“Docket No. 84-0733 SECRETARY OF LABOR,Complainant, v.PAV-SAVER MANUFACTURING COMPANY, Respondent.OSHRC Docket No. 84-0733DECISION Before: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.? 651-78 (\”the Act\”). The Commission is an adjudicatory agency, independent ofthe Department of Labor and the Occupational Safety and Health Administration. It wasestablished to resolve disputes arising out of enforcement actions brought by theSecretary Labor under the Act and has no regulatory functions. See section 10(c) of theAct, 29 U.S.C. ? 659(c).I.The issue presented is whether Chief Administrative Law Judge Paul A. Tenney erred ingranting the Secretary’s motion to dismiss Pav-Saver’s notice of contest for having beenuntimely filed. For the reasons that follow, we conclude that Respondent did timelycontest the citations and penalties 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 a number of seriousand nonserious violations of the Act, for which a total penalty of $3820 was proposed. Asevidenced by a return receipt, Pav-Saver received of $3820 was proposed. As evidenced by areturn receipt, Pav- Saver received the citations and accompanying notification ofproposed penalty on May 29, 1984. Therefore, under section 10(a) of the Act[[1]] Pav-Saverhad until June 19 to contest. On July 10 and again on July 19 Pav-Saver filed a writtennotice of contest was not timely filed, the Secretary moved for dismissal.[[2]]Following Judge Tenney’s dismissal order,[[3]] Pav-Saver filed a petition for review withthe Commission requesting that the 15-day contest period be \”waived\”because \”we did file for a hearing in Peoria [the location of the area office whichissued the citations], the rehearing was allowed and all violations were corrected [and]proof in the form of pictures were [sic] submitted to OSHA [and] accepted as proof ofcompliance.\” The petition also disputed the appropriateness of the penalties in viewof the type of violations, their prompt correction, and Pav- Saver’s financial conditionand previous compliance with the Act. Chairman Buckley then directed review on the issueswhether Pav-Saver’s request for a \”rehearing\” placed the Secretary on noticewithin 15 working days of May 29 that Pav-Saver intended to contest either the citationsor proposed penalties and whether Pav-Saver’s actions were sufficient to constitute atimely notice of contest or entitled Pav-Saver to relief under Federal Rule of CivilProcedure 60(b).In its response to the Commission Pav-Saver reiterated its reliance on its meeting withthe Secretary’s agents, stating \”[f]or a first time violation and in light of thefact that all violations were cured by the time of the Peoria, Illinois [rehearing] (June13, 1984, according to the time schedule file by Complainant). This was proven andaccepted as true by the OSHA people in Peoria on 6\/13\/84.\” Pav-Saver also contendedthat it was denied due process by being precluded from challenging the propriety of thepenalties proposed. The Secretary in turn filed an affidavit by the area director statingthat at Pav-Saver’s request an informal conference was held on June 13, 1984. Paragraph 9of the affidavit further stated as follows:During the informal conference the Pav-Saver officials indicated that they had abated allof the violations noted in the citations, explained the methods by which they had abated,and presented photographs depicting some of the abated conditions. Based upon thepresentation by the Pav-Saver representatives, it was my understanding that they hadattended the informal conference to seek approval of their abatement action. After thepresentation was made by the Pav-Saver officials, I indicated agreement with the methodsof abatement of the cited conditions. The Pav-Saver representatives appeared to besatisfied and terminated the conference. At no time during the conference was the subjectof the validity of the citations or penalties mentioned by Pav-Saver officials. At no timeduring the informal conference did Pav-Saver representatives indicate any confusion withrespect to their contest rights under the OSH Act of that Pav-Saver believed that evidenceof abatement or any other factor would result in the withdrawal or amendment of thecitations proposed penalties. At no time during the informal conference the informalconference did any OSHA representative indicate that abatement of violations would resultin the withdrawal or amendment of the citations or proposed penalties.Pav-Saver in turn disputed these assertions, stating that \”paragraph 8 and part ofnine are incorrect and wrong.\”[[4]] Pav-Saver also submitted a document styled\”Answer to Affidavit\”[[5]] which states in pertinent part as follows:Paragraph eight of the Gravatt affidavit is incorrect totally. Gravatt at no time at thatconference explained anything to the Pav-Saver people, in fact we were amazed at thealmost complete silence of the OSHA people, except for the \”good mornings,\”\”lets go into the conference room\” and \”you asked for the informalconference (Pav-Saver) so go ahead.