“SECRETARY OF LABOR,Complainant,v.PAV-SAVER MANUFACTURING COMPANY, Respondent.OSHRC Docket No. 84-0733_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 651-78 (\”the Act\”). The Commission is an adjudicatoryagency, independent of the Department of Labor and the OccupationalSafety and Health Administration. It was established to resolve disputesarising out of enforcement actions brought by the Secretary Labor underthe Act and has no regulatory functions. See section 10(c) of the Act,29 U.S.C. ? 659(c).I.The issue presented is whether Chief Administrative Law Judge Paul A.Tenney erred in granting the Secretary’s motion to dismiss Pav-Saver’snotice of contest for having been untimely filed. For the reasons thatfollow, we conclude that Respondent did timely contest the citations andpenalties proposed. We set aside the judges order and remand forproceedings on the merits.On May 23, 1984, the Secretary issued citations to Pav-Saver alleging anumber of serious and nonserious violations of the Act, for which atotal penalty of $3820 was proposed. As evidenced by a return receipt,Pav-Saver received of $3820 was proposed. As evidenced by a returnreceipt, Pav- Saver received the citations and accompanying notificationof proposed penalty on May 29, 1984. Therefore, under section 10(a) ofthe Act[[1]] Pav-Saver had until June 19 to contest. On July 10 andagain on July 19 Pav-Saver filed a written notice of contest was nottimely filed, the Secretary moved for dismissal.[[2]]Following Judge Tenney’s dismissal order,[[3]] Pav-Saver filed apetition for review with the Commission requesting that the 15-daycontest period be \”waived\”because \”we did file for a hearing in Peoria [the location of the areaoffice which issued the citations], the rehearing was allowed and allviolations were corrected [and] proof in the form of pictures were [sic]submitted to OSHA [and] accepted as proof of compliance.\” The petitionalso disputed the appropriateness of the penalties in view of the typeof violations, their prompt correction, and Pav- Saver’s financialcondition and previous compliance with the Act. Chairman Buckley thendirected review on the issues whether Pav-Saver’s request for a\”rehearing\” placed the Secretary on notice within 15 working days of May29 that Pav-Saver intended to contest either the citations or proposedpenalties and whether Pav-Saver’s actions were sufficient to constitutea timely notice of contest or entitled Pav-Saver to relief under FederalRule of Civil Procedure 60(b).In its response to the Commission Pav-Saver reiterated its reliance onits meeting with the Secretary’s agents, stating \”[f]or a first timeviolation and in light of the fact that all violations were cured by thetime of the Peoria, Illinois [rehearing] (June 13, 1984, according tothe time schedule file by Complainant). This was proven and accepted astrue by the OSHA people in Peoria on 6\/13\/84.\” Pav-Saver also contendedthat it was denied due process by being precluded from challenging thepropriety of the penalties proposed. The Secretary in turn filed anaffidavit by the area director stating that at Pav-Saver’s request aninformal conference was held on June 13, 1984. Paragraph 9 of theaffidavit further stated as follows:During the informal conference the Pav-Saver officials indicated thatthey had abated all of the violations noted in the citations, explainedthe methods by which they had abated, and presented photographsdepicting some of the abated conditions. Based upon the presentation bythe Pav-Saver representatives, it was my understanding that they hadattended the informal conference to seek approval of their abatementaction. After the presentation was made by the Pav-Saver officials, Iindicated agreement with the methods of abatement of the citedconditions. The Pav-Saver representatives appeared to be satisfied andterminated the conference. At no time during the conference was thesubject of the validity of the citations or penalties mentioned byPav-Saver officials. At no time during the informal conference didPav-Saver representatives indicate any confusion with respect to theircontest rights under the OSH Act of that Pav-Saver believed thatevidence of abatement or any other factor would result in the withdrawalor amendment of the citations proposed penalties. At no time during theinformal conference the informal conference did any OSHA representativeindicate that abatement of violations would result in the withdrawal oramendment of the citations or proposed penalties.Pav-Saver in turn disputed these assertions, stating that \”paragraph 8and part of nine are incorrect and wrong.