1 of 202 DOCUMENTS

TURNER COMPANY


A. SCHONBEK & CO., INC.


NORANDA ALUMINUM, INC.


GENERAL MOTORS CORP., GM ASSEMBLY DIV.


ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.


CLEMENT FOOD COMPANY


MILLCON CORPORATION


FWA DRILLING COMPANY, INC.


CCI, INC.


GENERAL ELECTRIC COMPANY


CONSOLIDATED ALUMINUM CORPORATION


THE BRONZE CRAFT CORPORATION


CARGILL, INC.


CHAPMAN CONSTRUCTION CO., INC.


GALLO MECHANICAL CONTRACTORS, INC.


SPECIAL METALS CORPORATION


WILLAMETTE IRON AND STEEL COMPANY


NASHUA CORPORATION


WESTINGHOUSE ELECTRIC CORPORATION


RESEARCH-COTTRELL, INC.


ROCKWELL INTERNATIONAL CORPORATION


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


BUNKOFF CONSTRUCTION CO., INC.


GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION


HARRIS BROTHERS ROOFING CO.


GENERAL DIVERS COMPANY


ORMET CORPORATION


R. ZOPPO CO., INC.


COEUR D'ALENE TRIBAL FARM


L. A. DREYFUS COMPANY


CMH COMPANY, INC.


BENTON FOUNDRY, INC.


MICHAEL CONSTRUCTION CO., INC.


WHIRLPOOL CORPORATION


BROWN & ROOT, POWER PLANT DIVISION


MARION POWER SHOVEL CO., INC.


ERSKINE-FRASER CO.


MORRISON-KNUDSEN AND ASSOCIATES


THE BOAM COMPANY


DIC-UNDERHILL, a Joint Venture


C. R. BURNETT AND SONS, INC.; HARLLEE FARMS


STRIPE-A-ZONE, INC.


FORTE BROTHERS, INC.


RAYBESTOS FRICTION MATERIALS COMPANY


TEXLAND DRILLING CORPORATION


THE ANACONDA COMPANY, WIRE AND CABLE DIVISION


SAM HALL & SONS, INC.


VAMPCO METAL PRODUCTS, INC.


LEONE INDUSTRIES, INC.


ASARCO, INC.


DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY


PLUM CREEK LUMBER COMPANY


PLUM CREEK LUMBER COMPANY


STEARNS-ROGER, INC.


FERRO CORPORATION, (ELECTRO DIVISION)


AMERICAN PACKAGE COMPANY, INC.


BROWN & ROOT, INC., POWER PLANT DIVISION


FLEETWOOD HOMES OF TEXAS, INC.


DONALD HARRIS, INC.


A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.


ELECTRICAL CONSTRUCTORS OF AMERICA, INC.


DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)


ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY


NAVAJO FOREST PRODUCTS INDUSTRIES


METROPAK CONTAINERS CORPORATION


AUSTIN BUILDING COMPANY


BABCOCK AND WILCOX COMPANY


DARRAGH COMPANY


BABCOCK & WILCOX COMPANY


OTIS ELEVATOR COMPANY


R. ZOPPO COMPANY, INC.


LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS


PENNSYLVANIA POWER & LIGHT CO.


HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY


NORTHWEST AIRLINES, INC.


INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.


GENERAL MOTORS CORPORATION, INLAND DIVISION


WELDSHIP CORPORATION


S & S DIVING COMPANY


SNIDER INDUSTRIES, INC.


NATIONAL STEEL AND SHIPBUILDING COMPANY


MAXWELL WIREBOUND BOX CO., INC.


CONTINENTAL GRAIN COMPANY


MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY


CAPITAL CITY EXCAVATING CO., INC.


GAF CORPORATION


PPG INDUSTRIES (CARIBE) a Corporation


DRUTH PACKAGING CORPORATION


SOUTHWESTERN ELECTRIC POWER COMPANY


TUNNEL ELECTRIC CONSTRUCTION CO.


WEATHERBY ENGINEERING COMPANY


JOHNSON STEEL & WIRE CO., INC.


AUSTIN ROAD CO.


MAYHEW STEEL PRODUCTS, INC.


LADISH CO., TRI-CLOVER DIVISION, a Corporation


PULLMAN POWER PRODUCTS, INC.


