SPARTAN CONSTRUCTION CO., INC.
OSHRC Docket No. 12797
Occupational Safety and Health Review Commission
January 3, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, USDOL
Robert C. Draudt, Spartan Construction Co. Inc., for the employer
OPINION:
DECISION
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's decision is accorded the significance [*2] of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
CONCURBY: MORAN
CONCUR:
MORAN, Commissioner, Concurring:
I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.
APPENDIX A
DECISION AND ORDER
Francis V. LaRuffa, Regional Solicitor and Stephen D. Dubnoff, for Secretary of Labor
Robert C. Draudt, President, of Gowanda, for Respondent, pro se
James P. O'Connell, Judge.
STATEMENT OF THE CASE
The Review Commission first became aware of a controversy between the parties herein when it received a copy of a letter, dated March 8, 1975, mailed by respondent to Alfred Barden, the Assistant Regional Director for OSHA, at New York City. The letter, which stated in part that "I am writing this letter in regard to contesting the penalty assessed with regard to an accident [*3] resulting in the death of our business partner," was acknowledged by the Commission on March 12, 1975. Respondent was requested to forward to the Commission a copy of all correspondence had with the Department of Labor, including the citation and proposed penalty. Respondent under date of March 28, 1975, complied with this request. One of the documents furnished was a copy of a letter dated February 25, 1975, from respondent to the OSHA Area Director at Syracuse, New York, requesting "an informal discussion with you in regards to the above accident."
The Commission thereafter, on April 7, 1975, considered the proceeding to be one arising out of a notice of contest filed by respondent under section 10 of the Act. This was not the view however of the Solicitor of Labor who on May 8, 1975, made a written motion with supporting documents, requesting the Commission "for an order dismissing the Respondent's notice of contest dated March 8, 1975 as untimely filed and affirming the Secretary's citation and notification of proposed penalty issued February 4, 1975." Such motion on June 4, 1975 was denied by the Commission's Chief Administrative Law Judge "without prejudice to complainant's [*4] right to renew before the trial judge."
After the Solicitor filed a complaint pursuant to an order to show cause entered by the Commission on July 22, 1975 n1 respondent, by letter dated August 11, 1975, filed its answer in response to the complaint. The case thereafter, under date of August 27, 1975, was forwarded to the undersigned Judge for hearing and disposition.
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n1 In the complaint the Solicitor reaffirmed his position that respondent had intimely filed a notice of contest to the proposed assessment of penalty.
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On September 12, 1975, an informal pre-hearing conference, in the form of a conference-telephone call, was held between the Judge, the Solicitor and respondent's President, Robert C. Draudt, due to the fact that respondent is located outside of Buffalo, New York. The pleadings were reviewed and the parties were advised that the Judge was of the opinion that there was a threshold issue of jurisdiction to be tried at hearing. On the same date a notice of hearing - on the issue of jurisdiction only - [*5] was forwarded to the parties advising that a hearing was scheduled for October 8, 1975 at Buffalo, New York.
Respondent by letter dated September 16, 1975, waived its right to this hearing and enclosed an undated form letter (discussed subsequently herein) with certain portions of the third paragraph thereof underlined in red having reference to "the request for an informal conference . . . ." This document respondent asked to become part of its submission to the Judge on the pleadings. The Solicitor, under date of October 2, 1975, by letter also waived its right to a hearing and requested that the question at issue be decided on the record before the Judge. Thus both parties, having waived their right to a hearing, are in agreement that all threshold issues involved herein could be determined upon the pleadings and documents submitted and on file with this Commission Judge.
ISSUE INVOLVED
The threshold issue is whether the Review Commission has jurisdiction of this proceeding; to wit: did the employer file a notice of contest within 15 working days of receipt of the citation and/or notification of proposed penalty pursuant to section 10(a) of the Act (29 U.S.C. 695(a))? [*6] More specifically, the jurisdictional question presented is whether respondent's letter of February 25, 1975, requesting an informal discussion (meeting) with the OSHA Area Director, was a notice of contest as contemplated by section 10(a) of the Act?
FINDINGS OF FACT
Based upon the pleadings herein, there being no dispute as to their relevancy and authenticity, I make the following findings of fact:
1. On January 20, 1975 an inspection was made by Robert Boyd, an OSHA compliance officer, of a place of employment maintained by respondent at Maltbie Road, Gowanda, New York. The inspection was precipitated by a letter, dated January 17, 1975, sent by respondent to OSHA at Syracuse, New York, advising of a fatal accident to a workman, Robert R. Green, on January 11, 1975 at respondent's premises.
