” PAULMAR WIRE PRODUCTS, INC., Docket No.921p{\tmargin-top: 0px;\tmargin-bottom: 1px}table{\tborder-collapse: collapse;\tborder-spacing: 0pt;\tborder-color: black;\tempty-cells: show;\tfont-family: \”Calibri\”, sans-serif;\tfont-size: 11pt;\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: \”Calibri\”, sans-serif;\tfont-size: 11pt;\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. 921PAULMAR WIRE PRODUCTS, 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\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 REINSTATEMENTJuly 17, 1972Before MORAN, Chairman; VAN NAMEE and BURCH, CommissionersBURCH, COMMISSIONER:On June 15, 1972, Judge Bates issued his recommended order in this case granting theSecretary\u2019s motion to dismiss respondent\u2019s notice of contest because respondent failed to furnishproof of service on the Occupational Safety and Health Administration as required byCommission rule 2200.7(i)(2) within the statutory 15 working day period.By virtue of the authority vested in Members of the Commission by section 12(j) of theOccupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafterreferred to as \u2018the Act\u2019), I am herewith directing that the Judge\u2019s order be reviewed by theCommission.A review of the record by the Commission reveals that on April 3, 1972, respondentreceived a citation for seven non-serious violations of the Secretary\u2019s safety and health standardstogether with notification of a proposed penalty of $90. On April 25, the Area Director requestedpayment of the proposed penalties since notice of contest had not been received. On May 3,respondent forwarded a copy of a notice of contest allegedly sent on April 7 to the Area Director.In response to the Commission\u2019s Executive Secretary\u2019s request for certification of service onaffected employees or their authorized representative pursuant to Commission rule 2200.7(b)(1),respondent replied that all notices were posted. The complaint subsequently filed by theSecretary indicated that there was an authorized employee representative and that respondenthad not technically complied with the rule.On May 26, the Secretary forwarded his motion to dismiss respondent\u2019s notice of contest.It was unopposed.Commission rule 2200.7(i)(2) provides that unless otherwise specified herein serviceshall be personally or by certified or registered mail (emphasis supplied). Commission rule2200.7(c)(1) provides that filing of a notice of contest shall be in accordance with Secretary\u2019sregulation 1903.17. There is no provision in that regulation requiring registered or certified mail,only that the notice of contest be postmarked within 15 working days of receipt of thenotification of penalty.Moreover, the instructions to employers for filing notice of contest contained in thepenultimate paragraph of the Notification of Proposed Penalty require only that it be submittedin writing to the Area Director.Under the circumstances herein, we grant the respondent the opportunity for a hearing onthe merits, without prejudice to the Secretary\u2019s renewing his motion before the Judge to dismissrespondent\u2019s notice of contest for untimeliness.Accordingly, it is ordered that the Judge\u2019s order be set aside, the case is reinstated, theSecretary\u2019s motion is denied, provided respondent certifies service of notice of contest upon theauthorized employee representative in accordance with Commission rule 2200.7(b)(1) within 10days of the receipt of this letter.NOTE: Having filed proof of service in accordance with the Commission\u2019s Order stated abovethe Respondent\u2019s Notice of Contest was reinstated by the Executive Secretary by Order of theCommission.\u00a0[The Judge\u2019s decision referred to herein follows]BATES, JUDGE, OSAHRC:The Petitioner, through the medium of a Motion to Dismiss the Respondent\u2019s Notice ofContest filed on May 26, 1972, (reiterated in Paragraph VIII of his Complaint) urges that theSecretary\u2019s Citation and Notification of Proposed Penalty should be recognized as a final orderof the Commission pursuant to Section 10(a) of the Occupational Safety and Health Act of 1970,and in support thereof, asserts the following:(1) On March 29, 1972, the Secretary served on the respondent by certified mail acitation for a serious violation and a proposed penalty.(2) The citation and proposed penalty were received by the respondent on April 3, 1972.(3) The respondent mailed to the Secretary a notice of contest dated May 3, 1972, and itwas received by the Secretary on May 4, 1972.(4) By use of the method designated in section 2200.9 of the Occupational Safety andHealth Commission Rules of Procedure April 24, 1972, was the last day in which the respondentcould file his notice of contest. Section 29 C.F.R. 1903.17 states \u2018Such notice of intention tocontest shall be postmarked within 15 working days of the receipt by the employer of the noticeof proposed penalty.\u2019 By the Commission rules and section 10(a) of the Act, the respondent filedan untimely notice of contest. The mailing of the notice of contest on May 3, 1972 was notwithin the 15 working days of the receipt of the citation and proposed penalty.