UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
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SECRETARY
OF LABOR, |
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��������������������������������������������
Complainant, |
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������������������������ v. |
OSHRC
DOCKET NO. 77-2876 |
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BETHELEM
STEEL CORPORATION, |
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���������������������������������������������
Respondent. |
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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].