GILBERT MANUFACTURING CO., INC.
OSHRC Docket No. 76-4719
Occupational Safety and Health Review Commission
August 10, 1979
[*1]
Before CLEARY, Chairman; and BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
Peter Gilbert, Vice-President, Gilbert Mfg. Co., Inc., for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
This case concerns the procedures the Secretary of Labor must follow when an employer asks for additional time to abate an occupational safety or health hazard within the 15-day period allowed by the Act for contesting a citation or proposed penalty. n1
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n1 Section 10(a) of the Act, 29 U.S.C. 659(a), provides that an employer may contest a citation or notification of proposed penalty by notifying the Secretary of its intent to contest within 15 days of the employer's receipt of the notification of proposed penalty. Section 10(a) does not refer to any right of the employer to contest the abatement date. However, section 10(c) states that "[u]pon a showing by an employer of a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control, the Secretary shall issue an order affirming or modifying the abatement requirements in such citation. Section 10(c), also, gives any employee or representative of employees the right to contest the reasonableness of the abatement period.
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Under the authority granted him by the Occupational Safety and Health Act of 1970, n2 the Secretary cited Respondent (Gilbert) for allegedly violating 16 OSHA safety standards. Within the 15-day period allowed by the Act for contesting a citation or proposed penalty, n3 Gilbert sent a letter to the Secretary requesting additional time to abate six of the alleged violations. In the same letter, Gilbert contested the penalty proposed for one of the alleged violations. n4 Because the letter timely contested this single proposed penalty, the Secretary treated it as a notice of contest and transmitted it to the Commission, as the Act requires. n5
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n2 29 U.S.C. 651, et seq., referred to in this decision as "the Act."
n3 If the employer fails to file a notice of contest within this period, "the citation and the assessment, as proposed, shall be deemed a final other of the Commission and not subject to review by any court or agency." Section 10(a) of the Act, 29 U.S.C. 659(a). Because of this finality provision, the Commission cannot acquire jurisdiction over a citation or proposed penalty unless the employer files a notice of contest within the 15-day period. Gelhaar Uniform Co., 74 OSAHRC 94/A2, 2 BNA OSHC 1477, 1974-75 CCH OSHD para. 19,186 (No. 1810, 1974).
n4 The item for which Gilbert contested the penalty was one of those for which it requested an extension.
n5 Section 10(c) of the Act, 29 U.S.C. 659(c).
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The Secretary then filed his complaint, alleging that Gilbert had not timely contested the violations alleged in the citations and that the citations were therefore unreviewable final orders of the Commission. (See note 3, supra). Although Gilbert admitted this allegation in its answer, Administrative Law Judge Joseph L. Chalk advised the Secretary that, under Commission precedent, n6 a request for an extension of the abatement date filed within the 15-day period for filing a notice of contest was considered a contest of the entire citation, and that the statement in the complaint that the alleged violations were unreviewable final orders was therefore in error. The Judge advised the Secretary that a failure to amend the citation to reflect that Gilbert had contested all the items mentioned in its letter would be considered an abandonment of the charges. The Secretary thereafter filed an amended complaint in which he agreed to the granting of the requested extensions, but reiterated that the alleged violations were unreviewable final orders. Judge Chalk then issued the decision now before us for [*4] review, vacating the six citation items for which Gilbert had requested extensions of time. We reverse and remand.
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n6 Philadelphia Coke Division, Eastern Associated Coal Corp., 2 BNA OSHC 1171, 1974-75 CCH OSHD para. 18,572 (No. 6448, 1974); Eastern Knitting Mills, Inc., 74 OSAHRC 82/A2, 1 BNA OSHC 1677, 1973-74 CCH OSHD para. 17,691 (No. 2019, 1974).
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In Philadelphia Coke Division, Eastern Associated Coal Corp., and Eastern Knitting Mills, Inc., supra note 6, the Commission held that an employer's request for an extension of the abatement date filed within the 15-day contest period was a timely contest of both the violation alleged in the citation and the abatement date specified for the alleged violation. The Secretary now asks that we overrule these precedents. n7 He contends that if he is willing, as in this case, to grant an extension requested by the employer, he should be able to do so without the entire citation being in issue in an adjudicatory proceeding before the Commission. The Secretary notes [*5] that mechanisms, such as issuance of amended citations and our rules governing petitions for modification of abatement, n8 exist that enable him to handle undisputed requests for extensions informally, and he asserts that such means should be used when the request is filed within the 15-day contest period.
