Docket No. 605

HI-FI CARPET MILLS, INC.

OSHRC Docket No. 605

Occupational Safety and Health Review Commission

August 29, 1973

Before MORAN Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On July 30, 1973, Judge James P. O'Connell issued his proposed decision and order in this case, affirming all items of the Secretary's citation and reducing the proposed $215 aggregate penalty to $140. At hearing on August 24, 1972, Judge O'Connell issued an oral finding that respondent's notice of contest was timely filed and that the Commission has jurisdiction over the subject matter of the instant case.

Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), I am herewith directing that the Judge's order be reviewed by the Commission.

Respondent was issued a citation and notification of proposed penalty on January 17, 1972. It received these documents on January 19, 1972 and, pursuant to section 10(a) of the Act, had 15 working days, until February 9, 1972, to file a notice of contest.

On February 8, 1972, the Secretary mailed respondent a form letter requesting remittance of the $215 proposed penalty. This letter erroneously referred to January 31, 1972 as the date of respondent's receipt of notice of the proposed penalty. The date of receipt of this letter by respondent is unknown. On February 15, 1972, respondent filed a notice of contest.

Judge O'Connell, finding that the Secretary's letter of February 8 ". . . was in effect, an amended notice of proposed penalty . . .," ruled that the notice of contest was timely. Respondent's notice of contest is untimely according to the clear requirement of section 10(a) of the Act. The Secretary's premature request for remittance can no more be considered an amended notification of proposed penalty than such letter could presume to cut short the statutory period during which respondent had a right to contest the citation or penalty. Despite the erroneous reference to January 31, 1972, the February 8 correspondence is clearly concerned only with instructions for payment of penalties which become due when 15 working days elapse without notice of contest.

Accordingly, it is ORDERED that the Judge's decision and order be vacated and that the citation and notification of proposed penalty be affirmed.

[The Judge's decision referred to herein follows]

O'CONNELL, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called "the Act") contesting a Citation issued by the Complainant against the Respondent under the authority vested in the Secretary of Labor by Section 9(a) of the Act. The Citation alleges that as a result of an inspection of Respondent's place of business, an January 11, 1972, the Respondent violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, containing eight (8) non-serious violations, and a Notification of Proposed Penalty were issued on January 17, 1972. Respondent contested the reasonableness of the proposed penalties.

The allegations, proposed penalties, and standards involved in the contest are as follows:

			Proposed
Item	Standard involved	Description of violation	penalty
1.	29 CFR	Ungrounded portable	$50.00
	1910.314(d)(4)	electric tools.
	(111)(c)
2.	29 CFR	Ungrounded fixed	$45.00
	1910.314(d)(1)	equipment.
	(111)
3.	29 CFR	Air used for cleaning	$30.00
	1910.242(b)	purposes in excess of
		30 P.S.I.
4.	29 CFR	Locked and blocked exit	$45.00
	1910.36(b)(4)	doors.
5.	29 CFR	With the above exit doors	$45.00
	1910.36(b)(8)	locked creates a single
		means of egress.
6.	29 CFR 1910.310(i)	Obstructed access to	None
		power switches and
		circuit breakers in latex
		room.
7.	29 CFR	Storage of miscellaneous	None
	1910.22(a)(1)	materials in work
		rooms in haphazard
		and disorderly manner.
8.	29 CFR	Flexible cord used as	None
	1910.316(c)	substitute for fixed
		wiring (Machine shop-
		employee lounge).

After Respondent contested this enforcement action, after a Complaint and Answer had been filed by the parties, and subsequent to a denial of Complainant's motion to amend its Complaint and for a dismissal of Respondent's Notice of Contest, the case was assigned for a hearing in New York City before the undersigned Judge.

Prior to the hearing, a formal pre-hearing conference was held on August 9, 1972. At this conference the issues involved in this proceeding were narrowed to two. The parties were in agreement that the only issues to be resolved were the initial question of jurisdiction as raised by the Solicitor and the issue of the reasonableness of the penalties proposed as contested by Respondent.

