PENN-DIXIE INDUSTRIES, INC.

OSHRC Docket Nos. 8718; 8380-P

Occupational Safety and Health Review Commission

May 14, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Marvin Tincher, Regional Atty., USDOL

Fred W. Smith, Plant Manager (8380-P), Penn-Dixie Cement Company, for the employer

Daniel E. Somes (8718), Vice President - Operations, Penn-Dixie Industries, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

These consolidated cases are before us upon an order for review issued by Commissioner Moran upon his own motion on the following issues:

(1) Whether the petition for modification of the abatement date was timely filed by respondent.

(2) If so, should it have been granted on its merits?

(3) If both timely and meritorious, should the citation and penalties for failure-to-abate have been vacated?

(4) Did the assessment of penalties by the Judge comport with Secretary v. Nacirema Operating Co., 1 OSAHRC 33 (1972)?

On February 25, 1975, Administrative Law Judge Paul L. Brady issued a decision in these consolidated cases. In docket number 8380-P, Judge Brady denied respondent's petition seeking modification of the abatement period because the petition was not timely filed under Commission Rule 34(a), 29 CFR 2200.34(a). n1 Having concluded that the abatement [*2] date could not properly be modified, the Judge proceeded to consider the citation for failure to abate and proposed penalty at issue in docket number 8718.

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

n1 At the time of filing the petition for a change in the abatemen date, the applicable rule read as follows:

2200.34 Petitions for modification of abatement period.

(a) An employer may file with the Secretary a petition for modification of an abatement period no later than the close of the next working day following the date on which abatement is required.

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

Judge Brady ruled that the evidence showed that respondent had failed to abate the violation of 29 1910.93(c) n2 as of June 6, 1974. Inasmuch as abatement was originally required on or before June 1, 1974, and as noted above, this date was not changed, the Judge affirmed the citation alleging a failure to abate, and assessed a civil penalty of $1,340.

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

n2 29 CFR 1910.93 is now codified at 29 CFR 1910.1000.

[*3] - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The employer filed no petition for review objecting to the Judge's disposition, and has filed no brief before us on the order for review. The Secretary has filed a brief before us, and asks that we affirm the action of the Administrative Law Judge.

Inasmuch as no objection to the Judge's decision is before us and the issues in the order for review are essentially factual, we will not pass upon the issues, and affirm the Judge's decision. See Abbott-Sommer, Inc., CCH OSHD para. 20,428, 3 BNA OSHC 2032 (February 17, 1976). Under these circumstances, although the Judge's decision is not without significance, it is unreviewed by us and not binding as precedent. Leone Construction Company, CCH OSHD para. 20,387, 3 OSHC 1980 (February 10, 1976).

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

For the reasons cited below, I believe Judge Brady's decision concerning the respondent's petition for an extension of the abatement date should be reversed. First, however, it is necessary to again point out that the majority is acting without legal authority in not addressing the directed issues on the grounds that [*4] the direction for review was issued sua sponte n3 and the issues specified therein have not been briefed by the respondent. n4

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

661(i) to direct review of a Judge's decision is not qualified by any requirement that the parties involved request such review.

n4 Three circuit courts have refused to adopt the theory that a respondent's failure to file a brief constitutes a waiver of appellate review. Brennan v. Smoke-Craft, Inc., No. 74-2359 (9th Cir., February 13, 1976) at n.6; Brennan v. OSAHRC and Santa Fe Trail Transport Co., 505 F.2d 869, 871 (5th Cir. 1974); Brennan v. OSAHRC and Hanovia Lamp Div., Canrad Precision Industries, 502 F.2d 946, 948 (3d Cir. 1974).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*5]

One of the issues directed for review was whether the petition for modification of the abatement date was timely filed by the respondent. Pursuant to Commission Rule 34(a), n5 the Judge denied the respondent's request because of its untimeliness. This was error.

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

n5 29 C.F.R. 2200.34(a), 37 Fed. Reg. 20240 (1972).

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

When respondent's petition was submitted Rule 34(a) provided:

"An employer may file with the Secretary a petition for modification of an abatement period no later than the close of the next working day following the date on which abatement is required." n6

For the purposes of Rule 34(a), the last day upon which abatement may be required must be a working day. The reason is clear: it would be unfair to require a respondent to abate on a nonworking day. To do so would, in essence, not give it that amount of time considered appropriate by the complainant as set forth in the original citation. n7 Furthermore, Commission Rule 4(a) provides that in computing time periods:

"The last day of the period . [*6] . . shall be included unless it is a Saturday, Sunday, or Federal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or Federal holiday."

