UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 9206

WOOD PRODUCTS COMPANY,

 

                                              Respondent.

 

 

September 16, 1976

DECISION

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

MORAN, Commissioner:

A decision of Review Commission Judge Henry F. Martin, Jr., dated March 31, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i). This case was dismissed below without a decision on the merits because respondent failed to file a written notice of contest to the citation within 15 working days after receipt thereof. For reasons which follow, we reverse.

Respondent was initially cited on June 4, 1974, following an inspection conducted on May 29, 1974. Thereafter, on June 20, 1974, respondent received an amended citation and notification of proposed penalties which were issued on June 19, 1974. Within 15 working days after receipt of these citations, respondent orally informed complainant that he intended to contest both the citation and the notification of proposed penalties. Subsequently, complainant’s area director informed respondent that the notice of contest must be in writing. By a letter dated July 26, 1974, respondent confirmed its earlier oral notice of contest. The area director was unable to testify as to the date on which he advised respondent of the requirement for a written notice of contest, but he conceded that the respondent’s written notice was received within ‘not more than five days’ thereafter. During this time period following receipt of the initial citation, respondent’s owner had two personal meetings and several telephone contacts with complainant’s area director.

At issue is whether respondent timely contested the charges as required by the Act. We find that the circumstances of this case require an affirmative answer.

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

‘If . . . the Secretary issues a citation . . . he shall . . . notify the employer by certified mail of the penalty, if any, proposed to be assessed . . . 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... 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.’ (Emphasis added.)

 

By a regulation codified at 29 C.F.R. § 1903.17(a), complainant has interpreted the word ‘notify’ to mean that respondent must submit a written notice of contest within the 15 working-day period. We do not generally disagree with this interpretation. Administrative convenience, preciseness of the date of contestation, and clarity as to what is being contested suggest that this is a reasonable means of implementing the statute. We do not, however, accept complainant’s argument that his regulation establishes an absolute requirement in every case.

In Atlantic Marine, Inc. v. OSAHRC, 524 F.2d 476, 478 (5th Cir. 1975), the Court stated that:

[A] powerful argument can be generated that a petitioner should not be denied review altogether of a Citation of Violation for not having filed a Notice of Contest within the 15-day limit prescribed in the Act if the Secretary’s deception or failure to follow proper procedures is responsible for the late filing.

 

In this case, there is no indication that the area director intended to deceive respondent, or acted improperly in any manner. The record does show, however, that respondent was in fact confused by the course of events, which included a number of communications with the area director. The record also shows that the area director was unsure at what point he notified respondent that the notice of contest should be in writing. There is no indication that respondent acted in bad faith or in a dilatory manner. Under these circumstances, we will not interpret 29 U.S.C. § 659(a) as creating an absolute bar to review of the citation.

In Secretary v. H-E Lowdermilk Company, 7 OSAHRC 987, 989–990 (1974), respondent was confused by the citation and the notification of proposed penalties as to whether any penalty had been proposed for an item. No notice of contest was filed in regards to said item. At trial, however, it became clear that a $65 penalty had been proposed and respondent immediately requested to contest both the citation and proposed penalty. Under those circumstances, the Commission permitted an exception to complainant’s regulatory interpretation of 29 U.S.C. § 659(a).

As in Lowdermilk, this respondent promptly reacted after his mistaken impression was corrected. Respondent orally informed complainant’s area director within the statutory period of its intention to contest the citation and proposed penalties. It was unaware until shortly before a written notice of contest was filed, however, that such notice should be in writing. Upon learning of such requirement, its written notice of contest was mailed within a few days. Under these circumstances, we find that respondent duly filed a valid notice of contest.

Accordingly, the decision below is reversed, and the case is remanded for a decision on the merits.

 

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: SEP 16, 1976

 

CLEARY, Commissioner, DISSENTING:

I dissent because in my opinion the Administrative Law Judge correctly decided the case. The applicable provision of the Act is section 10(a) which reads as follows:

. . . 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 . . . 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. (Emphasis added).

 

Section 10(a) does not expressly require that a notice to the Secretary contesting a citation or proposed penalty assessment be in writing. However, the Secretary of Labor in his rule published shortly after the Act’s effective date at 29 CFR § 1903.17(a) required that any notice of contest be in writing. The Commission’s own rules contemplate a writing. See 29 CFR § 2200.32. These seem to be interpretations of section 10(a), and not interstitial rules requiring a writing. A filing of some sort is contemplated by section 10(a). The subsection expressly reflects a requirement that contests by affected employees under subsection (c) would be ‘filed.’ Equal treatment would require that a corresponding contest by an employer be ‘filed;’ i.e. that a paper be placed with the Secretary’s Area Director. Thus, what is before us is simply not a question of whether a rule of the Secretary of Labor requiring that a notice of contest be in writing has been breached, which would not affect our jurisdiction. Rather, it is a question of jurisdiction under section 10(a).

