JOSEPH WEINSTEIN ELECTRIC CORP.
OSHRC Docket No. 14839
Occupational Safety and Health Review Commission
January 31, 1978
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
F. V. LaRuffa, Reg. Sol., USDOL
Martin Weinstein, Pres., Joseph Weinstein Electric Corp., for the employer
OPINION:
DECISION
BY THE COMMISSION:
This case presents the issue of whether Judge James P. O'Connell erred in holding that various documents issued under the Occupational Safety and Health Act of 1970 n1 were invalid because they were mailed to a local jobsite rather than to Respondent's corporate office. We set aside the Judge's decision and remand for further proceedings.
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n1 29 U.S.C. 651 et seq., hereinafter "the Act".
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Following an OSHA inspection of Respondent's construction worksite at West 25th Street, New York City, a citation (citation #1) and a notification of proposed penalties (NOPP) were sent by certified mail to the jobsite on July 16, 1975. A receipt signed by an employee of respondent indicates that these documents were received at the jobsite on July 18. The citation alleged that Respondent [*2] violated two safety standards, and required abatement "immediately upon receipt of citation." Respondent's president, Mr. Weinstein, received notice of the receipt of these documents at a time after July 18, 1975, but before July 23. On July 23, at Weinstein's direction, Respondent's project manager met with the New York City OSHA area director. As a result of this meeting, an amended citation (citation #2) and NOPP were mailed to the West 25th Street worksite on July 29. Citation #2 simply rescinded one of the two violations alleged in citation #1, and was received by an employee at the jobsite on August 5. Weinstein learned of Citation #2 "probably . . . a week" after it had been received at the jobsite.
OSHA reinspected the worksite on August 6 and concluded that Respondent had failed to abate the violation alleged in the amended citation. A notification of failure to abate (FTA), together with a notification of proposed additional penalties, was mailed to the worksite on August 11. Respondent filed a notice of contest on August 29. n2 An evidentiary hearing covering both the validity of service of the various documents and the merits of the case was held.
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n2 A notice of contest to a citation must be filed within 15 working days of the employer's receipt of the NOPP associated with the citation. 29 U.S.C. 659(a). A notice of contest to a notification of failure to abate must be filed within 15 working days of the employer's receipt of the FTA. 29 U.S.C. 659(b).
Respondent's notice of contest was clearly directed at the FTA notification and the notification of proposed additional penalties. It is not clear whether it was also intended to contest citation #1 or citation #2. See Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD para. 20,221 (No. 7413, 1975). As discussed infra, however, the notice of contest was not timely filed with respect to citation #1, and may not have been timely with respect to citation #2.
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In his decision, Judge O'Connell vacated citation #2, the FTA notification, and the accompanying proposed penalties on the basis that they had been served invalidly. As support for his action, the Judge relied on Buckley & Co., Inc. [*4] v. Secretary of Labor, 507 F.2d 78 (3rd Cir. 1975), and Donald K. Nelson Constr., Inc., 76 OSAHRC 2/A2, 3 BNA OSHC 1914, 1975-76 CCH OSHD para. 20,299 (No. 4309, 1976). For the reasons that follow we conclude that the Judge erred in his application of Buckley and Nelson to the facts of this case.
In Nelson, the Secretary used personal service to serve a citation and NOPP after having attempted unsuccessfully to effect service by certified mail. n3 A divided Commission held that the Secretary may use personal service under the Act, but that, if he does so, service must be made on a person authorized to receive service under Fed. R. Civ. P. 4(d)(3). n4 Since service was not made on such a person, the citations and proposed penalties were vacated. In the present case, Judge O'Connell noted that the employees at the jobsite were not authorized to receive service for respondent under Rule 4(d)(3). Unlike Nelson, however, service in the present case was accomplished by use of certified mail, not by personal service, and, therefore, Rule 4(d)(3) is not applicable. For this reason, Nelson does not provide a basis for vacating the documents involved in this case. [*5]
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n3 Section 10 of the Act provides that NOPPs and FTAs be sent by certified mail. 29 U.S.C. 659(a) and (b).
n4 Fed. R. Civ. P. 4(d)(3) provides that service shall be made upon a domestic or foreign corporation:
. . . by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.