NATIONAL ROOFING CORPORATION


OSCO INDUSTRIES, INC.


HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY


S.J. GROVES AND SONS COMPANY


CAR AND TRUCK DOCTOR, INC.


PRESTRESSED SYSTEMS, INC.


TEXACO, INC.


GEORGIA HIGHWAY EXPRESS, INC.


RED LOBSTER INNS OF AMERICA, INC.


SUNRISE PLASTERING CORP.


STONE & WEBSTER ENGINEERING CORPORATION


H.B. ZACHRY COMPANY (INTERNATIONAL)


NATIONAL INDUSTRIAL CONSTRUCTORS, INC.


BUSHWICK COMMISSION COMPANY, INC.


CIRCLE T DRILLING CO., INC.


J.L. FOTI CONSTRUCTION COMPANY, INC.


TEXACO, INC.


KENNETH P. THOMPSON CO., INC.


HENRY C. BECK COMPANY


HEATH & STICH, INC.


FARMERS EXPORT COMPANY


FOSTER AND KLEISER


TURNER WELDING & ERECTION CO., INC.


TRI-CITY CONSTRUCTION CO.


THE DURIRON COMPANY, INC.


SAMSON PAPER BAG CO., INC.


MEL JARVIS CONSTRUCTION COMPANY, Inc.


MIDWEST STEEL ERECTION, INC.


GEISLER GANZ CORPORATION


NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY


NATIONAL MANUFACTURING COMPANY


WALLACE ROOFING COMPANY


REYNOLDS METALS COMPANY, INC.


UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.


SUFFOLK COUNTY CONTRACTORS, INC.


NORANDA ALUMINUM, INC.


ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC.


GENERAL ELECTRIC COMPANY


SERVICE SPECIALTY, INC.


ECCO HIGH FREQUENCY ELECTRIC CORP.


HENRY C. BECK COMPANY

OSHRC Docket No. 11864

Occupational Safety and Health Review Commission

May 21, 1980

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Joe F. Canterbury, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John S. Patton is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Judge Patton denied the Secretary's motion to dismiss the notice of contest of Henry C. Beck Company ("Beck") as untimely filed under section 10(a) of the Act. n1 He also determined that Beck had committed a serious violation of the Act for failure to comply with the construction safety scandard at 29 C.F.R. 1926.28(a) and assessed a $200 penalty. We affirm the judge's decision to the extent it is consistent with the following.

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

n1 29 U.S.C. 659(a). The section provides the following:

If, after an inspection or investigation, the Secretary issues a citation under section 9(a), he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under section 17 and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty. If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under subsection (c) within such time, the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

[*2]

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

Beck's Notice of Contest

Beck was engaged in constructing several buildings constituting a 20-acre project in Atlanta, Georgia, when two of the Secretary's compliance officers conducted an inspection beginning on December 4 and continuing through December 9, 1974. Beck's project manager, who was the company's chief managerial official on the worksite, conferred with the compliance officers, and during the closing conference, one of the compliance officers specifically asked the project manager where to send any citation that might be issued. The same question was later asked by this compliance officer during a telephone conversation with the project manager shortly after the inspection. According to the project manager, on both occasions he replied that any citation should be sent to the company's safety director at the home office address in Dallas, Texas, with a copy to the local worksite, for guidance in beginning any required abatement. According to the compliance officer, however, the instructions were to send any citation to the local worksite in Atlanta.

Subsequently on December 13, [*3] 1974, the Secretary issued to Beck two citations and a notification of proposed penalty, which were addressed to Beck at the Atlanta worksite address. The documents were sent by certified mail and were received on December 17, 1974, by the secretary of Beck's project manager at the company's office maintained on the Atlanta construction site. The secretary signed for this certified mailing apparently as a part of her regular duties, for the record shows she previously had accepted one or two unidentified certified mailings at this worksite. Moreover, since one of her responsibilities was to determine to whom to route mail of all types delivered to the worksite, and since she realized that this certified mailing included citations which the project manager should review, she placed the mailed documents in the project manager's box on the day they were received. It is disputed between the project manager and his secretary whether he first became aware of the documents on that day or the next. However, on December 18th the project manager ordered abatement of the alleged violations. On that same day, pursuant to the company's rules, he sent copies of the citations to the safety [*4] director at the Dallas headguarters.