\”[[4]] Pav-Saver also submitteda document styled \”Answer to Affidavit\”[[5]] which states in pertinentpart as follows:Paragraph eight of the Gravatt affidavit is incorrect totally. Gravattat no time at that conference explained anything to the Pav-Saverpeople, in fact we were amazed at the almost complete silence of theOSHA people, except for the \”good mornings,\” \”lets go into theconference room\” and \”you asked for the informal conference (Pav-Saver)so go ahead.\” We did proceed, showed our compliance with theinfractions, gave Gravatt pictures of proof (which they kept) and themeeting ended with their apparent approval.The silence of the OSHA people at the conference was strange and we bothcommented on it on the way back home, but we were pleased that theyindicated thru [sic] their actions or in-action that OSHA accepted ourcompliance with all infractions, but at no time did Gravatt or anyoneelse at the conference explain anything to us of the rules, regulations,our rights or anything else and this we will both swear to as correctand that Gravatt is wrong, dead wrong….In paragraph nine of the Gravatt affidavit, we were satisfied, we didabate all the violations and presumed because no one said otherwise,that the OSHA people being satisfied that they had been abated, woulddismiss everything and that the entire matter was ended then [and]there, permanently.[[6]](emphasis in original)II.The filing of a notice of contest is a statutory prerequisite toCommission jurisdiction. Uncontested citations are self-executing andautomatically become final orders of the Commission by operation of law.Marshall v. Sun Petroleum Products Co., 622 F.2d 1176, 1184 (3d Cir.),cert denied, 449 U.S. 1061 (1980). See Marshall v. Monroe & Sons, Inc.,615 F.2d 1156 (6th Cir. 1980); Brennan v. OSHRC (Bill Echols TruckingCo.), 487 F.2d 230 (5th Cir. 1973). There is no dispute that Pav-Saver’sformal written notice of contest dated July 10 was beyond the 15-daycontest period prescribed by the Act. The question before us in thiscase is whether Pav-Saver’s oral request for[[7]] and participation inan informal conference with the area director within the 15-day periodare sufficient to constitute a contest and thereby prevent the citationsfrom becoming final. The Secretary’s position is that the informalconference and request therefor do not constitute a notice of contestbecause oral statements cannot be used to establish an employer’s intentto contest. In any event, the Secretary also contends that assuming anemployer is permitted to make its contest orally, Pav-Saver did not doso. Rather, the Secretary asserts, Pav-Saver did not at the conferenceexpress any desire or intention to contest either the citations orpenalties and could not reasonably have thought that the discussionsregarding abatement were sufficient to put the Secretary on notice thata contest was intended.The Secretary relies on Keppel’s, Inc., 79 OSAHRC 43\/A2, 7 BNA OSHC1442, 1979 CCH OSHD 23,622 (No. 77-3020, 1979). In that case theCommission by a divided vote held that a requirement that notices ofcontest be in writing was consistent not only with regulationspromulgated by both the Secretary and the Commission[[8]] but also withthe other filing provisions set forth in the Act. TheCommission in Keppel’s also concluded that the remedial purposes of theAct and the need to ascertain clearly and without doubt when a notice ofcontest is filed further justify a requirement for a writing.As explained more fully below, we conclude that Pav-Saver intended toput the validity of the citations into issue at its informal conferencewith the area director and that its statements at the informalconference are sufficient to constitute an oral notice of contest. Wehave reconsidered the rule of Keppel’s that a notice of contest must befiled in writing. We conclude that the rule is not sound, cannot bereconciled with the holdings of both prior and subsequent cases, is notrequired by the Act itself, and creates an injustice in circumstancessimilar to those here.In reaching the question whether oral notices of contest are sufficientto invoke Commission jurisdiction, our first inquiry is with thelanguage of the statute itself. Section 9(a) of the Act, 29 U.S.C. ?658(a), pertaining to the issuance of citations, expressly requires thateach citation \”shall be in writing.\” Section 10(a), 29 U.S.C. ? 659(a),similarly requires that the accompanying notification of proposedpenalties be written, since it provides that the employer is to benotified of the proposed assessment \”by certified mail.\” In contrast,employers in order to contest citations or proposed certified mail.\” Incontrast, employers in order to contest citations or proposed penaltiesneed only \”notify\” the Secretary of such intent, 29 U.S.C. ? 