ATLANTIC DRY DOCK CORPORATION; ATLANTIC MARINE, INC.

OSHRC Docket Nos. 2100; 2101 (Consolidated)

Occupational Safety and Health Review Commission

December 4, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: These consolidated matters are before the Commission on Chairman Moran's orders directing review of a dispositive ruling by Judge J. Marker Dern. Judge Dern dismissed Respondent's notice of contest as not having been timely filed under the provisions of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ). We have reviewed the record, and we find no error in the judge's disposition.

Accordingly, the judge's decision to dismiss the notice of contest is affirmed, and it is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: Although the Commission treats it as such, this is by no means an open-and-shut case of an employer who has failed to meet the required deadline for contesting an enforcement action. By so holding the Commission avoids a very real jurisdictional issue and permits the assessment of a penalty in the amount of $7,982 without giving the employer a right to a hearing.

The respondent failed to contest the notification for failure to correct previous violations within the statutory period prescribed in 29 U.S.C. 659(b). In my opinion, this [*2] final order is invalid, and thus it is this Commission's duty to vacate the same in order to correct that defect. Vacating an order that has become final by operation of law is not a matter of first impression for this Commission. See Secretary v. Phoenix, Inc., 1 OSAHRC 355 (1972).

The jurisdictional issue arises in this case because the $7,982 penalty is based on a premature reinspection, thus making it void ab initio.

There were two separate actions initated by complainant against these respondents. The parties settled the original action. The settlement agreement conceded respondent's violation of certain safety standards, stipulated penalties therefor, and provided a 23 day abatement period for correction of the violative conditions. That agreement was approved by the trial judge in a decision which he filed with the Commission on July 25, 1972. On August 25 it became the "final order" of the Commission -- thirty days having passed without a Commission member directing it for review. 29 U.S.C. 661(i). The order was issued on August 31, 1972, when notice thereof was mailed to the parties.

Complainant then caused a reinspection of respondents' premises [*3] to be conducted on October 4, 1972, n1 to see if there had been abatement of the conditions which caused the violations that were cited in the original case. His inspection convinced him that this had not been accomplished. He therefore caused a notification of proposed additional penalties for failure to abate. This was issued on November 8. Respondents failed to file a notice of contest thereto within the statutory period. n2 Consequently, pursuant to 29 U.S.C. 659(b), the said notification became a final order of the Commission on December 1, 1972. It is on this point which the Commission rests this case and closes the door on the respondents.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The record indicates a discrepancy concerning the actual date of reinspection. Respondents claim that reinspection took place on September 28, 1972. The notification indicates October 4, 1972. The difference is not material for the purposes of this discussion.

n2 Respondents claim that the reason for this failure was a mistaken belief that their attorney would be notified of the second proceeding. Their counsel had filed an appearance in the first action and the Department of Labor used the same docket number for the second action leading respondents to believe that the appearance was still valid. In fact, however, neither the Department of Labor nor this Commission notified counsel for respondents that this second proceeding had been initiated. In this connection see Rule 7(b), 29 C.F.R. 2200.7(b), which provides: "Service upon a party or intervenor who has appeared through a representative shall be made only upon such representative." (Emphasis added.)

[*4]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The issue which confronts us, however, is whether that reinspection was made prior to the time respondents were obliged to abate the conditions which caused the first citation. If so, there was no cause of action stated in complainant's November 8th process and we are without jurisdiction to affirm any penalty based thereon.

To determine if that inspection was made prematurely, we must distinguish between two usages in the Act of the term "final order."

"Final order," as used in 29 U.S.C. 661(i), means a final decision of a case by the Commission. It arises in the following situation. After a citation, a timely notice of contest, and a hearing before a Review Commission Judge, the Judge's report becomes the final decision or order of the Commission 30 days thereafter unless, within that time period, a Commission member directs that such report be reviewed by the Commission. n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 29 U.S.C. 661(i).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

"Final order" in 29 U.S.C. [*5] 659(c), however, means that the order is enforceable as law. That section states:

. . . . The Commission shall therafter issue an order . . . and [it] shall become final thirty days after its issuance. . . .

