UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 10888
R.C. SMITH, d/b/a R.C. SMITH &
COMPANY,
Respondent.
BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
This case is before the Commission pursuant to a sua sponte order for review. The parties
have filed no objections to the Administrative Law Judge’s decision, either by way of petitions
for discretionary review or response to the order for review. Accordingly, there has been no
appeal to the Commission, and no party has otherwise expressed dissatisfaction with the
Administrative Law Judge’s decision.
In these circumstances, the Commission declines to pass upon, modify or change the
Judge’s decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA
OSHC 2032, 1975–76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC
1015, 1975–76 CCH OSHD para. 20,508 (No. 3336, 1976); see also keystone Roofing Co., Inc.,
v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no
compelling public interest issue.
The Judge’s decision is accorded the significance of an unreviewed Judge’s decision.
Leone Constr. Co., 3 BNA OSHC 1979, 1975–76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
Dated: DEC 22, 1976
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
(SEAL)
MORAN, Commissioner, concurring:
I would affirm the Judge’s decision for the reasons set forth in his decision which is attached
hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz
Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority’s
view regarding the significance of decisions rendered by Review Commission Judges.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 11553
BURTEX CONSTRUCTORS, INC.,
Respondent.
APPEARANCES:
James H. Barkley, Esq., of Denver, Colorado, for the Complainant,
R. C. Smith, (Pro Se) of Grand Forks, North Dakota, for the Respondent.
DECISION AND ORDER
Carlson, Judge, OSAHRC:
This is a proceeding brought under Section 10 of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 2651, et seq.), hereafter referred to as ‘the Act’. Complainant on August 29,
1974 issued four citations to respondent alleging violation of § 654(a)(2) of the Act owing to
noncompliance with certain Construction Industry Standards promulgated under § 655. Each of
three of the citations charged a single serious violation of the standards: a fourth citation alleged
10 items of nonserious violation. Complainant sought a penalty of $500 for each of the serious
violations and a penalty of $40 for item 9 of the alleged nonserious infractions. The notice of
these proposed penalties was dated August 29, 1974.
The procedural history of this cause is extensive and used not be fully recited here. The
case was assigned to this Judge on December 3, 1974. Formal complaint had not been filed as of
that time owing to a pending motion for dismissal based upon respondent’s alleged failure to file
a timely notice of contest. Immediately prior to the assignment of the case for trial the Chief
Judge denied complainant’s motion, subject to the right of renewal at trial. Thereafter, complaint
and answer were filed. In the meantime respondent, whose customary occupation was that of
merchant seaman, had departed the United States as a crew member of a merchant ship.
Owing to that circumstance, as the file will reflect, it was impossible to set and hold a
hearing in Grand Forks, North Dakota the sites of the alleged violations, until August 26, 1975.
Two days of hearings were held at that time in which the factual matters relating to the
timeliness of respondent’s notice of contest as well as the general merits of the case were tried.
No employees sought party status.
Complainant filed a post-hearing brief which was stricken sua sponte by this Judge. That
action was taken owing to the fact that numerous photographs, which complainant had not been
able to locate at the time of the trial, were appended to the brief. These were offered as additional
evidence on the merits and were accompanied by no motion to reopen the evidentiary record. In
addition to the appended photographs the brief itself was excluded and sealed since its contents
were deemed inseparable from the proffered additional evidence. Complainant was granted
additional time in which to file another brief, but none was filed. Respondent made -hearing
submissions.
It should be observed that the the reporter’s transcript of the hearing is rife with
inaccuracies. No motion has been received from either party for correction of the transcript; and
the inaccuracies referred to are not judged to have substantially altered essential meanings as to
any material matters.
I
As mentioned, a threshold question of jurisdiction exists here. Respondent’s notice of
contest was not filed until October 31, 1974—long after the apparent completion of service on
September 5, 1974, and well after the 15 working day period permitted by § 659(a).
The matter to be decided, then, is whether under all the circumstances complainant’s
service of notice of the proposed penalties and the citations was effective. In resolving the issue
the following findings of fact are made:
(1) Respondent’s principal occupation at the times material hereto was that of merchant
seaman—specifically a radio and electronics officer. The voyages for which he ordinarily signed
on lasted about two months (Tr. 40, Commission document 3).
(2) At all times material hereto respondent owned a dwelling house at 1104 Boyd Drive,
Grand Forks, North Dakota. It was to this place he customarily returned and lived between
voyages. (Tr. 44, 64.)