659(a),(c). The term \”notify\” obviously is sufficiently broad to include anoral notification. However, employees or their representatives, whounder the Act have the right to contest the length of time prescribed ina citation for abatement of violative conditions, are required to \”file\”a \”notice\” to exercise that right.The Secretary concedes before us here, as the Commission majority hadobserved in Keppel’s, that the Act does not explicitly require that anemployer’s notice of contest be written. However, the Secretary contendsthat, since the terms \”file\” and \”notice\” regarding employee contestsimply a written document, equal treatment of the Secretary, employees,and employers justifies requiring that employers file written notices ofcontest as well. Accordingly, the Secretary argues that the Commissionshould defer to his regulation as a reasonable interpretation of thestatute. These arguments basically parallel the conclusions theCommission reached in Keppel’s.The statute’s specific use of terms indicating a writing when describingcitations and notifications issued by the Secretary is in contrast tothe more general and less precise terms \”file,\” \”notice,\” and \”notify\”used to describe contests by both employers and employees. As a strictmatter of statutory construction, the use of obviously differentterminology within the statutory provisions is evidence of anintentional differentiation. Lankford v. LEAA, 620 F.2d 35 (4th Cir.1980); United States v. Wong Kim Bo, 472 F.2d 720 (5th Cir. 1972). SeeFTC v. Sun Oil Co., 371 U.S. 505, 514-15 (1963). As the court stated inBolt v. American Hydrocarbon Corp., 458 F.2d 229, 233 (5th Cir. 1972),when the legislature has employed a term in one section of a statute andexcluded it in another, it should not be implied where excluded.Accordingly, we conclude that the requirements for a writing applicableto the Secretary do not indicate a similar requirement with respect tonotices of contest. This conclusion is consistent with the particularpurpose citations and penalty notifications serve under the Act, whichis to give employers fair and adequate notice of the charges againstthem so that they can properly decide whether or not to contest.On the other hand, we agree with the Secretary that nothing in the Actsuggests that employees and their representatives should be treateddifferently from employers in terms of filing requirements of theirrespective notices of contest. However, since the Act is not explicit onthis issue, but rather requires inferences to be drawn from the terms\”file\” \”notice,\” and \”notify,\” we conclude, as former CommissionerBarnako suggested in his separate opinion in Keppel’s, that Congress hadno particular intent with respect to oral versus written notices ofcontest. Indeed, the legislative history of the Act reflects thatCongress simply did not consider the matter.[[9]] Accordingly, weconclude that Keppel’s is erroneous insofar as it relies on theprovisions of the Act as support for its conclusion that oral notices ofcontest have no validity. We must look beyond the wording of the statuteitself to resolve the issue.III.The Commission as well as the courts have long recognized that therelatively short contest period prescribed by the Act together with thepotential complexity of citations and penalty notifications createpractical problems for employers faced with the decision whether tocontest the Secretary’s allegations or implement the corrective actionsought by the Secretary. For example, in an early case, H.E. LowdermilkCo., 74 OSAHRC 21\/A2, 1 BNA OSHC 1663, 1973- 74 CCH OSHD (p) 17,656 (No.133, 1974), the employer filed a notice of contest as to some but notall items of the Secretary’s citation. At its hearing on the contesteditems it objected to a previously uncontested item after the Secretary’sambiguous penalty notification was clarified to indicate that, contraryto the employer’s original belief, a penalty had been proposed for theitem in question. The Commission ruled that in the circumstances theemployer’s oral contest should be accepted.The principle of the Lowdermilk case–that an employer’s overall courseof dealing with the Secretary should be taken into consideration indetermining if the employer has made a timely contest–is consistentwith the subsequent holding of the Fifth Circuit in Atlantic Marine,Inc, v. OSHRC, 524 F.2d 476, 478 (5th Cir. 1975). In that case the courtconcluded that the 15-day contest period prescribed under section 10(b)of the Act for contesting a notification that a previous violation hadnot been abated[[10]] was not an \”impenetrable barrier\” to