\” We did proceed, showed our compliance with theinfractions, gave Gravatt pictures of proof (which they kept) and the meeting ended withtheir apparent approval.The silence of the OSHA people at the conference was strange and we both commented on iton the way back home, but we were pleased that they indicated thru [sic] their actions orin-action that OSHA accepted our compliance with all infractions, but at no time didGravatt or anyone else at the conference explain anything to us of the rules, regulations,our rights or anything else and this we will both swear to as correct and that Gravatt iswrong, dead wrong….In paragraph nine of the Gravatt affidavit, we were satisfied, we did abate all theviolations and presumed because no one said otherwise, that the OSHA people beingsatisfied that they had been abated, would dismiss everything and that the entire matterwas ended then [and] there, permanently.[[6]](emphasis in original)II.The filing of a notice of contest is a statutory prerequisite to Commission jurisdiction.Uncontested citations are self-executing and automatically become final orders of theCommission 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 Trucking Co.), 487 F.2d230 (5th Cir. 1973). There is no dispute that Pav-Saver’s formal written notice of contestdated July 10 was beyond the 15-day contest period prescribed by the Act. The questionbefore us in this case is whether Pav-Saver’s oral request for[[7]] and participation inan informal conference with the area director within the 15-day period are sufficient toconstitute a contest and thereby prevent the citations from becoming final. TheSecretary’s position is that the informal conference and request therefor do notconstitute a notice of contest because oral statements cannot be used to establish anemployer’s intent to contest. In any event, the Secretary also contends that assuming anemployer is permitted to make its contest orally, Pav-Saver did not do so. Rather, theSecretary asserts, Pav-Saver did not at the conference express any desire or intention tocontest either the citations or penalties and could not reasonably have thought that thediscussions regarding abatement were sufficient to put the Secretary on notice that acontest was intended.The Secretary relies on Keppel’s, Inc., 79 OSAHRC 43\/A2, 7 BNA OSHC 1442, 1979 CCH OSHD23,622 (No. 77-3020, 1979). In that case the Commission by a divided vote held that arequirement that notices of contest be in writing was consistent not only with regulationspromulgated by both the Secretary and the Commission[[8]] but also with the other filingprovisions set forth in the Act. The Commission in Keppel’s also concluded that the remedial purposes of the Act and the needto ascertain clearly and without doubt when a notice of contest is filed further justify arequirement for a writing.As explained more fully below, we conclude that Pav-Saver intended to put the validity ofthe citations into issue at its informal conference with the area director and that itsstatements at the informal conference are sufficient to constitute an oral notice ofcontest. We have reconsidered the rule of Keppel’s that a notice of contest must be filedin writing. We conclude that the rule is not sound, cannot be reconciled with the holdingsof both prior and subsequent cases, is not required by the Act itself, and creates aninjustice in circumstances similar to those here.In reaching the question whether oral notices of contest are sufficient to invokeCommission jurisdiction, our first inquiry is with the language of the statute itself.Section 9(a) of the Act, 29 U.S.C. ? 658(a), pertaining to the issuance of citations,expressly requires that each citation \”shall be in writing.\” Section 10(a), 29U.S.C. ? 659(a), similarly requires that the accompanying notification of proposedpenalties be written, since it provides that the employer is to be notified of theproposed assessment \”by certified mail.\” In contrast, employers in order tocontest citations or proposed certified mail.\” In contrast, employers in order tocontest citations or proposed penalties need only \”notify\” the Secretary of suchintent, 29 U.S.C. ? 659(a), (c). The term \”notify\” obviously is sufficientlybroad to include an oral notification. However, employees or their representatives, whounder the Act have the right to contest the length of time prescribed in a citation forabatement of violative conditions, are required to \”file\” a \”notice\”to exercise that right.The Secretary concedes before us here, as the Commission majority had observed inKeppel’s, that the Act does not explicitly require that an employer’s notice of contest bewritten. However, the Secretary contends that, since the terms \”file\” and\”notice\” regarding employee contests imply a written document, equal treatmentof the Secretary, employees, and employers justifies requiring that employers file writtennotices of contest as well. Accordingly, the Secretary argues that the Commission shoulddefer to his regulation as a reasonable interpretation of the statute. These argumentsbasically parallel the conclusions the Commission reached in