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n7 The Secretary points out that the letter sent by the employer in Eastern Knitting Mills could be fairly interpreted to question the abatement requirement itself, rather than simply the abatement date. He agrees that the letter could therefore have been properly considered to contest the underlying violation, and he does not dispute that the Commission could have for that reason, treated the letter as a notice of contest. The Secretary therefore characterizes Eastern Knitting Mills as dictum insofar as it states that a mere request for an extension sent within the 15-day contest period is a contest of the entire citation. He asks us to overrule Eastern Knitting Mills only to the extent of this dictum.
n8 An employer who wishes an extension of the abatement date may petition, pursuant to Section 10(c), for modification of the abatement date. Rule 34 of the Commission's rules of procedure, 29 C.F.R. 2200.34, quoted infra, n. 23, permits the Secretary to grant a petition for modification of abatement, without transmitting the matter to the Commission, if he or the affected employees do not object to the extension requested by the employer.
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We agree with the Secretary. We conclude that, when an employer only seeks an extension of an abatement date, the manner in which the request should be treated should not depend on whether the request was filed within the 15-day contest period. If the employer is only seeking an extension of the abatement date, we hold that, whenever it is filed, such a request should be considered a petition for modification of abatement and processed under our Rule 34. To the extent that they held otherwise, Philadelphia Coke Division and Eastern Knitting Mills are overruled.
It necessarily follows from this conclusion that a simple request for an extension of abatement does not give the Commission jurisdiction over an entire citation. We reach this result after examining the mechanism Congress established for setting abatement dates under the Act.
When the Secretary cites an employer he believes has violated one of the Act's requirements, the citation must fix a reasonable time for the abatement of the alleged violation. n9 The Secretary must also notify the employer of the penalty, if any, he proposes [*7] to assess for the violation. n10 If the employer fails to notify the Secretary, within 15 days of the receipt of the notification of proposed penalty, that it intends to contest the citation or proposed penalty, then those documents become final orders of the Commission and cannot be reviewed by any court or agency. n11 The employer must then either abate the violation by the date specified in the citation or be subject to daily penalties for failing to do so. n12 The employer may, however, contest the citation, the proposed penalty, or both by filing a notice of its intent to contest within the 15 day period. If the employer contests only the proposed penalty, then the citation, including the abatement date it contains, becomes an unreviewable final order. n13 If the citation is contested, however, then the Commission acquires jurisdiction over the citation and, after affording the parties an opportunity for a hearing, must issue an order affirming, modifying, or vacating the citation, or directing other appropriate relief. n14 If the Commission affirms the citation, the employer must abate the violation, but if the contest was filed in good faith, the abatement date does not begin [*8] to run until the entry of a final order by the Commission. n15 Furthermore when a citation is contested, the parties may place in issue the reasonableness of the abatement date it specifies, and the Commission may include in its order a modified abatement date to run from the entry of its final order. See Boise Cascade Corp., 77 OSAHRC 43/A2, 5 BNA OSHC 1242, 1977-78 CCH OSHD para. 21,714 (No. 802, 1977), pet. for review filed, No. 77-2201 (9th Cir., May 31, 1977).
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n9 Section 9(a) of the Act, 29 U.S.C. 658(a).
n10 Section 10(a) of the Act, 29 U.S.C. 659(a).
n11 See note 3, supra.
n12 Section 17(d) of the Act, 29 U.S.C. 666(d).
n13 Compare Florida East Coast Properties, Inc., 74 OSAHRC 5/C7, 1 BNA OSHD 1532, 1973-74 CCH OSHD para. 17,272 (No. 2354, 1974) with Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD para. 20,221 (No. 7413, 1975).
n14 Section 10(c) of the Act, 29 U.S.C. 659(c).
n15 Section 10(b) of the Act, 29 U.S.C. 659(b).
