SECRETARY OF LABOR,

Complainant,

v.

BARRETTO GRANITE CORPORATION,

Respondent.

Docket No. 83-0986

ORDER

This case is here on remand from the United States Court of Appeals for the First Circuit.  Secretary of Labor v. Barretto Granite Corp., 830 F.2d 396, 401 (1st Cir. 1987), rev'g Barretto Granite Corp., 12 BNA OSHC 2052, 1986-87 CCH OSHD ¶ 27,680 (No. 83-0986, 1986).  In accordance with the First Circuit's decision, the Review Commission dismisses Barretto Granite Corporation's notice of contest as untimely filed, and reinstates the Secretary's citations.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary
DATED:  December 9, 1988

SECRETARY OF LABOR,

Complainant,

v.

BARRETTO GRANITE CORPORATION,

Respondent.

OSHRC Docket No. 83-0986

DECISION

BEFORE:  BUCKLEY, Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(j), 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).

This case is before the Commission for the second time.  In our previous decision, we concluded that Administrative Law Judge Irving Sommer had erred in dismissing Barretto's notice of contest to the Secretary's citation and proposed penalty of $240 on the ground that Barretto's letters stating its intent to contest were filed beyond the expiration of the 15-day contest period prescribed in section 10 of the Act, 29 U.S.C. § 659.[[1]]  We found Barretto's contest to be timely because Barretto had orally disputed the Secretary's position at an informal conference at the OSHA area office conducted within the 15-day contest period.  We noted that Barretto's letters, which the judge dismissed for being untimely, confirmed its discussions with the Secretary.  We concluded that in the circumstances Barretto should not be denied a hearing, and accordingly we remanded for proceedings on the merits.

On remand, the Secretary advised Administrative Law Judge David J. Knight, to whom the case had been assigned, that he would decline to present evidence on the merits as required by our remand order.  Accordingly, Judge Knight vacated the citation for failure of the Secretary to prosecute.  Chairman Buckley thereafter directed review on the issue of whether Barretto had validly contested the Secretary's citation.

Our decision in Pav-Saver Manufacturing Co., No. 84-733 (August 28, 1986), holds that an oral notification within the statutory time period of an employer's intent to contest is acceptable as a valid notice of contest, especially when the failure to timely contest in writing is due to confusion, uncertainty, or misunderstanding on the part of the employer.  One of Barretto's letters to the OSHA area director states, "[a]s requested, we are confirming the discussion at the conference held at your office on September 7, 1983. We contend that the penalties assessed...are unfair for violations that are unproven and suggested remedies a definite overkill."  It is evident that Barretto believed it had contested the citation and proposed penalty at the informal conference and that, based on statements by the area director, it needed only thereafter to prepare a written confirmation of the substance of the informal conference.  We therefore conclude that Barretto's failure to file a formal written notice contest within the 15-day contest period is excusable under the rule of Pav-Saver.  Accordingly, we affirm Judge Knight's order vacating the citation and proposed penalty for failure of the Secretary to prosecute this matter.[[2]]   See Gil Haugan, 77 OSAHRC 182/G3, 5 BNA OSHC 1956, 1977-78 CCH OSHD ¶ 22,248 (No. 14,675, 1977), aff'd, 586 F.2d 1263 (8th Cir. 1978); Monroe & Sons, Inc., 77 OSAHRC 14/B7, 4 BNA OSHC 2016, 1976-77 CCH OSHD ¶ 21,470 (No. 6031, 1977), aff'd, 615 F.2d 1156 (6th Cir. 1980).

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary
DATED:  August 28, 1986

SECRETARY OF LABOR,

Complainant

v.