Keppel’s.The statute’s specific use of terms indicating a writing when describing citations andnotifications issued by the Secretary is in contrast to the more general and less preciseterms \”file,\” \”notice,\” and \”notify\” used to describecontests by both employers and employees. As a strict matter of statutory construction,the use of obviously different terminology within the statutory provisions is evidence ofan intentional differentiation. Lankford v. LEAA, 620 F.2d 35 (4th Cir. 1980); UnitedStates v. Wong Kim Bo, 472 F.2d 720 (5th Cir. 1972). See FTC v. Sun Oil Co., 371 U.S. 505,514-15 (1963). As the court stated in Bolt v. American Hydrocarbon Corp., 458 F.2d 229,233 (5th Cir. 1972), when the legislature has employed a term in one section of a statuteand excluded it in another, it should not be implied where excluded. Accordingly, weconclude that the requirements for a writing applicable to the Secretary do not indicate asimilar requirement with respect to notices of contest. This conclusion is consistent withthe particular purpose citations and penalty notifications serve under the Act, which isto give employers fair and adequate notice of the charges against them so that they canproperly decide whether or not to contest.On the other hand, we agree with the Secretary that nothing in the Act suggests thatemployees and their representatives should be treated differently from employers in termsof filing requirements of their respective notices of contest. However, since the Act isnot explicit on this issue, but rather requires inferences to be drawn from the terms\”file\” \”notice,\” and \”notify,\” we conclude, as formerCommissioner Barnako suggested in his separate opinion in Keppel’s, that Congress had noparticular intent with respect to oral versus written notices of contest. Indeed, thelegislative history of the Act reflects that Congress simply did not consider thematter.[[9]] Accordingly, we conclude that Keppel’s is erroneous insofar as it relies onthe provisions of the Act as support for its conclusion that oral notices of contest haveno validity. We must look beyond the wording of the statute itself to resolve the issue.III.The Commission as well as the courts have long recognized that the relatively shortcontest period prescribed by the Act together with the potential complexity of citationsand penalty notifications create practical problems for employers faced with the decisionwhether to contest the Secretary’s allegations or implement the corrective action soughtby the Secretary. For example, in an early case, H.E. Lowdermilk Co., 74 OSAHRC 21\/A2, 1BNA OSHC 1663, 1973- 74 CCH OSHD (p) 17,656 (No. 133, 1974), the employer filed a noticeof contest as to some but not all items of the Secretary’s citation. At its hearing on thecontested items it objected to a previously uncontested item after the Secretary’sambiguous penalty notification was clarified to indicate that, contrary to the employer’soriginal belief, a penalty had been proposed for the item in question. The Commissionruled that in the circumstances the employer’s oral contest should be accepted.The principle of the Lowdermilk case–that an employer’s overall course of dealing withthe Secretary should be taken into consideration in determining if the employer has made atimely contest–is consistent with the subsequent holding of the Fifth Circuit in AtlanticMarine, Inc, v. OSHRC, 524 F.2d 476, 478 (5th Cir. 1975). In that case the court concludedthat the 15-day contest period prescribed under section 10(b) of the Act for contesting anotification that a previous violation had not been abated[[10]] was not an\”impenetrable barrier\” to consideration of the employer’s case. The courtdirected that the Commission make findings on whether the employer’s failure to timelycontest was due to deception 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 notice untimely filed wasnevertheless acceptable in the circumstances, the Commission subsequently concluded thatthe circumstances surrounding an employer’s contact with the Secretary may be sufficientto justify allowing the contest to be made orally within the 15-day period when the oralcontest is thereafter confirmed by a writing. In Wood Products Co., 78 OSAHRC 9\/B13, 4 BNAOSHC 1688, 1976-77 CCH OSHD (p) 21,097 (No. 9206, 1976), the employer orally contestedcitations and amended citations in a timely manner. It then filed a written notice ofcontest beyond the 15-day period but within five days after being told by the areadirector that a notice of contest had to be in writing. Although there was no evidence ofdeception or improper conduct on the part of the Secretary, the Commission allowed thecontest on the ground that the employer was confused by its many communications with thearea office, including the personal meetings and several telephone calls. The Commissionemphasized that, as in Lowdermilk, the employer promptly reacted after the area directorcorrected its mistaken impression that an oral notice of contest was sufficient.Similarly, in Florida Power & Light Co., 77 OSAHRC 45\/B9, 5 BNA OSHC 