As Beck's chief managerial official on the site, the project manager had virtually complete responsibility for the construction project and the approximately 200 employees. Three superintendents, each responsible for a building under construction, and the office manager all reported to him. The project manager had authority to order abatement of violations. He lacked, however, the authority to contest any citation or penalty. Indeed, he was instructed by the company to forward any citation received at the construction site to the safety director, who had the authority to file a notice of contest.

Shortly after receiving the citations at the Dallas headquarters, Beck's safety director telephoned the project manager to ask when he had received the citations at the worksite. The project manager gave December 18, 1974, as the date of receipt. Thereafter, in a letter dated December 20, 1974, the safety director advised the Secretary's area director that the citations were received on December 18, 1974, and asked for an informal conference on January 6, 1975, with the area director. An informal conference subsequently was held, at which, it appears, [*5] the Secretary's area director, the compliance officer, Beck's safety director, and the project manager were all present. During the conference, one or both of Beck's two officials told the Secretary's area director that Beck had until January 10, 1975, n2 to file a notice of contest. n3 The area director, who had not contradicted the safety director's representation made in his letter that the date of receipt was December 18, 1974, did not indicate in any way during the informal conference that January 10, 1975, was an incorrect date for the final day of the contest period.

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

n2 January 10, 1975, was fifteen working days from December 18, 1974, according to the method for computing the fifteen working day period set forth in 29 C.F.R. 1903.21(c). This provision states the following:

(c) "Working days" means Mondays through Fridays but shall not include Saturdays, Sundays, or Federal holidays. In computing 15 working days, the day of receipt of any notice shall not be included, and the last day of the 15 working days shall be included.

n3 The project manager testified that he recalled urging the area director and compliance officer to complete any reconsideration of the citation before January 10th because that date was the final day of the contest period. This was the only evidence identifying the participants in the informal conference and the discussion that took place. However, in an affidavit made by the safety director and submitted by Beck in opposition to the Secretary's motion to dismiss the notice of contest, but not introduced into evidence at the hearing, the safety director stated that he urged the Secretary's area director to expedite his reconsideration of one aspect of the citations because a notice of contest would have to be filed soon. According to Beck's safety director, the Secretary's area director then asked about the last day of the contest period, and the safety director replied that January 10, 1975, was the last day of the contest period.

[*6]

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

Thereafter, Beck's safety director filed a notice, postmarked January 10, 1975, contesting one of the citations. Since January 10th was sixteen working days from December 17, 1974, the date on which the citations and penalty notice were delivered to the project manager's secretary at the worksite, the Secretary moved to dismiss Beck's notice of contest as untimely filed.

Beck opposed the motion on several grounds and a hearing was held on the motion as well as on the merits of the contested citation. Beck argued that the mailing to the Atlanta worksite was invalid because the project manager who received it lacked authority to handle the matter, i.e., to disburse funds to abate, pay any penalty, or contest, as set forth by the Court of Appeals for the Third Circuit in Buckley & Co. v. Secretary of Labor, 507 F.2d 78 (1975). Beck added that even if the mailing to the worksite was valid under Buckley, it was not received, within the meaning of "receipt" in section 10(a) of the Act, until December 18th when the project manager himself received notice of the documents. Beck contended [*7] that December 18th should be deemed the date of receipt, despite the dispute over whether the project manager received the documents on December 17th or 18th, because the Secretary's area director never informed Beck's safety director or project manager that December 18th would not be deemed the date of receipt. Additionally, while Beck conceded that the safety director did calculate the fifteenday period from the date the project manager received the mailing at the worksite, Beck asserted that the Secretary should be precluded from claiming the worksite service was valid because the compliance officer had specifically asked and been told where to send a citation, i.e., to the Dallas headquarters.