BARRETTO GRANITE CORPORATION,

Respondent

OSHRC DOCKET NO. 83-0986

ORDER ON COMPLAINANT'S MOTION
(1) TO CLARIFY THE NOTICE OF HEARING AND
(2) CANCEL THAT HEARING

By motion filed January 28, 1985, complainant moves to clarify the notice of hearing (dated January 15, 1985) by limiting it to the merits of the alleged violations and deleting any reference to the propriety of the notice of contest which was brought into issue by my letter to the parties dated December 26, 1984.

Originally, the citations were affirmed because the notice of contest was dismissed as being filed too late.  That order was set aside upon review and remanded for "a full hearing on the merits of the disputed citations."  Respondent had appeared at an informal conference with the complainant's area director and disputed the citation.  Later, and too late, it filed its contest.  Under these circumstances, the Commission ruled that it "should not be denied a hearing."  See Commission Decision dated November 30, 1984.

The complainant, in its motion, contends that this decision finally decides that respondent's actions here were sufficient to constitute a contest under the statute.  Therefore, this issue is closed and the hearing should be restricted to the merits of the citations.  Further, complainant, at the hearing intends to offer no evidence as to the citations themselves.  The hearing, therefore, should be cancelled; the Commission should enter an appropriate final order (I assume vacating the citations for a failure to prosecute); and the matter administratively closed and ripe for judicial review.

The Commission's policy is one favoring full hearings as stated in its Decision.  But this policy, at one point, took effect only when there was some action by the Secretary's representative which could be interpreted as misleading a respondent so that its notice of contest is filed late because of that action.  See Elmer Construction, 84 OSAHRC, BNA 12 OSHC 1002, CCH ¶ 27,050, Seminole Distributors, 77 OSAHRC 211/D9, BNA 6 OSHC 1194, CCH ¶ 22,412, and Merritt Electric, 81 OSAHRC 75/D4, BNA 9 OSHC 2088, CCH ¶ 25,556.  These are cited by the Commission in its Decision here as is Con-Lin Construction, 83 OSAHRC __ / __, BNA 11 OSHC 1757.  This case removes the necessity of deception and holds that an informal conference with the Secretary's representatives during the 15-day contest period where a respondent orally disputes the validity of an alleged violation alone is sufficient to constitute a proper contest even though the written contest is filed beyond the 15-working-day period mandated by the act, 29 U.S.C. § 659(a).  Con-Lin appears to go beyond the suggestion of Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1976) that the Secretary's failure to follow prescribed procedures could lead to the acceptance of a late-filed contest.

The Con-Lin position is reaffirmed in Elmer Construction, supra, where the Commission cites Con-Lin for the proposition that

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) [29 U.S.C. § 659(a)].

Thus, respondent here met with the Secretary's representatives during the contest period and informally disputed the alleged violations.  Later, and beyond the allowed period, it filed its written contest.  While there is no indication whatsoever that the Secretary misled respondent, [[1/]] its actions are within the Commission's policy and its notice of contest, although late-filed, must be allowed.

Respondent is entitled to a hearing on the merits; complainant will not go forward with his burden to prove the alleged violations; and any hearing, therefore, would simply be a waste of resources.

Therefore, complainant's motion is granted to:

(1) Restrict any issue to that concerning the merits of the alleged violations; and

(2) Cancel the hearing because complainant refuses to present any evidence as to these merits.

Based on the foregoing, it is ordered that the citation issued August 17, 1983, alleging repeated violations 29 CFR § 1910.95(b)(1) and 29 CFR § 1910.243(c)(2) are vacated together with the proposed civil penalties therefore; and the hearing scheduled for February 6, 1985, is cancelled.

David J. Knight
Judge, OSHRC
Dated:  February 19, 1985
Boston, Massachusetts

SECRETARY OF LABOR,

Complainant,

v.

BARRETTO GRANITE CORPORATION,

Respondent.