1277, 1977-78 CCHOSHD (p) 21,715 (No. 76-2177, 1977), the employer orally contested at a meeting with thearea director within the 15-day period. The employer was then told it could file a writtennotice on the following day, the last day of the contest period, but neglected to do sobecause of a company safety emergency. On the next day, one day after the expiration ofthe contest period, the area director stated that the notice would be accepted ifdelivered within two days or as soon as possible. Again, the Commission emphasized thatthe employer acted in a reasonable manner and was not dilatory in filing its writtencontest. In both cases, the Commission concluded that while the Secretary’s rulerestricting contests to those timely filed in writing is reasonable in view ofadministrative convenience, precise identity of the date of contest, and clarity as towhat is being contested, that rule can not be construed to establish an absoluterequirement in every case.The only Commission decision that refuses to allow an employer to establish a timelycontest by means of oral statements to the Secretary is Keppel’s, in which the Commissionoverruled Wood Products and Florida Power & Light. Despite its insistence in Keppel’sthat the language and purposes of the Act and the need for certainty and clarity demandthat contests always be made in writing, the Commission thereafter retreated from thisstrict rule. In Merritt Electric Co., 81 OSAHRC 75\/D4, 9 BNA OSHC 2088, 1981 CCH OSHD (p)25,556 (No. 77-3772, 1981), the employer did not file a written notice of contest until itreceived a penalty collection letter some 3 months after the citation was issued.Merritt’s letter back to OSHA stated that the employer had previously sought to contestthe citation and still wished to do so. This letter referred to a conversation with thecollection letter some 3 months after the citation was issued. Merritt’s letter back toOSHA stated that the employer had previously sought to contest the citation and stillwished to do so. This letter referred to a conversation with the area director within the15- day contest period when the employer requested that the compliance officer reinspectthe allegedly violative conditions. The employer’s impression was that the informalconference could be used as a means for establishing its contest. The Commission concludedthat this belief was reasonable because the area director had not specifically instructedthe employer to file a written notice in order to effectuate its contest. Although thespecific holding of the Commission was that the late-filed written notice was valid, it isclear that this holding was premised on the fact that the employer’s written noticeconfirmed its 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 employer disputed the Secretary’s positionat an informal conference and regarded the conference as a contest).The holding of Merritt is also analogous to other decisions issued after Keppel’s in whichthe Commission took into consideration statements made during discussions with theSecretary’s agents in determining whether to accept a written notice of contest filedbeyond the 15-day period. In B.J. Hughes, Inc., 79 OSAHRC 49\/E6, 7 BNA OSHC 1471, 1979 CCHOSHD (p) 23,675 (No. 76-2165, 1979), the Secretary’s agents erroneously computed the timeperiod for filing based on an assumption as to when the employer had received the citationand penalty notification. The Commission found valid a notice of contest filed within theperiod advised by the Secretary. Although the Secretary’s statements were not made withintent to deceive the employer, the Commission concluded that they were made with theintent that the employer rely on them. Similarly, in Henry C. Beck Co., 80 OSAHRC 50\/A2,OSHC 1395, 1980 CCH OSHD (p) 24,484 (No. 11864, 1980), the area director at an informalconference promised to reconsider the citation. The employer urged that the reconsider thecitation. The employer urged that the reconsideration be completed before the expirationof the contest period and stated what the employer thought to be the final contest date.This date was in fact outside the 15-day period because the employer was mistaken as towhen it had received the citation. The area director did not correct the employer’smisimpression. The Commission held that the employer’s contest filed untimely wasnevertheless valid because the final contest date was a critical factor at the informalconference, and the employer relied on the area director’s silence as to the final contestdate.Although these cases did not directly involve oral contests made during the 15-day period,they clearly demonstrate that oral statements within that period may not be disregarded inthe determination of whether an employer has properly contested. In our view, there islittle practical difference, if any, between the use of conversations with an areadirector for the purpose of determining whether an untimely written contest should beallowed and the acceptance of an oral expression of a contest when, as here, such an oralcontest is thereafter followed by a