UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

�������������������������������������������� Complainant,

 

������������������������ v.

OSHRC DOCKET NO. 77-2876

BETHELEM STEEL CORPORATION,

 

��������������������������������������������� Respondent.

 

 

August 29, 1978

Decision and Order on Interlocutory Appeal

Before Cleary, Chairman and Cottine, Commissioner[*]:

Cleary, Chairman:

����������� As a result of a series of inspections of its Bethlehem, Pennsylvania, plant, respondent was issued citations and notifications of proposed penalty.� A timely notice of contest was filed.� After the complaint and answer were filed, a pre-hearing conference was held at which certain items were settled.� There remain for adjudication approximately 36 items.�

����������� Respondent, joined by the Secretary, requested that Administrative Law Judge Joseph A. Chalk, to whom the case is assigned, set the hearing to be held in Allentown, Pennsylvania.� In support of its request respondent made the following assertions:

����������� (1) Respondent, the Secretary and the United Steelworkers of America each anticipate calling in excess of 20 witnesses;

����������� (2) All of these witnesses are employed and/or reside in the Bethlehem and/or Allentown, Pennsylvania area;

����������� (3) Philadelphia is more than 50 miles from respondent�s plant;

����������� (4) The courthouses (one Federal, one county) are approximately six miles from respondent�s plant;

����������� (5) All of respondent�s witnesses except three are supervisory employees who are responsible for the day-to-day operations of certain departments and they should be close by in the event that they are needed;

����������� (6) Because of its collective bargaining agreement, respondent is required to pay the different between witness fees and employee�s wages for those employees subpoenaed by the Secretary.

����������� Although Judge Chalk did not consider the request to set the hearing in Allentown to be a motion and issue a ruling on it, he did issue a notice setting the hearing for Philadelphia, Pennsylvania.� It is from this notice that respondent wishes to appeal.� We grant the request to file an interlocutory appeal and proceed to address the substantive merits of that appeal.

����������� We note initially that hearings under the Occupational Safety and Health Act of 1970, 29 U.S.C. � 651 et seq., are to be held in accordance with section 554 of Title 5, U.S.C., the Administrative Procedure Act (APA).� Section 554(b) states in relevant part:

In fixing the time and place for hearings, due regard shall be had for the convenience and necessity of the parties or their representatives.

 

����������� It has been the Commission�s policy that the �due regard� mandated by section 554(b) of the APA requires that the hearing be set as near to the site of the alleged violations as possible.� The site selected for the hearing in this case is not consistent with that policy.

����������� Accordingly, we vacate the notice of hearing to the extent that it sets the hearing for Philadelphia, Pennsylvania and order Judge Chalk to hold the hearing in this case in Allentown, Pennsylvania.

[ALJ order not available].



[*] Commissioner Barnako did not participate in this decision.