OSHRC Docket No. 83-0986

DECISION

Before:  BUCKLEY, Chairman, and 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 Administrative Law Judge Irving Sommer should have dismissed Barretto Granite Company's notice of contest of a citation alleging two repeated violations as untimely.[[1]]

Compliance officers of the Occupational Safety and Health Administration inspected Barretto's workplace from April 26, 1983, to August 16, 1983.  Discussions between Barretto and the compliance officers took place during and following the inspection but, according to Barretto, both parties remained "adamant on their original contentions."  On August 17, 1983, the Secretary issued two citations, which were received by Barretto on August 18.  Barretto met with representatives of the Secretary at an informal conference on September 7, 1983, and again disputed the Secretary's position.  This conference took place within the fifteen working-day period within which a citation must be contested under the Act.  Barretto, which appeared pro se at the conference, disputed the validity of the citations.   On October 6, 1983, Barretto sent letters confirming its discussion with the Secretary.  The judge treated these letters as a notice of contest and dismissed it as untimely because the letters were sent more than fifteen working days after the citation had been received.

We hold that, under the circumstances of this case, Barretto should not be denied a hearing.  Our ruling is in keeping with the Commission's policy of favoring a full hearing on the merits of disputed citations.  See Elmer Construction Corp., 84 OSAHRC, 12 BNA OSHC 1002, 1984 CCH OSHC § 27,050 (No. 83-040, 1984); Seminole Distributors, Inc., 77 OSAHRC 211/D9, 6 BNA OSHC 1194, 1977-78 CCH OSHD ¶ 22,412 (No. 15671, 1977).  We therefore set aside the judge's order and remand this matter for proceedings on the merits.  See Con-Lin Construction Co., 81 OSAHRC 75/D4, 9 BNA OSHC 2088, 1981 CCH OSHD ¶ 25,556 (No. 77-3772, 1981).

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY
DATED:  November 30, 1984

SECRETARY OF LABOR

Complainant

v.

BARRETTO GRANITE CORPORATION

Respondent

DOCKET NUMBER 83-0986

ORDER

By motion filed October 27, 1983, the Secretary of Labor moved to dismiss the notice of contest herein as not being timely filed under Section 10 of the Act.  No response to the motion has been filed by the Respondent.

The record demonstrates that two citations were issued to the Respondent on August 17, 1983, and Respondent's letter dated October 6, 1983, objecting to items 1 and 2 only of Repeat Citation No. 1, was considered the notice of contest.  This notice of contest as to Repeat Citation No. 1 was not filed "within fifteen working days from receipt of the notice issued by the Secretary as prescribed by the Act, 29 U.S.C. § 659(a)."  There is no evidence that the delay in filing was caused by "the Secretary's deception or failure to follow proper procedures".  Atlantic Marine, Inc. v. OSAHRC and Dunlop, 524 F.2d 476 (5th Cir. 1975).

Accordingly, the Secretary's motion to dismiss the notice of contest is granted.  Repeat Citation No. 1 is affirmed and the penalty of $240.00 is assessed.  Citation No. 2 for other than serious violations was not contested and became a final order of the Commission by operation of law.

Dated:  December 9, 1983
Washington, D.C.

IRVING SOMMER
Judge, OSHRC

FOOTNOTES:

[[1]] The Act requires that an employer notify the Secretary of its intent to contest within 15 working days of receipt of the Secretary's penalty notification.

[[2]] Our prior decision remanding for proceedings on the merits did not distinguish between two citations that were issued to Barretto.  We agree with Judge Knight and Judge Sommer that Barretto did not at any time contest citation no. 2, for which no penalties were proposed.  The uncontested citation is a final order of the Commission pursuant, to 29 U.S.C. § 659(a).

[[1/]] Complainant's motion to dismiss the notice of contest, filed October 27, l984, states that, at the informal conference on September 7, 1983, respondent was fully advised of the procedural requirements; and the necessity of filing a notice of contest. Further, that it is experienced in OSHA matters.   Respondent did not reply to this motion and in no further pleading did it ever claim that it was misled at all.

[[1]] Under 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 accompanied the citation.