writing.To the extent that Keppel’s holds to the contrary, we think the case was incorrectlydecided. As we have said, the language of the Act itself does not support the result theCommission reached in that decision. Furthermore, we do not agree, as the Commissionstated in Keppel’s, that the need for certainty and clarity as to the time and contents ofa notice of contest requires a restriction of notices of contest of contest to those filedin writing. Our experience has demonstrated that even written notices of contest do notnecessarily assure clarity and precision. As a result, the Commission has had along-standing precedent that a notice of contest facially limited in scope will beconstrued broadly to effectuate the employer’s actual intent if subsequent pleadings filedby the employer indicate that its notice of contest did not properly express its originalintentions. Turnbull Millwork Co., 75 OSAHRC 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 employer subsequently pleadsthat such was its intent during the contest period). Indeed, the filing of written noticesof contest that do not clearly express the intent of employers has been persistentproblem. E.g., Maxwell Wirebound Box Co., 80 OSAHRC 84\/D11, 8 BNA OSHC 1995, 1980 CCH OSHD(p) 24,758 (No. 15965, 1980) (Turnbull applies to construe an initial request for relieflimited solely to the abatement date prescribed in a citation as a contest of theviolation allegation as well if subsequent pleadings show that at the time the notice ofcontest was filed the employer intended to contest the citation as a whole); Gil Haugan,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); Superior Boat Works, Inc., 76 OSAHRC 129\/G2, 4 BNAOSHC 1764, 1976-77 CCH OSHD (p) 21,159 (No. 12463, 1976). See Monarch Water Systems, Inc.,86 OSAHRC, 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 the employer’s intentions to contestcannot be avoided even with respect to written notices of contest. Penn-Dixie Steel Corp.v. OSHRC, 533 F.2d 1078 (7th Cir. 1977). Accordingly, while we appreciate the desirabilityof ensuring clarity and precision in employer contests, we do not consider this objectiveto be a sufficient reason for concluding that employers may never make their contestsknown by means other than a writing. Moreover, we think it is unfair and unjust to deny anemployer an opportunity to be heard before the Commission when due to confusion,uncertainty, or misunderstanding the employer fails to file its written notice of contestwithin the statutory time period, but orally disputes the validity of citations orpenalties in a timely manner and in good faith believes by so doing it has perfected avalid contest.[[11]]In our view, to give an employer relief from a strict application of the Secretary’s rulerequiring a written notice of contest will not frustrate the remedial purposes of the Act.In the first place, as former Commissioner Barnako observed in his separate opinion inKeppel’s, the purposes of the Act are not served by a final order affirming citations for,and thus requiring an employer to abate, conditions which, if the employer’s contest wereheard, the Commission might find not to be violative of the Act due to absence of proof bythe Secretary or a defense on the part of the employer. Secondly, and contrary to thesuggestion in the Secretary’s brief, the rule we adopt here will not encourage laxity inemployers making their contests known. Our experience demonstrates that the overwhelmingmajority of notices of contest are timely filed in writing. In those relatively fewinstances where timely notice of consequent writing from the employer evidencing theemployer’s intent. Such a rule is consistent with our previous case law on the subject andwith the Act itself.IV.Turning to the facts of this case, the parties agree that at the informal conference thearea director stated that he found Pav-Saver’s abatement measures to be satisfactory.Pav-Saver clearly was under the impression that it had received a \”rehearing,\”that is, a reconstruction of the citations by the area director, and that based on thearea director’s approval of its abatement methods the citations would be withdrawn.Therefore, Pav-Saver concluded that it had effectuated a contest of the citations. We findit unnecessary to resolve the conflict between the affidavits as to whether Pav-Saver wasinformed of its right to file a written notice of contest or to determine whetherPav-Saver in fact had received the OSHA informational booklet.[[12]] Regardless of theusual distinction between an informal conference and a notice of contest, Pav-Saver ineffect interpreted its discussion with the area director as a disposition in its favor onthe merits of the citations. Therefore, Pav-Saver could have reasonably concluded that aformal notice of contest to invoke the jurisdiction of the Commission was not necessary inthe circumstances. See Merritt Electric Co.[[13]] While it appears that the Secretary wasnot aware of Pav-Saver’s understanding of the substance and effect of the informalconference, there is nothing in the limited record before us to demonstrate that Pav-Saverdid not have a genuine good faith belief that it had adequately communicated itsobjections to the citations.