” Singleton Sheet Metal Works Inc., Docket No. 878var gAgent = navigator.userAgent.toLowerCase()var gWindows = ( (gAgent.indexOf( \”win\” ) != -1 ) || ( gAgent.indexOf( \”16bit\” ) != -1 ) )var gIE = ( gAgent.indexOf( \”msie\” ) != -1 )var bInlineFloats = ( gWindows && gIE && ( parseInt( navigator.appVersion ) >= 4 ) )var floatwnd = 0var WPFootnote1 = ‘\u00a0\u00a0Section 12 (j) of the Act and Interim Commission Rule 2200.42.\\’var WPFootnote2 = ‘\u00a0Upon receipt of the notice of contest at the Commission, the Executive Secretary, by letter dated\\May 11 (received on May 13) advised respondent of the requirements of Interim Commission rule\\2200.7(b)(1), as amplified by Commission rules 2200.7(I), 2200.5 and 2200.6 requiring certification\\of service of the notice of contest on affected employees or their authorized representative.\\’function WPShow( WPid, WPtext ){ if( bInlineFloats ) eval( \”document.all.\” + WPid + \”.style.visibility = ‘visible’\” ); else { if( floatwnd == 0 || floatwnd.closed ) floatwnd = window.open( \”\”, \”comment\”, \”toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1\” ); floatwnd.document.open( \”text\/html\”, \”replace\” ); floatwnd.document.write( \”\\\” ); floatwnd.document.write( \” p { margin-top:0px; margin-bottom:1px; } \\\” ); floatwnd.document.write( \”\\\” ); floatwnd.document.write( WPtext ); floatwnd.document.write( ‘Close’); floatwnd.document.write( \”\” ); floatwnd.document.close(); floatwnd.focus(); }}function WPHide( WPid ){ if( bInlineFloats ) eval( \”document.all.\” + WPid + \”.style.visibility = ‘hidden’\” );}p{\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}span.WPFloatStyle{\tvisibility: hidden;\tposition: absolute;\tleft: 10px;\tright: 10px;\tbackground-color: rgb(255, 255, 225);\tborder-width: 1px;\tborder-style: solid;\tborder-color: black;\tmargin-top: 25px;\tpadding: 6px;\tline-height: normal}span.WPNormal{\tfont-family: \”Calibri\”, sans-serif;\tfont-size: 11pt;\tfont-weight: normal;\tfont-style: normal;\tfont-variant: normal;\ttext-align: left;\ttext-decoration: none;\tcolor: black;\tvertical-align: middle;\ttext-indent: 0in}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. 878SINGLETON SHEET METAL WORKS 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 REINSTATEMENTOctober 19, 1972Before Moran, Chairman; Van Namee and Burch, CommissionersOn May 16, 1972, Judge Leon J. Moran issued a recommended order in the instant case,vacating the citation and proposed penalty for non-serious violations because of the Secretary\u2019salleged failure to comply with Commission rule 2200.7(c)(2) (Interim Rules of Procedure) whichrequired the Secretary to forward notices of contest to the Commission within three days ofreceipt. Subsequent to the May 16 order, the Secretary filed with the Commission a motion,addressed to Judge Moran, requesting that the Judge\u2019s May 16 order be vacated, thatrespondent\u2019s notice of contest be dismissed because it was not timely filed with the Secretary,and that the citation and notice of proposed penalty be affirmed in all respects.By order issued May 31, 1972, Judge Moran, purportedly acting in response to theSecretary\u2019s motion, vacated the order of May 16, dismissed the notice of contest as untimely,and affirmed the Secretary\u2019s citation and proposed penalty.On June 12, 1972, I directed that the proposed order be reviewed by the Commissionpursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 etseq., 84 Stat. 1590 hereinafter referred to as \u201cthe Act\u201d), and invited submissions as to whetherthe notice of contest was timely filed.The Commission has reviewed the brief filed by the Secretary and has considered theentire record. We do not adopt either recommended order of the Judge. We will, however, forthe purpose of this proceeding, construe the Secretary\u2019s motion as a petition for discretionaryreview. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote1 ); document.write( ‘Close’ ); document.write( ” ); }Section 12(j) of the Act provides: (j) A hearing examiner appointed by the Commission shall hear, and make adetermination upon, any proceeding instituted before the Commission and anymotion in connection therewith, assigned to such hearing examiner by theChairman of the Commission, and shall make a report of any such determinationwhich constitutes his final disposition of the proceedings. The report of theadministrative law judge shall become the final order of the Commission withinthirty days after such report by the administrative law judge, unless within suchperiod any Commission member has directed that such report shall be reviewedby the Commission. [Emphasis added].\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Having rendered his May 16 order which was dispositive in this case, Judge Moranforwarded this case to the Commission and his decision was then subject to Commission reviewfor a 30-day period. The Judge in reviewing his May 16 order was without jurisdiction, and,consequently, his order of May 31 reinstating the case and granting the Secretary\u2019s motion todismiss respondent\u2019s notice was without legal force and effect.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Pursuant to my direction for review, we now consider whether respondent\u2019s notice ofcontest was timely filed with the Secretary, and if so, whether the Secretary timely forwardedthat notice to the Commission.