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The Act also provides a mechanism for [*9] extending an abatement date, which is not limited to the 15-day period for contest. If an employer has made a good faith attempt to abate by date specified in the order but has not been able to complete abatement because of factors beyond its reasonable control, it may petition for modification of the abatement date. n16 Upon receipt of such a petition the Commission, after affording the parties an opportunity for a hearing, may modify the abatement date. n17
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n16 Section 10(c) of the Act, 29 U.S.C. 659(c).
n17 This procedure can be used regardless of whether the Commission's order fixing the abatement date became final by operation of law (see n. 3, supra) or following an adjudicatory proceeding. See Monroe & Sons, Inc., 77 OSAHRC 14/B7, 4 BNA OSHC 2016, 1976-77 CCH OSHD para. 21,470 (No. 6031, 1977), pet. for review filed, No. 77-3157 (6th Cir., March 16, 1977).
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In Philadelphia Coke Division and Eastern Knitting Mills, the Commission construed requests for extensions of abatement dates that were [*10] filed within the 15 day contest periods to be notices of contest of the abatement dates. Because the Act provides for contesting only a citation or a proposed penalty, the Commission concluded that a contest of an abatement date must be a contest of the entire citation. Thus, the Commission held that such a contest gave the Commission jurisdiction over the violation alleged in the citation as well as the abatement date specified for that violation.
Having reexamined the question, we think that turning a request for an extension of an abatement date into a contest of the underlying violation is fundamentally inconsistent with the purposes of the Act. The Act seeks to achieve the rapid abatement of conditions hazardous to workers. See Brennan v. OSHRC (Kesler & Sons Construction Co.), 513 F.2d 553 (10th Cir. 1975); American Smelting and Refining Co. v. OSHRC, 501 F.2d 504 (8th Cir. 1974). In furtherance of this objective, Congress provided for the expeditious resolution of disputes arising under the Act. Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 97 S.Ct. 1261, 1272 (1977). Unnecessary proceedings before the Commission are wasteful of the Commission's, as well [*11] as the parties', resources. If therefore does not serve the purposes of the Act for the Commission to create disputes where none exist. n18 Francisco Tower Service, 76 OSAHRC 11/A2, 3 BNA OSHC 1952, 1975-76 CCH OSHD para. 20,401 (No. 4845, 1976). Thus, we conclude that Philadelphia Coke Division and Eastern Knitting Mills erred in holding the a simple request for an extension of an abatement date should give the Commission jurisdiction over an entire citation.
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n18 There may be situations where a compelling public interest requires the Commission to act even in the absence of a dispute between the parties to a particular case. See 29 C.F.R. 2200.91a(d). Such situations are, however, the rare exception and not the rule. Francisco Tower Service, supra.
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The question remains, however, whether a request for extension that is filed within the 15 day contest period should be considered a notice of contest directed at the abatement date, or whether it should be treated as a petition for modification [*12] of abatement. An examination of the different consequences flowing from these two methods of processing the request is necessary to resolve this question.
If the request is treated as a notice of contest, then the Secretary must transmit it to the Commission, which must afford the parties an opportunity for a hearing. n19 If the request was filed in good faith, then the abatement date is tolled pending the entry of a final order by the Commission. n20 The burden of proving the reasonableness of the abatement date lies with the Secretary. n21 If the affected employees are represented by an authorized employee representative, the notice of contest must be served on the representative, and must also be posted if there are affected employees not so represented. n22 Affected employees may elect to participate as parties at the hearing. n23
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n19 Section 10(c) of the Act, 29 U.S.C. 659(c).
n20 See note 15, supra.
n21 29 C.F.R. 2200.73(a)
n22 29 C.F.R. 2200.7(c), (f), (g), and (h).
n23 29 C.F.R. 2200.20(a).
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Significantly [*13] different consequences result if the request is treated as a petition for modification of abatement. Pursuant to our Rule 34, n24 notice to affected employees is accomplished only by posting. If the Secretary consents to the requested extension and there is no objection by affected employees, the Secretary may grant the request without transmitting it to the Commission. Only if a dispute arises either because the Secretary or the employees do not agree with the requested extension, shall the request be docketed with the Commission. A hearing is then afforded the parties at which the burden of proof rests with the employer to justify the extension. n25 The requirement of abatement is not tolled pending the outcome of any necessary adjudicatory proceedings. n26
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n24 Rule 34 reads as follows, in pertinent part:
2200.34-PETITIONS FOR MODIFICATION OF ABATEMENT PERIOD
(a) An employer may file a petition for modification of abatement date when such employer had made a good faith effort to comply with the abatement requirements of a citation, but such abatement has not been completed because of factors beyond the employer's reasonable control.
(b) . . .
