( gWindows && gIE && ( parseInt( navigator.appVersion ) >= 4 ) )var floatwnd = 0var WPFootnote1 = ‘\u00a0Secretary of Labor v. Pleasant Valley Packing Co., Inc., supra.\\’function WPShow( WPid, WPtext ){ if( bInlineFloats ) eval( \”document.all.\” + WPid + \”.style.visibility = ‘visible’\” ); else { if( floatwnd == 0 || floatwnd.closed ) floatwnd = window.open( \”\”, \”comment\”, \”toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1\” ); floatwnd.document.open( \”text\/html\”, \”replace\” ); floatwnd.document.write( \”\\\” ); floatwnd.document.write( \” p { margin-top:0px; margin-bottom:1px; } \\\” ); floatwnd.document.write( \”\\\” ); floatwnd.document.write( WPtext ); floatwnd.document.write( ‘Close’); floatwnd.document.write( \”\” ); floatwnd.document.close(); floatwnd.focus(); }}function WPHide( WPid ){ if( bInlineFloats ) eval( \”document.all.\” + WPid + \”.style.visibility = ‘hidden’\” );}p{\tmargin-top: 0px;\tmargin-bottom: 1px}table{\tborder-collapse: collapse;\tborder-spacing: 0pt;\tborder-color: black;\tempty-cells: show;\tfont-family: \”Times New Roman\”, serif;\tfont-size: 12pt;\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}span.WPFloatStyle{\tvisibility: hidden;\tposition: absolute;\tleft: 10px;\tright: 10px;\tbackground-color: rgb(255, 255, 225);\tborder-width: 1px;\tborder-style: solid;\tborder-color: black;\tmargin-top: 25px;\tpadding: 6px;\tline-height: normal}span.WPNormal{\tfont-family: \”Times New Roman\”, serif;\tfont-size: 12pt;\tfont-weight: normal;\tfont-style: normal;\tfont-variant: normal;\ttext-align: left;\ttext-decoration: none;\tcolor: black;\tvertical-align: middle;\ttext-indent: 0in}body{\tfont-family: \”Times New Roman\”, serif;\tfont-size: 12pt;\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. 1625J DALE WILSON, BUILDER,\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.\u00a0February 20, 1973ORDER OF REMANDBefore MORAN, Chairman, VAN NAMEE and BURCH, CommissionersVAN NAMEE, COMMISSIONER:On January 16, 1973, Judge David H. Harris issued an order vacating Complainant\u2019scitation in the above-captioned matter. He based his order on the ground that the Complainanthad failed to forward Respondent\u2019s notice of contest to the Commission within seven days ofreceipt as required by Commission Rule 32 (29 C.F.R. 2200.32).Pursuant to the authority vested in the members of the Commission by Section 12(j) ofthe Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590,hereinafter referred to as the \u2018Act\u2019), I am herewith directing that the Judge\u2019s Order be reviewedby the Commission. For the reasons given hereinafter we reverse and remand.We have reviewed the record and note that the Respondent was issued a citation andnotification of proposed penalty dated September 27, 1972. Thereafter, Respondent filed a noticeof contest which was received by the Complainant\u2019s Area Director on October 11, 1972. Thenotice of contest was not received by the Commission until October 30, 1972 and thus was filedoutside the period prescribed by Rule 32.In the past the Commission has applied the extreme sanction of vacation of a citationwhere an Area Director has not forwarded a notice of contest because in his view the employer\u2019swriting was not a notice of contest. (Secretary of Labor v. Pleasant Valley Packing Co., Inc.,OSHRC Docket No. 464; Secretary of Labor v. Brent Towing Co., Inc., OSHRC Docket No.1003, Pet. for Jud. Rev., Docket No. 72\u20133511, filed November 21, 1972, 5th Cir.; Secretary ofLabor v. Lennox Industries, Inc., OSHRC Docket No. 1106). We used the sanction in these casesbecause the function of determining the legal sufficiency of a notice of contest is an adjudicatoryfunction, and the action of the Area Director operated to deprive an employer of his statutoryright to a hearing as provided for by section 10(c) and to usurp the responsibility of thisCommission to provide the hearing.The question in cases of this kind is one of balancing interests. Thus in the cited cases theaction of the area director operated to prejudice the rights of the contesting employer. On theother hand the vacation of a citation might operate to prejudice the public\u2019s right to haveabatement of occupational safety and health hazards.