In his brief the Secretary points out some possible confusion and administrative burdens that could result from the use of oral notices of contest under the Act. These practical considerations suggest not only a sound basis for a rule, as conceded by the majority, but also a Congressional purpose contemplating the use of only written and timely notices of contest. Our decision in H. E. Lowdermilk Co., 1 BNA OSHC 1663, 1973–74 CCH OSHD para. 17,656 (No. 133, 1974), is not inconsistent with this interpretation. There, we permitted an employer to contest an additional item immediately after clarification of the notice of proposed penalty. We characterized the situation as being sui generis and noted that no party challenged the validity of the contest.[1]

The majority’s reliance upon the Fifth Circuit’s decision in Atlantic Marine is misplaced. The facts of this case are sharply different. There is no deception or other improper conduct here, as the majority concedes.

Finally, the subsequent confirmation in writing of the purported oral notice of contest falls short of the requirements of section 10(a) because, as indicated above, section 10 as a whole suggests that a filing within the fifteen working days is required.

For further discussion of the issue of whether or not an oral notice of contest is permissible, see Donald K. Nelson Constr., Inc., 3 BNA OSHC 1914, 1975–76 CCH OSHD para. 20,299 (No. 4309, 1976) (dissenting opinion), petition for review docketed, No. 76–1112, 10th Cir., February 23, 1976.

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 9206

WOOD PRODUCTS COMPANY,

 

                                              Respondent.

 

 

March 31, 1975

Appearances:

Mr. Robert A. Fitz, Attorney USDOL, Solicitor’s Office Room 7C52, Federal Building Dallas, Texas 75202 Attorney for Complainant

 

Mr. Robert L. Vaughn Wood Products Co. Post Office Box 112 Addison, Texas 75001 Representative for Respondent

 

DECISION AND ORDER

MARTIN, Judge:

This is a proceeding brought pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC § 651 et seq.), hereinafter referred to as the Act, contesting a certain citation and notification of proposed penalty issued by the complainant against respondent under the authority vested in complainant by section 9(a) of the Act.

The citation alleges that as a result of an inspection of a work place under the ownership, operation, or control of respondent, located at Addison, Texas, respondent violated section 5(a)(2) of the Act by failing to comply with certain occupational safety standards, to wit, 29 CFR 1910.22(a)(1), 29 CFR 1910.22(b)(2), 29 CFR 1910.22(d)(1), 29 CFR 1910.213(d)(1), 29 CFR 1910.213(h)(1), and 29 CFR 1910.213(h)(4).

Subsequent to the issuance of the citation and notification of proposed penalty on June 4, 1974, and the amended citation and amended notification of proposed penalty on June 19, 1974, respondent wrote a letter to complainant’s area director in Dallas advising that he wished to contest certain items referred to in the citation as well as the proposed penalties and abatement dates. Thereafter, complainant through his regional solicitor’s office, filed a formal motion to dismiss the notice of contest upon the grounds that the Review Commission lacked jurisdiction to hear and decide this matter in view of respondent’s failure to file a timely notice of contest. On September 27, 1974, the Review Commission denied the aforementioned motion without prejudice to its renewal.

Pursuant to notice a formal hearing was conducted in Dallas, Texas, on December 20, 1974, at which time complainant was represented by Mr. Robert A. Fitz, of the regional solicitor’s office in Dallas, Texas, and respondent was represented by its owner, Mr. R. L. Vaughn of Addison, Texas. At the hearing evidence was received on the question of the timeliness of respondent’s notice of contest inasmuch as the motion to dismiss was renewed by the solicitor’s office.

After carefully considering all of the evidence in the record bearing upon the timeliness of the notice of contest, it is concluded that the motion to dismiss should have been granted. In view of this determination it is unnecessary to consider the merits of the alleged violations.

There is little or no dispute as to the time sequence of the events which transpired herein. The citation and notification of proposed penalty were issued to respondent on June 4, 1974, and on June 19, 1974, an amended citation and amended notification of proposed penalty were issued to respondent. No formal contest was filed by Mr. Vaughn although he admittedly discussed the various features of the inspection with Mr. Adams, the area director, within fifteen days after the issuance of the original citation.[2]

It was not until July 26th that respondent (through Mr. Vaughn) wrote a letter to the area director indicating a desire to contest certain items of the alleged violations, the penalties involved, and the abatement dates. This letter, of course, was written and mailed considerably beyond the fifteen working day requirement as set forth in section 10(a) of the Act.

