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Ezel / Agency Decisions / 90-3207-commission
OSHRC Commission decision Docket 90-3207 Decided August 21, 1991 Procedural

Pan American Tanning Corporation

Secretary ordered to file a Rule 35 complaint

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Currency note: this decision dates from 1991
The OSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Decision of the Commission
This is a decision of the Occupational Safety and Health Review Commission, the highest level of agency review, citable as Commission precedent. It may have been appealed to a U.S. Court of Appeals after issuance; check subsequent history before relying on it. The full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)

Plain-English summary

The judge allowed the Secretary to use a complaint prepared under Commission procedures that had been superseded in 1986. Pan American Tanning sought interlocutory review of that ruling. The Commission granted review, struck the complaint, and required the Secretary to file a new complaint complying with current Rule 35 within 30 days. Commissioner Montoya dissented and would have accepted the complaint already filed.

Decision snapshot

  • Cited standard(s): None identified in this procedural order.
  • Outcome: Interlocutory review was granted, the complaint was stricken, and a compliant replacement was ordered within 30 days.
  • Key point: A judge could not waive the current pleading requirements and accept a complaint prepared under superseded procedural rules.

Full text (OSHRC public release)

Docket No. 90-3207

SECRETARY OF LABOR,

Complainant,

v.

PAN AMERICAN TANNING CORPORATION,

Respondent.

OSHRC DOCKET NO. 90-3207

ORDER

On July 26, 1991, Respondent filed a Petition for Interlocutory Review pursuant to
Commission Rule 73, 29 C.F.R. � 2200.73. Respondent requests the Commission to review and
set aside an order issued by Administrative Law Judge Irving Sommer on July 22, 1991. The
order waived the requirements of Commission Rule 35 and permitted the Secretary to file a
complaint pursuant to the Rules of Procedure in effect prior to December 8, 1986.

Having considered the matter presented, the Commission grants Respondent's Petition for
Interlocutory Review. The Commission orders the Secretary's complaint to be stricken from
the record and orders the Secretary to file a new complaint, which complies with the
present Commission Rule 35, with Judge Sommer within 30 days of the date of this
order.[[1]]

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Dated: August 21, 1991

SECRETARY OF LABOR

Complainant

v.

PAN AMERICAN TANNING CORPORATION

Respondent

Docket No. 90-3207

ORDER

Motion by the Secretary for Reconsideration of the June 26, 1991, ORDER directing filing
of a Complaint in compliance with current Rule 35 of the Commission's Rule of Procedure is
opposed.

After due consideration of all filings, the ORDER dated June 26, 1991, is vacated. The
Complaint filed May 13, 1991, pursuant to the Rules of Procedure in effect prior to
December 8, 1986, is accepted.

The Respondent is directed to file an answer to the Complaint within 30 days of the
receipt of this ORDER.

IRVING SOMMER

JUDGE OSHRC

DATED: JULY 22 1991

WASHINGTON, D.C.

FOOTNOTES:

[[1]] Commissioner Montoya dissents. She would deny the Respondent's Petition for
Interlocutory Review and accept the complaint that has already been filed.

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