BENTON FOUNDRY, INC.  

OSHRC Docket No. 80-2618

Occupational Safety and Health Review Commission

November 24, 1980

  [*1]  

Before: CLEARY, Chairman; BARNAKO and COTTINE Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Robert D. Moran, for the employer

OPINION:

ORDER

BY THE COMMISSION:

A decision by Administrative Law Judge Mary E. Cerbone is before the Commission under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651-678 ("the Act").   In her decision, Judge Cerbone vacated the Secretary of Labor's ("Secretary") notification of failure to correct alleged violation because the Secretary had failed to file a complaint under Commission Rule 33(a)(1), 29 C.F.R. §   2200.33(a)(1).   We vacate the judge's decision and remand to her for further proceedings.

On April 29, 1980, the Secretary issued to Benton Foundry, Inc. ("Benton"), a notification of failure to correct alleged violations; * a penalty of $5,000 was proposed.   According to statements in the notification, the inspection that gave rise to its issuance lasted from October 31, 1979, to February 11, 1980.   The conditions that allegedly had not been corrected -- lack of guarding on various machines -- had been the subject of a citation issued in August [*2]   of 1974.   Benton filed a timely notice of contest indicating its "position that the amount of proposed penalty . . . is too high and therefore limits its contest thereto accordingly."

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* The Secretary's notification was issued under §   10(b) of the Act, 29 U.S.C. §   659(b).

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Under Commission Rule 33, the Secretary was required to file a complaint no later than twenty days after receiving Benton's notice of contest. He failed to do so and on July 28, 1980, Benton moved that the notification be vacated on that ground.   The Secretary did not respond to the motion.   On September 8, 1980, Judge Cerbone granted Benton's motion and vacated the notification.

The Secretary then filed a petition for discretionary review of the judge's decision, which was granted by Chairman Cleary.     was issued; (2) the citations and the notification were contested on the same day; (3) the contest of the citations was assigned Docket No. 80-2460 and also was assigned to Judge Cerbone; (4) Benton is represented by the same attorney in both dockets; and (5) the Secretary filed a complaint in Docket No. 80-2460 that incorporated by reference, and to which was attached, the notification at issue in this case as well as the citations.   The Secretary maintains that his failure to include on the complaint in Docket No. 80-2460 a reference to this case, Docket No. 80-2618, "was the product of inadvertence" and that Benton "was on notice of the Secretary's continuing prosecution of the failure to abate [notification] and therefore cannot have suffered any actual prejudice by the mistake. . . ." The Secretary argues that in view of these facts, the sanction of vacation is too harsh, citing Duquesne Light Co., 80 OSAHRC    , 8 BNA OSHC 1218, 1980 CCH OSHD P24,384 (No. 78-5034, 1980); and Rollins Outdoor Advertising, Inc., 77 OSAHRC 24/C1, 5 BNA OSHC 1041, 1977-78 CCH OSHD P21,551 (No. 12528).

We do not pass upon the Secretary's claims regarding his failure to file a complaint.    [*4]   There is a threshold matter that must be considered first.   As we have said, the Secretary did not file with Judge Cerbone an objection or other response to Benton's motion to vacate within the ten-day period provided by Commission Rule 37, 29 C.F.R. §   2200.37.   In addition, the Secretary has not alleged in his petition any good cause for not bringing to Judge Cerbone's attention the claims that he now brings to us.   It is quite possible that the Secretary did have good cause for not bringing his claims to Judge Cerbone first, but we consider it appropriate for Judge Cerbone to make that "good cause" determination in the first instance.   Should the judge find good cause, the Secretary is free to present to Judge Cerbone the claims relating to the Secretary's failure to file a complaint that he has chosen to bring to us in his petition for discretionary review. Finally, although we vacate Judge Cerbone's decision and remand to her for additional consideration and rulings, our decision here should not be understood as foreclosing the judge from reinstating her previous decision.

We therefore remand this case to Judge Cerbone for her to determine whether the Secretary had good cause [*5]   for not timely bringing to her attention the claims made in his petition and for further proceedings, if necessary.

SO ORDERED.