Section 10(a) of the Act provides, in part, as follows:

* * * If, within fifteen[3] 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.

 

Title 29 of the Code of Federal Regulations, section 1903.17 provides, in part, as follows:

‘* * * Any employer to whom a citation or notice of proposed penalty has been issued may, under section 10(a) of the Act, notify the area director in writing that he intends to contest such citation or proposed penalty before the Review Commission. Such notice of intention to contest shall be postmarked within fifteen working days of the receipt by the employer of the notice of proposed penalty * * *.

 

Respondent actually received the notification of proposed penalty on June 20, 1974, and had fifteen ‘working’ days to notify the Secretary that he intended to contest the matter. Respondent’s letter of July 26, 1974, which was postmarked the following day, was ten working days late and, therefore, the Review Commission lacks jurisdiction to consider the merits of the notice of contest. Since the notice of contest was not within the statutory time limit, the citation and the proposed assessment of penalty became a final order of the Commission and is not subject to review by any court or agency.

In the case of the Secretary of Labor v. Walter A. Podpora, 1971–73 OSHD, 15,129, where the notice of contest was untimely by one day, the Review Commission stated:

There is, therefore, no inherent power, in view of the specific statutory time requirement, in the Commission to extend the time for filing under the facts in this case and no statutory provision for consideration of alleged mitigating circumstances as urged by respondent.

 

Attention is also invited to the case of the Secretary of Labor v. Mississippi Valley Erection Co., 5 OSAHRC 483, where the Review Commission ruled that the Judge lacked jurisdiction to take evidence when the Commission decided that the employer had violated the standards as a matter of law by reason of his failure to file a contest within fifteen working days from receipt of the penalty notification.

Complainant has cited in his memorandum the case of the Secretary of Labor v. Donald K. Nelson Construction Co., 1973–74 OSHD, 17,046. There the parties agreed that the respondent did not file a written notice of contest within fifteen working days of such service. Instead, respondent stated orally that he intended to contest the matter. On remand the notice of contest was dismissed and the proposed penalty was affirmed because of the employer’s failure to file a timely notice or contest.

In a very recent case, the Secretary of Labor v. Greguson’s Nursery, Inc., decided February 6, 1975, the Review Commission stated that where an employer restricts his notice of contest to the proposed penalty, the citation itself becomes a final order of the Commission at the end of fifteen working days. The Commission ruled that the Judge had erred in attempting to include the issue of the violations within the scope of the contest.

Not only do provisions of section 10(a) of the Act and section 29 CFR 1903.17(a) call attention to the time limit of ‘fifteen working days’ for the filing of a notice of contest, the area director’s notification of proposed penalty in its first full paragraph puts an employer on notice as follows:

This notification and the penalty (ies) proposed by the Secretary of Labor shall be deemed to be the final order of the Occupational Safety and Health Review Commission (an independent agency with authority to issue decisions respecting citations and proposed penalties) and not subject to review by any court or agency unless, within fifteen working days from the day of receipt of this notification, you submit a letter of contest. The letter of contest should be mailed or otherwise delivered to the Area Director named below at the address shown at the top of this notification. If no notice of contest is filed within the fifteen working day period, the proposed penalty (ies) becomes final and is immediately payable.

 

Since no letter of contest was mailed or otherwise given to the area director within the specified time, it must be, therefore, concluded that the citation and proposed penalties became a final order of the Review Commission and that the undersigned Judge lacks jurisdiction to proceed to the merits of this matter.

ORDER

It is ORDERED that:

1. Complainant’s motion to dismiss respondent’s notice of contest be and the same is hereby granted.

2. This proceeding be and the same is hereby dismissed.

 

HENRY F. MARTIN, JR.

JUDGE

DATED: March 31, 1975


[1] It is also noteworthy that the contest is evidenced by a written transcript.

[2] Mr. Adams was not entirely certain as to whether he advised Mr. Vaughn at the time of his first visit as to the procedure of ‘contesting’ but stated ‘its normal to do that’. (Tr. page 13).

 

[3] ‘Working days’, according to section 29 CFR 1903.21(c), means Mondays through Fridays, but shall not include Saturdays, Sundays, or Federal holidays. In computing fifteen working days, the day of receipt of any notice shall not be included, and the last day of the fifteen working days shall be included.