Congress, by this section, provided for a 30-day period between the time the Commission issues a final decision or order and the time when that decision or order becomes enforceable as such. That 30-day period commences when the Commission issues its order based on the members' final disposition of a case, regardless of whether the same results from a decision issued subsequent to a member's direction for review or from the unreviewed adoption of the Judge's report pursuant to 661(i).

29 U.S.C. 659(b), the provision of law under which the action involved in this matter was initiated, states:

If the Secretary has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction (which period shall not begin to run until entry of a final order by the Commission. . .). . . [emphasis added.]

This provision clearly specifies that an action thereunder will not lie at [*6] any time (1) prior to the entry of a section 659(c) final order, and (2) prior to the expiration of the time period which such order allowed for correction of the violative conditions; i.e., the abatement period set forth in the original citation. n4 That time period begins to run with the entry of the section 659(c) final order. Prior to that time there is no enforceable order.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 Unless, of course, the decision specifies an abatement period different from that listed in the citation. That is not the case here, however.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In this case, the Judge's July 25 report became the section 661(i) "final order" or decision of the Commission on August 25 because no Commission member directed it for review. That decision was issued on August 31. Consequently, it became final within the meaning of section 659(c) on September 30, 1972. This, then, was the date of the enforceable final order for the purposes of section 659(b) and the date upon which the time period permitted for correction of the conditions causing the violations [*7] began to run.

The period permitted for such correction was 23 days, n5 giving respondents until October 23 to correct the conditions for which they had been cited. Complainant, however, reinspected respondents' workplace on October 4, some 19 days before the abatement deadline. The reinspection was therefore premature. Respondents were under no compulsion to have the violative conditions abated at that time.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 The original citation issued on November 30, 1971, specified that abatement was to be accomplished on December 23, 1971, a period of 23 days.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Consequently, the notifications of additional penalties for failure to abate were invalid. The failure to timely contest the same resulted in final order on December 1, 1972. This, too, was invalid.

Rule 60(b)(4) of the Federal Rules of Civil Procedure n6 permits a court on its own motion n7 to vacate a void judgment. That is the only correct disposition of this matter. The December 1, 1972 final order of this Commission should be vacated because [*8] the inspection upon which it was based was premature since respondents were under no obligation to abate on that date. Secretary v. Kesler & Sons Construction Co., 9 OSAHRC 1033 (1974).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 Rule 2(b) of the Commission Rules of Procedure (29 C.F.R. 2200.2(b)) requires the application of the Federal Rules in the absence of a specific Commission provision. The Commission has no such provision.

n7 U.S. v. Milana, 148 F. Supp. 152 (D.C. Mich. 1957).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

[The Judge's decision referred to herein follows]

DERN, JUDGE: This case is properly before the undersigned upon assignment by the Review Commission.

The complainant moved to dismiss the respondents' joint notices of contest filed December 22, 1972, for the reason respondents had failed to timely notify the Secretary of Labor of their "intent to contest proposed assessment of penalty within fifteen working days from the receipt of the notice issued by the Secretary." The complainant issued a notification of failure to contest violation and of proposed additional [*9] penalty, dated November 8, 1972.

Respondents filed objection to the motion to dismiss since a prior motion had been denied.

Section 10(b) of the Occupational Safety and Health Act of 1970, provides:

If the Secretary has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction (which period shall not begin to run until the entry of a final order by the Commission in the case of any review proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties), the Secretary shall notify the employer by certified mail of such failure and of the penalty proposed to be assessed under section 17 by reason of such failure, and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the Secretary's notification or the proposed assessment of penalty. If, within fifteen working days from the receipt of notification issued by the Secretary, the employer fails to notify the Secretary that he intends to contest the notification or proposed assessment of penalty, the notification and assessment, [*10] as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

The record is clear that the respondents failed to comply with the Act. Therefore, this Judge has no discretion but to order dismissal of the joint notice of contest filed by the respondents.

Accordingly, it is ordered that the joint notice of contest of the respondents, dated December 22, 1972, is dismissed.