(3) Across the street from his house respondent also owned a parcel of land upon which
he undertook to build, beginning in 1971, a three story apartment building (Tr. 53, 41);
construction was interrupted a number of times owing to financial and other problems.
(4) On August 22, 1974, one James R. Wilson, a compliance officer for complainant,
inspected the aforementioned building construction site, where be observed men doing various
kinds of work (Tr. 26).
(5) Compliance officer Wilson, upon identifying himself and the purpose of his visit
when he arrived at the site, was directed by a worker to see respondent, P. C. Smith. The
compliance officer did so and Smith accompanied him on the inspection of the site. (Tr. 79–80.)
During the course of the inspection Smith referred to the workmen as his ‘subcontractors’ (Tr.
67) but identified a welder as his employee (Tr. 68), a relationship which the welder affirmed
(Tr. 142–143).
(6) At a ‘closing conference’ immediately following the inspection the compliance
officer advised respondent that conditions or practices observed could result in the issuance of a
citation (Tr. 27). Respondent advised the compliance officer that he would be ‘leaving town
within a week to ten days’ and was ‘going to Hong Kong and the Far East’ (Tr. 26).
(7) Respondent also furnished the compliance officer with a sheet of stationery with the
printed heading ‘R. C. Smith & Co., 1101 Boyd Drive, Grand Forks, North Dakota’
(complainant’s ex. 6). The address given was the incompleted building. The letterhead included
two telephone numbers: one was that of respondent’s house; the other of a telephone in the
building. (Tr. 52.) At one point respondent spoke of the incomplete building as the ‘future home
of R. C. Smith & Co.’ (Tr. 87.)
(8) In connection with the discussion of a possible citation respondent further indicated to
the compliance officer that someone would be in charge of his business affairs and that mailings
should be directed to his home address: 1104 Boyd Drive. (Tr. 26–27, 34–35.)
(9) On August 29, 1974 complainant mailed the citations and notification of proposed penalty
herein to 1104 Boyd Drive by certified mail. The Postal Service return receipt form was duly
returned to the Billings, Montana office of complainant signed by one ‘Steve R. Meher’ in the
block designated ‘Signature of Addressee’s Agent, If Any.’ ‘R. C. Smith & Co.’ had been
written in the block for ‘Signature or Name of Addressee.’ The receipt was dated September 5,
1974.
(10) No communication in any form was received by complainant from respondent
himself until a letter (Commission document 3), bearing an October 31, 1974 date, was received
by the Office of the Solicitor for the Department of Labor in Denver, Colorado on November 4,
1974. The body of that letter reads as follows:
1
In reference to a letter from Mr. Henry C. Mahlman, Associate Regional
Solicitor, dated 24 October 1974, I wish to reply as follows.
‘We take exception to the OSGA [sic] items cited on the project at 1101 Boyd
Drive, Grand Forks, North Dakota. We feel they were arbitary, [sic] taken out of
context, and with variance of the facts as we know them to be.
‘The formal notice of items cited was incorrectly delivered and I have not
been advised nor seen these items until yesterday. The delivery was made to a
tenant of my former residence who has no connection nor knowledge of my
affairs and apparently placed it with an accummulation [sic] advertising materials
and other such mail, held until I returned from the far east. We have a
Professional Engineer and an attorney who handle such things in my absence
[sic]. They had no knowledge of such material being received either.
A part time bookkeeper, who does not work for me now, ran across this envelope
in routine manner when she came in to voluntarily [sic] do a few quarterly reports
due October 31st, knowing I would not be back in the United States by then. She
called your office advising of the circumstances, leaving the material until I
returned for my consideration.
In view of the incorrect delivery process and in view of no opportunity being
reasonably allowed me to reply, I hereby request the fine and citations be
terminated.
For your information, I departed from the United States August 25, 1974 and did
not return (New York) until October 28, 1974. I returned to Grand Forks October
31st and this is the first I have ever seen of the citations and your relevent [sic]
mail.
(11) The above letter was an adequate notice of contest if timely filed.
(12) Respondent had in fact rented his house to one Steve R. Meher, a college student, for
the period of Smith’s absence while at sea. Meher had no specific connection with any business
enterprise of respondent, but agreed, when requested by respondent, to pay his telephone bills
and forward his mail. Meher failed, however, to do either (Tr. 40, 55, 58.).
1 Presumably the letter referred to was related to the Solicitor’s collection efforts which had
begun on the assumption that the citations were uncontested.