Judge Patton held that the Secretary's mailing to the worksite was an invalid form of notice due to the compliance officer's failure to honor Beck's instructions, which were specifically solicited, as to where to mail a citation. The judge found that the project manager did instruct the compliance officer to send any citation to the safety director at the company's headquarters. He also found that the compliance officer misunderstood the instructions, thinking he was told to [*8] send the citation to the worksite. The judge concluded, nevertheless, that the compliance officer's request for instructions obligated the Secretary to honor the instructions as they were given. The judge reasoned that Beck could reasonably have anticipated that the Secretary would do so. The judge accordingly held that the Secretary was precluded from claiming that the mailing to the worksite was valid and that Beck's notice of contest was timely filed.

In its brief on review, Beck argues that the Secretary's mailing to the worksite was improper for the reasons given by the judge. The Secretary contends on review that notwithstanding Beck's expectation regarding a mailing to the company headquarters, the mailing to the project manager at the worksite was sufficient notice to Beck concerning the citations and proposed penalties. The project manager exercised chief supervisory and management authority on behalf of Beck at the worksite. He therefore could reasonably be expected to know to which company official to forward the documents for a company decision on whether to contest, even though he lacked the authority to make the decision himself. The Secretary argues that the [*9] judge therefore erred in holding the worksite mailing was invalid. For the following reasons, we agree.

In B.J. Hughes, Inc., 79 OSAHRC 49/E6, 7 BNA OSHC 1471, 1979 CCH OSHD P23,675 (No. 76-2165, 1979), the Commission held that the mailing required by section 10(a) must be reasonably calculated to give the employer notice of the citation and proposed penalty with an opportunity to contest or abate. n4 We further held that this test is generally satisfied through a mailing to the company employee in charge of the local worksite where the alleged violation occurred. We reasoned that generally this responsible company employee can be expected to know to whom in the corporate hierarchy to forward the documents. We accordingly declined to follow the holding of the court in Buckley, supra, in requiring a mailing specifically to a particular corporate official having the authority to disburse funds to abate the condition, pay the penalty, or contest the citation or proposed penalty. We therefore reject Beck's argument that the mailing to the worksite here was invalid notice to the company solely because the project manager lacked this broad authority.

- - - - - - - - - [*10] - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 See also P & Z Co., 79 OSAHRC 60/B6, 7 BNA OSHC 1589, 1979 CCH OSHD P23,777 (No. 14822, 1979), in which the Commission held that, because the purpose of the mailing required by 10(a) is to give the employer notice of the Secretary's allegations, an employer who receives actual notice of a citation and proposed penalty has received those documents within the meaning of 10(a) even if the manner in which the documents were sent was not technically perfect.

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

We also conclude that the mailing to the worksite satisfied the test set forth in B.J. Hughes, supra. Here the Secretary's mailing was addressed to the company at the local worksite where the citations and notification of proposed penalty came to the attention of the project manager. As the chief official in charge of managing and supervising the construction activity at the worksite, the project manager was the type of official to whom, as we concluded in B.J. Hughes, the Secretary may mail a citation and penalty notice in order to notify the employer of [*11] the charges and proposed penalty. The project manager could be expected to forward the documents to the appropriate official in the corporate hierarchy. Beck actually had instructed the project manager how to forward these documents, and in this instance he complied with the instruction.

In fact, the only significant difference between the mailing in this case and the mailing in B.J. Hughes is that there the Secretary addressed the mailing to a particular employee in charge of the worksite, whereas here the Secretary simply addressed the mailing to the worksite in the company name. Nonetheless, in view of the facts showing that the large worksite had one central office where the office of the employee in charge, i.e., the project manager, was located, this difference is not critical. The Secretary could reasonably presume that a mailing addressed to the worksite would reach the project manager. Accordingly, we conclude that here the mailing was essentially to the employee in charge at the worksite.

The remaining question is whether the date of receipt for the purpose of section 10(a) is when the project manager claims he first received the documents, i.e., [*12] on December 18th, or when the project manager's secretary signed for the certified mailing on December 17th. For the following reasons, we conclude that the date of receipt should ordinarily be the date when an employee signs for the certified mailing at the worksite address to which the Secretary directed the citation and notification of proposed penalty.