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The record shows that the citation and notification of proposed penalty were issued onApril 5, 1972, at Billings, Montana. The exact date that respondent received those documents atits place of business at Nekoma, North Dakota, the situs of the alleged violation is not disclosedby the evidence of the record. Respondent contested the violation letter dated April 20 which,according to the OSHA date stamp on the back of the envelope, was received by the Secretary onMay 8. The post office date stamp on the front of the envelope which would be some evidenceof initial receipt by the post office is indecipherable. The record does indicate that the notice ofcontest was filed by the Sectary with the Commission on May 11, thus establishing hisprocedural compliance with Commission rule 2200.7(c)(2). The Secretary also filed with theCommission on May 24, respondent\u2019s May 10 letter (received by the Secretary on May 15)which read, in part: In response to our telephone conversation this day, I have made aninvestigation as to when our \u201cLetter of Contest\u201d was mailed to your office,and there is a strong possibility this letter was not mailed within the 15day time period allotted. I am, therefore, enclosing a bank draft in theamount of $25 to cover the alleged violation. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0This in no way changes my position as far as contesting the allegedviolation, the reasons being stated in my previous letter.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0We are unable on the basis of the available evidence to determine the validity ofthe Secretary\u2019s assertions with regard to the untimeliness of the respondent\u2019s notice ofcontest. There is no evidence of record to establish when respondent received thecitation and notification of proposed penalty or when respondent mailed his April 20notice of contest. The use of the phrase \u201c15 day time period\u201d instead of the statutory\u201cfifteen working days\u201d in respondent\u2019s May 10 letter, supra, raises the possibility of amisunderstanding of the time filing requirements of section 10(a) of the Act.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Accordingly, it is ORDERED that the Judge\u2019s orders are vacated and the case isreinstated and remanded for further proceedings consistent with the provisions of thisorder, provided respondent certifies within 10 days of receipt of this order that he haspersonally served a copy of the notice of contest on the authorized representative of theaffected employees or in the event that there is not authorized employee representative,that a copy of the notice of contest has been posted at the worksite. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote2 ); document.write( ‘Close’ ); document.write( ” ); }Note: The case was reinstated and remanded to the Judge pursuant to the CommissionOrder, Respondent having complied with the terms of said order.(The judge\u2019s decision referred to herein follows)\u00a0Moran, Judge, OSAHRC: The Secretary of Labor by motion dated May 19, 1972, which wasreceived by the Commission on May 24, 1972, requests that the order of May 16, 1972, issuedby the undersigned judge vacating the citation and proposed penalty issued on April 15, 1972,for failure of the petitioner to comply with Commission Rule 2700.7(c)(2) be vacated. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In support of the motion the Secretary states that the employer\u2019s notice of contestalthough dated April 20, 1972, was not received in the Occupational Safety and HealthAdministration Area Office until May 8, 1972, according to the records of that office. Petitionerfurther enclosed a copy of the letter to the Area Office from the employer dated May 10, 1972which states in pertinent part:In response to our telephone conversation this day, I have made aninvestigation as to when our \u201cLetter of Contest\u201d was mailed to your office, andthere is a strong possibility this letter was not mailed within the 15 day timeperiod allotted. I am, therefore, enclosing a bank draft of $25 to cover the allegedviolation.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In view of this newly adduced evidence it now is reasonable to conclude that theSecretary did not fail to comply with Commission Rule 220.7(c)(2) and the Order of theCommission issued May 16, 1972, is vacated. It is also reasonable to conclude from theadmission made by the employer in the letter dated May 10, 1972, that the notice of contest wasnot timely filed. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0It is therefore, ORDERED, That the Commission Order issued on May 16, 1972, isvacated; and it is further ordered that the notice of contest is dismissed. The Secretary\u2019s citationand proposed penalty are affirmed in all respects.\u00a0\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. 878SINGLETON SHEET METAL WORKS 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.\u00a0May 16, 1972Moran, Judge, OSAHRC: The documents filed with the Commission in this proceedingdisclose that the employer, Singleton Sheet Metal Works, filed a notice of contents by letterdated April 20, 1972, with the Occupational Safety and Health Administration. The letter doesnot bear any date of receipt by that office and it must be assumed that it was received within areasonable time after April 20, 1972. The notice of contest was not filed with this Commissionuntil May 11, 1972, as evidenced by the Commission\u2019s date stamp. Rule 2200.7(c)(2) of theCommission\u2019s Rules requires that within three (3) days after receipt of the notice of contest theSecretary shall file, or cause to be filed with the Commission the notice of contest, all citationsand notifications of proposed penalty. There was therefore a failure to comply with Rule2200.7(c)(2). It is therefore ORDERED, That the citation and proposed penalty issued on April15, 1972, are vacated. There being nothing further before the Commission this proceeding isdismissed.”