During the formal hearing held on August 24, 1972, the Complainant's case consisted of a written stipulation (Exhibit "J-1") entered into between the parties and the testimony of one witness, namely, Carl Meyers, Area Director of the Occupational Safety and Health Administration, hereinafter referred to as OSHA. The Respondent's case consisted of the sworn testimony of Herbert Greenberg, Respondent's President, and two evidentiary exhibits.

After both sides rested their case, there being no rebuttal evidence by the Solicitor, and there being no necessity for the submitting of proposed findings of fact and conclusions of law, this Judge in open hearing entered on the record oral findings and a Judge in open hearing entered on the record oral findings and a decision and order based thereon. Such oral findings were to the effect that the Review Commission had jurisdiction of the subject matter of the proceeding, that Respondent had filed a timely Notice of Contest, and further, that the proposed penalties concerning Items Nos. 3 and 5 of the Citation were inappropriate and should be vacated, while the other proposed penalties concerning the remaining six items of the Citation were affirmed. The Citation was affirmed as to all of the eight nonserious violations at issue.

The presiding Judge now makes his written Decision and Order as required by Section 12(j) of the Act.

Having carefully considered all of the pleadings, the agreements entered into at the prehearing conference, the stipulation introduced at the hearing and the evidence presented in this case, having considered the demeanor of the witnesses testify in open hearing and weighing the credibility thereof, I make the following findings:

FINDINGS OF FACT

1. Respondent, Hi-Fi Carpet Mills, Inc., is a corporation organized under the laws of the State of New York, and has its principal place of business at 401 South Main Street, Freeport, New York (Stipulation: Exhibit J -- 1).

2. Respondent is a manufacturer of custom carpets and normally employs five to ten employees. Respondent is an employer engaged in a business which affects commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act. Any machinery and equipment on its premises was owned by the Respondent (Stipulation: Exhibit J-1 and Pleadings).

3. On January 11, 1972, the Occupational Safety and Health Administration, by one of its duly authorized compliance officers, inspected the premises of Respondent located at 401 South Main Street, Freeport, New York (Pleadings).

4. On January 17, 1972, as a result of said inspection and pursuant to Section 5(a)(2) of the Act, the Occupational Safety and Health Administration by Certified Mail forwarded to Respondent a Citation for non-serious violatiions which contained eight items alleging violations of certain occupational safety and health standards set forth in 29 CFR 1910. A Notification of Proposed Penalty in the total sum of $215.00 was also issued on the same date (Pleadings, Tr. 19-20).

5. On January 19, 1972, Respondent received the Citation and Notice of Proposed Assessment of Penalty. It had fifteen working days from the receipt of the notice to notify Complainant that it wished to contest the proposed assessment of penalty. The last day for filing such Notice of Contest would have been February 9, 1972 (Section 10(a) of Act, Tr. 22, 31).

6. On February 8, 1972, prior to the expiration of the above fifteen working day period, the Complainant, through its OSHA area director, J. H. Epps, mailed a letter to Respondent at its business address (Exhibit R-1, Tr. 28, 32, 35). The date of receipt of the letter by Respondent is not known (Tr. 35). The letter was a notification to Respondent concerning the proposed penalty (Tr. 30, 32).

7. On February 15, 1972, Respondent's attorney forwarded a letter to J. H. Epps wherein reference was made to the latter's letter of February 8, 1972, and informed said representative of Complainant that Respondent wished to contest the penalties assessed against his client. This Notice of Contest was received by OSHA on February 16, 1972, which was within fifteen working days of receipt by Respondent of Complainant's letter of February 8, 1972 (Pleadings, Solicitor's motion).

8. Respondent posted the Citation, its Notice of Contest, and Notice of Hearing in accordance with the posting requirement of the Act (Pleadings, Tr. 59).

9. On January 11, 1972, eight non-serious violations of certain occupational safety and health standards set forth in 29 CFR 1910 and particularized in the Citation issued on January 17, 1972, existed at Respondent's place of business (Answer, P/H Tr. 4, 27, 29, 44).

