“MIME-Version: 1.0 Content-Type: multipart\/related;boundary=\”—-=_NextPart_01C93FFC.D5614540\” This document is a SingleFile Web Page, also known as a Web Archive file. If you are seeing thismessage, your browser or editor doesn’t support Web Archive files.Please download a browser that supports Web Archive, such as MicrosoftInternet Explorer. ——=_NextPart_01C93FFC.D5614540 Content-Location:file:\/\/\/C:\/50E8AEED\/07-0252rem.htm.htm Content-Transfer-Encoding:quoted-printable Content-Type: text\/html; charset=\”us-ascii\”SECRETARY OF LABOR,=\t Complainant,\t v.\tOSHRC Docket No. 07= -0252PRIME ROOFING CORPO= RATION,\t Respondent.\t APPEARANCES:Lee Grabel, Attorney; Jonathan L. Snare, Acting Solicitor of Labor; U.S.Department of Labor, Washingt= on, DC For the Complainant William A. Seppala, \/pro se\/, Prime Roofing Corporation; New Ipswich, NH For the Respondent *DIRECTION FOR REVIEW AND REMAND OR= DER* Before: THOMPSON, Chairman; ROGERS, Commissioner.BY THE COMMISSION: = On January 17, 2007, the Occupational Safety and HealthAdministration (?OSHA?) issued Prime Roofing Corporation (?PRC?) acitation alleging a repeat violation of 29 C.F.R. ? 1926.501(b)(1= ). After holding a hearing on the mat= ter on June 26, 2007, AdministrativeLaw Judge Covette Rooney sent her decision and order vacating thecitation to the parties on September 18, 2007. On September 27, 2007,the Secreta= ry filed a Motion to Amend Pleadings with the judge basedupon Federal Rule of Civil Procedure 15(b), in which she moves to amendher complaint to allege,= in the alternative, a violation of 29 C.F.R. ?1926.501(b)(10). Without ruling on the Secretary\b= 217;s motion, thejudge submitted her decision to the Executive Secretary for docketingon September 28, 2007. On this same date, PRC, appearing \/pro se\/,filed a letter with the judge requesting that she deny the Secretary?smotion to amend. Subsequently, on October 9, 2007, theSecretary filed with the Commission the same motion= she sent to thejudge along with an accompanying cover letter, requesting that = theCommission consider the two documents as her Petition for DiscretionaryReview. On October 29, 2007, the Commission received a Statement inOpposition to Petition from PRC requesting the Commission deny theSecretary?s motion to amend. = Under Commission Rule of Procedure 90(b)(2), the judgefirst sends a copy of his = or her decision to each party andsubsequently files the decision with the Executive Secretary fordocketing. 29 C.F.R. ? 2200.90(b)(2). Here, the judge did notreceive the Secretary?s motion to amend until the day before she filedthe decision with the Executive Secretary for docketing, and shereceived PRC?s response to the motion the following day. As the judge?sdec= ision was filed with the Executive Secretary the day after thejudge received the Secretary?s motion, the judge did not have a fullopportunity to pass upon the motion or PRC?s opposition filing. Further, Commission Rule of Procedure 92(c) provides that ?[t]heCommission wi= ll ordinarily not review issues that the [j]udge did nothave the opportunity = to pass upon.? 29 C.F.R. &= sect; 2200.92(c);\/accord Saipan-Koreana H= otel\/, 21 BNA OSHC 1403, 1405 (No. 02-2129,2006) (remanding case because judge did not have the opportunity to passupon certain issues). Accordingly, we direct this cas= e for review and remand the matter tothe judge to allow for full consideration of the Secretary?s motion toamend. SO ORDERED. &n= bsp; = ; &n= bsp; =; &n= bsp; = ; BY DIRECTION OF THE COMMISSION = &nb= sp; = &nb=sp; = &nb= sp; = \/s\/Date: October 31, 2007 &n= bsp; = ; &n=bsp; = ; Ray H. Darling, Jr. = &nb= sp; = &nb=sp; = &nb= sp; = Executive Secretary——=_NextPart_01C93FFC.D5614540 Content-Location:file:\/\/\/C:\/50E8AEED\/07-0252rem.htm_files\/header.htmContent-Transfer-Encoding: quoted-printable Content-Type: text\/html;charset=\”us-ascii\”————————————————————————————————————————————————————————————————————————————————————————————————PAGE= PAGE 2= ——=_NextPart_01C93FFC.D5614540 Content-Location:file:\/\/\/C:\/50E8AEED\/07-0252rem.htm_files\/filelist.xmlContent-Transfer-Encoding: quoted-printable Content-Type: text\/xml;charset=\”utf-8\” ——=_NextPart_01C93FFC.D5614540–“