[[14]] See Henry C. Beck (area director’s silence relied on asconfirming employer’s understanding of the substance of an informal conference). As westated in Seminole Distributors, 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 be made favors aliberal policy of allowing employers a hearing.Accordingly, we set aside the judge’s dismissal order and remand for proceedings on themerits of the citations and proposed penalties.[[15]]FOR THE COMMISSION Ray H. Darling, Jr.Executive Secretary DATED: 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 of reasons in support of orin opposition to the Secretary of Labor’s motion to dismiss Respondent employer’s noticeof contest for untimely filing.2. The Secretary’s motion has been considered and is hereby granted upon the groundsstated in the motion.So ORDERED.PAUL A. TENNEY Judge, OSHRCDated: October 30, 1984Washington, D.C. FOOTNOTES: [[1]]Section 10(a) 29 U.S.C. ? 659(a) provides in pertinent part as follows: If, after an inspection or investigation, the Secretary issues a citation…he shall,within a reasonable time after the termination of such inspection or investigation, notifythe employer by certified mail of the penalty, if any, proposed to be assessed…and thatthe employer has fifteen working days within which to notify the Secretary that he wishesto contest the citation or proposed assessment of he wishes to contest the citation orproposed assessment of penalty. If, within fifteen working days from the receipt of thenotice issued by the Secretary the employer fails to notify the Secretary that he intendsto contest the citation or proposed assessment, as proposed, shall be deemed a final orderof the Commission and not subject to review by any court or agency.[[2]]While acknowledging that his motion to dismiss relies on Pav-Saver’s letter of July19, the Secretary in his brief relies on the earlier letter for purposes of establishingthe date of Pav-Saver’s contest. Apparently only the second letter was transmitted to theCommission.[[3]]Judge Tenney stated that Pav-Saver had not opposed the Secretary’s motion fordismissal. The record reflects that Pav-Saver filed a response with the Secretary, andthat Judge Tenney was not made aware of Pav-Saver’s response. Pav-Saver opposed the motionon the same grounds it has argued to the Commission. It asserted that at the\”hearing\” at the area office it proved to OSHA’s satisfaction that theviolations had been corrected. Pav-Saver also opposed the Secretary’s dismissal motion onthe ground that it had not been notified of its rights \”before, during, and after thehearing….\”[[4]]Paragraph 8 of the affidavit states that in accordance with the area director’s usualprocedure, he explained that an informal conference does not affect an employer’s contestrights and that if Pav-Saver disagreed with the citations and penalties it was entitled tofile a notice of contest in writing. The affidavit also asserts that at the time of theinspection Pav-Saver was given a copy of OSHA’s informational booklet for employers, whichstates that a given a copy of OSHA’s informational booklet for employers, which statesthat a notice of contest must be in writing and that an informal conference does notextend the time for filing a notice of contest. Finally, according to the affidavit, thecitations were accompanied by the area director’s cover letter which in pertinent partprovides:As indicated on page 2 of the booklet, you may request an informal conference with meduring the 15-working- day notice of contest period. During the informal conference youmay request any evidence or views which you believe would support an adjustment to thecitation or the penalty.If you have any questions about the enclosed citations and penalties, I would welcomefurther discussion at the informal conference; and, where warranted, I am authorized toenter into an informal settlement agreement which amicably resolves the matter withoutlitigation or contest.[[5]]The Secretary did not present any statement by the area director to the judge.Rather, the Secretary contends that until the direction for review referred to Pav-Saver’srequest for a \”rehearing\” he was not aware that the Commission considered theinformal conference to have any significance. Therefore, the Secretary moved theCommission to reopen the record to allow the affidavit to be admitted, and he also filed astipulation in which Pav-Saver agreed to the admission of the affidavit and itsattachments. We conclude that the Secretary has complied with the requirements ofCommission Rule 69 regarding the admission of affidavits in lieu of oral testimony, and wegrant the motion. See Schulte 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, the Secretary does notspecifically object to its inclusion into the record. Accordingly, we reopen the record toallow the admission of Pav- Saver’s response 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\” whether Gravatt’sstatements that Pav- Saver was given a copy of the informational booklet and was sent thearea director’s cover letter are correct.