C & C PLUMBING CO.; M & M CONTRACTORS, INC.

OSHRC Docket Nos. 5422; 5423

Occupational Safety and Health Review Commission

November 28, 1977

[*1]

Before CLEARY, Chairman; BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William Kloepfer,

Mr. Carl Murray, C & C Plumbing and Company M & M Contractors, Inc., for the employer

OPINION:

DECISION

By The Commission:

A decision of Administrative Law Judge Joseph L. Chalk is before this Commission for review pursuant to 29 U.S.C. 8661(i) on the question of whether the Commission should follow Brennan v. OSHRC and S.J. Otinger, Jr., Construction Company, 502 F.2d 30 (5th Cir. 1974). As therein, the Respondents here failed to answer the complaint, and, on the motion of the Secretary, Judge Chalk granted default judgment against them. His decision was not directed for review. Accordingly, it became a final order of the Commission pursuant to 29 U.S.C. 661(i). Nonetheless, Respondents thereafter requested that the Commission reinstate the cases for hearing on the proposed penalties, and filed their answer. The Commission reinstated the cases pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.

At the hearing, Complainant refused to present evidence concerning the appropriateness of the proposed penalties, relying on the determination of the Fifth [*2] Circuit in Otinger that the Commission lacks authority under the Act n1 to reinstate a case which has become a final order of the Commission pursuant to 29 U.S.C. 661(i). Judge Chalk rejected Complainant's argument on the basis that he was required to follow the Commission's order of reinstatement. Because Complainant presented no evidence, the judge assessed one cent for each of three items alleging serious violations and did not assess any penalties for the alleged nonserious violations. We affirm the decision of the administrative law judge.

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n1 29 U.S.C. 651 et seq., The Occupational Safety and Health Act of 1970, hereinafter "The Act."

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Subsequent to the direction for review herein, the Commission considered the identical issue in Monroe & Sons, Inc., 77 OSAHRC 14/B7, 4 BNA OSHC 2016, 1976-77 CCH OSHD para. 21,470 (No. 6031, 1977). In Monroe, the circumstances were materially the same as those involved in this case, and, as here, Complainant had continued to maintain on review that the [*3] Commission had improperly reinstated the case. After considering the reasoning of the Court in Otinger and Complainant's several arguments in support thereof, the Commission unanimously held that it has authority under the Act to reinstate a case pursuant to Rule 60(b) and 29 U.S.C. 661(f) n2 after a decision of an administrative law judge has become a final order of the Commission pursuant to 29 U.S.C. 661(i). In the consolidated cases now before us, Complainant has made virtually the same arguments which the Commission considered in deciding Monroe. We reject those arguments for the reasons stated in Monroe.

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n2 29 U.S.C. 661(f) provides, in pertinent part, that "(u)nless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure."

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In addition to arguments con dered in Monroe, Complainant also argues that, if the Commission has authority to reinstate cases for an evidentiary hearing on the citations and the proposed penalties, [*4] then, as a general matter, the Complainant's resources, which he characterizes as "limited," will be unreasonably burdened. That is, Complainant generally will be required to make unusual attempts to preserve evidence and to maintain contact with witnesses, so as to be prepared to prove his case in the event of reinstatement. Accordingly, Complainant contends that the Commission cannot reinstate a case after an order of a judge has become final.

We recognize that the difficulties to which Complainant refers may arise in some cases. As we stated in Monroe, however, the Commission's authority to reinstate a case under Rule 60(b) "must of course be exercised within a reasonable time. It must not interfere with the orderly course of judicial review. Also, it must not unduly disturb the parties who have relied on the agency's previous order." 4 BNA OSHC at 2018 (footnote omitted). Thus, if Complainant can show in a particular case that reinstatement would require him to make unreasonable and unusual attempts to retrieve evidence and locate witnesses, the Commission will consider those circumstances in determining whether to grant reinstatement. We do not, however, think that [*5] the possibility that reinstatement may be unduly burdensome in some cases is a sufficient reason to hold that it should not be granted in any case. As we pointed out in Monroe, reinstatement of a case under Rule 60(b) can help avoid unnecessary litigation, and thus benefit Complainant as well as other parties.

The case before us was reinstated within a reasonable time after entry of the final order, and Complainant has not, at any time, argued that he could not support the proposed penalties because he was required to make unreasonable and unusual attempts to retrieve evidence. Accordingly, we conclude that this case was properly reinstated and we affirm the judge's assessment of nominal penalties after Complainant failed to present evidence thereon.

Accordingly, the decision of the judge is affirmed. It is so ORDERED.