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In Buckley, the citation and penalty documents were sent by certified mail to the jobsite where the alleged violations occurred. The superintendent at the jobsite failed to inform his superiors that the documents had been received. When higher officials of the company received notice of the citations and proposed penalties, 15 working days had already passed. For this reason, the Commission dismissed the notice of contest as untimely. In reversing the Commission's decision, [*6] the Third Circuit stated:
. . . [w]e percentive the Congressional intent to be a requirement that notification must be given to one who has the authority to disburse corporate funds to abate the alleged violation, pay the penalty, or contest the citation of proposed penalty. As to this corporate employer, this means, at the very least, a notice to the officials at the corporate headquarters, not the employee in charge at the particular worksite (emphasis added). 507 F.2d at 81.
Based on the court's decision, Judge O'Connell reasoned that the documents in the present case must be vacated because they had been mailed to the jobsite, rather than to respondent's corporate office. In doing so, the Judge erred.
First, Buckley did not hold that service can never be made effectively at a jobsite as opposed to the corporate headquarters. Rather, the court's concern was directed at the ability of the person served with the documents to respond appropriately, and not where that person was located. The court did find, however, that as to the particular respondent in Buckley, only service at the corporate headquarters would be adequate. Second, Buckley did not hold that [*7] the citations and proposed penalties were invalid because they had been served incorrectly. The court simply set aside the Commission's order dismissing the respondent's notice of contest as untimely, thereby suggesting that the 15-day contest period begins to run only when an appropriate corporate official has received notice of the documents. Cf. Imperial Lumber Co., 77 OSAHRC 169/A2, 4 BNA OSHC 1908, 1976-77 CCH OSHD para. 21,352 (No. 12699, 1976).
In the present case, it is clear that there was both adequate service of, and a timely notice of contest to, the FTA notification. Weinstein had actual notice of receipt of the FTA, and the notice of contest was filed within 15 working days of its receipt at the jobsite. Just as clearly, however, the notice of contest was not timely with respect to citation #1. Weinstein received notice of this citation, and its accompanying NOPP, no later than July 23; no notice of contest was filed until August 29, more than 15 working days later.
Judge O'Connell assumed, however, that citation #2 superseded citation #1, thus initiating a new 15-day contest period. Compare Owens-Illinois, Inc., 4 BNA OSHC 1250, 1976-77 CCH OSHD [*8] para. 20,705 (No. 8859, 1976). If this is so, and if the notice of contest can be read as also contesting citation #2, then the notice may or may not have been timely with respect to citation #2, depending on when Weinstein received actual notice of the NOPP accompanying that citation. n5
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n5 If the notice of contest was untimely with respect to citation #2, the citation would be an unreviewable final order. Section 10(a) of the Act. Nevertheless, the Commission has held that the absence of a violation as alleged in the underlying citation may be raised as a defense in an FTA proceeding. York Metal Finishing Co., 74 OSAHRC 19/D2, 1 BNA OSHC 1655, 1973-74 CCH OSHD para. 17,633 (No. 245, 1974), pet. for review dismissed, No. 74-1554 (3d Cir. 1974).
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These issues, however, are beyond the scope of the direction for review, and we conclude that it is appropriate to afford the parties an opportunity to present further argument and evidence concerning them. We will therefore remand the case to the Judge [*9] to resolve these issues after affording the parties such an opportunity. Regardless of his resolution of these issues, the Judge should also make findings on the merits, so that, if the case again comes before us for review, a final disposition can be made.
Accordingly, the Judge's decision is set aside and the case is remanded for further proceedings consistent with this decision.