OSHRC Docket No. 14675

Occupational Safety and Health Review Commission

October 11, 1977


Before CLEARY, Chairman; and BARNAKO, Commissioner.


Baruch A. Fellner, Office of the Solicitor, USDOL

Henry C. Mahlman, Associate Regional Solicitor, U.S. Department of Labor

Gil Haugan, Gil Haugan Construction Company, for the employer




Chairman Cleary granted complainant's petition for discretionary review, under the authority granted by section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 661(i), to decide whether Administrative Law Judge Carlson erred in dismissing citations issued to respondent on the ground that complainant failed to amend the pleadings as ordered. We conclude that the Judge did not err.

The notice of contest filed by respondent, Gil Haugan, d/b/a Haugan Construction Company, indicated an intent to challenge only the penalties proposed by complainant, the Secretary of Labor. On August 5, 1975, the day after an inspection of respondent's worksite in Sioux Falls, South Dakota, complainant mailed to respondent two citations and a notification of proposed penalties. Citation One alleged four violations in items 1 through 4, but penalties were proposed only for items 3 and 4. Citation Two alleged only [*2] one violation, for which a penalty was proposed. Respondent's president, who is not a lawyer, timely filed a notice of contest stating:

We hereby contest the Proposed Penalty of CSHO No. M4042 and OSHA-1 No. 566 dated August 5, 1975.

On September 11, complainant issued a complaint alleging that respondent was contesting only the proposed penalties. Paragraph III of the answer filed by respondent's president, however, states:

We take issue with your interpretation of our letter [i.e., notice of contest] dated August 25, 1975. Our intent was to contest the citation and penalty.

We note that the numbers referred to in respondent's notice of contest, which appear to be codes used by the Secretary for administrative purposes, appeared on both citations and the notification of proposed penalties.

Between the filing of the answer and the scheduled date of the hearing, a divided Commission decided Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD para. 20,221 (No. 7413, 1975), holding that notices of contest facially limited to the penalty would be construed to include a contest to the underlying citation if a respondent subsequently pleaded that the [*3] notice of contest was intended to challenge the citation as well as the penalty. Cf. Penn-Dixie Steel Corp. v. O.S.H.R.C. and Dunlop, 553 F.2d 1078 (7th Cir. 1977). Relying upon Turnbull, Judge Carlson concluded that respondent's contest extended to items 3 and 4 of Citation One, Citation Two, and all proposed penalties. n1 The Judge issued an order granting complainant ten days in which to amend to complaint to reflect respondent's contest to the citation or suffer dismissal with prejudice. The Secretary expressly declined to amend the complaint. Judge Carlson dismissed the citation and penalties in an order dated January 21, 1976. We consider this case to be indistinguishable from Turnbull. We therefore affirm the Judge's action.

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n1 In response to an inquiry by the Judge made with complainant's consent, respondent admitted on January 7, 1977, that it had never intended to contest items 1 and 2 of Citation One for which no penalties were proposed. These items have, therefore, become final orders of the Commission by operation of law. 29 U.S.C. 661(i).

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Accordingly, it is ORDERED that items 3 and 4 of Citation One, Citation Two, and the penalties proposed for each are dismissed.