considerationof the employer’s case. The court directed that the Commission makefindings on whether the employer’s failure to timely contest was due todeception on the part of the Secretary or the Secretary’s failure tofollow his procedural rules or those of the Commission.Although Atlantic Marine involved the question whether a written noticeuntimely filed was nevertheless acceptable in the circumstances, theCommission subsequently concluded that the circumstances surrounding anemployer’s contact with the Secretary may be sufficient to justifyallowing the contest to be made orally within the 15-day period when theoral contest is thereafter confirmed by a writing. In Wood Products Co.,78 OSAHRC 9\/B13, 4 BNA OSHC 1688, 1976-77 CCH OSHD (p) 21,097 (No. 9206,1976), the employer orally contested citations and amended citations ina timely manner. It then filed a written notice of contest beyond the15-day period but within five days after being told by the area directorthat a notice of contest had to be in writing. Although there was noevidence of deception or improper conduct on the part of the Secretary,the Commission allowed the contest on the ground that the employer wasconfused by its many communications with the area office, including thepersonal meetings and several telephone calls. The Commission emphasizedthat, as in Lowdermilk, the employer promptly reacted after the areadirector corrected its mistaken impression that an oral notice ofcontest was sufficient. Similarly, in Florida Power & Light Co., 77OSAHRC 45\/B9, 5 BNA OSHC 1277, 1977-78 CCH OSHD (p) 21,715 (No. 76-2177,1977), the employer orally contested at a meeting with the area directorwithin the 15-day period. The employer was then told it could file awritten notice on the following day, the last day of the contest period,but neglected to do so because of a company safety emergency. On thenext day, one day after the expiration of the contest period, the areadirector stated that the notice would be accepted if delivered withintwo days or as soon as possible. Again, the Commission emphasized thatthe employer acted in a reasonable manner and was not dilatory in filingits written contest. In both cases, the Commission concluded that whilethe Secretary’s rule restricting contests to those timely filed inwriting is reasonable in view of administrative convenience, preciseidentity of the date of contest, and clarity as to what is beingcontested, that rule can not be construed to establish an absoluterequirement in every case.The only Commission decision that refuses to allow an employer toestablish a timely contest by means of oral statements to the Secretaryis Keppel’s, in which the Commission overruled Wood Products and FloridaPower & Light. Despite its insistence in Keppel’s that the language andpurposes of the Act and the need for certainty and clarity demand thatcontests always be made in writing, the Commission thereafter retreatedfrom this strict rule. In Merritt Electric Co., 81 OSAHRC 75\/D4, 9 BNAOSHC 2088, 1981 CCH OSHD (p) 25,556 (No. 77-3772, 1981), the employerdid not file a written notice of contest until it received a penaltycollection letter some 3 months after the citation was issued. Merritt’sletter back to OSHA stated that the employer had previously sought tocontest the citation and still wished to do so. This letter referred toa conversation with the collection letter some 3 months after thecitation was issued. Merritt’s letter back to OSHA stated that theemployer had previously sought to contest the citation and still wishedto do so. This letter referred to a conversation with the area directorwithin the 15- day contest period when the employer requested that thecompliance officer reinspect the allegedly violative conditions. Theemployer’s impression was that the informal conference could be used asa means for establishing its contest. The Commission concluded that thisbelief was reasonable because the area director had not specificallyinstructed the employer to file a written notice in order to effectuateits contest. Although the specific holding of the Commission was thatthe late-filed written notice was valid, it is clear that this holdingwas premised on the fact that the employer’s written notice confirmedits prior oral conversations with the area director. See also Con-LinConstruction Co., 83 OSAHRC 49\/A13, 11 BNA OSHC 1757, 1983-84 CCH OSHD(p) 26,729 (No. 83-371, 1983) (finding contest valid where the employerdisputed the Secretary’s position at an informal conference and regardedthe conference as a contest).The holding of Merritt is also analogous to other decisions issued afterKeppel’s in which the Commission took