” S.J. OTINGER JR. CONSTRUCTION, Docket No.1468p{\tmargin-top: 0px;\tmargin-bottom: 1px}table{\tborder-collapse: collapse;\tborder-spacing: 0pt;\tborder-color: black;\tempty-cells: show;\tfont-family: \”Times New Roman\”, serif;\tfont-size: 12pt;\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: \”Times New Roman\”, serif;\tfont-size: 12pt;\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. 1468\u00a0\u00a0S.J. OTINGER JR. CONSTRUCTION,\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 REINSTATEMENTMarch 14, 1973By the Commission:Case reinstated without prejudice to the Secretary raising the issue of prejudice at the hearing.\u00a0\u00a0[The Judge\u2019s decision referred to herein follows]BATES, JUDGES, OSAHRC:Ruling on the Secretary\u2019s motion to dismiss notice of contest: Granted.\u00a0UNITED 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. 1468S.J. OTINGER JR. CONSTRUCTION,\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\u00a0July 2, 1973BURROUGHS, JUDGE, OSAHRC:This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter referred to as the Act) to review a citation forserious violation issued by the Secretary of Labor (hereinafter referred to as the complainant),pursuant to Section 9(a) of the Act, and the proposed assessment of a penalty of $600.00proposed pursuant to Section 10(a) of the Act.On the basis of an inspection of a workplace under the ownership, operation, or controlof the respondent located at Castle Cove, Rome, Georgia, it is alleged that respondent violatedSection 5(a)(2) of the Act by failing to comply with the safety standard published at 29 CFR1926.910(b). A citation for serious violation was issued on September 5, 1972, and described thealleged violation as follows:The employer failed to furnish his employees a safe work place in that theemployer did not make an inspection of a blast area and the surrounding rubblemade by the blast to determine if all charges had been exploded before theemployees were allowed to return to work in the blast area.\u00a0The notification of proposed penalty issued on the same date proposed a penalty of $600.00 forthe alleged violation.Respondent, by letter dated September 14, 1972, timely notified complainant that itwished to contest the citation for serious violation issued September 5, 1972. A complaint wasforwarded for filing with the Commission by letter dated September 20, 1972, and was receivedon September 25, 1972. No answer was filed in accordance with Commission Rule 33(b), and aMotion To Dismiss was filed by complainant and received by the Commission on November 2,1972, requesting that the case be dismissed for failure to file an answer. The complainant\u2019smotion was granted by Judge Herbert E. Bates and a Commission notice of Judge Bates\u2019 actionon the motion was mailed to the parties indicating that the Commission received the ruling onNovember 29, 1972. The notice specified that the Judge\u2019s ruling would become a final order ofthe Commission on December 29, 1972 if no Commissioner directed review.On December 14, 1972, respondent filed an answer with the Commission. The answerwas forwarded by letter dated December 8, 1972, from attorney George White, who inquired asto the present status of the case. The complainant apparently construed the answer as a requestby respondent to reinstate the case and by letter of December 19, 1972, forwarded a Response ToPetition For Reconsideration which was received by the Commission on December 21, 1972.The response contained a copy of the receipt for certified mail which reflected that the complaintwas mailed to Mr. S.J. Otinger, Jr. on September 20, 1972, and received by him on September26, 1972. Complainant argues that the disregard of the Commission\u2019s Rules had prejudiced hiscase in that several witnesses essential to proving his case were or would be unavailable forhearing. No immediate action was taken by the Commission with respect to the filing of theanswer or the complainant\u2019s response. On January 2, 1973, notice was issued by the Commissionthat the order of the Commission Judge became the final order of the Commission on December29, 1972.By letter dated December 28, 1972, and received by the Commission on January 3, 1973,attorney George White inquired as to the present status of the case. On January 23, 1973, theCommission received a Petition for Reinstatement of Notice of Contest forwarded on behalf ofrespondent by attorney George White by letter dated January 16, 1973. On March 14, 1973 theCommission entered an Order of Reinstatement reinstating the case without prejudice to theComplainant raising the issue of prejudice at the hearing.On March 27, 1973, a Notice of Hearing was issued scheduling the case for a hearing inRome, Georgia, on April 26, 1973. The case was assigned to this Judge on March 29, 1973, forpurposes of conducting a hearing pursuant to Section 10(c). On April 9, 1973, complainant fileda Motion to Dismiss on the grounds that the Commission lacked jurisdiction to reinstate the casesince such reinstatement was ordered on March 14, 1973, which was more than 60 dayssubsequent to the Commission\u2019s Final Order of December 29, 1972. Complainant\u2019s motion wasdenied by this Judge\u2019s Order of April 16, 1973, for the reason that this Judge lacked authority togrant the motion even if complainant\u2019s position was meritorious.The case was called for hearing in Rome, Georgia, on April 26, 1973. An appearance wasmade on behalf of the complainant for the purpose of reiterating its position that the Commissionlacked jurisdiction to conduct any hearing on the merits of the case for the reason that theCommission lacked authority to reinstate the case. An oral motion was made by complainant todismiss the case and was denied. No new facts were presented for consideration. CommissionJudges have no authority to overrule the Commission where all facts pertinent to the issue werebefore the Commission when the determination in issue was rendered. The power of theCommission Judges with respect to the granting of motions or rendering decisions in cases is insubstance the power to recommend. The Commission is clearly free to substitute judgment forthat of the Judge on any or all questions.Complainant declined to offer any evidence to sustain the citation for serious violation orproposed penalty or to show that his case was prejudiced by the Commission reinstating the casefor a hearing on the merits. The burden of proof is on the complainant to prove the allegedviolation of the standard and the reasonableness of the penalty. Since complainant declined topresent any evidence, he has failed to carry his burden and the citation and notification ofproposed penalty must be vacated. Accordingly,IT IS HEREBY ORDERED:1. That the citation for serious violation and notification of proposed penalty datedSeptember 5, 1972, are vacated; and2. That this action be, and the same is hereby, dismissed.\u00a0″