Permaneer Corporation

Plain-English summary

Permaneer asked for more time to correct citation items 7 and 8 because required replacement parts were difficult to obtain from the manufacturer. The request came after the original May 8 deadline, but the Secretary agreed to waive the timing defect because the company had made a good-faith effort to comply. The judge extended abatement to July 17, 1972. The Commission agreed that the late filing could be excused but required proof that affected employees or their representative had received the petition. It affirmed the extension on that condition, and the official release states that service was completed.

Decision snapshot

• Cited standard(s): No specific OSHA standard number is identified in the decision.
• Outcome: The abatement deadline for citation items 7 and 8 was extended to July 17, 1972, after required employee service was completed.
• Key point: A good-faith parts delay justified a late extension request, but it did not excuse notice to affected employees.

Full text (OSHRC public release)

Docket No. 947

PERMANEER CORPORATION

OSHRC Docket No. 947

Occupational Safety and Health Review Commission

July 6, 1972

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Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

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BURCH, COMMISSIONER: On June 13, 1972, Judge Chalk issued his recommended order in this case granting respondent's petition for modification of abatement. I am herewith directing that the Judge's order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651
et seq.,
84 Stat. 1590, hereinafter referred to as "the Act").

The Commission has reviewed the record and notes that respondent was issued a citation for multiple non-serious violations of the Secretary's safety and health standards on March 27, 1972.
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Items 7 and 8 thereof, which are the subject of this petition, carried an abatement date of May 8.
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On May 18, respondent wrote to the Secretary's representative requesting additional time to correct the subject violations because of difficulty in obtaining necessary equipment parts from the manufacturer. In response to that request the Secretary's legal representative, although declining to answer the petition because of the indefiniteness of the time requested, nonetheless advised the Commission that in view of respondent's good faith [*2]
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effort to come into compliance they were willing to waive the requirements of Commission rule 2200.41(a) which requires that petitions for modification of abatement be filed prior to the date on which the violation must be corrected.
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Because the petition was not accompanied by
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proof of service on affected employees or authorized employee representatives, the Commission advised respondent by certified mail (received on June 5) of the procedural defect but afforded seven days for certification of perfection of service.
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The case was thereafter assigned to Judge Chalk who by his June 13 order waived the filing requirements of Commission rule 2200.41(a) citing as his authority Commission rule 2200.9(b)(1), and granted respondent's petition for modification of abatement extending thereby the abatement date to July 17.

Under the circumstances of this case, the Commission concurs in the Judge's waiver of compliance with the Commission's filing requirements for such petitions.
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We will not, however, waive respondent's failure to certify perfection of service of the petition as required by Commission rule 2200.7(b)(1).
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We have in numerous cases involving notices of contest emphasized [*3]
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the need for such compliance.
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Many of those cases have resulted in dismissal of the notices of contest for respondents' failure to certify perfection of service.
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That rule applies equally to petitions for modification of abatement. However, in view of the close proximity in time between receipt of the Commission's seven day letter and the issuance of the Judge's order, we believe that justice will best be served by affording the respondent an additional opportunity to comply with Commission rule 2200.7(b)(1).

Accordingly, we will affirm the Judge's order granting respondent's petition for modification of abatement contingent upon respondent's certification of perfection of service to the Commission by registered or certified mail within 10 days of the receipt hereof.

[Perfection of service accomplished]

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[The Judge's decision referred to herein follows]

CHALK, JUDGE, OSAHRC: Respondent has filed a petition for modification of abatement requirements as to items 7 and 8 of Citation Number 1, although said petition was not filed timely as required by Commission Rule 2200.41(a).
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Complainant is willing to waive the timely filing requirement on the ground that Respondent [*4]
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has made a good faith but unsuccessful effort to obtain the necessary parts from the manufacturer to abate the hazards.
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Complainant, however, is unwilling to file an answer to the petition at this time because Respondent is unable to specify a date as to when the parts will be received so that abatement can be effectuated.

The filing requirements of Commission Rule 2200.41(a) are waived (Commission Rule 2200.9(b)(1)).
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Abatement of the two violations will be accomplished without unnecessary delay after receipt of the parts in question, but no later than July 17, 1972.
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Respondent may petition for an additional modification of abatement requirements for good cause shown.
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