(c) A petition for modification of abatement date shall be filed with the Area Director of the United States Department of Labor who issued the citation no later than the close of the next working day following the date on which abatement was originally required. . .
(1) A copy of such petition shall be posted in a conspicuous place where all affected employees will have notice thereof or near each location where the violation occurred. The petition shall remain posted for a period of ten (10) days.
(2) Affected employees or their representatives may file an objection in writing to such petition with the aforesaid Area Director. Failure to file such objection within ten (10) working days of the date of posting of such petition shall constitute a waiver of any further right to object to said petition.
(3) The Secretary or his duly authorized agent shall have the authority to approve any petition for modification of abatement date filed pursuant to subparagraphs (b) and (c). Such uncontested petitions shall become final orders pursuant to sections 10(a) and (c) of the Act. (Emphasis added)
(4) The Secretary or his authorized representative shall not exercise his approval power until the expiration of fifteen (15) working days from the date the petition was posted pursuant to paragraphs (c)(1) and (2) by the employer.
(d) Where any petition is objected to by the Secretary or affected employees, such petition shall be processed as follows:
(1) The petition, citation and any objections shall be forwarded to the Commission within three (3) working days after the expiration of the fifteen (15) day period set out in paragraph (c)(4).
(2) The Commission shall docket and process such petition in the same manner as any other contested case, except that all hearings on such petitions shall be handled in an expeditious fashion.
(3) . . .
(4) . . .
n25 29 C.F.R. 2000.73(b).
n26 Cf. Brennan v. OSHRC (Kesler and Sons Construction Co.), supra.
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Thus, treating the request as a notice of contest requires the institution of proceedings before the Commission, even if there is no dispute over whether the request should be granted, while a petition for modification of abatement must only be transmitted to the Commission if a dispute exists. As discussed above, the goal of expeditious adjudication suggests that proceedings before the Commission should not be required in the absence of a dispute requiring adjudication. This consideration favors treating all requests for extensions as petitions for modification of abatement.
Another reason for treating requests for extension in this manner lies in the tolling provision that is applicable to notices of contest. When a notice of contest is filed in good faith, the abatement date is tolled pending the entry of a final order of the Commission. The obvious purpose of this provision is to allow an employer to delay abatement until there is a final determination that the employer's workplace contains a condition requiring abatement. In other words, until the existence of a violation is established, the [*15] need for abatement does not arise. The same, however, is not true if the employer does not dispute the existence of a violation, but only the time necessary for its correction. It would be unreasonable to permit an employer to delay beginning abatement until there is a final determination of the total length of time needed to abate. Instead, the employer should be required to proceed expeditiously to abate while the question of the ultimate abatement date is being adjudicated. This will be the result if the request is treated as a petition for modification of abatement.
The other differences between the two possible methods of treating a request for extension are the different allocations of the burden of proof and the different provisions for notice to employees. These differences do not provide a compelling reason for preferring one procedure to the other. The employer is in at least as good a position as the Secretary to prove the period of time necessary for abatement, so treating the request as a petition for modification of abatement will not significantly detract from the employer's rights. Although affected employees who are represented by an authorized employee representative [*16] receive superior notice through personal service on the authorized employee representative if the request is treated as a notice of contest, these same employees receive notice through posting if the request is treated as a petition for modification of abatement. In both cases therefore the employees do receive notice, n27 and so are in a position to participate in the disposition of the request if they so choose.
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n27 As set forth above, employees who are not represented by an authorized employee representative receive notice through posting regardless of whether the extension request is treated as a notice of contest or petition for modification of abatement.
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For these reasons, we conclude that there should not be a distinction in the manner that employers' requests for extensions of abatement dates should be processed depending on whether the requests are filed within the 15-day contest period. We hold that all such requests should be treated as petitions for modification of abatement and processed pursuant to [*17] Rule 34. n28
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n28 As noted above, the Secretary also suggests that undisputed requests for extensions filed within the 15 day period can be satisfactorily dealt with by his issuance of an amended citation. Our holding does not preclude the Secretary from following such a procedure where appropriate. Issuing an amended citation with a modified abatement date is substantially equivalent to processing the request under Rule 34. Under either procedure, the affected employees receive notice of the change, and can dispute the modified abatement date before the Commission if they so desire.
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We note, however, that if the employer's request for relief is ambiguous so that any question arises concerning whether the employer wishes to also contest the citation or if the employer disputes the Secretary's interpretation of its request, the matter is to be referred to the Commission for appropriate action.
