SECRETARY OF LABOR,
Complainant,

v.

ELMER CONSTRUCTION CORP.,
Respondent.

OSHRC Docket No. 83-0040

DECISION

Before:  BUCKLEY, Chairman; CLEARY Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. § 659(c).

The question in this case is whether the administrative law judge properly dismissed Elmer Construction Company's notice of contest for being untimely.  We reverse the administrative law judge's decision and remand the case for a hearing on the merits.

On September 21, 1982, an OSHA compliance officer inspected Elmer's New York City workplace.  On October 6, 1982, the Secretary issued a citation alleging serious violations of two OSHA standards and proposing a penalty of $320.  Elmer received the citation on October 20.  On October 26, Elmer sent a check for $320 in full payment of the penalty.

Toward the end of October, Elmer hired Richard Biaggi as its attorney.  On November 1, Biaggi called the New York OSHA office and spoke to Lawrence Cimato, the Safety Supervisor.  According to Cimato, the tenor of the conversation was that Biaggi "would like to contest the violation that was issued against (Elmer) on October 6."  Cimato told Biaggi that Elmer had paid the $320 penalty and that the case was ready to be closed.  Biaggi expressed surprise that Elmer had paid the penalty.  Testimony at the hearing indicated that the president of Elmer had limited skills in English and this might have led to some of the confusion.

Biaggi and Cimato also discussed when Biaggi would have to submit a notice of contest. [[1]]  At the time of the conversation, neither man knew when Elmer had received the citation.  Cimato knew that the citation had been issued on October 6 and, assuming that Elmer had received the citation within a few days, speculated to Biaggi that the time for the notice had already passed.

In fact, this assumption was not true.  Since Elmer had received the citation on October 20, under section 10(a) of the Act Elmer had until November 10 to notify the Secretary that it contested the citation.

In a letter dated November 12, Biaggi wrote the New York OSHA office that,

. . . it is the position of my client, Elmer Construction Corporation, that it has not violated any act, statute or regulation concerning the above captioned matter.  I write this letter knowing that Elmer Construction Corporation has issued a check in payment of said violations.  I first became aware of the payments on November 1st when I spoke with Larry Cimato of your office.  On that date I called to contest the violations.

Please do not consider said payments as an admission of wrongful conduct by my client.  Mr. Orellano of Elmer Construction Corporation was not fully aware of his right to contest the violations.

Cimato did not consider the November 12 letter a notice of contest.   Rather, he testified that he considered the letter "a disclaimer of guilt," which he said are fairly common.  The letter was added to the case file.

The Commission has allowed a late notice of contest if the circumstances surrounding the late notice warrant a relaxation of the 15- day rule of section 10(a).   See Con-lin Construction Co., 83 OSAHRC , 11 BNA OSHC 1757, 1983 CCH OSHD ¶ (No. 83-371, 1983); Merritt Electric Co., 81 OSAHRC 75/D4, 9 BNA OSHC 2088, 1981 CCH OSHD ¶ 25,556 (No. 77-3772, 1981).  This is in keeping with the Commission's policy in favor of allowing employers an opportunity for a full hearing on the merits.  See Seminole Distributors, Inc., 77 OSAHRC 211/D9, 6 BNA OSHC 1194, 1977-78 CCH OSHD ¶ 22,412 (No. 15671, 1977).

We find that Elmer should not be denied a hearing under the circumstances of this case.  The conversation between Cimato and Biaggi was confusing.  Cimato inadvertently may have given Biaggi the impression that the time for filing a notice of contest had passed.  This, in turn, may have caused Elmer to submit the notice of contest late.  Compounding this confusion are the limited language skills of Elmer's president and the problems Biaggi had in communicating with his client.

Given these circumstances, we set aside the administrative law judge's decision and remand the case for proceedings on the merits of the alleged violations.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  SEP 18 1984

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov), telephone (202-606-5398), fax (202-606-5050) or TTY (202-606-5386).

FOOTNOTES:

[[1]] Pursuant to section 10(a) of the Act, 29 U.S.C. § 659(a), an employer must notify the Secretary that it intends to contest the citation or proposed penalty within 15 working days of its receipt of the notification of proposed penalty that accompanies the citation.