“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 9206 WOOD PRODUCTS COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September 16, 1976DECISIONBefore: BARNAKO, Chairman; MORAN and CLEARY,Commissioners.MORAN, Commissioner:A decision of Review Commission JudgeHenry F. Martin, Jr., dated March 31, 1975, is before this Commission forreview pursuant to 29 U.S.C. ? 661(i). This case was dismissed below without adecision on the merits because respondent failed to file a written notice ofcontest to the citation within 15 working days after receipt thereof. Forreasons which follow, we reverse.Respondent was initially cited on June 4,1974, following an inspection conducted on May 29, 1974. Thereafter, on June20, 1974, respondent received an amended citation and notification of proposedpenalties which were issued on June 19, 1974. Within 15 working days afterreceipt of these citations, respondent orally informed complainant that heintended to contest both the citation and the notification of proposed penalties.Subsequently, complainant?s area director informed respondent that the noticeof contest must be in writing. By a letter dated July 26, 1974, respondentconfirmed its earlier oral notice of contest. The area director was unable totestify as to the date on which he advised respondent of the requirement for awritten notice of contest, but he conceded that the respondent?s written noticewas received within ?not more than five days? thereafter. During this timeperiod following receipt of the initial citation, respondent?s owner had twopersonal meetings and several telephone contacts with complainant?s areadirector.At issue is whether respondent timelycontested the charges as required by the Act. We find that the circumstances ofthis case require an affirmative answer.Section 10(a) of the Act, 29 U.S.C. ?659(a), provides:?If . . . the Secretary issues a citation. . . he shall . . . notify the employer by certified mail of the penalty, ifany, proposed to be assessed . . . and that the employer has fifteen workingdays within which to notify the Secretary that he wishes to contest thecitation or proposed assessment of penalty. If, within fifteen working daysfrom the receipt of the notice issued by the Secretary the employer fails to notifythe Secretary that he intends to contest the citation or proposed assessment ofpenalty… the citation and the assessment, as proposed, shall be deemed afinal order of the Commission and not subject to review by any court oragency.? (Emphasis added.)?By a regulation codified at 29 C.F.R. ?1903.17(a), complainant has interpreted the word ?notify? to mean thatrespondent must submit a written notice of contest within the 15 working-dayperiod. We do not generally disagree with this interpretation. Administrativeconvenience, preciseness of the date of contestation, and clarity as to what isbeing contested suggest that this is a reasonable means of implementing thestatute. We do not, however, accept complainant?s argument that his regulationestablishes an absolute requirement in every case.In Atlantic Marine, Inc. v. OSAHRC,524 F.2d 476, 478 (5th Cir. 1975), the Court stated that:[A] powerful argument can be generatedthat a petitioner should not be denied review altogether of a Citation ofViolation for not having filed a Notice of Contest within the 15-day limitprescribed in the Act if the Secretary?s deception or failure to follow properprocedures is responsible for the late filing.?In this case, there is no indication thatthe area director intended to deceive respondent, or acted improperly in anymanner. The record does show, however, that respondent was in fact confused bythe course of events, which included a number of communications with the areadirector. The record also shows that the area director was unsure at what pointhe notified respondent that the notice of contest should be in writing. Thereis no indication that respondent acted in bad faith or in a dilatory manner.Under these circumstances, we will not interpret 29 U.S.C. ? 659(a) as creatingan absolute bar to review of the citation.In Secretary v. H-E Lowdermilk Company,7 OSAHRC 987, 989?990 (1974), respondent was confused by the citation and thenotification of proposed penalties as to whether any penalty had been proposedfor an item. No notice of contest was filed in regards to said item. At trial,however, it became clear that a $65 penalty had been proposed and respondentimmediately requested to contest both the citation and proposed penalty. Underthose circumstances, the Commission permitted an exception to complainant?sregulatory interpretation of 29 U.S.C. ?\u00a0659(a).As in Lowdermilk, this respondentpromptly reacted after his mistaken impression was corrected. Respondent orallyinformed complainant?s area director within the statutory period of itsintention to contest the citation and proposed penalties. It was unaware untilshortly before a written notice of contest was filed, however, that such noticeshould be in writing. Upon learning of such requirement, its written notice ofcontest was mailed within a few days. Under these circumstances, we find thatrespondent duly filed a valid notice of contest.Accordingly, the decision below isreversed, and the case is remanded for a decision on the merits.?FOR THE COMMISSION:William S. McLaughlinExecutive SecretaryDATED: SEP 16, 1976?CLEARY, Commissioner, DISSENTING:I dissent because in my opinion theAdministrative Law Judge correctly decided the case. The applicable provisionof the Act is section 10(a) which reads as follows:. . . that the employer has fifteenworking days within which to notify the Secretary that he wishes tocontest the citation or proposed assessment of penalty. If, within fifteenworking days from the receipt of the notice issued by the Secretary theemployer fails to notify the Secretary that he intends to contest the citationor proposed assessment of penalty, and no notice is filed by an employeeor representative of employees . . . within such time, the citation and theassessment, as proposed, shall be deemed a final order of the Commission andnot subject to review by any court or agency. (Emphasis added).?Section 10(a) does not expressly requirethat a notice to the Secretary contesting a citation or proposed penaltyassessment be in writing. However, the Secretary of Labor in his rule publishedshortly after the Act?s effective date at 29 CFR ? 