(5) The Secretary\u2019s citation and proposed penalty are a final order of the Commission.Section 10(a) states \u2018If, within fifteen working days from receipt of the notice issued by theSecretary, the employer fails to notify the Secretary that he intends to contest the citation orproposed assessment of penalty . . . the citation and the assessment, as proposed shall be deemeda final order of the Commission and not subject to review by any court or agency.\u2019(6) Under section 10(c) of the Act, the Commission is without jurisdiction in thisproceeding. The Commission\u2019s jurisdiction is contingent on whether or not the notice of contestwas properly filed under section 10(a) or 10(b).The respondent did not oppose the above motion. In a letter dated May 3, 1972, therespondent insists that he wished to contest the Citation issued on March 29, 1972, and in factdid so by a letter purported to be dated on April 7, 1972 (See Exhibits appended toComplainant\u2019s Motion, Docket Item 6).A review of the file reflects no proof of service of this letter on the Administration, asrequired by section 2200.7(i)(2) of the Commission Rules, and absent such proof of a proper andtimely Notice of Contest by the respondent, I have no alternative other than to hold that therespondent by and through its Notice of Contest dated May 3, 1972, failed to comply withsection 10(a) of the Act, and section 1903.17 of the Commission Rules, a copy of which hadbeen previously furnished to him.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0\u00a0SECRETARY 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\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. 921PAULMAR WIRE PRODUCTS, 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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.\u00a0\u00a0January 17, 1973CHODES, JUDGE, OSAHRC:This matter is before the undersigned Judge upon the request of Respondent, made onNovember 15, 1972, to withdraw its Notice of Contest. The record shows that a Citation andNotification of Proposed Penalty of $90 was issued on March 29, 1972, and received by theRespondent on April 3, 1972. A Notice of Contest dated April 7, 1972, was addressed by theRespondent to the Area Director of the Department of Labor, but there is no record of its receiptby the Area Director within 15 working days from receipt by the Respondent of the Notice ofProposed Penalty. However, according to a letter dated May 3, 1972, from the Respondent\u2019spresident, Paul Petras, the Notice of Contest dated April 7, 1972, referred to above was sent atthe time to the Area Director, because of a desire to contest \u2018these unfair penalties.\u2019 Accordingly,it is concluded that jurisdiction of this case by the Occupational Safety and Health ReviewCommission is established.The Citation in the instant case was for non-serious violation of Section 5(a)(2) of theOccupational Safety and Health Act of 1970, (29 U.S.C. 651, et seq.). The specific violationsalleged were that on March 21, 1972, the Respondent failed to provide tool rests or work rests ona bench grinder; failed to provide foot treadle guards on \u2018Lubow\u2019 bending, forming, and weldingmachines and on a \u2018Lubow\u2019 forming press; failed to post \u2018No Smoking\u2019 signs at entrance ofpaint booth; failed to guard live electric parts of a \u2018Sterling\u2019 butt welder and two \u2018Sterling\u2019 spotwelders; failed to ground two \u2018Lubow\u2019 trimming machines, a bench grinder and a drill press;failed to require employees to wear suitable eye protection at welding machines; and failed tomaintain the self-closing feature of a fire door at entrance to paint booth.In a letter dated November 15, 1972, the Respondent stated that it had abated all of theitems (violations) charged in the Citation, that the penalty of $90 had been paid, and that a copyof the request to withdraw had been posted.In a letter dated November 22, 1972, the Solicitor stated that a copy of the Respondent\u2019smotion to withdraw was forwarded to the employees\u2019 representative, Local #810, United Wire,Metal and Machine. In the same letter the Solicitor also stated that the $90 penalty had beenreceived and that the Secretary had no objection to the granting of the Respondent\u2019s motion towithdraw its Notice of Contest.While Respondent did not specifically provide assurance of continuing compliance withthe provisions of the Occupational Safety and Health Act, the Judge is of the opinion thatRespondent\u2019s correspondence bespeaks an intention to comply.A reasonable time has elapsed since the posting and service of the Respondent\u2019s motionto withdraw its Notice of Contest and no objections to the proposed action has been receivedfrom affected employees or their representative.The granting of the Respondent\u2019s motion to withdraw its Notice of Contest is consideredto be consistent with the provisions of the Occupational Safety and Health Act of 1970.Accordingly, it is ORDERED that the Respondent\u2019s motion to withdraw its Notice ofContest is hereby granted; and it is furtherORDERED that the Citation and the Proposed Penalty of $90 are hereby affirmed.\u00a0″