into consideration statements madeduring discussions with the Secretary’s agents in determining whether toaccept a written notice of contest filed beyond the 15-day period. InB.J. Hughes, Inc., 79 OSAHRC 49\/E6, 7 BNA OSHC 1471, 1979 CCH OSHD (p)23,675 (No. 76-2165, 1979), the Secretary’s agents erroneously computedthe time period for filing based on an assumption as to when theemployer had received the citation and penalty notification. TheCommission found valid a notice of contest filed within the periodadvised by the Secretary. Although the Secretary’s statements were notmade with intent to deceive the employer, the Commission concluded thatthey were made with the intent that the employer rely on them.Similarly, in Henry C. Beck Co., 80 OSAHRC 50\/A2, OSHC 1395, 1980 CCHOSHD (p) 24,484 (No. 11864, 1980), the area director at an informalconference promised to reconsider the citation. The employer urged thatthe reconsider the citation. The employer urged that the reconsiderationbe completed before the expiration of the contest period and stated whatthe employer thought to be the final contest date. This date was in factoutside the 15-day period because the employer was mistaken as to whenit had received the citation. The area director did not correct theemployer’s misimpression. The Commission held that the employer’scontest filed untimely was nevertheless valid because the final contestdate was a critical factor at the informal conference, and the employerrelied on the area director’s silence as to the final contest date.Although these cases did not directly involve oral contests made duringthe 15-day period, they clearly demonstrate that oral statements withinthat period may not be disregarded in the determination of whether anemployer has properly contested. In our view, there is little practicaldifference, if any, between the use of conversations with an areadirector for the purpose of determining whether an untimely writtencontest should be allowed and the acceptance of an oral expression of acontest when, as here, such an oral contest is thereafter followed by awriting.To the extent that Keppel’s holds to the contrary, we think the case wasincorrectly decided. As we have said, the language of the Act itselfdoes not support the result the Commission reached in that decision.Furthermore, we do not agree, as the Commission stated in Keppel’s, thatthe need for certainty and clarity as to the time and contents of anotice of contest requires a restriction of notices of contest ofcontest to those filed in writing. Our experience has demonstrated thateven written notices of contest do not necessarily assure clarity andprecision. As a result, the Commission has had a long-standing precedentthat a notice of contest facially limited in scope will be construedbroadly to effectuate the employer’s actual intent if subsequentpleadings filed by the employer indicate that its notice of contest didnot properly express its original intentions. Turnbull Millwork Co., 75OSAHRC 16\/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD (p) 20,221 (N. 7413,1975) (notice of contest apparently limited to the penalty will beconstrued as also contesting the underlying citation when the employersubsequently pleads that such was its intent during the contest period).Indeed, the filing of written notices of contest that do not clearlyexpress the intent of employers has been persistent problem. E.g.,Maxwell Wirebound Box Co., 80 OSAHRC 84\/D11, 8 BNA OSHC 1995, 1980 CCHOSHD (p) 24,758 (No. 15965, 1980) (Turnbull applies to construe aninitial request for relief limited solely to the abatement dateprescribed in a citation as a contest of the violation allegation aswell if subsequent pleadings show that at the time the notice of contestwas filed the employer intended to contest the citation as a whole); GilHaugan, 77 OSAHRC 182\/G3, 5 BNA OSHC 1956, 1957, 1977-78 CCH OSHD (p)22,248 (No. 14675, 1977), aff’d, 586 F.2d 1263 (8th Cir. 1978); SuperiorBoat Works, Inc., 76 OSAHRC 129\/G2, 4 BNA OSHC 1764, 1976-77 CCH OSHD(p) 21,159 (No. 12463, 1976). See Monarch Water Systems, Inc., 86OSAHRC, 12 BNA OSHC 1897, 1900, 1986 CCH OSHD (p) 27,632, p. 35,934 (No.83-943, 1986). It is thus well-settled that uncertainty regarding theemployer’s intentions to contest cannot be avoided even with respect towritten notices of contest. Penn-Dixie Steel Corp. v. OSHRC, 533 F.2d1078 (7th Cir. 1977). Accordingly, while we appreciate the desirabilityof ensuring clarity and precision in employer contests, we do notconsider this objective to be a sufficient reason for concluding thatemployers may never make their contests known by means other than awriting. Moreover, we think it is unfair and unjust to deny an employeran opportunity to be heard before the Commission when due to confusion,uncertainty, or misunderstanding the employer fails to file its writtennotice of contest within the statutory time period, but orally disputesthe validity of citations or penalties in a timely manner and in goodfaith believes by so doing it has perfected a valid contest.