HARRIS BROTHERS ROOFING CO.  

OSHRC Docket No. 80-1345

Occupational Safety and Health Review Commission

November 26, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, USDOL

J. M. Holcomb, Safety Officer, HARRIS BROTHERS ROOFING CO., for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   The case is before the Commission as the result of a direction for review by Commissioner Cottine pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i). n1

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n1 Commission Rule 93 recently has been amended, see 4 Fed. Reg. 70,106 at 70,111 (1979), to be codified at 29 C.F.R. §   2200.93.   Under the revised rule, which is applicable to this case, no briefs are filed until the Commission so requests.   If the Commission finds that briefs are necessary regarding the issues on review, a briefing notice is normally sent to the parties when the issues on review, a briefing notice is normally sent to the parties when the case is placed on the calendar for consideration.   Briefs have been neither requested by the Commission nor filed by the parties.   We find that briefing by the parties is unnecessary to the disposition of this case.

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I

From December 12 to December 18, 1979, the Secretary of Labor ("Secretary") conducted an inspection of a construction site at the Charleston Civic Center in Charleston, West Virginia.   Respondent, Harris Brothers Roofing Co., was one of the contractors at the site.   As a result of the inspection, Respondent was issued a single, 1 item citation on January 17, 1980.   The citation was received by Respondent on January 18, 1980.   By letter dated February 22, 1980, Respondent contested the citation n2 but also essentially admitted that its notice of contest was not filed within the 15 working days specified in the Act. n3 In its letter, Respondent sets forth circumstances explaining why it had not contested the citation earlier and requests that the case be reopened.   Respondent is represented pro se in this matter.

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n2 We construe Respondent's letter of February 22, 1980 to be a notice of contest. It is a well-established Commission policy to construe liberally notices of contest in order to determine the intent of the contesting party.   E.g., Haugan Construction Co., 77 OSAHRC 182/G3, 5 BNA OSHC 1956, 1977-78 CCH OSHD P22,248 (No. 14675, 1977), aff'd, 586 F.2d 1263 (8th Cir. 1978). Even though the letter here in written in terms of a "petition" to reopen the case, it otherwise establishes Respondent's intent to contest the citation.

n3 Section 10(a) of the Act, 29 U.S.C. §   659(a), provides:

Sec. 10.(a) If, after an inspection or investigation, the Secretary issues a citation under section 9(a), he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under section 17 and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty.   If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by an employee or representative of employees under subsection (c) within such time, the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

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On March 26, 1980, the Secretary filed a motion to dismiss Respondent's notice of contest on the basis that it was not filed timely.   Respondent opposed the motion.   On May 7, 1980, Chief Administrative Law Judge Paul A. Tenney ordered that the case be set for a preliminary hearing on the motion to determine "whether representations in the employer's February 22, 1980, letter permit a tolling of the fifteen-working day period under the teaching of B.J. Hughes, Inc.," 79 OSAHRC 49/E6, 7 BNA OSHC 1471, 1979 CCH OSHD P23,675 (No. 76-2165, 1979) ("B.J. Hughes").   The case was assigned to Judge Henry F. McQuade.

Judge McQuade set the case for hearing.   Before the hearing was held, the Secretary filed a letter noting a request by the parties that the motion to dismiss be decided without a court appearance and objecting to trying the merits of the case at the scheduled hearing.

The scheduled hearing was never held.   Apparently in response to the Secretary's objection, the judge issued an order on July 11, 1980, vacating the citation.   Relying on the citation and Respondent's letter of February 22, 1980,   [*4]   and assuming, for the purpose of ruling on the motion to dismiss, that the facts as presented in those documents were true, the judge held that Respondent was not in violation of the Act as alleged, because it had no control over the work area and its employees had no access to the hazards cited.

Thereafter, the Secretary petitioned for discretionary review of the case on the ground that the Commission lacked jurisdiction over the citation because Respondent's notice of contest was filed late.   On August 11, 1980, Commissioner Cottine granted the petition of the Secretary and directed the case for review. n4 For the reasons that follow, we set aside the judge's order of July 11, 1980 and remand the case.

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n4 Review was directed on the issues raised by the petition including:

Whether the judge erred in vacating the citation on the grounds that "it appears from the file, papers and record that Respondent and its employees were not in violation of the standards set forth in the citation," notwithstanding the Secretary's motion to dismiss the Respondent's notice of contest as untimely filed.

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II

It is undisputed that Respondent's notice of contest was not filed within fifteen working days from receipt of the notification of proposed penalty as required by section 10(a) of the Act, 29 U.S.C. §   659(a).   Under these circumstances, the scope of permissible inquiry is narrow.   We have held that an employer may establish that an untimely filed notice of contest is valid by showing that deception or a failure to follow proper procedures on the part of the Secretary caused the delay.   National Roofing Corp., 80 OSAHRC    , 8 BNA OSHC 1916, 1979 CCH OSHD P24,059 (No. 79-1158, 1983); B.J. Hughes, Inc., supra; Keppel's, Inc., 79 OSAHRC 43/A2, 7 @BNA OSHC 1442, 1979 CCH OSHD P23,622 (No. 77-3020, 1979). n5 Judge Tenney's order in response to the Secretary's motion to dismiss was issued for the limiteed purpose of determining whether the facts in this case satisified the criteria in B. J. Hughes. In vacating the citation for the reasons that Respondent did not control the work area and that its employees had no access to the cited hazard, however, Judge McQuade exceeded the scope of Judge [*6]   Tenney's order and ruled on the merits of the case. n6 This was error. Unless the notice of contest is timely filed or unless the limited exception in B. J. Hughes is established, the Commission has no jurisdiction to review the case on the merits.   29 U.S.C. §   659(a); B.J. Hughes, Inc., supra. We, therefore, set aside the judge's order vacating the citation.

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n5 Commissioner Barnako would also permit an employer to establish that an untimely filed notice of contest is valid under limited circumstances where the notice of contest was preceded by a timely oral notice of contest. Keppels, Inc., supra (concurring opinion).

n6 Although it may be appropriate when considering a motion to dismiss to view the facts in a light most favorable to the opposing party, this deference extends no further than to matters relevant to the grounds for dismissal as set forth in the motion.

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Accordingly, the case is remanded to the administrative law judge to make a factual inquiry and determination as to the circumstances [*7]   regarding the late filing of the notice of contest and for further proceedings consistent with that determination.   SO ORDERED.