(13) Respondent had departed from Grand Forks for New York on the day following the
inspection herein, and shortly thereafter departed the United States on his ship which sailed for
Hong Kong with numerous intermediate stops of less than a day at various Pacific ports (Tr. 40).
(14) Respondent first learned of the citation and notice of proposed penalties from one
Darlene Nelson, who did bookkeeping for him on an occasional basis (Tr. 40, 50, 58–59).
(15) A caller identifying herself as Darlene Nelson telephoned complainant’s Billings,
Montana Area Office on September 27, 1974 [the 16th working day following the receipt of the
certified mailing by Meher], and represented that R. C. Smith was out of the country, and that his
company was a one man operation. The official taking the call suggested a filing of a notice of
contest, but the matter was not further pursued by the caller. [See compl’s. ex. 8. The
memorandum of the call was made on the sample of respondent’s ‘R. C. Smith & Co.’ stationery
in complainant’s file and was received in evidence as an accurate recital of the substance of the
telephone conversation (Tr. 209–214).]
(16) Complainant on the basis of information furnished by R. C. Smith to the compliance
officer, coupled with the compliance officer’s personal observations, had ample cause to believe
that respondent, despite his impending departure, was the proprietor of an active business
enterprise known as ‘R. C. Smith & Co.’ and had reasonable further cause to believe that
respondent was an employer at the construction site in question.
(17) Complainant also had reasonable cause to believe that copies of the citations and
notification of proposed penalties, dispatched by certified mail to the address respondent
furnished in connection with the discussion of a possible citation, would impart notice thereof to
respondent.
(18) Respondent, himself, did not in fact receive copies of the citations and notification of
proposed penalty until more than 15 days after the date Meher had signed the certified mail
receipt.
It should be noted that most of the evidence material to the making of the above findings
was not in real dispute. As to some facts relating to the service question, however, the testimony
of the compliance officer and Mr. Smith, the only witnesses, was in sharp conflict. Smith, for
instance, denied that he ever told the inspector that the building under construction was to be ‘the
future home’ of R. C. Smith & Co. Where conflicts did exist, they were generally resolved in
favor of the compliance officer’s version. This was so because of fundamental inconsistencies in
2
Mr. Smith’s factual positions.
II
The statutory provision governing notice and the initiation of contests is § 659(a) of the
Act which declares:
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 any 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.
It is clear that respondent’s right to institute a contest, and thus invoke the power of the
Commission to decide the validity of complainant’s citations or penalties, is extinguished upon
the passing of the statutory 15 working days from the date of receipt of the penalty
3
notice. Neither the above cited section nor any other section of the Act contains further guidance
as to the particulars of service beyond the solitary declaration that the Secretary shall ‘. . . notify
the employer by certified mail’. No rules of the Secretary or of the Commission purport to set out
further criteria.
The Commission has indicated that alternative service may be achieved by non-mail
delivery of notice provided strict compliance is had with the appropriate requirements of the
Federal Rules of Civil Procedure. Secretary v. Donald K. Nelson Construction, Inc. docket no.
4309 (January 13, 1976). That case, of course, is not directly applicable here since the mode of
service specified in the statute—certified mail—was used in the instant case. By implication,
2 To cite one example, respondent declared in his notice of contest letter, (Commission document
3, supra), with regard to what persons were looking after his affairs in his absence: ‘We have a
Professional Engineer and an attorney who handled such things in my absence’. Yet, at the
hearing, respondent testified unequivocally that nobody, including any attorney, was connected
with his affairs during the absence here in question (Tr. 53, 55, 61–62).
3
See, for example, Brennan v. OSAHRC and Bill Echols Trucking Co., 487 F.2d 230 (1973).
however, it does raise a question as to whether, when service is undertaken by certified mail, the
sufficiency of such service should be directly judged by the principles which control under the
Federal Rules of Civil Procedure. I believe Congressional partiality toward service by mail as
expressed in the Act must be taken as an indication that the specific requirements of the Federal
4
Rules should not be rigidly superimposed upon the method of service mentioned in the statute.
What criteria, then, should govern? Obviously, there must be conformity to the basic
requirements of due process of law. The essential due process requirements for notice are set out
in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) as follows:
An elementary and fundamental requirement of due process in any proceeding
which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.
It is well settled that notice served by registered or certified mail suffers from no inherent
due process infirmities. NLRB v. O’Keefe & Merritt Mfg. Co., 178 F.2d 445 (9th Cir. 1949);
NLRB v. Wiltse, 188 F.2d 917 (6th Cir. 1951); Wise v. Herzog 114 F.2d 486 (D.C. Cir. 1940).