[[11]]In our view, to give an employer relief from a strict application of theSecretary’s rule requiring a written notice of contest will notfrustrate the remedial purposes of the Act. In the first place, asformer Commissioner Barnako observed in his separate opinion inKeppel’s, the purposes of the Act are not served by a final orderaffirming citations for, and thus requiring an employer to abate,conditions which, if the employer’s contest were heard, the Commissionmight find not to be violative of the Act due to absence of proof by theSecretary or a defense on the part of the employer. Secondly, andcontrary to the suggestion in the Secretary’s brief, the rule we adopthere will not encourage laxity in employers making their contests known.Our experience demonstrates that the overwhelming majority of notices ofcontest are timely filed in writing. In those relatively few instanceswhere timely notice of consequent writing from the employer evidencingthe employer’s intent. Such a rule is consistent with our previous caselaw on the subject and with the Act itself.IV.Turning to the facts of this case, the parties agree that at theinformal conference the area director stated that he found Pav-Saver’sabatement measures to be satisfactory. Pav-Saver clearly was under theimpression that it had received a \”rehearing,\” that is, a reconstructionof the citations by the area director, and that based on the areadirector’s approval of its abatement methods the citations would bewithdrawn. Therefore, Pav-Saver concluded that it had effectuated acontest of the citations. We find it unnecessary to resolve the conflictbetween the affidavits as to whether Pav-Saver was informed of its rightto file a written notice of contest or to determine whether Pav-Saver infact had received the OSHA informational booklet.[[12]] Regardless ofthe usual distinction between an informal conference and a notice ofcontest, Pav-Saver in effect interpreted its discussion with the areadirector as a disposition in its favor on the merits of the citations.Therefore, Pav-Saver could have reasonably concluded that a formalnotice of contest to invoke the jurisdiction of the Commission was notnecessary in the circumstances. See Merritt Electric Co.[[13]] While itappears that the Secretary was not aware of Pav-Saver’s understanding ofthe substance and effect of the informal conference, there is nothing inthe limited record before us to demonstrate that Pav-Saver did not havea genuine good faith belief that it had adequately communicated itsobjections to the citations.[[14]] See Henry C. Beck (area director’ssilence relied on as confirming employer’s understanding of thesubstance of an informal conference). As we stated in SeminoleDistributors, Inc., 77 OSAHRC 211\/D9, 6 BNA OSHC 1194, 1977-78 CCH OSHD(p) 22,412 (No. 15671, 1977), the short period in which contests must bemade favors a liberal policy of allowing employers a hearing.Accordingly, we set aside the judge’s dismissal order and remand forproceedings on the merits of the citations and proposed penalties.[[15]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: AUG 28 1986————————————————————————SECRETARY OF LABOR,Complainantv.PAV-SAVER MANUFACTURING CO. RespondentDOCKET NUMBER 84-0733ORDER1. The parties have filed nothing by way of written statements ofreasons in support of or in opposition to the Secretary of Labor’smotion to dismiss Respondent employer’s notice of contest for untimelyfiling.2. The Secretary’s motion has been considered and is hereby granted uponthe grounds stated in the motion.So ORDERED.PAUL A. TENNEYJudge, OSHRCDated: October 30, 1984Washington, D.C.FOOTNOTES:[[1]]Section 10(a) 29 U.S.C. ? 659(a) provides in pertinent part asfollows:If, after an inspection or investigation, the Secretary issues acitation…he shall, within a reasonable time after the termination ofsuch inspection or investigation, notify the employer by certified mailof the penalty, if any, proposed to be assessed…and that the employerhas fifteen working days within which to notify the Secretary that hewishes to contest the citation or proposed assessment of he wishes tocontest the citation or proposed assessment of penalty. If, withinfifteen working days from the receipt of the notice issued by theSecretary the employer fails to notify the Secretary that he intends tocontest the citation or proposed assessment, as proposed, shall bedeemed a final order of the Commission and not subject to review by anycourt or agency.