In conclusion we emphasize that where the request is processed pursuant to Rule 34, the petition for modification of abatement [*18] is granted whenever there is no objection by either the Secretary or affected employees. A hearing is therefore unnecessary. If there is objection by either the Secretary or affected employees, a hearing is to be held on an expedited basis pursuant to Commission Rule 101. Hence, contrary to our colleague's assertion, our decision does not deprive any party of its statutory rights nor the opportunity for a hearing.
In this case, the Secretary has agreed to the extensions requested by Gilbert. Because Gilbert's letter was treated as a notice of contest, it was served on the affected employees in accordance with our rules governing service of notices of contest. The employees have not voiced any objection to the extensions. Under these circumstances, there is no reason for any Commission proceeding to be held on the matter. We conclude that the Secretary has granted the requests pursuant to Rule 34, and that the requests are therefore not before the Commission. Gilbert's contest of the one penalty is, however, within the Commission's jurisdiction. Accordingly, the Judge's order is set aside, and the case is remanded to the Administrative Law Judge for further proceedings on [*19] the contested penalty.
CONCURBY: CLEARY
CONCUR:
CLEARY, Chairman, CONCURRING:
I concur in the opinion of Commissioner Barnako for the reasons assigned. However, it is a matter of concern that the notice provisions in Commission Rule 7 are different than those in Commission Rule 34. As his opinion points out, under Rule 7 in a notice of contest situation, the employer is required to notify affected employees by posting a notice of contest (Rule 7(g)), but if there is an authorized employee representative it is to be served with a copy of the notice of contest (Rule 7(h)). In contrast, where there is a petition for modification of abatement the only requirement is for posting (Rule 34(c)(1)). The amendment of Rule 34 to conform to the service requirements of Rule 7 to provide that authorized employee representatives should be served with a petition for modification of abatement is something to be treated by rulemaking. n29
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n29 Commission meeting of May 10, 1979 (BNA OSH Reporter, Vol. 8, Number 51, May 17, 1979).
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DISSENTBY: COTTINE
DISSENT:
COTTINE, [*20] Commissioner, dissenting:
This is another case requiring the Commission to determine the scope of an employer's notice of contest. The Act clearly distinguishes between a citation and a notification of proposed penalty for the purpose of determining the scope of an employer's contest. Penn-Dixie Steel Corp. v. OSHRC, 553 F.2d 1078 (7th Cir. 1977); F. H. Sparks of Maryland, 78 OSAHRC 13/C13, 6 BNA OSHC 1356, 1978 CCH OSHD P22,543 (Nos. 15472 & 15760, 1978). However, the Act does not further distinguish between the two components of a citation, the description of the alleged violation and the setting of a reasonable period for abatement. See 29 U.S.C. § 658(a). Consequently, the Commission has previously held that a contest of either the violation or the abatement period places the entire citation in issue. Philadelphia Coke, supra; Eastern Knitting Mills, supra. However, nothing in the Act precludes an employer from distinguishing between the violation and the abatement period. Accordingly, an employer may limit its contest to one component of the citation. Therefore, I agree with the majority's decision to overrule Philadelphia Coke and Eastern [*21] Knitting Mills insofar as those decisions fail to differentiate between a contest of the violation and a contest of the abatement period. However, my colleagues' conclusion that every employer notice of contest limited to the abatement period should be treated as a petition for modification of abatement ("PMA") is legally unsupportable.
There are important distinctions between contesting the reasonableness of an abatement period and petitioning for modification of the abatement date. Under the Act, an employer must be afforded the opportunity for a hearing when the citation or proposed penalty is timely contested. 29 U.S.C. § 659(c). In a case arising under 29 U.S.C. § 659(c), the Secretary has the burden of proving all contested matters, i.e., the existence of a violation, the reasonableness of the abatement period or the appropriateness of the proposed penalty. See Commission Rule 73, 29 C.F.R. § 2200.73. Additionally, affected employees are afforded the opportunity to participate as parties to a case resulting from an employer's notice of contest. 29 U.S.C. § 659(c). n1 When affected employees have exercised their right to elect party status, they are entitled to [*22] meaningful participation in the Commission's proceedings. ITT Thompson Industries, Inc., 78 OSAHRC 70/D10, 6 BAN OSHC 1944, 1978 CCH OSHD P22,944 (Nos. 77-4174 & 77-4175, 1978). n2
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n1 Commission Rule 20(a), 29 C.F.R. § 2200.20(a), provides in pertinent part:
Affected employees may elect to participate as parties at any time before the commencement of the hearing before the judge, unless, for good cause shown, the Commission or the judge allows such election at a later time. . . .
n2 Affected employees are also accorded the right to file a notice of contest to the reasonableness of the abatement period fixed by a citation. 29 U.S.C. § 659(c).