2. At the conclusion of the OSHA inspection, Mr. Boyd gave to respondent a form letter bearing the letterhead and address of the Department of Labor at New York City and signed by Alfred Barden, the Assistant Regional Director. The letter in substance advised that respondent's establishment had been inspected, that as a result of such inspection a citation and notice of proposed [*7] penalty may be given or sent to respondent and that "in addition to your right to file a formal notice of contest, you have the right to request an informal conference --." The third paragraph of the form letter stated:
"By contacting the Area Director and arranging for an informal conference, objections that you may have relative to citations, proposed penalties or abatement dates may possibly be resolved without resort to unnecessary litigation. The request for an informal conference must be made within 15 working days after the receipt of the notice of penalty and before you file a formal notice of contest." (Emphasis supplied by respondent)
3. As a result of such inspection a citation for an alleged serious violation of 29 CFR 1910.252(d)(3) and a Notification of Proposed Penalty of $500.00 were issued on February 4, 1975. Mailed with the above two documents and relating thereto was a one page explanatory printed document (form OSHA-2c) entitled: "Subject: Citation(s) for Alleged Occupational Safety and Health Violation(s)."
Paragraph 3 of the form advised respondent of its right to contest the citation or the proposed penalty within 15 working days after receipt of the [*8] notice of proposed penalty. The last sentence stated:
"If you fail to contest within the 15 working day period, the citation(s) and penalty(ies) as proposed, shall be deemed to be a final order of the Review Commission and not subject to review by any Court or agency."
Paragraph 5 of the form reads:
"You have a right to request a discussion with the Area Director concerning any results of the inspection (abatement dates, citations, penalties, etc.). Please direct correspondence to, or call, the Area Director at the address shown at the top of this letter. A request for an informal discussion cannot extend the 15 working day period allowed for filing a notice of contest. Therefore, a request for an informal discussion should be brought to the attention of the Area Director prior to the end of the 15 working days allowed for filing a notice of contest, preferably as soon as possible." (Emphasis added)
4. The three documents mentioned in Finding no. 3 above were sent to respondent at its corporate office by certified mail from the OSHA office at Syracuse, New York, and were received by respondent on February 5, 1975. A postal receipt for certified mail was signed by respondent's [*9] agent. The 15th working day after receipt of the citation and notification of proposed penalty was February 27, 1975. n2
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n2 Excluding the Federal Holiday of Washington's Birthday on February 17, 1975.
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5. Respondent's President, Robert C. Draudt, by a typewritten letter dated February 25, 1975, mailed in an envelope postmarked February 26, 1975, communicated with Mr. Chester Whiteside, the OSHA Area Director at Syracuse, New York. The body of the letter, bearing respondent's name and address on its letterhead, stated as follows:
"February 25, 1975
United States Department of Labor, Occupational Safety & Health Administration, Room 203, Midtown Plaza, 700 East Water Street, Syracuse, New York 13210
Attn: Mr. Chester Whiteside
Re: Robert R. Green, Spartan Construction Co., Inc.
Dear Mr. Whiteside:
We are in receipt of your citation and proposed penalty regarding our recent accident, which resulted in the death of one of our Corporate Officers.
We respectfully request to have an informal discussion with you [*10] in regards to the above accident.
Please advise of a date which we can meet with at your convenience.
Sincerely,
Robert C. Draudt, President /s/
Robert C. Draudt, President
Spartan Construction Co., Inc."
RCD:jm
On February 28, 1975 the above letter was received in Mr. Whiteside's office. This letter, while postmarked within the 15 working day period after respondent's receipt of the citation and notification of proposed penalty, is not a notice of contest.
6. On March 5, 1975 Mr. Draudt and Mr. Whiteside met and had an informal conference at the OSHA Area Office in Syracuse, New York. A memorandum of that conference was prepared by Whiteside and is one of the pleadings submitted by the Solicitor in support of its aforementioned motion.
7. On March 8, 1975 Mr. Draudt wrote to Alfred Barden, the Assistant Regional Director for OSHA, at New York City. The letter, received on March 10, 1975, advised inter alia, that respondent was contesting the penalty assessed. It also stated that Mr. Draudt's letter of February 25, 1975, set forth verbatim in Finding no. 5 above, "was meant to construe that we were contesting the penalty --."
This letter of March 8, 1975 is a notice [*11] of contest of the $500.00 proposed penalty. However, such notice of contest, not having been postmarked nor filed within the 15 working day period subsequent to February 5, 1975, was untimely.
OPINION
Section 10(a) of the Act provides that an employer has fifteen working days within which to notify the Secretary that it wishes to contest the citation or proposed assessment of penalty. It further provides that if, within fifteen working days from the receipt of the notice (of penalty) issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, the citation and assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency (29 U.S.C. 659(a)). This section of the Act has been strictly enforced in several cases arising before the Review Commission and as interpreted by the United States Courts of Appeals. Such case law, when applied to the facts herein, has been most persuasive so as to warrant a resolving of the issues involved against the respondent.