Section 10(a) of the Act requires a certified mailing of the notice of proposed penalty and directs that the fifteen working days for an employer's notice of contest be calculated from the employer's receipt of the notice. A certified mailing in these circumstances usually has a return receipt card attached. This card is dated and signed by the individual to whom the mail is delivered at the address, who is not necessarily the individual to whom the mail is addressed. Clearly, the Secretary cannot control who will sign for the mailing, even by naming a particular company employee located at the local worksite. In addition, he cannot control when the mailing will reach the appropriate company employee. The means of receipt of certified mail by a particular corporation is determined by its unique business practices. Therefore, [*13] since the Secretary must calculate the fifteen working day period from the employer's receipt of the notice, the Secretary must be able to rely on the date appearing on the return receipt.

Moreover, an employer should not be permitted to claim a later receipt date under section 10(a) by showing that the employee in charge of the worksite did not sign for the documents. When the mailing is accepted at the local worksite where a company employee is in charge, the employer has effectively received the notice required by section 10(a). n5 See Delman v. Commissioner of Internal Revenue, 384 F.2d 929 (3rd Cir. 1967), cert. denied, 390 U.S. 952 (1968); Ryan v. Alexander, 118 F.2d 744 (10th Cir. 1941), cert. denied, 314 U.S. 622 (1941). Just as an employer should implement internal procedures for routing citations and penalty notices to the official in the corporate hierarchy having authority to decide whether to contest or abate, so also an employer should implement internal procedures for channeling these documents to the employee in charge at the worksite. As we have indicated, the Secretary has no control over this matter. Moreover, any other rule [*14] would permit an employer, whose internal procedures for handling mail are inadequate, to delay receipt. Such a delay is not contemplated by section 10(a) of the Act. Cf. Teel v. Commissioner of Internal Revenue, 248 F.2d 749 (10th Cir. 1957); Dolezilek v. Commissioner of Internal Revenue, 212 F.2d 458 (D.C. Cir. 1954).

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

n5 See P & Z Co., supra note 4.

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

Here the project manager's secretary accepted delivery of the certified mailing of the citations and penalty notice on December 17th as a routine part of her duties to receive and route mail within the office at the worksite. Furthermore, realizing that the company had received citations and a penalty notice from the Secretary, she duly routed the documents to the project manager. Accordingly, the company received notice within the meaning of section 10(a) on December 17th. Because the company's notice of contest was filed one day later than the permitted fifteen working days from this date, the notice of contest was untimely filed. See [*15] 29 C.F.R. 1903.21(c), supra note 2.

Nevertheless, we have held that an employer may establish that an untimely filed notice of contest is valid by showing that deception or a failure to follow proper procedures on the part of the Secretary caused the delay. B.J. Hughes, Inc., supra; Keppel's Inc., 79 OSAHRC 43/A2, 7 BNA OSHC 1442, 1979 CCH OSHD P23,622 (No. 77-3020, 1979), appeal dismissed, No. 79-2045 (3rd Cir., Jan. 8, 1980); see Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975). Beck essentially has made two arguments to this point. It contends that the compliance officer led Beck to expect a mailing to the safety director at the company headquarters, since the compliance officer asked specifically where to mail a citation and was told to send it to the safety director. It also argues that the area director permitted Beck's safety director and project manager to think that the fifteen working day period should properly be counted from December 18th, and should therefore end on January 10th, since the area director did not state otherwise when these dates were mentioned to him.

The record conclusively reveals, and Beck admits, that [*16] its safety director did not rely on his belief that the mailing to the worksite was invalid, but instead calculated when to file the notice of contest on the basis of receipt of the citation and penalty notice at the worksite. It is clear, therefore, that the untimely filing of Beck's notice of contest was not caused by failure of the Secretary to follow the instructions given in answer to his compliance officer's question respecting the mailing. Accordingly, even if this failure amounts to deception or a failure to follow proper procedures, we reject this portion of Beck's argument.

The remaining portion of Beck's defense regarding its notice of contest concerns the fact that OSHA's area director remained silent when Beck's officials advised him that December 18, 1974, was the date the notice was received and that January 10, 1975, was the final date of the contest period. Beck argues, essentially, that its notice of contest should be accepted as timely filed since the area director's improper silence caused the untimeliness. For the following reasons, we agree.

