ON PETITION FOR REVIEW OF AN ORDER OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION (OSHRC NO. 78-6127)
Before Weis, Van Dusen and Higginbotham, Circuit Judges.
This petition for review filed by Universal Auto Radiator Manufacturing Co. (Universal), pursuant to 29 U.S.C. § 660(a), challenges that part of an August 28, 1979, decision of an Occupational Safety and Health Review Commission (OSHRC) judge (ALJ), which determined that petitioner had willfully violated the standard at 29 C.F.R. § 1910.217(c)(1)(i) in not providing "point of operation guards" or properly applied point of operation devices on two multi-ton mechanical power presses. See 29 U.S.C. § 666. A civil penalty of $5,000, was imposed on Universal.
Before reaching the merits, we must address the issue of the jurisdiction of this court. Respondents have filed a motion to dismiss this petition for review on the ground that this court lacks subject matter jurisdiction due to an alleged failure of petitioner to exhaust its administrative remedies as required under our case of Keystone Roofing Co., Inc. v. Dunlop, 539 F.2d 960 (3d Cir. 1976). Respondents rely on the language of 29 C.F.R. § 2200.91(a) and (b)(3) for support of their contention that petitioner failed to file a timely petition for review of the ALJ's ruling before the full Commission and, accordingly, has not exhausted its administrative remedies. The regulation is as follows:
"(a) A party aggrieved by the decision of a judge may submit a petition for discretionary review. An aggrieved party that fails to file a petition for such review by the Commission may be foreclosed from court review of any objection to the judge's decision. Keystone Roofing Co., Inc. v. Dunlop, 539 F.2d 960 (3d Cir.1976).
"(3) Petitions for review of a Judge's decision may be filed directly with the Executive Secretary subsequent to the filing of the Judge's report. Such petitions will be considered to the extent that time and resources permit. Parties filing such petitions should be aware that any action by a Commission Member directing review must be taken within thirty (30) days following the filing of the Judge's report."
Respondents also rely upon the portion of 29 U.S.C. § 660(a) providing that:
"No objection that has not been urged before the Commission shall be considered by the Court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances."
In accordance with 29 C.F.R. § 2200.90, the decision of the ALJ was mailed to the parties on August 8, 1979, 20 days in advance of its filing with the OSHRC on August 28. The decision was accompanied by a notice saying, inter alia, that such decision would become the final order of the Commission on September 27, 1979, 30 days after being filed with the OSHRC, unless within that time a member of the Commission directed that it be reviewed. This notice made clear that Universal might petition for review of the ALJ's decision by the OSHRC, presumably on or before September 27.*fn1 On September 25, 1979, Universal mailed its petition for review to the OSHRC (169a). This petition was not received until September 28. However, under OSHA's regulations, such mailing was deemed filed on September 25, 1979. 29 C.F.R. § 2200.8 provides:
"(b) Unless otherwise ordered, all filing may be accomplished by ...