10. Respondent on the same day as the inspection of its premises, or within a reasonable time thereafter, abated the eight non-serious violations alleged in the Citation (P/H Tr. 4, 5, 24, 27, Tr. 57-58, Exhibit R-2).

11. Respondent has no history of any previous violations of the Occupational Safety and Health Act. None of Respondent's employees were injured at the worksite involved in the alleged violations (Stipulation: Exhibit J-1, Tr. 40, 41).

12. That the penalties proposed for the violations in the Citation were determined in accordance with the administrative guidelines of the Secretary, however the penalties as to Items No. 3 and No. 5 are found not to be appropriate under the circumstances. The penalties proposed for Items No. 1, 2, and 4 are reasonable, while the assessment of no penalties for Items 6 through 8 of the Citation is appropriate.

OPINION

On the question of jurisdiction, one of the two issues involved in this hearing, it is the contention of the Solicitor that the Review Commission does not have jurisdiction on the grounds that Respondent failed within fifteen working days to file a timely Notice of Contest to the Notification of Proposed Penalties served upon it. Testimony in support of this contention was submitted by Complainant which evidence was to the effect that under date of January 17, 1972, a Citation and Notification of Proposed Penalty was forwarded by certified mail to Respondent and received on January 19, 1972 (Pleadings, Tr. 19-20, 22). He contends that the fifteen working day period for Respondent to file a notice of contest with the Secretary expired on February 9, 1972 (Tr. 22)

The Solicitor's position might have some merit if there were no additional facts involved. However, the credible evidence is that, under date of February 8, 1972, one day prior to the expiration of the fifteen working day period within which the Respondent was entitled to file its notice of contest, the area director for the Long Island Office of OSHA, Mr. J. P. Epps, forwarded a letter to Respondent advising it that "On 1/31/72 your Company received a notice of Proposed Penalty (Form OSHA 3) of Two Hundred and Fifteen Dollars ($215.00) for violating several sections of the O.S.H.A. standards on 1/11/72 in your Company located at 401 Main Street, Freeport, L.I. 11520." (Emphasis added). It is conceded by Complainant that this letter was mailed on February 8, 1972, and that it was sent prior to the time Respondent's right to contest the proposed penalty expired (Tr. 28, 35, 32). It is further conceded that this letter was a notification to the Respondent of the proposed penalty (Tr. 30).

The date of receipt by Respondent of the aforementioned letter (Exhibit R-1) is not available (Tr. 35). However, it is undisputed that under date of February 15, 1972, Respondent through his attorney, forwarded a letter to Mr. J. P. Epps, the OSHA area director, in which among other items, he advised in substance that the Respondent was contesting the penalties assessed. The Complainant considered such letter as a Notice of Contest and promptly forwarded it to the Review Commission as required by Section 10(c) of the Act.

The jurisdictional facts in this case have been complicated by the action of the OSHA area director in forwarding a letter to Respondent concerning proposed penalties prior to the expiration of the fifteen working day period permitted under the Act for a Respondent to contest a Citation or proposed assessment of penalty. Further, in the area director's letter of February 8, 1972, he made reference to the date of January 31, 1972, as the date on which the Respondent received a notice of proposed penalty. This date, from the evidence presented in this hearing, appears to be incorrect but this is information subsequently ascertained at a hearing and not readily discernible by Respondent at the time he received the aforementioned letter. Complainant's witness offered no explanation as to why the OSHA area director forwarded the letter of February 8, 1972. The Judge is convinced that there was a likely "possibility of misunderstanding of the time filing requirements of Section 10(a) of the Act." Secretary of Labor v. Singleton Sheet Metal Works, Inc.,

Since Complainant has failed to ascribe any reason for its issuance of its letter of February 8, 1972, and since Complainant's witness concedes that such letter was a notification to the Respondent of the proposed penalties it is this Judge's determination that the letter of February 8, 1972, was in effect, an amended notice of proposed penalty served upon Respondent. Thus, the Secretary in issuing the amended notification of proposed penalty on February 8, 1972, prior to the expiration of the contest date for the original notification of proposed penalty, has replaced and superseded the original notification of proposed penalty with the amended proposed assessment of penalties and thereby has extended the Respondent's period of "fifteen working days" for it to file its notice of contest.