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Under the PMA procedure, the employer bears the burden of proving the reasonableness of the requested extension in any proceeding resulting from the Secretary's refusal to grant the petition. Commission Rule 34(d)(3), 29 C.F.R. § 2200.34(d)(3). Moreover, during a PMA proceeding an employer is subject to citation for failure to abate. In addition, if a PMA is ultimately [*23] denied any penalty proposed for the employer's failure to abate may be calculated based on the original abatement date. See 29 U.S.C. § 666(d). n3 Conversely, a failure to abate notification may not be issued with respect to matters included in a notice of contest. The participatory rights of affected employees are also drastically restricted under the PMA procedure. Unless affected employees file their objections within 10 working days from the date the PMA is posted, those employees waive all further rights to object to the petition. n4 Commission Rule 34(c)(2), 29 C.F.R. § 2200.34(c)(2). I recognize that there is nothing in the Act that compels an employer to proceed to a hearing. Similarly, employees are not required to exercise their participatory rights. However, any decision to forego rights inherent in the hearing process is reserved exclusively to employers or employees.
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n3 See generally M. Rothstein, Occupational Safety and Health Law § § 285-292 (1978).
n4 This is in contrast to the considerably longer period of time for employees to decide whether to exercise their unconditional right to participate as parties in a case instituted by an employer contest.
[*24]
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By converting every employer contest of an abatement period into a petition for modification of abatement date, my colleagues eliminate the statutory right to a hearing under 29 U.S.C. § 659(c). Contrary to my colleagues' assertion, the PMA procedure does not equate with the hearing guaranteed by section 10(c) of the Act because the PMA procedure assigns the burden of proof to employers, subjects employers to citation and penalty for failure to abate, and restricts the participatory rights of employees. The Act does not authorize the Commission to summarily abrogate the rights of employers and employees and the majority errs in doing so in this case.
Applicable precedent of both the Commission and the courts requires construing a notice of contest to reflect whether an employer intended to contest both the citation and proposed penalty. Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD P20,221 (No. 7413, 1975); See also Penn-Dixie Steel Corp., supra; Gil Haugan, d/b/a Haugan Construction Co., 77 OSAHRC 182/G3, 5 BNA OSHC 1956, 1977-78 CCH SOHD P22,248 [*25] (No. 14675, 1977), aff'd, 586 F.2d 1263 (8th Cir. 1978). The eminently reasonable holding in those cases is predicated upon a recognition of the difficult legal and practical consequences that must be considered in the limited time available for filing a notice of contest. An employer's consideration of whether to file a PMA or a notice of contest is equally complex. Provision must be made for interpretation of an employer's contest of an abatement period to ascertain the employer's actual intent. In my view the Commission should direct the Secretary to treat as a notice of contest any document filed within the 15-day period that does not affirmatively reveal an employer's intent to pursue his claim under the PMA procedure. In addition, I would apply the sound rationale of Turnbull, supra, to objectively interpret any ambiguous document in order to determine the appropriate scope of the employer's contest.
Finally, I disagree with my colleagues' decision to apply their holding retroactively. At the time the contest was filed in this case, PMA's were not permitted within the 15-day contest period under Philadelphia Coke and Eastern Knitting Mills. Moreover, [*26] the Secretary's instruction booklet forwarded to employers along with a citation provides that the PMA procedure ". . . is used when the 15 working day contest period has expired and you have not contested the citation." Occupational Safety and Health Administration, U.S. Department of Labor, Employer Responsibilities and Courses of Action Following an OSHA Inspection 5 (1976). In light of these explicit directions to employers, it is unreasonable to conclude that the Respondent intended to file a PMA. Nevertheless, the majority deprives the Respondent of its acknowledged right to a hearing under 29 U.S.C. § 659(c) without affording the Respondent notice.
Accordingly, I must dissent in this case.