Thus, where an abatement period terminates on a Saturday, Sunday, or Federal holiday, the actual abatement date is the next "working day" n8 thereafter.

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

n6 Rule 34 was subsequently changed effective February 18, 1975. 40 Fed. Reg. 3594 (1975). Rule 34(c) now contains the provisions for the timely filing of a petition for modification of abatement date.

n7 The citation, issued October 3, 1973, became a final order 15 working days later pursuant to 29 U.S.C. 659(a).

n8 Commission Rule 1(1) defines "[w]orking day" as all days except Saturdays, Sundays, or Federal holidays.

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

Here the original citation mandated abatement of the hazard by June 1, 1974. That date was a Saturday. Because this was not a working day, for the purposes of Rule 34(a), the next working day - Monday, June 3, 1974 - became the date that abatement was required. [*7] The respondent's letter requesting an extension thereof was dated Tuesday, June 4, 1974. n9 It therefore timely filed its petition for modification of the abatement date since Tuesday was the next working day following the date on which abatement could be required.

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

n9 The complainant's review brief indicates that the letter was sent on June 4, 1974. Mailing of the letter on June 4 is consistent with complainant's receipt thereof on June 6 since a two-day period for delivery is reasonable.

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

Accordingly, Judge Brady should have considered and addressed the merits as to allowing an extension of the abatement period. Thus, my colleagues are in error in "affirming" his decision which I attach hereto as Appendix A since they do not address any of the matters covered therein.

In this connection, I think the majority decision [*8] is particularly amusing because, after a rather complete recitation of the facts of the case which appear in the Judge's decision, it concludes with "the Judge's decision is . . . unreviewed by us." I submit that such a conclusion is a venture in inspired audacity which nearly rises to the semantic sleight-of-hand by which Messrs. Barnako and Cleary can label a "roof" as a "floor" and do other tricke with the English language.

Finally, it is again necessary for me to disagree with my colleagues' unsupported assertion regarding the precedential value of the Judge's decision. My reasons for disagreement are expressed in some detail in several decisions. n10 At this time, I will simply stress that every appellate court that has ever considered a decision of one of our Judges which was not reviewed by the Commission members has considered such an opinion to be the equivalent of one issued by the Commission members. I do, however, wonder why Messrs. Barnako and Cleary do not desire to afford precedential value to a decision which they find worthy of an affirmance.

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

[*9]

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

APPENDIX A

DECISION

John P. Garner, U.S. Department of Labor

Mr. Fred W. Smith, Plant Manager, Penn-Dixie Industries, Inc.

BRADY, Judge OSAHRC

This is a consolidated proceeding brought pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as the Act).

The respondent in Docket No. 8380-P requests a modification of the abatement period, which was duly contested by the Secretary. Respondent seeks to extend the time for abatement of Item 4 of the citation issued on September 11, 1973, which sets forth an abatement date of June 1, 1974. The petition which was filed June 6, 1974, states that compliance has been partially accomplished in attempting to reduce the amount of dust at respondent's workplace, however, the present dust collector is beyond repair, and a purchase order for a new collector has been issued. In response to said petition the Secretary asserts that the request is not timely made. Further, the amount of additional time requested is not set forth, and there is a failure to show due diligence and effort by respondent [*10] to meet the present abatement date.

The rules of the Commission must prevail when considering a request for the extension of an abatement period. Rule 34, entitled Petitions for Modification of the Abatement Period, sets forth:

"(a) An employer may file with the Secretary a petition for modification of an abatement period no later than the close of the next working day following the day on which abatement is required."

The respondent's plant manager acknowledged that he was familiar with the rules of procedure in reference to the filing of petitions for modification, and agreed that the request was filed late (Tr. 7).

Pursuant to the foregoing Commission rule, respondent's petition is denied.

In Docket No. 8718 respondent duly contests a proposed additional penalty for failure to correct an alleged violation.

