Jaso-Carol Dress Co., Inc.

Plain-English summary

OSHA cited Jaso-Carol Dress for four non-serious violations involving fan guards, exit signs, sewing-machine drives, and an electrical junction box, with a $30 penalty on one item. The judge dismissed the company's contest because the case record appeared not to contain proof that its filings had been served on the employee representative. The company had actually submitted the required certification on time, but an administrative oversight kept it out of the record until after dismissal. The Commission set aside the order, reinstated the contest, and remanded for further proceedings. The later judge's order included in the release shows that the company corrected the violations, paid $30, withdrew its contest after union service, and had the citation and penalty affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.37(q)(6), 1910.212(a)(5), 1910.219(c)(3), 1910.219(d)(1), and 1910.315(n)(4); 29 U.S.C. § 654(a)(2)
• Outcome: The dismissal was set aside, and the contest was reinstated for further proceedings.
• Key point: A party should not lose its contest when it timely complied with a service order but the filing was omitted from the case record by administrative oversight.

Full text (OSHRC public release)

Jaso-Carol Dress CO., Docket No. 699

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 699

JASO-CAROL DRESS CO., INC.

Respondent.

ORDER OF REINSTATEMENT

August 14, 1972

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

BURCH, COMMISSIONER:

On July 12, 1972, Judge Worcester issued his recommended order in this case dismissing
respondent’s notice of contest and affirming the Secretary’s citation and notification of proposed
penalty.

Pursuant to the authority vested in Members of the Commission by virtue of section 12(j)
of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq ., 84 Stat. 1590), I am
herewith directing that the Judge’s order be reviewed by the Commission.

Commission review of the record discloses that on March 21, 1972, respondent received
a citation for four alleged other than serious violations together with a notification of proposed
penalty of $30 as to Item 3. A timely notice of contest was filed by the respondent pro se. In
response to the Secretary’s complaint counsel for respondent submitted his notice of appearance
and answer without certifying service upon the affected employees’ authorized representative.
Judge Worcester thereupon issued a June 19 order directed to the respondent

affording 10 days
within which to submit proof of service inter alia of the notice of contest and answer upon the
authorized employee representative.

By letter, dated June 27, respondent’s counsel filed with the Commission a response to
said order certifying full compliance with the order’s mandate. However, through administrative
oversight that communication was not made part of the case record until after Judge Worcester
rendered his dispositive order.

Accordingly, IT IS ORDERED, That the Judge’s order is set aside and the case is
reinstated for further proceedings consistent with this order.

[The Judge’s decision referred to herein follows]

WORCESTER, JUDGE, OSAHRC:

This matter is pending as the result of a notice of contest filed March 30, 1972. On June
19, 1972, the Respondent was ordered to submit proof of compliance with the requirements of
22 CFR 2200.7 by showing that copies of the notice of contest and answer were served upon
other parties to this proceeding within 10 days of receipt of this order. The order was served on
June 21, 1972.

Now, therefore, on this 12th day of July, 1972, the Respondent having failed to comply
with said order, it is hereby ordered that the Respondent’s notice of contest be dismissed and that
the citation and proposed penalty of $30.00 be affirmed.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 699

JASO-CAROL DRESS CO., INC.

Respondent.

February 12, 1973

CHODES, JUDGE, OSAHRC:

This matter is upon the motion of Respondent, made on December 1, 1972, to withdraw
its Notice of Contest. The record shows that a Citation and Notification of Proposed Penalty of
$30, were issued to the Respondent on March 21, 1972. A Notice of Contest of the Citation and
Proposed Penalty was received by the Complainant on March 30, 1972, thereby conferring
jurisdiction of this case on the Occupational Safety and Health Review Commission.

The Citation was for non-serious violation of Section 5(a)(2) of the Occupational Safety
and Health Act of 1970, (29 U.S.C. 651, et seq.). The specific violations alleged were that on
March 1, 1972, the Respondent violated; (1) 29 CFR 1910.212(a)(5) by failing to adequately
guard blades of six cooling fans; (2) 29 CFR 1910.37(q)(6) by failing to illuminate exit signs; (3)
29 CFR 1910.219(d)(1) and (c)(3) by failing to guard drive shaft, belts and pulleys used to
operate six sewing machines and; (4) 29 CFR 1910.315(n)(4) by failing to cover an electrical
junction box on drive motor of sewing machines.

In the motion to withdraw its Notice of Contest the Respondent certified that it had
corrected the violations charged against it, that the Respondent intends to comply in the future
with the provisions of the Occupational Safety and Health Act of 1970, and that the penalty of
$30, has been paid.

Copies of the Respondent’s motion to withdraw its Notice of Contest were served on the
Complainant and Local 22 and 89, International Ladies’ Garment Workers’ Union, Authorized
Employees Representative.

A reasonable time has elapsed since the service of the Respondent’s motion to withdraw
its Notice of Contest on the Complainant and the Employees Authorized Representatives, and no
objections to the proposed action has been received.

The granting of the Respondent’s motion to withdraw its Notice of Contest is considered
to be consistent with the provisions of the Occupational Safety and Health Act of 1970.

Accordingly, it is ORDERED that the Respondent’s motion to withdraw its Notice of
Contest is hereby granted; and it is further.

ORDERED that the Citation and the Proposed Penalty of $30, are hereby affirmed.