The Federal Rules of Civil Procedure, Rule 15, entitled: "Amended and Supplemental Pleadings," permits a party to amend his pleadings "once as a matter of course at any time before a responsive pleading is served . . . ." Such rule also provides that "a party shall plead in response to an amended pleading within the time remaining for response to the original pleading. . . ." Thus, the Respondent herein had every right to rely upon the area director's letter of February 8, 1972, as an initial notification of proposed penalty and any notice of contest filed within a fifteen working day period from receipts of said letter would have been timely. Since the record does not reflect the exact date when the Respondent received the aforementioned letter, a computation of fifteen working days from the date of the letter itself shows that the earliest date (excluding a legal holiday) for Respondent to file its notice of contest to the amended notification of proposed penalty would have been March 1, 1972. Since Respondent actually forwarded its notice of contest on February 15, 1972, said notice of contest, having been filed prior to the expiration of the "fifteen working days," was timely filed and this Commission properly has jurisdiction of the subject matter of this proceeding.

It is noteworthy that in Secretary of Labor v. Wakefield Industries, Inc.,

On the remaining point at issue herein, namely, the reasonableness of the proposed penalties, it must be stated preliminarily that Respondent does not contest the Citation itself nor the eight items thereof (Answer, P/H Tr. 4, 5, 8, 44). Also, Respondent affirms, and it is uncontested, that all but one of the items involved in the Citation were abated on the same day as or within one day after the date of the inspection. That one time involved the necessity of securing a part for the compressed air hose. After Respondent requested and obtained an extension of the abatement period this condition was likewise abated within three weeks (P/H Tr. 4, 5, 24, 27, 46-47, Tr. 57-58).

With respect to the nature and existence of the eight nonserious violations of the standards upon which the Citation is based, Respondent's admissions and concessions are conclusive Secretary of Labor v. R.D. Hall Manufacturing, Inc.,

The real issue for resolution which Respondent questions goes to the imposition and the appropriateness of the proposed penalties for Items No. 1 through 5 of the Citation. Complainant's witness set forth the basis on which the proposed penalties were computed and the elements considered. The sterile assessment given to the gravity of the violations, if devoid of no other considerations, could possibly merit an affirmance of the penalties proposed. However, it is undisputed that Respondent abated seven of the eight violations within a period of one day after the inspection and took immediate steps to correct the remaining nonserious violation. While awaiting a part for the air hose in question, Respondent sought and obtained extension of the abatement date even though such date was stayed by its Notice of Contest. Respondent is a small manufacturer whose record of previous violations of the Occupational Safety and Health Act is negative.

Prompt and voluntary abatement of violations is an item of good faith meriting individual consideration by a Judge in these proceedings. The Review Commission has expressed the view that ". . . no matter how desirable uniform treatment of violations may be, the achievement of a just result in each case is the standard by which our deliberations must be guided." Secretary of Labor v. Nacirema Operating Company, Inc., The Commission in Secretary of Labor v. J.E. Chilton Millwork & Lumber Company, Inc., The same view was expressed by the Commission in Secretary of Labor v. General Meat Company, Inc., Certain small monetary penalties were not assessed in both cases due to the low level of gravity of the violations charged, the immediate attention given to abatement, and the good safety record of the Respondent. The penalties proposed herein are considered under the guidelines established by the above cases.

The Judge recognizes however, that there are instances where a small penalty would be justified depending upon the relationship between the non-serious violation involved and the corresponding degree of gravity. Secretary of Labor v. Hydroswift Corporation, Such instances would be those proving violations of electrical safety standards such as cited in Items No. 1 and 2 herein, as well as Item No. 4 herein involving locked and blocked exit doors.