[[2]]While acknowledging that his motion to dismiss relies onPav-Saver’s letter of July 19, the Secretary in his brief relies on theearlier letter for purposes of establishing the date of Pav-Saver’scontest. Apparently only the second letter was transmitted to theCommission.[[3]]Judge Tenney stated that Pav-Saver had not opposed the Secretary’smotion for dismissal. The record reflects that Pav-Saver filed aresponse with the Secretary, and that Judge Tenney was not made aware ofPav-Saver’s response. Pav-Saver opposed the motion on the same groundsit has argued to the Commission. It asserted that at the \”hearing\” atthe area office it proved to OSHA’s satisfaction that the violations hadbeen corrected. Pav-Saver also opposed the Secretary’s dismissal motionon the ground that it had not been notified of its rights \”before,during, and after the hearing….\”[[4]]Paragraph 8 of the affidavit states that in accordance with thearea director’s usual procedure, he explained that an informalconference does not affect an employer’s contest rights and that ifPav-Saver disagreed with the citations and penalties it was entitled tofile a notice of contest in writing. The affidavit also asserts that atthe time of the inspection Pav-Saver was given a copy of OSHA’sinformational booklet for employers, which states that a given a copy ofOSHA’s informational booklet for employers, which states that a noticeof contest must be in writing and that an informal conference does notextend the time for filing a notice of contest. Finally, according tothe affidavit, the citations were accompanied by the area director’scover letter which in pertinent part provides:As indicated on page 2 of the booklet, you may request an informalconference with me during the 15-working- day notice of contest period.During the informal conference you may request any evidence or viewswhich you believe would support an adjustment to the citation or thepenalty.If you have any questions about the enclosed citations and penalties, Iwould welcome further discussion at the informal conference; and, wherewarranted, I am authorized to enter into an informal settlementagreement which amicably resolves the matter without litigation or contest.[[5]]The Secretary did not present any statement by the area director tothe judge. Rather, the Secretary contends that until the direction forreview referred to Pav-Saver’s request for a \”rehearing\” he was notaware that the Commission considered the informal conference to have anysignificance. Therefore, the Secretary moved the Commission to reopenthe record to allow the affidavit to be admitted, and he also filed astipulation in which Pav-Saver agreed to the admission of the affidavitand its attachments. We conclude that the Secretary has complied withthe requirements of Commission Rule 69 regarding the admission ofaffidavits in lieu of oral testimony, and we grant the motion. SeeSchulte Corp., 85 OSAHRC, 12 BNA OSHC 1222, 1225 n.6, 1984-85 OSHD (p)27,210, p. 35,127 n.6 (No. 80-2666, 1985).Although Pav-Saver’s response to the affidavit is not sworn, theSecretary does not specifically object to its inclusion into the record.Accordingly, we reopen the record to allow the admission of Pav- Saver’sresponse as well. See OSHD (p) 23,326, p. 28,215 (No. 78-2230, 1979).[[6]]This answer also avers that Pav-Saver \”does not know\” whetherGravatt’s statements that Pav- Saver was given a copy of theinformational booklet and was sent the area director’s cover letter arecorrect.[[7]]Although Pav-Saver’s petition for review states that it \”filed\” fora rehearing, the record does not contain any written request for aninformal conference nor is there any contemporaneous written request forrehearing was made orally.[[8]]The Secretary’s regulation at 29 C.F.R. ? 1903.17(a) provides that\”[a]ny employer to whom a citation or notice of proposed penalty hasbeen issued may, under section 10(a) of the Act, notify the AreaDirector in writing that he intends to contest such citation or proposedpenalty before the Review Commission.\” (emphasis added). Commission Rule32, 29 C.F.R. ? 2200.32, requires that the Secretary \”within 7 days ofreceipt of a notice of contest, transmit the original to the Commission,together with copies of all relevant documents.