“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 8859 OWENS?ILLINOIS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0May19, 1976DECISIONBeforeBARNAKO, Chairman; MORAN and CLEARY, Commissioners.CLEARY,Commissioner:A report of Administrative Law Judge Joseph L. Chalk, datedOctober 22, 1974, is before the full Commission for review pursuant to section12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651 etseq. [[hereinafter ?the Act?]. At issue in this case is whether Judge Chalkerred in dismissing respondent-employer?s notice of contest on the ground thatit was untimely filed.The case has been briefed by respondent. The Secretary ofLabor by letter relies upon the Judge?s decision and his briefs below.The case arose out of a single inspection by two complianceofficers. Each compliance officer independently prepared recommendations forthe Area Director to issue a citation for other than serious violations. Eachcitation and its attendant notification of proposed penalty was mailedseparately and received by respondent three or four days apart because of anintervening weekend. Respondent contested the earlier issued citation, butmistakenly computed the time in which to contest from the receipt of the laterissued citation.[1]Respondent contends that the failure to file its notice ofcontest within 15 working days as required by 29 U.S.C. ? 659(a) was the resultof confusion caused by complainant?s issuance of two citations for nonseriousviolations contrary to complainant?s own procedures providing that:Only one citation for nonserious violations will be givenan employer for a single inspection, even though there may be severalviolations…. U.S. Dept. of Labor, Compliance Operations Manual XII?17 (1972).?In light of our disposition of the case, we do not rule onrespondent?s contention and other possible issues.The facts of this case are unusual, and suggest that the twocitations and the two notifications of proposed penalties, issued as a resultof a single inspection and so close together in time, should be read togetherin the interest of justice.We hold that the later citation and notification of proposedpenalty supplements the first issued citation, and thus the time for filing thenotice of contest runs from the date of receipt of the later notification ofproposed penalty. Therefore, the notice of contest was timely filed.We note also that the notice of contest is concernedessentially with the problem of long-term abatement of noise by feasibleengineering controls or administrative controls. The citation prescribes, asindeed the standard requires, that in any event personal protective equipmentbe used when these controls are not feasible. Consequently, the employees areentitled to this protection during this proceeding.Accordingly, it is ORDERED that the order dismissing thenotice of contest is reversed, the notice of contest is reinstated, and thecase is remanded for further proceedings consistent with this order.\u00a0FORTHE COMMISSIONWilliamS. McLaughlinEXECUTIVESECRETARYBY:Gloria W. WhiteActingExecutive SecretaryDATED:MAY 19 1976?MORAN,Commissioner, Concurring:I concur in the result reached in the lead opinion. The dictain the penultimate paragraph concerning the contents of the notice of contestand the requirements of the standard, however, are unnecessary to the decisionin this case. They represent Commissioner Cleary?s personal views?not mine.?BARNAKO,Chairman, concurring:I concur with my colleagues? disposition of this case.In the past we have held that 29 U.S.C. 659(a) is alimitation on our jurisdiction to hear cases where the notice of contest isfiled after expiration of the fifteen day period specified by the section. MississippiValley Erection Co., 5 OSAHRC 483, BNA 1 OSHC 1527, CCH OSHD para. 17,098(1973); Atlantic Marine Inc., 14 OSAHRC 6, BNA 2 OSHC 1373, CCH OSHDpara. 19,069 (1974), reversed and remanded, 524 F.2d 476 (5th Cir. 1975). Inthe last-noted case the court said:The ALJ and OSHRECOM apparently viewed ? 659(a) as animpenetrable barrier to further consideration of petitioner?s claims withoutregard to the special circumstances claimed.\u00a0Before we undertake to decide such an important issue, weshould be certain that it is factually founded and not just a theoreticalpossibility. 524 F.2d at 478The court remanded for a hearing to take evidence onrespondent?s allegations in that case that it had been prejudiced and misledinto an untimely filing of a notice of contest by the Secretary?s deception andviolation of procedures. I believe the court?s action and its reasons thereforwould be appropriate in the instant case as well.My colleagues, however, would decide the 659(a) issue in thiscase without an evidentiary record. I concur in that disposition and with thereasons given for it, but I feel, nonetheless, that the better course would bethe one taken by the 5th Circuit in Atlantic Marine Inc., supra.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 8859 OWENS?ILLINOIS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINALORDER DATE: November 21, 1974DECISION AND ORDERChalk,JudgeOn July 10, 1974, Respondent filed a motion requesting thisCommission to docket a Notice of Contest nunc pro tunc with an ?effectivefiling date of June 20, 1974,? which it had previously forwarded to theDepartment of Labor area director on June 21, 1974.