[[7]]Although Pav-Saver’s petition for review states that it \”filed\” for arehearing, the record does not contain any written request for an informal conference noris there any contemporaneous written request for rehearing was made orally.[[8]]The Secretary’s regulation at 29 C.F.R. ? 1903.17(a) provides that \”[a]nyemployer to whom a citation or notice of proposed penalty has been issued may, undersection 10(a) of the Act, notify the Area Director in writing that he intends to contestsuch citation or proposed penalty before the Review Commission.\” (emphasis added).Commission Rule 32, 29 C.F.R. ? 2200.32, requires that the Secretary \”within 7 daysof receipt of a notice of contest, transmit the original to the Commission, together withcopies of all relevant documents.\”[[9]]The Senate report, for example, merely reiterates the statutory language withoutattributing any significance to the difference in phrasing between an employer’s contestand that of employees or their representatives. S. Rep. No. 1282, 91st Cong., 2d Sess. 33(1970), reprinted in Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess.,Legislative History of the Occupational Safety and Health Act of 1970, at 172 (Comm. Print1971). The House bill, which did not contain a provision for employer contests, wasdescribed as affording an employer a hearing if the employer \”decides\” tocontest. H.R. Rep. No. 1291, 91st Cong., 2d Sess 40, Comm. Print at 870. The conferencereport referred to the employer giving \”notice of his intention to contest\” andemployees having \”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, upon notice to theemployer, to propose a penalty \”[i]f the Secretary has reason to believe that anemployer has failed to correct a violation for which a citation has been issued within theperiod permitted for its correction….\” The employer’s contest rights are the sameas those described for citations and penalty notifications in section 10(a).[[11]]In one case involving the interpretation of a written notice of contest, the courtsuggested that ambiguity in notices of contest could easily be resolved if each citationand penalty notification were accompanied by a reply form with boxes the employer couldcheck to indicate an intent to contest the citation, proposed penalty, both, or neither.Brennan v. OSHRC (Bill Echols Trucking Co.), 487 F.2d 230 (5th Cir. 1973). While we neednot now consider whether adoption of this suggestion by the Secretary would reduce theincidence of employers seeking to contest citations orally, we share the court’s concernthat the Secretary’s procedures for the filing of contests by employers facilitate ratherthan impede employers in the exercise of their contest rights. 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 Manual states a follows:A written communication from an employer containing objection, criticism or other adversecomment as to a citation or proposed penalty, may not appear to be a notice of contest. Insuch cases, the Area Director should contact the employer to clarify the nature of hiscommunication. Such clarification must be accomplished within seven (7) days after receiptof the communication of the employer so that if, in fact, it is a notice of contest, thefile may be forwarded to the Review Commission within the allowed time. The Area Directorshould not attempt to \”talk the employer out of\” his contest if he intends tocontest; he should seek 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 a contemporaneous writtencommunication, it indicates that the Secretary does not construe his regulation asprohibiting the use of oral expressions 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 that Pav-Saver demonstrated a\”cavalier attitude\” toward the statutory contest procedure because itpersistently viewed the Secretary as both the prosecutor and adjudicator of OSHAcitations. We note that in the Commission and the Secretary. In any event, we are notinclined to attribute any significance to a pro se employer’s misunderstanding of therespective roles of the Commission and the Secretary. Even the appellate courts have attimes exhibited confusion as to the relationship 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 CCHOSHD (p) 22,987 (S.D.N.Y. 1978), on which the Secretary relies. In Arena the court heldthat a letter stating that the employer had corrected violations did not constitute avalid notice of contest because it lacked \”language indicating opposition ordisagreement with the proposed action….\” Id. at p. 27,789. In this case Pav-Saverdid not intend merely to inform the Secretary of its compliance but rather expected relieffrom the citations based on the Secretary’s acceptance of its abatement efforts. Thus,this case is factually different from Arena.[[15]]In view of our decision to allow Pav-Saver’s oral contest, we do not reach thequestion of whether Pav-Saver would also have been entitled to relief under Federal Ruleof Civil Procedure 60(b).”