\”[[9]]The Senate report, for example, merely reiterates the statutorylanguage without attributing any significance to the difference inphrasing between an employer’s contest and that of employees or theirrepresentatives. S. Rep. No. 1282, 91st Cong., 2d Sess. 33 (1970),reprinted in Senate Comm. on Labor and Public Welfare, 92d Cong., 1stSess., Legislative History of the Occupational Safety and Health Act of1970, at 172 (Comm. Print 1971). The House bill, which did not contain aprovision for employer contests, was described as affording an employera hearing if the employer \”decides\” to contest. H.R. Rep. No. 1291, 91stCong., 2d Sess 40, Comm. Print at 870. The conference report referred tothe employer giving \”notice of his intention to contest\” and employeeshaving \”the right to appeal the time allowed for abatement….\” H.R.Rep. No. 1765, 91st Cong., 2d Sess. 38, Comm. Print at 1191.[[10]]Section 10(b), 29 U.S.C. ? 659(b), allows the Secretary, uponnotice to the employer, to propose a penalty \”[i]f the Secretary hasreason to believe that an employer has failed to correct a violation forwhich a citation has been issued within the period permitted for itscorrection….\” The employer’s contest rights are the same as thosedescribed for citations and penalty notifications in section 10(a).[[11]]In one case involving the interpretation of a written notice ofcontest, the court suggested that ambiguity in notices of contest couldeasily be resolved if each citation and penalty notification wereaccompanied by a reply form with boxes the employer could check toindicate an intent to contest the citation, proposed penalty, both, orneither. Brennan v. OSHRC (Bill Echols Trucking Co.), 487 F.2d 230 (5thCir. 1973). While we need not now consider whether adoption of thissuggestion by the Secretary would reduce the incidence of employersseeking to contest citations orally, we share the court’s concern thatthe Secretary’s procedures for the filing of contests by employersfacilitate rather than impede employers in the exercise of their contestrights. See Marshall v. Gil Haugan, 586 F.2d 1263, 1266 n.2 (10th Cir.1978).We also note that chapter XV.B.1.d of the OSHA Field Operations Manualstates a follows:A written communication from an employer containing objection, criticismor other adverse comment as to a citation or proposed penalty, may notappear to be a notice of contest. In such cases, the Area Directorshould contact the employer to clarify the nature of his communication.Such clarification must be accomplished within seven (7) days afterreceipt of the communication of the employer so that if, in fact, it isa notice of contest, the file may be forwarded to the Review Commissionwithin the allowed time. The Area Director should not attempt to \”talkthe employer out of\” his contest if he intends to contest; he shouldseek only to clarify whether the employer intends the document to be anotice of contest.(emphasis in original)While this provision deals with statements in conjunction with acontemporaneous written communication, it indicates that the Secretarydoes not construe his regulation as prohibiting the use of oralexpressions of an intent to contest in all circumstances.[[12]]See notes 4 and 6 supra.[[13]]In this regard, we reject the Secretary’s contention thatPav-Saver demonstrated a \”cavalier attitude\” toward the statutorycontest procedure because it persistently viewed the Secretary as boththe prosecutor and adjudicator of OSHA citations. We note that in theCommission and the Secretary. In any event, we are not inclined toattribute any significance to a pro se employer’s misunderstanding ofthe respective roles of the Commission and the Secretary. Even theappellate courts have at times exhibited confusion as to therelationship between the Secretary and the Commission. See, e.g.,Noranda Aluminum, Inc. v. OSHRC, 593 F.2d 811, 814 (8th Cir. 1979) (caseremanded to the Secretary for reevaluation); D. Federico Co. v. OSHRC,558 F.2d 614, 617 (1st Cir. 1977) (Commission referred to as prosecutor).[[14]]We think this case is distinguishable from Arena Constr. Co. v.Marshall, 1978 CCH OSHD (p) 22,987 (S.D.N.Y. 1978), on which theSecretary relies. In Arena the court held that a letter stating that theemployer had corrected violations did not constitute a valid notice ofcontest because it lacked \”language indicating opposition ordisagreement with the proposed action….\” Id. at p. 27,789. In thiscase Pav-Saver did not intend merely to inform the Secretary of itscompliance but rather expected relief from the citations based on theSecretary’s acceptance of its abatement efforts. Thus, this case isfactually different from Arena.[[15]]In view of our decision to allow Pav-Saver’s oral contest, we donot reach the question of whether Pav-Saver would also have beenentitled to relief under Federal Rule of Civil Procedure 60(b).”