It is alleged in the complaint that on or about June 6, 1974, a second inspection of respondent's workplace revealed that Item 4 of the original citation, alleging violation of the standard at 29 CFR 1910.93(c), had not been corrected. On June 18, 1974, respondent was issued a notification of failure to correct violations and proposed additional penalty pursuant to sections [*11] 10(b) and 17(d) of the Act in the amount of $1,340. In determining the amount of the proposed penalty, it is alleged that due consideration was given to the size of respondent's business, the gravity of the violations, the size of the employer, and history of previous violations as required under section 17(j) of the Act.

Mr. D. P. Roberts, Industrial Hygienist for the Department of Labor, who made the inspections, testified to the computation of the original penalty. He also indicated that the additional proposed penalty was computed in a manner consistent with administrative guidelines set forth by the Department. This included consideration of the factors of good faith, size, and history of previous violations (Tr. 24, 25).

In its answer respondent denied that due consideration was given to the foregoing factors as required by the Act in determining the proposed penalty. Further, it was unable to comply because "it subsequently became obvious that the existing dust collector could not be economically rebuilt." Therefore, the company found it necessary to replace the unit."

Mr. Fred Smith, respondent's plant manager, testified that a new dust collector was ordered about June [*12] 4, 1974. He stated that the existing collector had thoroughly rottened out, and any attempt to rebuild it would be unwise (Tr. 40, 41). He indicated that it had been known for a considerable period of time, throughout the company, that it was beyond repair (Tr. 42). The cost of a new dust collector, approximately $40,000, was not apparently a problem (Tr. 44). Mr. Smith agreed that during the time between inspections no physical changes had been made to achieve compliance (Tr. 52, 53).

Mr. Wells Wilkinson, personnel and safety supervisor, testified that during the period October 3, 1973, through June 1, 1974, no monthly progress reports had been submitted with respect to Item 4 because nothing had been done toward abatement (Tr. 54).

The standard at 29 CFR 1910.93(c) pertains to air contaminants, and sets forth certain limits within which employees shall be exposed to various materials. The citation issued October 3, 1973, set forth findings that employees were exposed to dust in concentrations exceeding the limits permitted under the standard. At the time of the reinspection Mr. Roberts found upon further testing that employees were exposed to dust concentrations in excess [*13] of those found during the original inspection.

The evidence in this record establishes that respondent did nothing to reduce the concentration of dust. Further, it is not disputed that the dust concentrations were actually found to be higher upon reinspection.

On the basis of the evidence, and pursuant to the provisions of section 17(j) of the Act it is concluded that the proposed additional penalty of $1,340 is reasonable and appropriate.

FINDINGS OF FACT

1. Penn-Dixie Industries, Inc., is a corporation having a plant and doing business among other places at Richmond City, Tennessee, where it is engaged in the business of manufacturing cement and mortar mix.

2. On September 11, 1973, and June 6, 1974, an authorized representative of the Secretary of Labor conducted inspections of respondent's aforesaid workplace.

3. As a result of the inspection on September 11, 1973, a citation was issued respondent on October 3, 1973, alleging violation of the standard at 29 CFR 1910.93(c). The citation notified the respondent that such violation was to be corrected no later than June 1, 1974.

4. No notice of contest was filed by respondent contesting the alleged violations set [*14] forth in the citation of October 3, 1973.

5. As a result of the inspection on June 6, 1974, a notification of failure to correct alleged violation and of proposed additional penalty was issued on June 18, 1974.

6. On June 6, 1974, respondent filed a request for an extension of time within which to correct the violation of the standard at 29 CFR 1910.93(c), and on August 28, 1974, filed a notice contesting the proposed additional penalty for failure to correct said violation.

7. Respondent did nothing to reduce the concentrations of dust during the period provided for such purpose. Upon reinspection, however, the levels of dust concentration to which employees were exposed actually exceeded those levels found during the original inspection.

CONCLUSIONS OF LAW

1. Penn-Dixie Industries 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, and the Commission has jurisdiction of the parties and subject matter herein, pursuant to section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto required to comply with safety and health [*15] regulations promulgated by the Secretary pursuant to section 6 of the Act.

3. The proposed additional penalty for failure to correct the violation of the standard at 29 CFR 1910.93(c) was determined in a manner consistent with section 17(j) of the Act and is deemed reasonable and proper.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is

ORDERED:

The proposed additional penalty in the sum of $1,340.00 is hereby assessed.

Dated this 24th day of February, 1975.

PAUL L. BRADY, Judge