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The record in this case is silent regarding the reasons for delay in transmittal of the noticeof contest. Accordingly, there is no basis for making a determination of prejudice as toRespondent so as to justify imposition of the extreme sanction of vacation of the citation. Incases of this kind the Secretary should be afforded the opportunity to explain the delay andRespondent the right to show that it has been prejudiced thereby. The matter may be handled byacting on the responses to an order to show cause issued by the judge having responsibility forthe case.It is therefore ORDERED that the Judge\u2019s order be and the same is hereby set aside andthe case is remanded for further proceedings consistent with this order.\u00a0MORAN, dissenting:This case is virtually identical to Secretary v. ADM Grain Company, OSAHRC No.1767, decided today (hereinafter ADM Grain), from which I also dissented.For the same reasons set forth therein and for the additional reasons which follow, I alsodissent from this decision. As in ADM Grain, the decision in this case ignores existingCommission precedent, as well as the language of Section 10(c) of the Act and of CommissionRule 32.The Commission cites Secretary v. Lennox Industries, Inc., OSAHRC No. 1106, July 7,1972; Pleasant Valley Packing Co., Inc., OSAHRC No. 464, January 4, 1973; and Brent TowingCo., Inc., OSAHRC No. 1003, September 22, 1972, as standing for the proposition that we usedthe sanction of dismissing a citation only because: a) the Secretary of Labor took it upon himselfto determine the legal sufficiency of a notice of contest thereby usurping the Commission\u2019sfunction, and b) such action operated to deprive the employer of his statutory right to a hearing.A perusal of those decisions reveals that the citation in each case was vacated simplybecause of the failure of the Secretary of Labor to comply with Commission Rule 32 (previouslyInterim Rule 7). In none of those decisions did we rely on the rationale recited at page 2 oftoday\u2019s decision. Neither did we in any of those decisions even allude to the proposition that theSecretary was entitled to explain his reasons for noncompliance with the Commission\u2019s Rules ofProcedure, or to a rule that a respondent must be shown to have been prejudiced by the delay innotifying the Commission of the contest before we would apply Section 10(c) of the Act and ourRule 32.In a sudden about-face, the Commission has decided to depart from the precedentfollowed as recently as January 1973 if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote1 ); document.write( ‘Close’ ); document.write( ” ); } and ignore the provisions of Section 10(c) of the Act, aswell as the provisions of Commission Rule 32, and to create a new rule authorizing an extendedperiod of unspecified duration for the Secretary of Labor to forward a notice of contest to theCommission unless it can be shown either that respondent was prejudiced by the delay or thatthe delay by the Secretary was inexcusable.In my view, this new direction taken by the Commission can only lead to confusion. Forexample, Section 10(c) requires the Secretary to forward a notice of contest \u2018immediately.\u2019 In itsinterim rules (Interim Rule 7), the Commission established a three-day period on the premisethat forwarding a notice of contest within three days satisfied the immediacy requirement ofSection 10(c). When permanent rules were adopted, that time period was expanded to seven daysafter the Department of Labor complained that three days was too short a time period. By itsdecision in this case and in ADM Grain, the Commission has now said that seven days is tooshort a period. ADM Grain extended the time to 15 days. That period was apparently not longenough, so this decision further expands immediacy to mean 19 days. Is it unreasonable toexpect a future decision which will hold that forwarding a notice of contest within six monthssatisfies Section 10(c)\u2019s immediacy requirement?This practice of continually expanding the time within which the Secretary of Labor mayforward a respondent\u2019s notice of contest to the Commission destroys any of the meaning whichwe previously attached to the language of Section 10(c) of the Act. It totally emasculates Rule32, and in effect, says that we meant what we said in our prior decisions, but don\u2019t count on it.As I said in the ADM Grain case, \u2018It makes one wonder where all this is leading.\u2019[The Judge\u2019s decision referred to herein follows]\u00a0HARRIS, JUDGE, OSAHRC:On the record herein the Respondent\u2019s notice of contest was received by the Complainanton October 11, 1972, and filed with the Occupational Safety and Health Review Commission onOctober 30, 1972, a period of 19 days. This delay is a failure to comply with 29 C.F.R. 2200.32and in violation of Section 10(c) of the Act, 29 C.F.R. 651, et seq. and the citation herein ishereby vacated.