In B.J. Hughes, supra, the employer's safety director informally conferred separately with the Secretary's [*17] assistant area director and area director about the citation. Each official told the safety director that the notice of contest was due on a particular day, May 10th. In addition to corroborating the assistant area director's advice, the area director's advice was particularly detailed and convincingly supported. He first specified a date on which the citation was deemed to have been received by the employer. Then, using this date and a calendar, he calculated the final day of the contest period. He also said that he intended to make a further investigation on some matters concerning the citation, and would contact the safety director in a few days. By May 7th, the safety director had not heard from the area director. Therefore, the safety director filed a notice of contest for the employer. However, May 7th was sixteen working days following the date on which the employer had actually received the citation, which the Secretary had sent to the worksite by certified mail with return receipt. Therefore, the Secretary moved to dismiss the notice of contest as untimely.

The Commission held that the notice of contest was timely because the representations of the Secretary's officials [*18] about the final date of the contest period were binding on the Secretary. The Commission concluded that although the Secretary's officials did not intend to mislead the employer, they made the representations with an intent that the employer rely on them. The employer moreover had relied on them in delaying the filing of a notice of contest until shortly before the specified final date. The Commission also concluded that this reliance was reasonable, even though the employer could have independently calculated the correct final contest date by using as the "receipt" date the date on which the employer had actually received the citation. The Commission reasoned" [n]ot only was the erroneous advice presented in a convincingly detailed and supported form, but it was given by the chief regional officials of the Secretary who appeared to have and should have had knowledge of the facts and applicable law with respect to the case." (Footnote omitted.) 7 BNA OSHC at 1477, 1979 CCH OSHD at 28,710.

Although silence rather than an express representation is involved in this case, the circumstances are essentially indistinguishable from those in B.J. Hughes. Here, Beck's safety director [*19] in a letter stated the date on which Beck received the citation and asked for an informal conference with the Secretary's area director about the citations. The area director scheduled the conference. Beck's safety director therefore could reasonably expect that by the time of the conference, the area director would review the facts of the case, including the evidence about the receipt date for the citation, and would know the applicable law. Moreover, during the conference, the area director indicated he intended to reconsider the citation. In response, Beck's official urged him to complete the reconsideration before the notice of contest was due on the existing citation and specified the final contest date as January 10th. The area director was silent about whether this was the correct date, but in these circumstances his silence indicated agreement that January 10th was the final contest date. By mentioning reconsideration of the existing citation, the area director made the final contest date a critical fact under consideration at the informal conference. Since, as indicated, Beck was justified in thinking that the area director was informed about the facts and law of the [*20] case, the area director was obligated to speak if Beck's safety director was wrong about the final contest date. His silence therefore was, in effect, a representation made with an intent that Beck rely on it. Beck relied on the correctness of the date. Therefore, we conclude that the area director's silence caused the untimeliness of Beck's notice of contest. See American National Insurance Co. of Galveston, Texas v. Murray, 383 F.2d 81 (5th Cir. 1967) (In an arm's length transaction, a duty to speak may arise where the facts are peculiarly within the knowledge of one party); cf. SEC v. Great American Industries, Inc., 407 F.2d 453 (2d Cir. 1968) cert. denied, 395 U.S. 920 (1969) (The sellers were obligated to specify the meaning of certain general terms given in a purchase agreement where the buyer's questions about the terms indicated that, without the specific facts, he would be misled). We accordingly hold that Beck's notice of contest was valid despite its facial untimeliness.

The Citation

In the one citation contested by Beck, the Secretary alleged that Beck committed a repeated and serious violation of 29 C.F.R. 1926.28(a), and in the complaint, [*21] the Secretary added the charge that the violation was willful. A $1300 penalty was proposed. In his decision, the judge, in effect, concluded that Beck committed a serious, but not repeated or willful, violation of the standard, n6 and he assessed a $200 penalty.

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

n6 In his decision, the judge explicitly concluded that Beck violated 1926.28(a). He did not explicitly conclude that the violation was serious within the meaning of 17(k) of the Act, 29 U.S.C. 666(j), but he made factual findings that would require such a conclusion. Section 17(k) of the Act provides, in pertinent part, that "a serious violation shall be deemed to exist . . . if there is a substantial probability that death or serious physical harm could result from a condition which exists . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." Judge Patton found that an accident resulting from the hazard in Beck's workplace would have caused death or serious physical harm to an employee. He further found that Beck's superintendent had actually directed the employees to work in the location and manner in which they were exposed to the hazard. This finding establishes that Beck had the requisite knowledge of the violation within the meaning of 17(k).

