” MAYAGUEZ SHOE CORP., Docket No.943p{\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}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}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. 943MAYAGUEZ SHOE CORP.,\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 REINSTATEMENT AND REMAND\u00a0September 8, 1972Before MORAN, Chairman; VAN NAMEE and BURCH, CommissionersBURCH, COMMISSIONER:On July 20, 1972, Judge Solomon Goldman issued his recommended order in this casedismissing respondent\u2019s notice of contest and affirming the Secretary\u2019s citation and notificationof proposed penalty.Pursuant to the authority vested in Members of the Commission by virtue of section 12(j)of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590), I amherewith directing that the Judge\u2019s order be reviewed by the Commission.Review of the record discloses that on May 11, 1972, respondent was issued a citation forone alleged serious violation and one alleged other than serious violation, together with anotification of proposed penalty in the total amount of $780. A timely notice of contest was filedby respondent, pro se, which includes the contested citations and penalties and a statementexplaining that the bases for contesting the citations are prompt abatement and good faith.On June 12, 1972, within ten days of receipt of the Secretary\u2019s complaint, respondentreplied to the Solicitor, certifying the posting of pleadings and notices in the case and requestingassistance with respect to respondent\u2019s procedural obligations in the matter.Thereupon, without any communication of record with respondent, the Secretary movedto dismiss the notice of contest for failing to meet the answer requirements of Commission rule2200.7(e).It is clear that respondent\u2019s reply to the Solicitor fails to meet the requirements of thatrule by not giving a statement of the facts which constitute the basis of its reply and by failing toreply to the assertions in the complaint. However, respondent\u2019s notice of contest together with itsletter of June 12, 1972, may be construed as a general denial of the complainant\u2019s assertions andas a statement of respondent\u2019s prompt abatement and good faith. Respondent\u2019s petition fordiscretionary review, filed August 4, 1972, establishes that it was respondent\u2019s intention toanswer the complaint by means of its June 12 correspondence.Accordingly, the Judge\u2019s order is set aside and the case is reinstated and remanded forfurther proceedings in accordance with this order.[The Judge\u2019s decision referred to herein follows]GOLDMAN, JUDGE, OSAHRC:This case is properly before this Hearing Examiner upon assignment for hearing by theOccupational Safety and Health Review Commission.Motion having been made by complainant, Secretary of Labor, to impose sanctionsagainst the respondent for failure to file timely answer to the complaint, and to dismissrespondent\u2019s notice of contest and affirm the citations and penalties issued by the Secretary ofLabor, the record before me for consideration discloses the following:1.\u00a0\u00a0\u00a0The Secretary of Labor issued one citation for other than serious violation andone citation for serious violation to respondent Mayaguez Shoe Corporation,on May 11, 1972.\u00a02.\u00a0\u00a0\u00a0The Secretary of Labor issued a notification of proposed penalty torespondent in the total amount of $780.00 in relation to the above-referredcitations on May 11, 1972.\u00a03.\u00a0\u00a0\u00a0The Secretary of Labor filed a complaint with the Occupational Safety andHealth Review Commission on June 6, 1972. Two copies of said complaintwere sent to respondent on the same date by certified mail. According tocertified mail return receipt number 599141, said copies of the complaintwere received by respondent on June 7, 1972.\u00a04.\u00a0\u00a0\u00a0On July 7, 1972, the Secretary of Labor filed a motion with the undersignedJudge asking for the dismissal of respondent\u2019s notice of contest and for theaffirmance of the citations and proposed penalties issued against respondent,such motion being based on respondent\u2019s alleged failure to answer petitioner\u2019scomplaint. Two copies of said motion were sent to respondent on the samedate by certified mail as evidenced by receipt number 597887 and certificateof service.5.