\u00a0July 9, 1973GOLDSTEIN, JUDGE, OSAHRC:On September 27, 1972, the United States Department of Labor, Occupational Safety andHealth Administration, issued a Citation to the Respondent for three alleged Non-SeriousViolations of the Occupational Safety and Health Act of 1970 and proposed a penalty of $35.00.Under date of October 9, 1972, and received by the Department of Labor in Milwaukee,Wisconsin, on October 11, 1972, the Respondent filed a Notice of Contest. This Notice ofContest was received by the Commission\u2019s Office of the Executive Secretary on October 30,1972.On October 31, 1972, the Secretary of Labor filed a Complaint with this Commission toaffirm the Citation and the proposed penalty; and the matter was referred to Commission JudgeDavid H. Harris for disposition. In his Order of disposition Judge Harris ruled that a period of 19days elapsed from the date the Notice of Contest was received by the Department of Labor to thedate filed with the Commission. Inasmuch as the delay was considered a failure to comply with29 CFR 2200.32 and in violation of Section 10(c) of the Occupational Safety and Health Act, 29C.F.R. 651, et seq., the Citation was vacated.Upon receipt of the Judge\u2019s Order, the Secretary of Labor moved the Commission toreview the ruling since neither the Secretary nor any affected employees were given theopportunity to be heard on the issue of whether the Commission was advised by the Secretary ofreceipt of Respondent\u2019s Notice of Contest \u2018immediately\u2019 as required by Section 10(c) of the Act.\u00a0The Commission thereupon remanded this case to the undersigned for further proceedings,ruling that:In cases of this kind the Secretary should be afforded the opportunity to explainthe delay and the Respondent the right to show that it has been prejudicedthereby. The matter may be handled by acting on the responses to an order toshow cause issued by the judge having responsibility for the case.\u00a0In conformance with the directive of the Commission, the parties were offered theopportunity to furnish whatever material they desired to be considered in the disposition of thisfeature of the case. In response to the order to show cause, the Secretary produced an affidavitfrom his Area Director, the material portions of which are copied below:On October 11, 1972, a letter from Respondent, addressed to the attention of Mr.Robert B. Hanna was received at the Milwaukee, Wisconsin, office of theOccupational Safety and Health Administration. A copy of the aforesaid letter isattached hereto as Attachment A.\u00a0After reading the aforesaid letter from Respondent, Carlton H. Heise concludedthat a telephone call should be made to the Respondent to get clarification as toRespondent\u2019s intention, so as to ascertain whether the letter was intended to be aNotice of Contest. On October 11, 1972 (at 11:00 a. m.), Carlton H. Heisetelephoned the home of J. Dale Wilson. A child answered the telephone and saidthat no one else was at home and that Respondent, J. Dale Wilson, was at work.\u00a0*2 On several subsequent days, at various times of the day, Carlton H. Heisemade telephone calls to the home of J. Dale Wilson and was unable to reach himuntil approximately 9 or 10 days after his first telephone call on October 11, 1972.\u00a0On or about October 20 or October 23, 1972, Carlton H. Heise talked bytelephone with J. Dale Wilson, who then stated that he did intend (by theaforesaid letter) contest the Notification of Proposed Penalty.\u00a0After such advice from J. Dale Wilson that his letter (Attachment A hereto) wasintended to be a Notice of Contest, Carlton H. Heise duly and promptly preparedthe necessary transmittal documents for the aforementioned letter containing theNotice of Contest, and the Notice of Contest was filed (by mailing) on October25, 1972.\u00a0The Respondent submitted no evidence to establish that his position was jeopardized bythe delay in transmission of the Notice of Contest to the Commission. However, his Notice ofContest is shown below:Your attempt to levy a fine based upon citation dated September 27, 1972, isarbitrary and capricious in the extreme. ITEM 1\u2014In the presence of yourinspector we removed the offending ungrounded cord and used the grounded onewhich was on the job-site, just not used. ITEM 2\u2014The 5 foot step ladder hasbeen repaired (new top platform) the 6 foot step ladder has been retired fromservice, and the 20 base section of the extension ladder will not be used untileither cut off or the cracked rung repaired. ITEM 3\u2013We were unaware of thisrequirement, particularly when used on ground, but being concerned for our ownsafety we will surely find some feet for the ladders we use even though they arenot ours but being borrowed.