UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

December 6, 1985

DIRECTION FOR REVIEW AND REMAND ORDER

On November 12, 1985, Administrative Law Judge Paul A. Tenney issued an order dismissing Respondent’s notice of contest of citations based on Respondent’s failure to certify that it had posted or served its notice of contest on affected employees as required by Commission Rule 7, 29 C.F.R. § 2200.7. Respondent’s president subsequently requested that Judge Tenney reconsider his order. Respondent’s letter stated as follows:

There must be some misunderstanding on my part because all the citations and notices sent to me were posted for all my employees to see. As far as notifying the affected employee; this was not possible because OSHA was not able to give me the name of the person or persons who made the accusations.

I sent several letters and returned all necessary paperwork, following the instructions in the OSHA handbook.

Respondent’s president also reiterated his objections to the citations and penalties proposed therefor.

Since Respondent’s president refers to posting “notices sent to me” it is unclear whether Respondent’s own notice of contest was posted. However, Respondent’s president plainly misunderstands what is meant by an “affected employee,”1 and his failure to explicitly certify posting or service of the notice of contest may be attributable to this misunderstanding. In these circumstances, we direct review of the judge’s order pursuant to 29 U.S.C. § 661(i), and we remand this case to the judge for the purpose of affording Respondent a further opportunity to certify posting or service of its notice of contest in conformity with Rule 7 and for additional proceedings as appropriate.2 See Car & Truck Doctor, Inc., 80 OSAHRC 76/D9, 8 BNA OSHC 1767, 1980 CCH OSHD ¶ 24,681 (No. 79–454, 1980).

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

December 6, 1985

November 12, 1985

Judge Paul A. Tenney

OSHRC

1825 K Street, N.W., Room 401

Washington, D.C. 20006

Dear Sir:

I am writing to ask you to reconsider your order to dismiss my case # S9351; 964 on citations issued to Ernie’s Esquire of Butler, Pa. on June 14, 1985.

There must be some misunderstanding on my part because all the citations and notices sent to me were posted for all my employees to see. As far as notifying the affected employee; this was not possible because OSHA was not able to give me the name of the person or persons who made the accusations.

I sent several letters and returned all necessary paperwork, following the instructions in the OSHA handbook.

I am having financial difficulties and would be unable to pay this fine at the present time especially when I feel the charges are not justified.

I would appreciate your considering my request for a new hearing or whatever procedure necessary to resolve this problem.

Respectfully yours,

Ernie Pandelos

President

Ernie’s Esquire Inc.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

November 12, 1985

ORDER

1. No response has been filed to my order dated September 3, 1985, nor to the Executive Secretary’s order dated August 8, 1985, noting that the contesting employer has not complied with Commission Rule 7, 29 C.F.R. § 2200.7, requiring that notice of a contested case be given to affected employees or their authorized representative, if any. See paragraph number 3 of the September 3, 1985, order.

2. Accordingly, the notice of contest is hereby dismissed to the extent that the citations numbered S9351;964 issued June 14, 1985, are contested. The failure to provide proof of service is found to prejudice the rights of affected employees to participate in this proceeding. Commission Rule 20, 29 C.F.R. § 2200.20. Nevertheless, the proposed penalties contested will remain in issue.

3. Pursuant to Commission Rule 10, 29 C.F.R. § 2200.10, the citations and penalty allegations are hereby severed and designated respectively as docket numbers 85–783 and 85–1112. As explained in a separate document issued this date, the employer may seek Commission review on the disposition of the citations under the prescribed procedures.

PAUL A. TENNEY

Judge, OSHRC

November 12, 1985

Washington, D.C.

1 An “affected employee” for purposes of the Commission rules is “an employee of a cited employer who is exposed to the alleged hazard described in the citation, as a result of his assigned duties.” Commission Rule 1(e), 29 C.F.R. § 2200.1(e).

2 We note that Judge Tenney severed the citation from the penalty allegations in this case and assigned docket number 85–1112 to the penalty allegations. Docket number 85–1112 is currently pending before Judge David G. Oringer. In the event Respondent’s contest as to the citation allegations is reinstated, we anticipate that the two docket numbers will be consolidated.