Blue Ribbon Industries, Inc.

Plain-English summary

Blue Ribbon Industries received four non-serious citations involving excessive compressed-air pressure, a locked exit, an unguarded compressor, and flexible cord used as fixed wiring. OSHA proposed no penalties for the first two items and $100 total for the other two. The case was initially dismissed on the view that the company's notice of contest was filed late, but the Commission reversed and remanded for a factual determination of timeliness. On remand, the company explained that its letter was only an expression of displeasure and was not intended as a notice of contest or a request for a hearing. The company had paid the $100 and abated the cited conditions. The judge therefore dismissed the purported contest and affirmed the citations and proposed penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.242(b); 29 C.F.R. § 1910.36(b)(4); 29 C.F.R. § 1910.212(a); 29 C.F.R. § 1910.316(c)
• Outcome: The purported notice of contest was dismissed, and all four citations with $100 total penalties were affirmed.
• Key point: A protest letter did not create a contested case when the employer stated that it had not intended to seek Commission review.

Full text (OSHRC public release)

Blue Ribbon Industries, Inc., Docket No.1302

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 1302

BLUE RIBBON INDUSTRIES INC.,

Respondent.

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

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 1302

BLUE RIBBON INDUSTRIES INC.,

Respondent.

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:

Item Number

Standard Allegedly Violation and Description

1

29 CFR 1910.242(b) in that air pressure used for cleaning exceeded 30 lbs.
per square inch.

2

29 CFR 1910.36(b)(4) by having an exit door locked thereby preventing free
and unobstructed egress from the building.

3

29 CFR 1910.212(a) for failure to properly guard a compressor.

4

29 CFR 1910.316(c) by using flexible cord as a substitute for the fixed wiring
of the structure.

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.