\u00a0\u00a0\u00a0To the date of this order, respondent has not filed any answer with the OccupationalSafety and Health Review Commission, or on the petitioner.ORDERIt appearing that respondent, Mayaguez Shoe Corporation, a corporation, is in default forfailure of said respondent to answer, or otherwise defend, as required by law and by the Rules ofProcedure adopted by the Occupational Safety and Health Review Commission pursuant tosection 12(g) of the Occupational Safety and Health Act of 1970 (84 Stat. 1604 et seq; 29 U.S.C.651, et seq.),WHEREFORE, cause having been shown, the complainant\u2019s motion is granted and it isORDERED, That:1. The notice of contest filed by the respondent be, and is hereby, dismissed;2. The Citation for Other Than Serious Violation issued by the Secretary of Labor be, and ishereby, affirmed;3. The Citation for Serious Violation issued by the Secretary of Labor be, and is hereby,affirmed;4. The proposed penalty assessed against respondent in the total amount of $780.00 be, and ishereby, affirmed; and5. Respondent shall, within thirty (30) days from the date hereof, pay to the Secretary of Labor,by means of either a certified or bank cashier\u2019s check, the assessed penalty of $780.00.\u00a0\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. 943MAYAGUEZ SHOE CORP.,\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 15, 1973GOLDMAN, JUDGE, OSAHRC:This case is before me upon assignment for hearing by the Occupational Safety andHealth Review Commission.At the prehearing conference held on October 20, 1972, motions were made,respectively, by the Secretary of Labor, hereinafter referred to as complainant, to amend hisComplaint, and by Mayaguez Shoe Corporation, hereinafter referred to as respondent, towithdraw its Notice of Contest.In explanation of his Motion to Amend, complainant stated that an evaluation of theevidence available as of October 20, 1972, had led him to conclude that the violations specifiedin paragraphs V(a), (b) and (c) of the Complaint should not be classified as serious violationswithin the meaning of section 17(k) of the Act. Complainant accordingly moved:(1) To amend the Complaint to allege that the violations specified in paragraphsV(a), (b) and (c), had a direct and immediate relationship to safety and health butwere not of a serious nature within the meaning of section 17(k) of the Act;\u00a0(2) To amend the Complaint further by reducing the penalty claimed therein forthe violations charged in paragraphs V(a), (b) and (c), from $700.00 to $180.00,reducing the total claimed penalty from $780.00 to $260.00; and\u00a0(3) That the Citation for Serious Violations herein be deemed amendedaccordingly.\u00a0Respondent\u2019s Motion for withdrawal of its Notice of Contest set forth that the only issuein dispute in this proceeding was the amount of penalty proposed, and that it had tendered thesum of $260.00 to complainant in full payment of penalty. Respondent also certified that theviolations specified in the Complaint were abated shortly after the citations were received andthat it is complying, and will comply in the future, with the provisions of the OccupationalSafety and Health Act of 1970, and with the standards and regulations promulgated thereunder.Respondent, thereafter, by letter dated October 25, 1972, notified the undersigned thatposting of complainant\u2019s Motion to Amend the Complainant and respondent\u2019s Motion toWithdraw its Notice of Contest had been accomplished.Complainant and Respondent have separately informed the undersigned that each has noobjection to the Motion of the other. A reasonable time has elapsed since posting of the Motionson October 20, 1972, and no objections have been received from affected employees or theirrepresentatives.In view of the foregoing, and upon the representations of the parties and the evidence ofthe witnesses at the pre-trial conference, it is hereby determined that the complainant should bepermitted to amend his Complaint to reclassify the violations charged in paragraphs V(a), (b)and (c) to non-serious violations, and to reduce the penalties claimed therefor to $180.00, andthat the respondent should be permitted to withdraw its Notice of Contest.It is accordingly ordered:(1) That the complainant\u2019s Motion to amend his Complaint in the respects stated abovebe, and it hereby is, granted, and that the Citation and the Proposed Penalties herein be deemedamended accordingly;(2) That the respondent\u2019s Motion to withdraw its Notice of Contest be, and it hereby isgranted; and(3) That the Citation and the Proposed Penalties, as amended be, and they hereby are,affirmed.There being no further contest in this case, it is respectfully recommended that this orderbe made the order of the Commission.\u00a0″