ZELLER MACHINERY CO., INC.
OSHRC Docket No. 15762
Occupational Safety and Health Review Commission
April 11, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Reg. Sol., USODL
Rudolph J. Inman, Jr., 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 of an unreviewed Judge's decision. [*2] 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
Edwin A. Hernandez, Office of the Solicitor, U.S. Department of Labor
Rudolph J. Inman, Jr., for the Employer
ORINGER, JUDGE: Subsequent to an inspection that took place on September 22, 1975, at the work place of the respondent, the complainant issued citations for serious and non-serious violations of the Act on October 2, 1975, which were received by the respondent on October 6, 1975.
Subsequent thereto, as a result of a further inspection on November 5, 1975, the respondent was issued a notification of failure to correct alleged violation and a proposed additional penalty for Item No. 24 of Citation No. 1, [*3] an alleged non-serious violation, which document was issued on November 6, 1975.
The original citation for serious violation and notification of proposed penalty were not contested until November 10, 1975, some 25 working days after the service of the documents upon the respondent. By letter dated November 10, 1975, the respondent contested the notification for failure to correct alleged violation and proposed additional penalty, which was issued November 6. This latter notice of contest was timely and the matter was settled at a hearing before Judge John Larkin, when the complainant moved to reduce the penalty for the failure to correct to $54.00 and the respondent, in response thereto, agreed to withdraw his notice of contest with respect to the citation for failure to abate. Judge Larkin granted the motions and stated that he would enter a written Order to that effect (see Tr. p. 5).
The aforementioned hearing was held on Tuesday, April 6, 1976.
At the hearing, the respondent testified that he was of the impression that his time to file a notice of contest began the day that abatement was due. The parties have agreed that the citation and notification of proposed penalty, [*4] insofar as the serious violation is concerned, was received by the respondent on the 6th of October 1975 and that no notice of contest was issued in writing to a representative of the complainant until November 10, 1975. The record clearly indicates that 25 working days elapsed before a notice of contest, in fact, was filed.
In mitigation thereof the respondent's representative testified that he was in error concerning when the 15-day period in which to contest began and that he had already orally advised the complainant's representative that he intended to contest. Accordingly, it is the respondent's argument that it should be allowed a complete trial on the merits.
The respondent's brief relates that it understands that the Commission's present trend is toward a more liberal view, and that some unreported decisions have held that failure to contest within 15 days is not jurisdictional. No cases were cited in this 1-page letter purporting to be a brief on the question at issue.
The Act, in my opinion, without special circumstances being shown, is unequivocal in its mandate that 15 working days constitute the only time in which a notice of contest may be filed. The Act, in [*5] a section that is entitled, PROCEDURE FOR ENFORCEMENT, states as follows:
Sec. 10, (a) 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 the 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. n1
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n1 Underscoring supplied.
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In my opinion, the Congressional mandate cited above is unambiguous and absolute and neither this Commission nor any court has the right to enlarge upon the statutory period mandated by the Congress. The Commission has so ruled. Secretary v. Plessey-Burton, Inc., 12 OSAHRC 577 at pages 583 and 584; Secretary v. Hartwell Excavating Co., 17 OSAHRC 871; Secretary v. Atlas Lincoln-Mercury, Inc., 19 OSAHRC 729 at pages 743 and 744. The sole exception known to this tribunal appears in a case with special facts that do not exist in the instant cause. In that case, the petitioner (respondent) admitted that it filed its notice of contest late but asserted that the Secretary's deceptive practices and failure to comply with his own procedures caused it to file late. The respondents, in that case, alleged that during negotiation of a settlement concerning the citation, they were led to believe by the Secretary that the six months necessary for required safety equipment to be delivered was satisfactory and, thereby, were misled.
In that case, the Court of Appeals reversed and remanded for a hearing on the merits of the respondent's allegations, Atlantic Marine, [*7] Inc. and Atlantic Dry Dock Corporation, petitioners v. Occupational Safety and Health Review Commission and John T. Dunlop, Secretary of Labor, respondents, 524 F. 2d. 476, 5th Cir., Dec. 8, 1975.
In the case above cited, the court referred to and cited its own decision in Accu-Namics, Inc., v. Occupational Safety and Health Review Commission, 5 cir., 15 F.2d. 828, in which the court held that the Secretary's violation of the Act, or its own regulations, may void a citation of violation if a petitioner can show actual prejudice from such violations by the Secretary. In the record at bar, there are no such allegations and no such proof. There is no evidence whatsoever, no inference and no showing that the complainant or any of his representatives violated any law or regulation and, accordingly, neither of the cases cited above are analagous to the cause presently before this tribunal. Accordingly, the notice of contest, contesting the serious citation and the proposed penalty of $550.00, must be dismissed, and the citation and penalty affirmed.
It is, therefore, ORDERED that:
1. In accordance with the motion granted during the hearing by Judge Larkin, the notification [*8] of failure to correct alleged violation and proposed additional penalty, as amended, in the amount of $54.00, is herewith AFFIRMED.
2. The notice of contest filed on November 10, 1975, contesting the citation alleging a serious violation and proposed penalty of $550.00, is herewith DISMISSED.
3. The serious citation alleging a violation of the standard found at 29 CFR 1910.212(a)(1), and the penalty proposed therefor, in the sum of $550.00, are herewith AFFIRMED.
SO ORDERED.
David G. Oringer, Judge, OSAHRC
Dated: June 7, 1976