“Docket No. 89-3082 SECRETARY OF LABOR,Complainant,v.VERN’S MANUFACTURING, INC.,Respondent.OSHRC Docket No. 89-3082ORDER Before the Commission for review is a decision and order ofAdministrative Law Judge James A. Cronin, Jr., granting the Secretary’s Motion to VacateLate Notice of Contest.Vern’s Manufacturing, Inc. is a family-run livestock equipmentmanufacturer in Wessington, South Dakota, appearing in this case without counsel, or prose. As a result of an inspection of Vern’s facility by a representative of theOccupational Safety and Health Administration on July 14, 1988, the Secretary of Laborissued to Vern’s a notification of failure to abate a violation of the machine guardingstandard at 29 C.F.R. ? 1910.212(a)(3)(ii). More specifically, the Secretary alleged thatVern’s had not guarded the points of operation of two Dvorak iron worker machines in itsfabrication shop, as required by an earlier uncontested citation. She proposed anadditional penalty of $2,100 for this alleged failure to abate.Under section 10(b) of the Act, 29 U.S.C. ? 659(b), anemployer who wishes to contest a failure-to-abate notification must do so \”withinfifteen working days from the receipt of notification must do so \”within fifteenworking days from the receipt of notification.\”\u00a0\u00a0 At Vern’s request, theOSHA Area Director in Bismarck, North Dakota, held an informal conference with Vern’srepresentatives on September 7, 1988, during the fifteen-day contest period. Vern’srepresentatives brought one of the machines at issue to the informal conference and,according to the Secretary, the Area Director again explained to them how to properlyguard the machine.Over the next year, the Secretary sent notices to Vern’s thatthe penalty of $2,100 was due. Vern’s sent copies of these notices to the Commission, aswell as other documents in which it indicated that it considered the informal conferenceto have constituted its notice of contest. On the basis of those submissions, theCommission docketed the case. The Secretary filed a Motion to Vacate Late Notice ofContest. Vern’s filed a document in opposition to this motion, generally responding to theassertions in the Motion with its own view of the events and introducing a letter that ithad written to the OSHA Area Director stating its position that the informal conferenceand phone calls to him served as a notice of contest.The judge concluded that Vern’s failed to notify the Secretaryin a timely manner of its intent to contest the notification of failure to abate. Hetherefore granted the Secretary’s Motion and dismissed the notice of contest.Vern’s then filed documents with the Commission that weconstrue as a Petition for Discretionary Review, and on March 23, 1990, Chairman Foulkedirected review of the case.Because there has been no hearing in this case, nor anyaffidavits filed, the record lacks sufficient facts upon which to base a determination asto whether the informal conference, phone calls, and letter satisfied the requirement of atimely notice of contest. See Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476, 478(5th Cir. 1975). Cf. Pav-Saver Manufacturing Co., 12 BNA OSHC 2001, 2002-03,1986-87 CCH OSHD ? 27,676 (No. 84-733, 1986), appeal filed, No. 87-1418 (7th Cir.Mar. 18, 1987) (notice of contest found sufficient based on affidavit and responseadmitted into evidence); Merritt Electric Company, Inc., 9 BNA OSHC 2088, 1981 CCHOSHD ? 25,556 (No. 77-3772, 1981) (notice of contest found sufficient based on testimonyas to employer’s misunderstanding).Moreover, if it is found that Vern’s did not meet the notice ofcontest requirements of section 10(b) of the Act, then the judge should determine whetherVern’s is entitled to relief under Rule 60(b) of the Federal Rules of Civil Procedure dueto factual circumstances arising during the informal conference.Because the record in this case lacks the facts necessary forproper consideration of these issues, and especially considering the pro sestatus of the cited employer, we remand this case to the judge for him to hold a hearing,take evidence in the form of sworn affidavits, or follow whatever other procedures that heconsiders appropriate to have the evidence introduced into the record. If the judgedetermines that Vern’s has filed a timely notice of contest or is otherwise entitled torelief from the final judgment, he should then reach a determination on the merits asquickly as possible. To facilitate matters, we order that all further proceedings in thiscase be expedited in accordance with Rule 103 of the Commission Rules of Procedure, 29C.F.R. ? 2200.103.Accordingly, we set aside the judge’s decision and orderdismissing the notice of contest, and remand this case to the judge for proceedings as setforth above.Edwin G. Foulke,Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: October 12, 1990SECRETARY OF LABOR,Complainant,v.VERN’S MFG., INC.,Respondent.OSHRC DOCKETNO. 89-3082DECISION AND ORDERThe Secretary of Labor moves to dismiss respondent’s so-called\”late notice of contest\” to the Notification of Failure to Abate AllegedViolation issued to respondent on August 26, 1988.Section 10(b) of the Occupational Safety and Health Act of 1970(29 U.S.C. Section 651 et seq.; hereafter called the \”Act\”)provides that an employer in receipt of a Notification of Failure to Abate AllegedViolation has fifteen working days from receipt of the notification within which to notifythe Secretary that he wishes to contest the Secretary’s notification or the proposedassessment of penalty. The Act further provides that if the employer fails to so notifythe Secretary within the fifteen working day period, the notification and the proposedpenalty shall be deemed a final order of the Commission and not subject to review by anycourt or agency.On November 7, 1985, respondent was issued a citation alleginga violation of 29 C.F.R. ? 1910.212(a)(3)(ii), failure to guard the points of operationof two Dvorak iron worker machines. Respondent did not contest the citation but didrequest modification of the abatement date on four separate occasions; the final abatementdate was March 13, 1987. As a result of a follow-up inspection by OSHA on July 13, 1987, aNotification of Failure to Abate Alleged Violation with a proposed $2,100.00 penalty wasissued to respondent for failing to provide proper guards on the two Dvorak iron workers.Respondent contested this notification on September 8, 1987. This case was settled onNovember 4, 1987, when the Secretary withdrew the Notification of Failure to Abate AllegedViolation and the proposed penalty of $2,100.00.On July 14, 1986, OSHA re-inspected respondent’s place ofbusiness. As a result of this inspection, respondent was issued on August 26, 1988,another Notification of Failure to Abate Alleged Violation and a proposed penalty of$2,100.00 for the alleged failure to guard the same two Dvorak iron workers which were thebasis of the 1985 citation and the 1987 Notification of Failure to Abate AllegedViolation. Respondent requested an informal conference between its representative and theOSHA Area Director, and this informal conference was held on September 7, 1988.Respondent, however, never filed a notice of contest to the August 26, 1988, Notificationof Failure to Abate Alleged Violation or proposed penalty.After receiving a number of documents from respondent onNovember 3, 1989, including the August 26, 1988, Notification of Failure to Abate AllegedViolation, this Commission docketed this case. The Secretary then filed her Motion toVacate Late Notice of Contest.Because of respondent’s failure to notify the Secretary ofLabor of its intent to contest the August 26, 1988, Notification of Failure to AbateAlleged Violation or the proposed assessment of the $2,100.00 penalty within 15 workingdays of its receipt (sometime between August 26, 1988, and September 7, 1988,) thenotification and the assessment of the penalty, as proposed, became a final order of thisCommission.Consequently, the Secretary’s motion is granted, and this caseis dismissed.SO ORDERED.James A Cronin, Jr.Judge, OSHRCDated: February 12, 1990″