BUSHWICK COMMISSION COMPANY, INC.  

OSHRC Docket No. 77-1493

Occupational Safety and Health Review Commission

June 30, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Soliciter, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

David Gray, Vice Pres., Bushwick Commission Company, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

An Order of Administrative Law Judge Joseph L. Chalk is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Following the issuance by the Secretary of a citation alleging that Respondent, Bushwick Commission Company, Inc., committed various violations of the Act, Respondent sent to the Secretary a letter requesting a 30-day estension of the abatement date for certain of the items contained in the citation. n2 Because this letter was sent within the 15-day period permitted for an employer to contest a citation or notice of proposed penalty, n3 Judge Chalk construed the letter as a notice of contest of those items of the citation for which Respondent had requested an extension of the abatement date. n4 When the Secretary declined to allege in his complaint that Respondent had contested those items, Judge Chalk construed this action as [*2]   an abandonment by the Secretary of the charges contained in those items of the citation and he vacated the items.

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n1 29 U.S.C. §   661(i).

n2 The letter stated, in pertinent part:

We have engaged Hallock Conveyor Corp., Riverhead, New York to affix safety guards on all necessary machinery.   To date they have only measured the equipment and have advised us that because of a heavy schedule, they will be unable to complete this work by Oct. 27, 1976, which is the date the violation must be corrected.

Since they are the manufacturers of all the graders, we feel that they will do the most suitable work and will be worth waiting for.   Therefore, I would like to request an additional thirty day period in order to complete the necessary repairs.

n3 Section 10(a) of the Act, 29 U.S.C. §   659(a).

n4 The judge determined, and the Secretary does not dispute, that the letter referred to items 8, 9, 10, and 11 of the citation.

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Judge Chalk's ruling in this case was similar to one he made in Gilbert Manufacturing Co., 79 OSAHRC [*3]      , 7 BNA OSHC 1611, 1979 CCH OSHD P23,782 (No. 76-4719, 1979).   In Gilbert, however, the Commission reversed the judge's ruling and in doing so overruled the precedents on which the judge relied in both Gilbert and in this case to the extent those precedents had held that a request for an extension of an abatement date filed within the 15-day contest period gave the Commission jurisdiction over the entire citation. n5 We held that a request for an extension of an abatement date, even if filed within the 15-day period for contesting a citation or proposed penalty, should be treated as a petition for modification of abatement and processed under Commission Rule 34, 29 C.F.R. §   2200.34. n6 If, however, the employer's request is ambiguous so that there is a genuine question as to whether the employer intended to contest the citation or proposed penalty, or if the employer disputes the Secretary's interpretation of its request, the matter is to be referred to the Commission for appropriate action.   See Haugan Construction Co., 77 OSAHRC 182/G3, 5 BNA OSHC 1956, 1977-78 CCH OSHD P22,248 (No. 14675, 1977), aff'd, 586 F.2d 1263 (8th Cir. 1978).

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n5 Philadelphia Coke Division, Eastern Associated Coal Corp, 2 BNA OSHC 1171, 1974-75 CCH OSHD P18,572 (No. 6448, 1974); Eastern Knitting Mills, Inc., 74 OSAHRC 82/A2, 1 BNA OSHC 1677, 1973-74 CCH OSHD P17,691 (No. 2019, 1974).

n6 Rule 34 permits the Secretary to grant a petition for modification of abatement without transferring the matter to the Commission if he or the affected employees do not object to the extension requested by the employer.   Gilbert Mfg. Co., supra.

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The letter sent by the Respondent in this case, note 2 supra, is unambiguous.   It clearly requests only an extension of the abatement date.   Moreover, in a letter sent after the expiration of the 15-day contest period, Respondent stated that it wanted to contest the proposed penalties and had not done so earlier because it did not know of the 15-day requirement.   As the Secretary points out, this establishes that Respondent could not have intended to contest the citation or proposed penalties when it filed its request for extension of the abatement [*5]   date. n7 We conclude that Respondent did not file a timely notice of contest to either the citation or proposed penalties, and that the Commission therefore lacks jurisdiction.   Gilbert Manufacturing Co., supra. Inasmuch as it appears from the record that the Secretary has granted the extension of abatement time that Respondent requested, thereby negating the need for Commission proceedings under Rule 34, there is no basis for further Commission proceedings in this case.

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n7 Commissioner Cottine finds that the employer's initial letter clearly indicated its intent to proceed under the petition for modification of abatement procedure.   In addition, its subsequent letter does not set forth any basis to conclude that it intended to contest the proposed penalties during the 15-day statutory period established by 29 U.S.C. §   659(a).   Accordingly, Commissioner Cottine concurs in the disposition of this case.   However, for the reasons set forth in his separate opinion in Gilbert Mfg. Co., supra, he does not agree with the majority that any request for a modified abatement date filed during the 15-day contest period is properly treated as a petition for modification of abatement under Commission Rule 34, 29 C.F.R. §   2200.34.

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Accordingly, the judge's Order is set aside and this proceeding is terminated.   SO ORDERED.