CITY MILLS COMPANY
OSHRC Docket No. 15196
Occupational Safety and Health Review Commission
March 1, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Reg. Sol., USDOL
L. G. Bowers, Jr., City Mills Company, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
The order of Administrative Law Judge [hereinafter "ALJ"] Joseph L. Chalk dated December 1, 1975, is before the full Commission through a Direction for Review issued pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"]. Respondent petitioned for review of the penalty proposed for alleged violations that had become a final order by operation of law due to respondent's failure to timely contest. Chairman Barnako's Direction for Review couched the issues in the following way:
Whether in view of the representations made by Respondent on September 22, 29, and December 19, 1975, n1 copies attached, the Judge erred in dismissing the notice of contest without affording a hearing to develop evidentiary facts concerning the timeliness of the notice. See Buckley & Co. v. Brennan, 507 F.2d 78 (3d Cir. 1975); Atlantic Marine Inc., et al. v. O.S.H.R.C., [524 F.2d [*2] 476 (5th Cir. 1975)].
For reasons that follow, we hold that the ALJ did not err. Consequently, we affirm his action.
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n1 The letter of December 19, 1975, is respondent's petition for discretionary review. It summarizes the arguments contained in the earlier letters of September 22, and 29, 1975, both of which are attached to it.
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As the result of an inspection of its place of business at 9 18th Street, Columbus, Georgia, respondent was issued a citation consisting of twenty-three items of alleged noncompliance with occupational safety and health standards in violation of section 5(a)(2) of the Act. The citation and a Notification of Proposed Penalty of $465.00 were received by respondent on August 12, 1975. Under section 10(a) of the Act, respondent had fifteen working days from that date to contest the citation or the proposed penalty. Section 10(a) of the Act further provides that upon failure to notify the Secretary of an intention to contest within the fifteen working-day period, the citation and proposed [*3] penalty are deemed a final order of the Commission that is not subject to review by any court or agency.
In the instant case, no efforts were made to notify the Secretary of an intention to contest either the citation or proposed penalty within the fifteen working-day period. Thus, the citation and proposed penalty became a final order of the Commission by operation of law upon expiration of that period. Brennan v. O.S.H.R.C. and Bill Echols Trucking Co., 487 F.2d 230 (5th Cir. 1973). American Airlines, Inc., BNA 2 OSHC 1326, 1974-75 CCH OSHD para. 18,908 (No. 4532, 1974).
On September 22, 1975, after expiration of the period for contest, respondent's President, Mr. L. G. Bowers, Jr., called the Occurational Safety and Health Administration (OSHA) area office in Macon, Georgia. Later that day he sent that office a letter summarizing the conversation. On September 29, 1975, a more formal and comprehensive letter was sent. Both letters requested a reduction in the penalty, that was now a final order, because of the company's dire financial condition and its good faith.
In the September 29, 1975, letter, Mr. Bowers also stated that he did not learn of the Notification [*4] of Proposed Penalty until September 22, 1975. Mr. Bowers stated that his failure to learn of the Notification of Proposed Penalty was due to the fact that Mr. Wadkins, respondent's production manager and person in charge of abating the violations, had gone on vacation the same day that Mr. Bowers had returned from his own. Mr. Wadkins neglected to read the Notification of Proposed Penalty's statement that a notice of contest must be filed within fifteen working days of receipt of the Notification of Proposed Penalty. Thus, on Mr. Bowers' return, Mr. Wadkins departed on his own vacation apparently without mentioning the Notification of Proposed Penalty to him.
Section 10(a) of the Act states in part:
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, * * *, 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 (emphasis added).
By its plain terms, section 10(a) renders the circumstances relied upon by respondent unpersuasive in determining [*5] whether the citation and penalty are reviewable. The expiration of the fifteen working-day period divested the Commission of jurisdiction. n2 Josten-Wilbert Vault Company, BNA 4 OSHC 1577, 1975-76 CCH OSHD para. 20,967 (No. 12549, 1976). Thus, by granting the Secretary's motion to dismiss respondent's notice of contest without affording a hearing to develop evidentiary facts concerning its timeliness, the ALJ correctly recognized the limitation of his authority under section 10(a) of the Act.
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n2 Even if the contest period were considered to be in the nature of a statute of limitation, the mitigating factors here would not provide an adequate basis for tolling the contest period. See 54 C.J.S. Limitations of Actions § 205.
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Atlantic Marine Inc. v. O.S.H.R.C., supra and Buckley & Co. v. Brennan, supra do not require a contrary result. In Atlantic-Marine, the Court vacated an order dismissing an untimely notice of contest and remanded for an evidentiary hearing on an employer's allegations [*6] that its failure to timely contest was due to the Secretary's deceptive practices. The Court specifically refrained from reaching the issue of whether a citation, that becomes a final order on the expiration of the fifteen working-day period, is an unpenetrable barrier to further consideration of an employer's claims. In the instant case, respondent has raised no allegation that it was any way mislead by the Secretary, and the record indicates no conduct of this kind.
In Buckley & Co., the Third Circuit set aside a Commission order, which had dismissed a notice of contest as untimely, on the ground that the Notification of Proposed Penalty had not been transmitted to the employer in accordance with the requirements of section 10(a) of the Act. n3 There, due to the inadequate notice to the employer, the contest period was not triggered and the order had not become final under the terms of section 10(a).
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n3 See also the Commission's recent decision in Imperial Lumber Co., BNA 4 OSHC 1908, 1976-77 CCH OSHD para. 21,352 (No. 12699, 1976).
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In the instant case, there is no problem with adequate notice. In respondent's letter dated March 11, 1976, in reply to the Secretary's brief on review, Mr. Bowers stated that Mr. Wadkins, the production manager, was in charge of abating the violations at the plant. In an attachment to that letter, Mr. Wadkins stated that he personally received the Notification of Proposed Penalty on August 14, 1975. Respondent was therefore notified of the proposed penalty within the meaning of section 10(a) no later than August 14, 1975. Since respondent made no attempt to contest either the citation or proposed penalty within fifteen working days of that date, they became a final order of the Commission.
Although the order is final and unreviewable by us, we assume that respondent's assertions of its dire financial condition and good faith would be considered by the Secretary in exercising his discretion in any collection action under section 17(1) of the Act.
Accordingly, we affirm the ALJ's order. It is so ORDERED.