[2]The record clearly establishes that this Notice of Contest was forwarded to thearea director on the sixteenth working day after Respondent?s receipt of theNotification of Proposed Penalty on May 30, 1974.After Complainant filed a response to Respondent?s motion andRespondent filed a supplemental written argument, a motions judge grantedRespondent?s motion on August 2, 1974. Complainant then moved the Commissionfor special leave to appeal such ruling, and Respondent filed a responsethereto; but the Commission denied the motion on September 11, 1974. OnSeptember 16, 1974, the case was assigned to me on regular assignment for finaldisposition.On October 1, 1974, I issued an Order to Respondent directingRespondent to show cause within ten (10) days of its receipt of my Order whyits Notice of Contest should not be summarily dismissed because it was notfiled timely. In response thereto, in addition to relying upon its argumentsadvanced in previous submissions which I find unpersuasive, Respondent arguesthat the prior ruling by the motions judge is binding upon me under thedoctrine of res judicata. As a second argument, Respondent claims that theCommission, by denying Complainant?s motion for leave to file a special appeal,in effect considered the issue on its merits and upheld the ruling of themotions judge.The doctrine of res judicata, in accordance with the verycase cited by Respondent in support of its argument, applies only where therehas been ?final judgment on the merits … with respect to the same cause ofaction? (Rhodes v. Jones, 351 F2d 884 (8th Cir., 1965)). As there hasbeen no final order issued in this case, this argument must fall of its ownweight. Respondent?s second contention also falls of its own weight, for indenying Complainant?s motion for leave to file a special appeal from theruling, the Commission, in accordance with its own rules, was merely denyingthe motion itself, without addressing itself in any way to the merits of theissue raised therein (29 CFR 2200.75). On the contrary, the Commission wouldhave granted the motion if it had desired to resolve the issue at that point inthe proceedings.When a Notice of Contest is not filed within fifteen workingdays after the employer?s receipt of the Notification of Proposed Penalty, thecitation and proposed penalty assessment become a final order of the Commission?not subject to review by any court or agency? (29 USC 659(a)). By itsunequivocal terms, therefore, the statute specifically prohibits thisCommission from doing what Respondent?s motion of July 10, 1974 requested it todo, regardless of the reasons, perhaps persuasive but nonetheless unredeeming,that prompt the late filing, such as those advanced by Respondent throughoutthese proceedings (Secretary v. Walter A. Podpora, Docket No. 721, May18, 1972; see Secretary v. FMC Corporation?Fibers Division et al, Docket No.5355, July 17, 1974; Peter J. Brennan, Secretary of Labor v. OccupationalSafety and Health Review Commission and S.J. Otinger Jr., ??? F2d ????,Docket No. 73?3068 (5th Cir., October 3, 1974). A fortiori, as the Citation andNotification of Proposed Penalty in this case became a final order of theCommission by operation of law when Respondent failed to file its Notice ofContest on or before June 20, 1974, the motions judge?s Order purporting tooverride the finality of that Order was of no legal effect (id).The motions judge?s Order of August 2, 1974 is set aside,Respondent?s motion is denied, and Respondent?s Notice of Contest filed nuncpro tunc on June 21, 1974 is dismissed.?SoORDERED.JOSEPHL. CHALKJudge,OSHRCDated:October 22 1974Washington,D.C.\u00a0[1] The inspection took place on April 17, 1974. One ofthe inspectors was an industrial hygienist. The industrial hygienist and theother inspector filed separate reports. The industrial hygienist recommendedciting Owens?Illinois for a failure to comply with 29 CFR 1910.95, a standardregulating excessive noise. The other inspector recommended citingOwens?Illinois under the general duty clause in section 5(a)(1) of the Act andfor additional violations of standards under the special duty clause in section5(a)(2) of the Act. A citation alleging a violation of the noise standard wasissued on May 29, 1974. A citation alleging a violation of the general dutyclause and the additional standards violations was issued on May 31, 1974. Thecitation and notice of proposed penalty for the alleged noise violation wereapparently received on May 30, 1974, at the company?s plant. The citation andnotice of proposed penalty for the remaining alleged violations was received atthe plant on June 3, 1974. Both sets of citations and notices of proposedpenalties were forwarded together from the plant in Virginia to the company?slegal department in Toledo, Ohio. There, the date of receipt on the laterissued citation was mistakenly taken to be the only date of receipt and thenotice of contest as to the earlier issued citation was mailed on June 21,1974.On July 1, 1974, the Area Director notified thecompany that its notice of contest had been filed one day late since thefifteenth working day from the May 30 receipt would expire on June 20, 1974.The company moved that the Commission take jurisdiction of the contest. Themotion was granted by Administrative Law Judge Brennan. The Secretary requestedleave to file an interlocutory appeal to the full Commission, but the requestwas denied. The case was assigned to Judge Chalk for hearing. Judge Chalkdismissed the notice of contest on the ground that it was untimely filed.[2]The record indicates that the Secretary wrote Respondent?s attorney on July 1,1974, informing him that this Notice of Contest was not timely filed.”