J & H LIVESTOCK COMPANY; KARLER MEAT PACKING, INCORPORATED

OSHRC Docket Nos. 76-324; 76-326

Occupational Safety and Health Review Commission

August 12, 1977

[*1]

Before: BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

James R. Toulouse, for the employer

OPINION:

DECISION

BY THE COMMISSION: The respondents are two closely related companies. Following an inspection of their worksites, the respondent Karler Meat Packing, Inc., was cited for one serious violation and 26 nonserious violations and the respondent J & H Livestock Company was cited for three nonserious violations. In a brief filed in response to the direction for review, which was issued pursuant to 29 U.S.C. 661(i), the respondents contend that:

(1) Administrative Law Judge Benjamin G. Usher erred in holding that the respondents failed to effectively contest the citations and that the only issue before him was the proper assessment of the penalties; and

(2) Judge Usher did not fairly weigh the criteria for assessing penalties, as discussed in the Commission decision in Nacirema Operating Company, Inc., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD para. 15,032 (No. 4, 1972). For the reasons that follow, the Commission disagrees and affirms the Judge's decision. [*2]

The respondents submitted basically identical notices of contest. They differed only in referring to the citations' identifying numbers. Both notices of contest stated:

"This is to notify you . . . that we wish to contest the penalty portion of that citation.

We do not contest the safety hazards listed, the time for abatement allocated, nor any action of your office or staff. Our contest is limited strictly to the penalty assessments, and we specifically waive any and all time extensions normally attributable to a contest."

The complaints specifically asserted that only the penalties were in issue. The respondents' answers did not protest those assertions. The complainant's responses to the Judge's prehearing order also indicated that only the penalties were in issue. The respondents did not respond to that order. It was not until the hearing that the respondents for the first time stated that they wished to contest the citations also.

The respondents rely on William W. Turnbull, 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD para. 20,221 (No. 7413, 1975), for their contention that the Judge erred in holding that the citations were final orders and not reviewable. [*3] The Commission finds that the Judge properly concluded that the holding in Turnbull is not "apposite" to these cases.

In Turnbull, the respondent's notice of contest stated that it contested the proposed penalties and said nothing about the citation. Later communications from the respondent showed that it had intended, at the time of contest, to contest the citation also. In the instant cases, not only did the respondents' notices of contest unambiguously contest only the penalties, they specifically indicated an intention not to contest the citations. Moreover, the respondents did not deny the complainant's repeated assertions that only the penalties were in issue. The only reasonable conclusion that can be drawn from the respondents' notices of contest and their subsequent actions is that the respondents did not intend to contest the citations at the time they filed their notices of contest, but only decided to do so later. Clearly, the situation here is distinguishable from that in Turnbull.

The Commission also rejects the respondents' contention that Judge Usher improperly assessed penalties totalling $2,505 against Karler Meat Packing, Inc., and $195 against [*4] J & H Livestock Company. The Judge was required by 29 U.S.C. 661(i) to give due consideration to the size of respondents' businesses, the gravity of the violations, the good faith of the respondents, and their history of previous violations, but he did not have to give those criterial equal weight. Nacirema Operating Company, Inc., supra. Although the Judge agreed that the penalties proposed by the complainant were appropriate, his decision indicates that he independently assessed the penalties and gave due consideration to the statutory criteria.

Subsequent to the filing of the respondents' brief, the respondents' attorney has indicated in a letter to the Commission that the penalty assessment should have given more weight to respondents' early abatement of the violative conditions. The testimony of the complainant's inspectors indicates that, after determining the appropriate penalties on the basis of the statutory criteria, those penalties were reduced by the standard abatement credit of 50%, which is allowed in expectation of employers abating alleged violations within the time prescribed by the complainant. Since the Judge agreed with the complainant's penalty [*5] proposals, it is apparent that the respondents have been given substantial credit for timely abatement. Moreover, upon a review of the record, the Commission finds that the Judge's assessments are appropriate in view of the 29 U.S.C. 661(i) criteria and are not contrary to Nacirema.

Accordingly, the Judge's decision is affirmed.