Docket Nos. 77-520; 77-1073

FITCHBURG FOUNDRY, INC.

OSHRC Docket Nos. 77-520; 77-1073

Occupational Safety and Health Review Commission

June 29, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

John D. Ward, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

This case is before the Commission on interlocutory appeal as a result of the certification by Administrative Law Judge Foster Furcolo of his Order dated May 5, 1978, which denied the Secretary's Motion to Dismiss respondent's notice of contest. The Secretary's motion is based on the ground that the notice of contest was not timely filed within the 15 working days from receipt of the notice of proposed penalty accompanying the citation as required by section 10(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"]. The respondent maintains that it filed a timely notice of contest in good faith with the Review Commission rather than, as the notice of proposed penalty directed, with the Secretary's Area Director at the address given on the penalty notice. There are two issues raised on interlocutory appeal: 1) whether a notice of contest filed with the Commission rather than with the Secretary, resulting [*2] in a failure to notify the Secretary of the contest within the required 15 working day period, is sufficient to confer jurisdiction on the Commission under section 10(a) of the Act; and 2) whether the notice of contest was filed with the Commission within the 15 working day period? Because we find that the notice of contest was not timely filed with the Commission, we do not address the first issue.

On December 28, 1976, the Secretary mailed to the respondent, Fitchburg Foundry, Inc., two citations and notification of proposed penalties alleging 75 violations of the Act and proposing $5,985 in penalties. The certified return receipt established that respondent received the citation and notification of proposed penalties on December 30. Calculating from that date, the 15 working days for filing a notice of contest would have expired on January 20, 1977.

It is undisputed that respondent did not file a notice of contest with the Area Director until February 8, 1977. That notice of contest, however, was dated January 13, 1977. In the accompanying cover letter, dated February 7, respondent's attorney stated that he had previously sent the notice of contest to the "Washington office." [*3] He explained that he had done this pursuant to instructions he found in the "OSHA manual" issued by the "Washington office." It is clear that respondent meant the Review Commission by its use of "Washington office." A second copy of the notice of contest dated January 13, 1977, was received by the Area Director on February 22, 1977, along with an accompanying cover letter also dated January 13, 1977.

In the complaint, the Secretary alleged that the notice of contest was filed with the Commission on January 27, after the expiration of the 15 working day period. Moreover, the Secretary alleged that five abatement progress reports were received from respondent between January 11 and February 7, none of which indicated any intention to contest the citation. The Secretary also stated that the Area Director received a telephone call from respondent after expiration of the 15 working day period at which time the respondent for the first time indicated an intent to contest the citation. Respondent's Answer merely reiterated its earlier explanation of why the notice of contest was sent to the Review Commission rather than to the Secretary. The Secretary moved to dismiss the notice of [*4] contest as untimely.

A hearing was held on May 1, 1978, to determine whether to dismiss respondent's notice of contest as not timely filed. Respondent's attorney failed to appear. The Secretary, however, presented evidence that essentially established the aforementioned facts.

On May 5, 1978, Judge Furcolo issued an Order that denied the Secretary's Motion to Dismiss respondent's notice of contest. Although the judge found that the respondent did not file its notice of contest with the Area Director within 15 working days after it received the citations, he also found that the Secretary was not prejudiced by the delay in filing with the area office. Judge Furcolo specifically found that respondent's attorney originally filed the notice of contest in the wrong place because he misunderstood the instructions in the OSHA manual. The judge did not determine on what date the Washington office of the Review Commission received the notice of contest, but found that it was some time between January 13 and February 8, 1977. In light of the excuse offered for late filing and the absence of any evidence indicating a lack of good faith or prejudice to the Secretary, the judge concluded [*5] that respondent should not be deprived of the opportunity to defend on the merits. On the same day that his decision was filed, Judge Furcolo certified this case for interlocutory appeal.

The Commission issued a briefing order on whether the notice of contest was timely filed, and the Secretary indicated by a letter that he intended to file a brief. Respondent did not respond to the briefing order. The Commission subsequently received a motion to withdraw the interlocutory appeal in Docket No. 77-1073 and settlement agreements purportedly resolving the present case (No. 77-1073) and an earlier case (No. 77-520). The Commission by Order dated December 28, 1978, decided to defer acting on the parties' settlement agreements pending disposition of the interlocutory appeal.