1903.17(a) required that anynotice of contest be in writing. The Commission?s own rules contemplate awriting. See 29 CFR ? 2200.32. These seem to be interpretations of section10(a), and not interstitial rules requiring a writing. A filing of some sort iscontemplated by section 10(a). The subsection expressly reflects a requirementthat contests by affected employees under subsection (c) would be ?filed.?Equal treatment would require that a corresponding contest by an employer be?filed;? i.e. that a paper be placed with the Secretary?s Area Director. Thus,what is before us is simply not a question of whether a rule of the Secretaryof Labor requiring that a notice of contest be in writing has been breached,which would not affect our jurisdiction. Rather, it is a question of jurisdictionunder section 10(a).In his brief the Secretary points out somepossible confusion and administrative burdens that could result from the use oforal notices of contest under the Act. These practical considerations suggestnot only a sound basis for a rule, as conceded by the majority, but also aCongressional purpose contemplating the use of only written and timely noticesof contest. Our decision in H. E. Lowdermilk Co., 1 BNA OSHC 1663,1973?74 CCH OSHD para. 17,656 (No. 133, 1974), is not inconsistent with thisinterpretation. There, we permitted an employer to contest an additional itemimmediately after clarification of the notice of proposed penalty. Wecharacterized the situation as being sui generis and noted that no partychallenged the validity of the contest.[1]The majority?s reliance upon the FifthCircuit?s decision in Atlantic Marine is misplaced. The facts of thiscase are sharply different. There is no deception or other improper conducthere, as the majority concedes.Finally, the subsequent confirmation inwriting of the purported oral notice of contest falls short of the requirementsof section 10(a) because, as indicated above, section 10 as a whole suggeststhat a filing within the fifteen working days is required.For further discussion of the issue ofwhether or not an oral notice of contest is permissible, see Donald K.Nelson Constr., Inc., 3 BNA OSHC 1914, 1975?76 CCH OSHD para. 20,299 (No.4309, 1976) (dissenting opinion), petition for review docketed, No. 76?1112,10th Cir., February 23, 1976.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 9206 WOOD PRODUCTS COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0March 31, 1975Appearances:Mr. Robert A. Fitz, Attorney USDOL,Solicitor?s Office Room 7C52, Federal Building Dallas, Texas 75202 Attorney forComplainant\u00a0Mr. Robert L. Vaughn Wood Products Co.Post Office Box 112 Addison, Texas 75001 Representative for Respondent?DECISION AND ORDERMARTIN, Judge:This is a proceeding brought pursuant tosection 10 of the Occupational Safety and Health Act of 1970 (29 USC ? 651 etseq.), hereinafter referred to as the Act, contesting a certain citation andnotification of proposed penalty issued by the complainant against respondentunder the authority vested in complainant by section 9(a) of the Act.The citation alleges that as a result ofan inspection of a work place under the ownership, operation, or control ofrespondent, located at Addison, Texas, respondent violated section 5(a)(2) ofthe Act by failing to comply with certain occupational safety standards, towit, 29 CFR 1910.22(a)(1), 29 CFR 1910.22(b)(2), 29 CFR 1910.22(d)(1), 29 CFR1910.213(d)(1), 29 CFR 1910.213(h)(1), and 29 CFR 1910.213(h)(4).Subsequent to the issuance of the citationand notification of proposed penalty on June 4, 1974, and the amended citationand amended notification of proposed penalty on June 19, 1974, respondent wrotea letter to complainant?s area director in Dallas advising that he wished tocontest certain items referred to in the citation as well as the proposedpenalties and abatement dates. Thereafter, complainant through his regionalsolicitor?s office, filed a formal motion to dismiss the notice of contest uponthe grounds that the Review Commission lacked jurisdiction to hear and decidethis matter in view of respondent?s failure to file a timely notice of contest.On September 27, 1974, the Review Commission denied the aforementioned motionwithout prejudice to its renewal.Pursuant to notice a formal hearing wasconducted in Dallas, Texas, on December 20, 1974, at which time complainant wasrepresented by Mr. Robert A. Fitz, of the regional solicitor?s office inDallas, Texas, and respondent was represented by its owner, Mr. R. L. Vaughn ofAddison, Texas. At the hearing evidence was received on the question of thetimeliness of respondent?s notice of contest inasmuch as the motion to dismisswas renewed by the solicitor?s office.After carefully considering all of theevidence in the record bearing upon the timeliness of the notice of contest, itis concluded that the motion to dismiss should have been granted. In view ofthis determination it is unnecessary to consider the merits of the allegedviolations.There is little or no dispute as to thetime sequence of the events which transpired herein. The citation andnotification of proposed penalty were issued to respondent on June 4, 1974, andon June 19, 1974, an amended citation and amended notification of proposedpenalty were issued to respondent. No formal contest was filed by Mr. Vaughnalthough he admittedly discussed the various features of the inspection withMr. Adams, the area director, within fifteen days after the issuance of theoriginal citation.