UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 1589
BILL ECHOLS TRUCKING COMPANY,

SUPPLEMENTAL ORDER

January 26, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

BURCH, COMMISSIONER:

On November 20, 1972, respondent’s notice of contest in this case was dismissed by the Commission for failure to comply with the Commission’s Rules of Procedure regarding certification of service (by posting or otherwise) of the notice of contest. (Commission rule 2200.7.)

Thereafter, on December 1 respondent wrote to the Commission objecting to the disposition of the case on the grounds that the company had, in fact, complied with the Commission’s service requirements for the notice of contest by posting same within 24 hours of being apprised of that requirement and that certification of such posting was timely forwarded to the Commission. Having verified that fact through review of the record in this case, we will, therefore, construe respondent’s December 1 letter as a motion for reinstatement and grant same, thereby setting aside our final order.

Further review of the record discloses that on August 23, 1972, respondent was issued a citation for an alleged serious violation of the Act for failure to provide reverse signal alarms on vehicles with an obstructed view, together with a notification of proposed penalty of $600. A citation for an alleged other than serious violation was also issued respondent for which no penalty was proposed.

By letter dated September 5 (received by the Secretary’s Area Director on September 6) respondent stated:

This is to inform you that the signaling device has been installed within the three day period after the citation. We request that the penalty be abated since corrective action has been taken well within the time allotted [sic].

The Secretary deferred forwarding this letter to the Commission until October 16 (some 43 days later), at which time he filed a motion to strike respondent’s letter as not constituting a notice of contest. No explanation for the delay in forwarding that letter has been offered by the Secretary.

Imparting a reasonable interpretation to that letter, we believe it constituted a notice of contest and it should have been construed as such by the Secretary. Commission rule 2200.32 provides:

The Secretary shall, within 7 days of receipt of a notice of contest, transmit the original to the Commission, together with copies of all relevant documents.

The Commission has in the past vacated the Secretary’s citations and notification of proposed penalties for flagrant failure to comply with this rule, and we believe the facts of record herein warrant the same disposition of this case. Secretary of Labor v. Lennox Industries, Inc., OSHRC Docket No. 1106, Secretary of Labor v. Pleasant Valley Packing Company, Inc., OSHRC Docket No. 464. The Commission will, therefore, deny the Secretary’s motion to strike and sua sponte dispose of this matter in accordance with previous Commission precedent.

Accordingly, it is ORDERED that respondent’s motion for reinstatement is granted, the final order of the Commission is set aside, the notice of contest is reinstated, the Secretary’s motion to strike is denied and the citation and notification of proposed penalties are vacated.

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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 1589
BILL ECHOLS TRUCKING COMPANY,

ORDER OF DISMISSAL

November 20, 1972

By the Commission:

Dismissal of notice of contest. Respondent was advised by a written communication dated October 24, 1972, of the Commission’s Rules of Procedure with respect to service (posting or otherwise) of the notice of contest. Since respondent has failed to furnish the required certification of compliance with these Rules within the time specified, the notice of contest is dismissed.