\u00a0William T. Smith and myself work together on a share alike basis. As we werethe only persons using the ladders and the power equipment, I fail to see how theprovisions of the OSHA Act are applicable to our situation. In addition weremoved from service immediately in the presence of your inspector theoffending electric cord. I (we) therefore feel your proposed fine is unjustified andwe do protest.\u00a0Under the foregoing circumstances, the question arises as to whether the Secretary ofLabor timely forwarded to this Commission the Notice of Contest submitted by the Respondentas required by Section 10(c) of the Occupational Safety and Health Act of 1970, which providesas follows:If an employer notifies the Secretary that he intends to contest a citation . . . theSecretary shall immediately advise the Commission of such notification. . . .\u00a0Amplification of this Section of the law may be found in Section 1903.17(a) of the Regulationsrelating to the Occupational Safety and Health Administration (29 C.F.R. 1903.17(a)) statingthat:Any employer to whom a citation or notice of proposed penalty has been issuedmay, under section 10(a) of the Act, notify the Area Director in writing that heintends to contest such citation or proposed penalty before the ReviewCommission. Such notice of intention to contest shall be postmarked within 15working days of the receipt by the employer of the notice of proposed penalty.Every notice of intention to contest shall specify whether it is directed to thecitation or to the proposed penalty, or both. The Area Director shall immediatelytransmit such notice to the Review Commission in accordance with the rules ofprocedure prescribed by the Commission.Under the Rules of Procedure adopted by the Occupational Safety and Health ReviewCommission, it is provided:The Secretary shall, within 7 days of receipt of notice of contest, transmit theoriginal to the Commission, together with copies of all relevant documents(Rule 32, Notices of contest).\u00a0The record in this case establishes that the Area Director of the Occupational Safety and HealthAdministration received the Notice of Contest from the Respondent on October 11, 1972, andthat the Notice did not reach the offices of this Commission until October 30, 1972. Thus, theSecretary did not forward the Notice of Contest \u2018immediately\u2019 as required by Section 10(c) ofthe Act and as defined in Regulation 1903.17(a) and Rule 32 of the Rules of Procedure of thisCommission which requires the Secretary to transmit the Notice of Contest to this Commissionwithin 7 days of its receipt.The Commission, at the request of the Secretary, offered an opportunity to explain thedelay in submitting the Notice of Contest. In response the Secretary forwarded an affidavit of hisArea Director. In this document the Area Director explained that he did not immediately forwardthe Notice of Contest in order to contact the Respondent to ascertain whether the letter datedOctober 9, 1972, and received by him on October 11, 1972, was intended as a Notice of Contest.An examination of the Respondent\u2019s letter could not leave much doubt as to hisintentions with respect to the desire to contest the citation and penalty proposed. In his openingsentence the Respondent referred to the citation and penalty as \u2018. . . arbitrary and capricious inthe extreme.\u2019 In the second paragraph of the letter the Respondent noted that he failed to see howthe provisions of the Act were applicable to his situation. Concluding, the Respondent remarkedthat he felt the \u2018. . . proposed fine is unjustified and we do protest.\u2019With this strong language of protest before him the Area Director could not reasonablyconclude that it was necessary to contact the Respondent personally to ascertain if in fact it washis intention to file a Notice of Contest to the Citation and proposed penalty. In any event, if indoubt, the Area Director could have forwarded the letter to the Commission for its consideration.I therefore find that there was no good cause for the failure to transmit to the Commission theNotice of Contest as required by its Rules of Procedure.On the basis of the foregoing, it is concluded that the Secretary failed to comply with thestatute, Regulation and Rules of Procedure of the Commission in Connection with the transmittalof the Notice of Contest in this matter. Accordingly, it is ORDERED that the Citation andproposed penalty be and hereby are VACATED.”