In my view the test utilized in NLRB v. Clark, 468 F.2d 459 (5th Cir. 1972) should
govern generally in determining the sufficiency of service by certified mail under the
Occupational Safety and Health Act. There the Court concerned itself with the effectiveness of a
statutorily authorized registered mail service of a charge (and later a complaint) under the
National Labor Relations Act. The Court identified the proper test to be:
‘. . . whether in the circumstances the procedure used would in all probability
have informed the defendant of the proceedings against him’ (emphasis
5
supplied).
6
As shown in the authorities cited by the Court this is likely the fairest test devisable. It
permits a broad scrutiny of the factual substrata to determine whether notice should likely have
been received by respondent. In so doing it avoids the unfairness which can result if effective
service is mechanically found to exist in every case where the serving party complies with literal
4
Cf. Buckley & Company, Inc. v. Secretary of Labor, 507 F.2d 78 (1975).
5
NLRB v. Clark, supra, at 465.
6
Blackhawk Heating & Plumbing Co. v. Turner 50 F.R.D. 144 (1970); 17 U. Kan. L. Rev. 125
(1968). [The ‘probability’ test was originally suggested as the best means for determining the
validity of substituted service of process on individuals under Rule 4(d)(1), F.R.C.P., by leaving
the same ‘at their usual place of abode’.]
requisites. On the other hand, where the evidence may show that the service did not impart actual
notice, it also avoids a possibly specious finding of ineffective service based upon that fact alone.
In Clark there was no evidence that the respondent had personally received the charge
which, under the governing statute, was to have been mailed to him at his ‘principal place of
business.’ The respondent had been the owner-operator of a nursing home when the alleged
unfair labor practice took place. Well before the charge was mailed, however, he leased his
facility to another operator—the individual who had served as his manager or administrator of
the facility. The lessee received the notice. The Court, noting that respondent had failed to
register the change with the state licensing authority, held that the NLPB was justified in relying
on the ‘outward appearances’ which Clark helped to create and thereafter countenanced. The
service was held valid. The Court specifically declared:
Clark, by his own actions, created the appearance that the home remained his
7
principal place of business. He is not entitled to benefit from this confusion.
In essence, the Court invoked a species of estoppel against the party intended to be
served. This was done because that party was knowingly instrumental in creating or perpetuating
appearances which would lead an objective observer to conclude that the means of service used
would, in all probability, impart effective notice.
The parallels between the positions of the respondent in Clark and the respondent in the
present case are manifest. Mr. Smith accompanied the compliance officer through a relatively
lengthy inspection of the worksite. This was followed by a closing conference in which he was
expressly alerted by the government’s inspector to the fact that citations and proposed penalties
might be forthcoming. Respondent knew full well of his sea voyage at the time, and in fact
advised the inspector of his impending departure. Nevertheless, when asked, he specifically
directed that mail be sent to his home address. He further affirmatively indicated that unspecified
persons in Grand Forks would be looking after his affairs during he period of his absence.
Moreover, Meher, the very person whom he designated to handle his mail, actually received and
signed for complainant’s notice.
Respondent now complains that he did not receive service owing to the neglect of Meher
in forwarding his mail—and maintains that the Commission should therefore assume jurisdiction
and render a decision on the merits. I cannot agree. In the present case the outward indicia, as in
7
NLRB v. Clark, supra at 464.
Clark, were of the sort that invited the specific attempt at service which was made. Here,
however, the respondent did even more: he actually told the complainant’s representative where
future mailings were to go. The following reasoning of the Court in Clark should apply with
even greater force in this case:
To effectuate the Congressional policy in favor of service by mail, it is necessary
that the NLRB be able to judge the quality of its attempts at service by something
more than the fortuity of whether a defendant can be shown to have had actual
8
notice.
I must conclude that respondent, after proper and effective delivery of notice to the place
designated by him, failed to file a notice of contest within the time prescribed by § 659(a) of the
Act, and that this Commission is hence without jurisdiction to entertain the purported notice of
contest filed by respondent on October 31, 1974.
Accordingly, it is hereby ORDERED that respondent’s purported notice of contest is
dismissed and that the citations and accompanying notification of proposed penalty are deemed
to have become the final orders of the Commission pursuant to § 659(a) of the Act.
John A. Carlson
Judge, OSAHRC
Dated: March 25, 1976
8
NLRB v. Clark, supra at 465.