UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

ORDER OF REMAND

April 9, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

MORAN, CHAIRMAN:

This case is dismissed on September 11, 1972, when Review Commission Judge Henry Osterman granted Complainant’s motion to dismiss on the grounds that a notice of contest allegedly filed by Respondent on April 25, 1972, was not in fact filed until May 17, 1972, and was therefore untimely. Thereafter, pursuant to Section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act), I directed that this decision be reviewed by the Commission.

Subsequent to this direction for review, Complainant filed a brief with the Commission indicating a change in position and recommending that the case be remanded for a factual finding on the issue of whether the notice of contest was timely filed.

The Commission agrees that this threshold question should be resolved as Complainant suggests.

In view of the preceding, the decision of the Judge is reversed and the case is remanded for action consistent with the holdings herein.

[The Judge’s decision referred to herein follows]

OSTERMAN, JUDGE, OSAHRC:

Ruling on Secretary’s motion for dismissal of notice of contest as being untimely filed: Granted.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

CHODES, JUDGE, OSAHRC:

This matter is before this judge upon the motion of the Complainant, made on May 18, 1973, to dismiss the Respondent’s Notice of Contest dated April 25, 1972. A copy of the motion and an affidavit in support of the motion was mailed to the Respondent on May 18, 1973.

The record shows that on April 5, 1972, a representative of the Complainant issued to the Respondent a Citation under the authority of Section 9(a) of the Occupational Safety and Health Act of 1970. The Citation was for nonserious violations of Occupational Safety and Health Standards promulgated by the Secretary of Labor by publication in the Federal Register and codified in 29 CFR Part 1910. The Citation alleged that violations of the following itemized standards found at the Respondent’s workplace at 96–17 Northern Boulevard, Corona, New York:

On April 6, 1972 a Notification of Proposed Penalty was sent to Respondent informing the Respondent that no penalty was proposed for Items 1 and 2 of the Citation. For Item 3 a penalty of $35 was proposed and for Item 4 a penalty of $65, for a total of $100.

The case was set down by the Review Commission for hearing on May 29, 1973 to determine whether the Notice of Contest was filed within the time limits prescribed by Section 10(a) of the Act, that is, within 15 working days of the receipt of the Citation and Notice of Proposed Penalty. The hearing has been cancelled.

In an Affidavit in Support of Motion, executed on May 18, 1973, Stephen D. Dubnoff, one of the attorneys of the Complainant, stated that he spoke to Respondent herein, and Mr. Schneider informed him that the letter dated April 25, 1972 from the Respondent, which had been considered a Notice of Contest, was not intended as such by the Respondent. Rather, the Respondent intended the letter to state his displeasure with the enforcement aspects of the Act. Mr. Schneider stated that he did not wish to have a hearing before the Review Commission.

Records in file indicate that the Respondent paid the $100 penalty to Complainant and has abated the alleged violations.

It appearing that the letter dated April 25, 1972, which was considered a Notice of Contest by the Review Commission, was not so intended by the Respondent, that the Respondent has not opposed the Complainant’s motion, that the Respondent has paid the penalty assessed against it, that the violation charged against Respondent have been abated, and that the granting of the Complainant’s motion is consistent with the provisions of the Occupational Safety and Health Act of 1970, it is

ORDERED that the Complainant’s motion to dismiss the Respondent’s Notice of Contest is granted; and it is further

ORDERED that the Citation and the proposed penalty totaling $100 is affirmed.