The judge's decision denying the Secretary's Motion to Dismiss the notice of contest is based on the lack of prejudice to the Secretary and the respondent's good faith attempt to comply with the requirements for filing the notice of contest. The Secretary emphasizes that respondent never established that it mailed the notice of contest within the 15 working day period, and the Secretary contends that there has [*6] been no allegation or proof that the respondent was in any way misled by the Secretary about the requirements for timely filing. Furthermore, the Secretary asserts that the judge's finding of good faith is not justified, because the citation itself states in clear and unambiguous language that the notice of contest must be filed with the Area Director.

Whether the Secretary has been prejudiced by the delay has not been a criterion in determining timely filing of the notice of contest. Rather, an extension of the statutory period has only been considered if the respondent has alleged and shown that it has been deceived or in some way misled by the Secretary. Keppel's, Inc., (No. 77-3020, June 12, 1979); Atlantic Marine, Inc. v. OSAHRC and Dunlop, 524 F.2d 476 (5th Cir. 1975). There has been no such allegation in this case. The only excuse given by respondent's attorney for the delay was that he had read the OSHA manual to require filing of notice with the Review Commission in Washington. However, clear directions instructing the cited employer to file its notice of contest with the Area Director are included on the citations. Furthermore, even assuming that such a mistake [*7] is reasonable, respondent has not shown that the notice of contest was filed with the Review Commission within the 15 working days from receipt of the citation.

Furthermore, the Commission has held that good faith alone does not warrant an extension of the statutory filing period. In Walter A. Podpora, 1971-73 CCH OSHD P15,129 (No. 721, 1972), the respondent admitted that the notice of contest was untimely by one day, but contended that the statutory period should be extended because of the "newness and unfamiliarity of this respondent and his attorneys to the requisite published rules of the Commission." Although the respondent therein clearly was acting in good faith the Commission dismissed the notice of contest. Similarly, in City Mills Co., 77 OSAHRC 27/A2, 5 BNA OSHC 1129, 1977-78 CCH OSHD P21,591 (No. 15196, 1977), the Commission implicitly ruled that the respondent's assertion of good faith was an insufficient ground for extending the statutory period.

Although the parties have now been arguing for almost two years about whether respondent's filing of the notice of contest was timely, respondent has been unable to document that its notice of contest was mailed [*8] to the Review Commission within the statutory filing period. Kerr-McGee Chemical Corp., 76 OSAHRC 129/C14, 4 BNA OSHC 1739, 1976-77 CCH OSHD P21,161 (No. 9890, 1976) and J.D. Blum Construction Corp., 76 OSAHRC 58/D14, 4 BNA OSHC 1255, 1975-76 CCH OSHD P20,735 (No. 3543, 1976). We conclude that the notice was not timely filed. n1 Thus, since respondent has not filed its notice of contest within the statutory period and has not alleged or shown that it was in any way deceived or misled by the Secretary into filing late, the judge's decision denying the Secretary's Motion to Dismiss must be reversed. Keppel's, Inc., supra. n2 We find that the notice of contest was not timely filed, and that therefore, the uncontested citation is a final order of the Commission.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Although respondent contends that it sent the notice of contest to the Review Commission on January 13, 1977, and the Secretary maintains that the Review Commission received the notice on January 27, 1977, we note that there is no record in the Executive Secretary's office of receipt of the notice of contest.

n2 Commissioner Barnako maintains that an oral notice of contest within the 15 working day period may be valid, as set forth in his separate opinion in Keppel's, Inc., supra, (concurring opinion) but here no oral notice was given during the 15 working day period.

[*9]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Based on the foregoing discussion, the Commission is without jurisdiction to approve or disapprove the settlement agreement filed with the Commission subsequent to the interlocutory appeal of the judge's Order. We take special note that the parties have also submitted a settlement agreement involving Docket No. 77-520, that became a final order of the Commission on March 23, 1978. Although it is clear that the Commission has no jurisdiction to approve a settlement agreement in a case that has become a final order, even if we were to consider the settlement agreement in Docket No. 77-520 as a motion for relief from a final order pursuant to Fed. R. Civ. P. 60(b), the motion would be denied, because there is no assertion that there exists any mistake, inadvertence, excusable neglect, newly discovered evidence, fraud, or any other reason justifying relief.

Accordingly, we reverse the judge's decision, and dismiss respondent's notice of contest as untimely filed.