Although the judge did not explicitly reject the Secretary's allegations that the violation was repeated or willful, he did not find or conclude that the violation was either repeated or willful. Moreover, the judge had dismissed the willful charge at the outset of the hearing in response to a motion by Beck.

[*22]

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

Beck, in its petition for discretionary review, which was granted by Chairman Cleary, excepted only to the determination that the section 1926.28(a) violation was serious. n7 Beck's summary argument on review -- that "there was no probability of death or serious physical harm" -- was made to the judge and, having reviewed the record and the judge's decision, we conclude that the judge sufficiently considered and properly rejected it. We have repeatedly held that whether a violation is serious depends on the probability that the harm resulting from an accident could be death or serious physical harm, not on the probability that an accident might occur, which is relevant only to the penalty. Brown & Root, Inc., Power Plant Division, 80 OSAHRC    , 8 BNA OSHC 1055, 1980 CCH OSHD P24,275 (No. 76-3942, 1980), citing Boonville Division of Ethan Allen, Inc., 78 OSAHRC 105/B4, 6 BNA OSHC 2169, 1978 CCH OSHD P23,219 (No. 76-2419, 1978); Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD P23,670 (No. 76-2414, 1979). Here Judge Patton's examination of the evidence on the [*23] occurrence of an accident and the resulting harm was basically guided by these principles and the associated factual findings, see note 6 supra, are supported by the evidentiary record. Accordingly, we adopt the portion of the judge's decision establishing that the violation was serious. See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977). We also agree with the judge's assessment of a $200 penalty for the reasons given by him.

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

n7 Beck's petition addressed other issues in the case -- whether the violation was repeated or willful -- but these issues are not before the Commission for review. Beck asserted that the judge had implicitly rejected the Secretary's allegations that the 1926.28(a) violation was repeated or willful, by explicitly concluding only that Beck violated the standard and assessing a $200 penalty in lieu of the $1300 penalty proposed by the Secretary. Beck did not except to the judge's conclusion on the violation or the penalty assessment but Beck requested that the Commission clarify the judge's decision to hold explicitly that the violation was not repeated or willful. However, this is the effect of the judge's decision, as we have indicated, note 6 supra. Moreover, the Secretary, who is aggrieved by the judge's decision on the repeated and willful issues, has not sought Commission review on these issues. Accordingly, these issues are not before the Commission for review.

[*24]

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

Accordingly, we conclude that Beck's notice of contest was valid for the reasons stated in this decision, and affirm the judge's conclusion that Beck committed a serious violation of 29 C.F.R. 1926.28(a) as well as his assessment of a $200 penalty. IT IS SO ORDERED.

CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

Tolling the statutory filing deadline is warranted in this case based on the totality of circumstances surrounding the area director's reconsideration of the citation and the January 6th meeting between the area director and Beck. However, American National Insurance Co. of Galveston, Texas v. Murray, 383 F.2d 81 (5th Cir. 1967) (non-disclosure in fiduciary relation), and SEC v. Great American Industries, Inc., 407 F.2d 453 (2d Cir. 1968)(en banc) cert. denied, 395 U.S. 920 (1969) (non-disclosure in regulated securities transaction), provide no authority for the proposition that a statutory deadline may be tolled on the basis of silence. In addition, there is no basis for concluding that the area director's silence was "in effect a representation." * Moreover, no record evidence [*25] supports the finding that the area director intended Beck to rely on his silence. However, an objective assessment of the total circumstances leads to the conclusion that Beck acted reasonably in relying on the area director's knowledge of the facts and assuming that the area director agreed with Beck's statement of the final order date. Accordingly, I concur in the conclusion that Beck timely filed its notice of contest.

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

* Silence is only considered a representation in exceptional situations where one party has superior knowledge or a legal obligation to disclose, e.g. a contractual duty or a fiduciary relationship. See generally 37 C.J.S. Fraud 15-16; 37 Am.Jur.2d Fraud & Deceit 144-149. Assuming the appropriateness of this analogy to this case, the area director does not possess superior knowledge regarding the date of receipt and no other legal obligation to disclose is imposed on him.

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