In Secretary v. Walter A. Podpora, Docket No. 721 (June 19, 1972), it was held [*12] that the fifteen working day period for filing a notice of contest cannot be extended. The Court of Appeals in Brennan v. OSAHRC and Bill Echols Trucking Co., 487 F.2d 230 (5th Cir., 1973), expressed the view that any doubts about the sufficiency of an employer's letter as a notice of contest should be resolved in favor of transmitting it to the Review Commission for its determination. In that case, the question was also present, as to whether respondent's letter constituted a notice of contest, where a certain amount of confusion existed on the part of the employer. The Court in Bill Echolas, supra, at page 234, under footnote 7, suggested "a simple means of eliminating ambiguity in notices of contest." Unfortunately, the suggestion by the Circuit Court has not been adopted by the Secretary up to the present date.
It would appear that in the case before me, a confusion existed in the mind of the respondent by what would seem to be a contradiction between the statement contained in the letter handed to respondent by Mr. Boyd at the time of the inspection (see Finding no. 2) and the language set forth in form OSHA-2c accompanying the citation and notice of proposed [*13] penalty (see Finding no. 3). This Judge in Secretary v. Hi-Fi Carpet Mills, Inc., 4 OSAHRC 587 (1973), at 594, held that there was a "likely possibility of misunderstanding of the time filing requirements of Section 10(a) of the Act." That case involved a factual situation where the Secretary made a premature request to respondent for remittance of the penalty before the fifteen working days had expired and had also referred to an erroneous date of respondent's receipt of notice of the proposed penalty. The Commission in its unanimous opinion on review, in ruling that the employer's notice of contest was untimely, held that, any such premature request for a penalty remittance despite the above erroneous reference, could not be considered an amended notification of proposed penalty so as to extend the fifteen working days statutory period during which respondent had to contest the citation or penalty.
More to the point herein, I have reviewed respondent's letter of February 25, 1975 and after giving it the most liberal interpretation possible, I cannot hold it to be anything other than a request for an informal conference. I do not fault the Secretary for considering it [*14] as such, nor do I find any error in his not forwarding it to the Commission as a notice of contest. It is interesting to note that in Secretary v. E. F. Houghton and Company, 4 OSAHRC 787 (September 13, 1973), a letter from respondent requesting a conference was viewed by the Secretary of Labor as being a notice of contest and forwarded it to this Commission for disposition. It was eventually determined by one of my fellow Judges that such a request for an informal conference could not be interpreted as something which on its face it was not.
While I have expressed the view that there possibly was some confusion in the mind of the respondent herein, I do not mean to infer, nor do I make any Finding, that the Secretary in the factual situation involved herein in any way deceived respondent or failed to follow proper procedure. Cf. Atlantic Marine, Inc. and Atlantic Dry Dock Corporation v. O.S.A.H.R.C. and Dunlop, F.2d (5th Cir., December 8, 1975). It is clear that respondent had it carefully read the explanatory printed document discussed in Finding no. 3 herein, was specifically advised that a request for an informal discussion cannot extend the 15 working [*15] day period allowed for filing a notice of contest.
I do recognize that the Review Commission majority has recently given a more liberal interpretation to notices of contest filed by respondents pro se by its decision in Secretary v. Turnbull Millwork Company, Docket No. 7413 (December 15, 1975). However, the Turnbull case is distinguishable from the facts at issue. In Turnbull a timely notice of contest to the proposed penalty was interposed by respondent which the Commission ruled could be elaborated on in subsequent pleadings. Such is not the situation herein.
Accordingly, no timely notice of contest having been filed in this proceeding, it must be held that this Commission has no jurisdiction of the subject matter and this cause of action should be dismissed.
While I am firmly convinced that upon the law and facts as applicable in this proceeding, the above determination is correct as a matter of law, I do note as an aside that respondent herein has exhibited a certain commendable attitude towards compliance with the Act. Respondent reported the accident and death of its corporate shareholder and employee to OSHA as required by law. Obviously, since [*16] the penalty proposed was $500.00, I would assume that respondent was given certain adjustments allowable for size, good faith and a negative prior history as authorized by the Act. Respondent's notice of contest, if it had been timely, was directed solely to the issue of the proposed penalty. It is commented that the Secretary in his sound discretion, as previously exercised in Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278 (9th Cir., 1974), might reevaluate the respondent's good faith in the light of what has transpired herein towards a possible further adjustment of the amount of the proposed penalty assessed against this respondent.
CONCLUSION OF LAW
The citation and notification of proposed penalty issued to respondent herein on February 4, 1975, became a final order of the Review Commission by operation of law. This Commission has no jurisdiction over this matter.
ORDER
Based on the foregoing Findings of Fact and Conclusion of Law, and upon the entire record of this proceeding, it is ORDERED that: this cause of action be and hereby is dismissed.
Issued at: New York, New York
File Date: March 31, 1976
JAMES P. O'CONNELL, [*17] JUDGE, OSAHR