It is my further opinion, that in the instant case, the violations involved in Items No. 3 and 5 do not bear such a relationship and accordingly should be vacated. See Secretary of Labor v. Clavier Corporation,

Therefore, considering Respondent's good faith and previous clear safety record, its immediate attention to abatement and the low level of gravity of the violations found concerning Items No. 3 and 5 herein, it is my view that the penalties proposed for such items should be vacated. The other penalties assessed for Items 1, 2 and 4 are found to be reasonable and appropriate as well as the assessment of no penalties for Items 6, 7 and 8. The above findings were previously indicated by this Judge orally upon the record at the hearing and are now reaffirmed herein.

CONCLUSIONS OF LAW

1. The respondent, Hi-Fi Carpet Mills, Inc., at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. Respondent, at all times pertinent hereto, was subject to the requirements of the Act, including Section 5(a)(2), and the occupational safety and health standards promulgated thereunder.

3. Complainant, by its letter of February 8, 1972, amended its notification of proposed penalty, and Respondent had fifteen working days from receipt therefore to notify the Secretary of his intention to contest said amended notification of proposed assessment of penalty. Respondent's letter of February 15, 1972, was forwarded within the fifteen working day period and constitutes a timely filing of a Notice of Contest.

4. The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein within the meaning of Section 10 of the Act.

5. Respondent on January 11, 1972, was in violation of the standard at 29 CFR 1910.314(d)(4)(111)(c) as alleged in Item No. 1 of the Citation.

6. Respondent on January 11, 1972, was in violation of the standard at 29 CFR 1910.314(d)(1)(111) as alleged in Item No. 2 of the Citation.

7. Respondent on January 11, 1972, was in violation of the standard at 29 CFR 1910.242(b) as alleged in Item No. 3 of the Citation.

8. Respondent on January 11, 1972, was in violation of the standard at 29 CFR 1910.36(b)(4) as alleged in Item No. 4 of the Citation.

9. Respondent on January 11, 1972, was in violation of the standard at 29 CFR 1910.36(b)(8) as alleged in Item No. 5 of the Citation.

10. Respondent on January 11, 1972, was in violation of the standards at 29 CFR 1910.310(i), 29 CFR 1910.22(a)(1), and 29 CFR 1910.316(c), as alleged respectively in Items No. 6, 7 and 8 of the Citation.

11. Respondent on January 11, 1972, failed to comply with the above mentioned occupational safety and health standards as alleged in the Citation thereby violating Section 5(a)(2) of the Act.

12. The assessment of the penalties for the violations set forth in Items No. 1, No. 2 and No. 4 of the Citation is appropriate and reasonable.

13. The assessment of the penalties for the violations set forth in Items No. 3 and No. 5 of the Citation is inappropriate and any such penalties assessed should be vacated.

14. The assessment of no penalty for the violations set forth in Items No. 6, No. 7 and No. 8 of the Citation is appropriate.

ORDER

Based on the foregoing findings of fact and conclusions of law, and upon the entire record of this proceeding, it is ORDERED that:

1) Item No. 1 of the Citation charging a nonserious violation of 29 CFR 1910.314(d)(4)(111)(c) and the proposed penalty assessed in the amount of $50.00 is affirmed.

2) Item No. 2 of the Citation charging a nonserious violation of 29 CFR 1910.314(d)(1)(111) and the proposed penalty assessed in the amount of $45.00 is affirmed.

3) Item No. 3 of the Citation charging a nonserious violation of 29 CFR 1910.242(b) is affirmed, except the proposed penalty in the sum of $30.00 is vacated.

4) Item No. 4 of the Citation charging a nonserious violation of 29 CFR 1910.36(b)(4) and the proposed penalty assessed in the amount of $45.00 is affirmed.

5) Item No. 5 of the Citation charging a nonserious violation of 29 C.F.R. 1910.36(b)(8) is affirmed, except the proposed penalty assessed in the sum of $45.00 is vacated.

6) Items No. 6, 7 and 8 of the Citation charging nonserious violations of 29 C.F.R. 1910.310(i), 29 C.F.R. 1910.22(a)(1) and 29 C.F.R. 1910.316(c) respectively, for which no penalties were proposed, are affirmed.