[2]It was not until July 26th that respondent(through Mr. Vaughn) wrote a letter to the area director indicating a desire tocontest certain items of the alleged violations, the penalties involved, andthe abatement dates. This letter, of course, was written and mailedconsiderably beyond the fifteen working day requirement as set forth in section10(a) of the Act.Section 10(a) of the Act provides, in part,as follows:* * * If, within fifteen[3] working days from thereceipt of the notice issued by the Secretary the employer fails to notify theSecretary that he intends to contest the citation or proposed assessment ofpenalty, and no notice is filed by any employee or representative of employeesunder subsection (c) within such time, the citation and the assessment, asproposed, shall be deemed a final order of the Commission and not subject toreview by any court or agency.?Title 29 of the Code of FederalRegulations, section 1903.17 provides, in part, as follows:?* * * Any employer to whom a citation ornotice of proposed penalty has been issued may, under section 10(a) of the Act,notify the area director in writing that he intends to contest such citation orproposed penalty before the Review Commission. Such notice of intention tocontest shall be postmarked within fifteen working days of the receipt by theemployer of the notice of proposed penalty * * *.\u00a0Respondent actually received the notificationof proposed penalty on June 20, 1974, and had fifteen ?working? days to notifythe Secretary that he intended to contest the matter. Respondent?s letter ofJuly 26, 1974, which was postmarked the following day, was ten working dayslate and, therefore, the Review Commission lacks jurisdiction to consider themerits of the notice of contest. Since the notice of contest was not within thestatutory time limit, the citation and the proposed assessment of penaltybecame a final order of the Commission and is not subject to review by anycourt or agency.In the case of the Secretary of Laborv. Walter A. Podpora, 1971?73 OSHD, 15,129, where the notice of contest wasuntimely by one day, the Review Commission stated:There is,therefore, no inherent power, in view of the specific statutory timerequirement, in the Commission to extend the time for filing under the facts inthis case and no statutory provision for consideration of alleged mitigatingcircumstances as urged by respondent.\u00a0Attention is also invited to the case ofthe Secretary of Labor v. Mississippi Valley Erection Co., 5 OSAHRC 483,where the Review Commission ruled that the Judge lacked jurisdiction to takeevidence when the Commission decided that the employer had violated thestandards as a matter of law by reason of his failure to file a contest withinfifteen working days from receipt of the penalty notification.Complainant has cited in his memorandumthe case of the Secretary of Labor v. Donald K. Nelson Construction Co.,1973?74 OSHD, 17,046. There the parties agreed that the respondent did not filea written notice of contest within fifteen working days of such service.Instead, respondent stated orally that he intended to contest the matter. Onremand the notice of contest was dismissed and the proposed penalty wasaffirmed because of the employer?s failure to file a timely notice or contest. In a very recent case, the Secretary ofLabor v. Greguson?s Nursery, Inc., decided February 6, 1975, the ReviewCommission stated that where an employer restricts his notice of contest to theproposed penalty, the citation itself becomes a final order of the Commissionat the end of fifteen working days. The Commission ruled that the Judge haderred in attempting to include the issue of the violations within the scope ofthe contest.Not only do provisions of section 10(a) ofthe Act and section 29 CFR 1903.17(a) call attention to the time limit of?fifteen working days? for the filing of a notice of contest, the areadirector?s notification of proposed penalty in its first full paragraph puts anemployer on notice as follows:This notification and the penalty (ies)proposed by the Secretary of Labor shall be deemed to be the final order of theOccupational Safety and Health Review Commission (an independent agency withauthority to issue decisions respecting citations and proposed penalties) andnot subject to review by any court or agency unless, within fifteen workingdays from the day of receipt of this notification, you submit a letter ofcontest. The letter of contest should be mailed or otherwise delivered to theArea Director named below at the address shown at the top of this notification.If no notice of contest is filed within the fifteen working day period, theproposed penalty (ies) becomes final and is immediately payable.?Since no letter of contest was mailed orotherwise given to the area director within the specified time, it must be,therefore, concluded that the citation and proposed penalties became a finalorder of the Review Commission and that the undersigned Judge lacksjurisdiction to proceed to the merits of this matter.ORDERIt is ORDERED that:1. Complainant?s motion to dismissrespondent?s notice of contest be and the same is hereby granted.2. This proceeding be and the same ishereby dismissed.?HENRY F. MARTIN, JR.JUDGEDATED: March 31, 1975[1] It is also noteworthy that thecontest is evidenced by a written transcript.[2] Mr. Adams was notentirely certain as to whether he advised Mr. Vaughn at the time of his firstvisit as to the procedure of ?contesting? but stated ?its normal to do that?.(Tr. page 13).\u00a0[3] ?Working days?,according to section 29 CFR 1903.21(c), means Mondays through Fridays, butshall not include Saturdays, Sundays, or Federal holidays. In computing fifteenworking days, the day of receipt of any notice shall not be included, and thelast day of the fifteen working days shall be included.”