SERVICE SPECIALTY, INC.
OSHRC Docket No. 16033
Occupational Safety and Health Review Commission
September 28, 1979
[*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
David Kerben, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
The substantive issue in this case is whether a failure to correct notification may be affirmed against Service Specialty (Service) under § 10(b) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651 et seq. (the Act) n1 even though the original citation was issued to a differently named, but related company, Southland Drapery and Interiors (Southland). n2 However, because our examination of the record reveals that the Commission may not have jurisdiction of this case, we direct our attention to the jurisdictional matter and do not reach the question upon which review was directed. n3
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n1 Section 10(b) of the Act provides:
If the Secretary has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction (which period shall not begin to run until the entry of a final order by the Commission in the case of any review proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties), the Secretary shall notify the employer by certified mail of such failure and of the penalty proposed to be assessed under section 17 by reason of such failure, and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the Secretary's notification or the proposed assessment of penalty. If, within fifteen working days from the receipt of notification issued by the Secretary, the employer fails to notify the Secretary that he intends to contest the notification or proposed assessment of penalty, the notification and assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.
n2 At the same time that the failure to correct notification was issued, the Secretary also issued a citation for failure to post the original citation on which the failure to correct notification was based. The Commission must also decide whether the penalty for the failure to post citation should be affirmed.
n3 See Opelika Nursing Home, Inc. v. Richardson, 448 F.2d 658, 667 (5the Cir. 1971); Alvares v. Erickson, 514 F.2d 156, 160 (9th Cir. 1975).
[*2]
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As a result of an inspection conducted on August 21, 1975 at the workplace of Service on 959 N. Fairbanks Avenue in Winter Park, Florida, the Secretary of Labor (Secretary) issued a citation alleging violations of the safety standards at 29 C.F.R. § § 1910.157(a)(5) and 1910.212(a)(3)(ii) and fixing an abatement date of September 29, 1975, for each alleged violation. The citation was issued to Southland, not Service, and was sent by certified mail from the Tampa area office of the Occupational Safety and Health Administration to Southland's address at 220 N. Orlando Avenue in Winter Park. Sidney Bressler, the president and owner of both Southland and Service, signed the postal receipt for the citation. The citation was not contested and became a final order under § 10(a) of the Act on September 23, 1975.
On October 20, 1975, Service's workplace was reinspected by the Secretary. As a result of the reinspection, the Secretary issued, again to Southland, a notification of failure to correct and a new citation alleging that Southland had violated 29 C.F.R. § 1903.16(a) by failing to post the original [*3] two-item citation mentioned above. n4 Penalties were proposed for each of the items alleged in the notification and citation.
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n4 The Secretary subsequently moved to amend the pleadings to strike Southland and substitute Service as the respondent. The motion was granted by the judge without objection by either Southland or Service. Accordingly, Service is now the named respondent in the case. However, because Southland was named as the respondent during the events relevant to the Commission's jurisdiction, and it is Southland's actions that bear on the jurisdictional question, we will refer to Southland rather than Service in the remainder of this decision.
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The notification of failure to correct and citation were hand delivered to Sidney Bressler for Southland on November 11 or 12, 1975. Bressler contested the penalties proposed in those documents by a letter dated December 1, 1975 and received by the Secretary on December 3, 1975.
In the Secretary's complaint of December 22, 1975, he alleged that he had sent [*4] the notification for failure to correct and citation for failure to post to Southland's 220 N. Orlando Avenue address in Winter Park by certified mail on October 23, 1975. The Secretary also asserted that on or about October 24, 1975, Southland had refused to accept the notification and citation allegedly sent on October 23, 1975, and that Southland's December 1, 1975 notice of contest was therefore and timely. He then moved that the notice of contest be dismissed. In its response to the Secretary's requests for admissions, Southland specifically denied having refused to accept certified mail from the Secretary and stated:
Our mail is directed to a post office box. If the post office is closed at the time our mail is picked up we cannot get mail that must be signed for.
The matter however was never pursued by either party, nor was any evidentiary record made of the facts surrounding the alleged October 23rd mailing. Judge Brady did not address the issue. Accordingly, it is not known what became of the Secretary's alleged certified mailing of October 23, 1975.
In order for the Commission to have jurisdiction in this case, a timely notice of contest must have been filed pursuant [*5] to § § 10(a) and (b) of the Act. n5 The facts surrounding the Secretary's alleged certified mailing are critical to this issue, since they will govern the period of time during which Southland could timely contest. n6
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n5 Sections 10(a) and (b) of the Act give the employer fifteen working days from receipt of the notice issued by the Secretary to contest the Secretary's citation, notification or proposed assessment of penalty.
n6 If, as the Secretary asserts, the period of time should be calculated from October 24, Southland's notice of contest is untimely. If, however, Southland's fifteen day contest period did not begin to run until personal delivery was effectuated on November 11 or 12, 1975, Southland's notice of contest is timely.
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Although it is not clear from the record, it appears that Southland did not receive the notification of failure to abate and failure to post citation allegedly sent to Southland by certified mail on October 23, 1975. If this is so and a valid reason exists for Southland' failure to [*6] receive the documents, then clearly the fifteen day period should not begin to run until Southland received personal delivery of the failure to abate notification and citation on November 11 or 12. For example, if the Secretary's mailing was not reasonably calculated to give Southland notice of the notification of failure to correct and citation n7 or if the U.S. Postal Service never delivered the notification of failure to correct and citation, the fifteen day period of contest should not be calculated based upon the certified mailing. If, on the other hand, Southland itself was responsible for failure to obtain receipt of the documents, consideration should be given to whether, as the Secretary asserts, the notice of contest was untimely. The record, however, does not reveal what events transpired.
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n7 See B.J. Hughes, Inc., 79 OSAHRC , 7 BNA OSHC 1471, 1979 CCH OSHD P23,675 (No. 76-2165, June 29, 1979).
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Accordingly, since resolution of this issue is critical to whether the Commission has jurisdiction, [*7] we remand to the judge to take additional evidence limited to the circumstances surrounding the alleged certified mailing. n8 Because we do not know what such evidence will establish and because the evidence may present novel issues heretofore unconsidered by the Commission, the judge should receive argument, either oral or written, on the jurisdictional issue and enter appropriate findings of fact and conclusions of law limited to whether Southland's notice of contest was timely filed. The Commission retains jurisdiction n9 of this case pending submission to it of the ordered findings and conclusions of the judge.
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n8 See, Mansfield, Coldwater & Lake Michigan Railway v. Swan, 111 U.S. 379 (1894); Shahmoon Industries, Inc. v. Imperato, 338 F.2d 449 (3rd Cir. 1964). See also Marshall v. Gibson's Products, Inc. of Plano, 584 F.2d 668 (5th Cir. 1978).
n9 See Shahmoon Industries, Inc., supra n. 8, at 452.
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SO ORDERED.