OSHRC Docket No. 16248

Occupational Safety and Health Review Commission

April 11, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  


Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

Joe Walker, Vice Pres., Walker Construction Co., for the employer



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 [*2]   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.  



MORAN, Commissioner, Dissenting:

Respondent should be excused under Rule 60(b), Federal Rules of Civil Procedure, for the administrative error in failing to timely forward its notice of contest and allowed its day in court.   Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

Since my colleagues do not address any of the matters covered in Judge Blythe's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.



Arnold S. Battise, for the Secretary of Labor

Mr. Joe Walker, Walker Construction Company, for the Respondent

Blythe, Judge.

This is a proceeding brought pursuant to Section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (the [*3]   Act), in which the respondent, Walker Construction Company, seeks to contest a citation issued against it by the Secretary of Labor, the complainant, pursuant to authority vested in him by Section 9(a) of the Act.   The citation, which resulted from an inspection of a workplace under the ownership, operation or control of the respondent, located at 1800 Green Oaks Road, Fort Worth, Texas, and described as "general construction," alleges that respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary pursuant to Section 6 thereof.

The citation, which was issued on November 12, 1975, alleges two non-serious violations: (1) Failure to ground two portable circular saws and one portable drill motor, as required by 29 CFR 1926.401(a)(1), and (2) failure to barricade or cover seven drilled pier holes as required by 29 CFR 1926.651(t).   Penalties totalling $85 were proposed by the complainant.

Respondent has attempted to contest at least the proposed penalties, n1 and the issues for decision are whether its notice of contest was timely filed, and, if not, whether such timely filing can be waived [*4]   under the circumstances of the case.   Complainant moved to affirm the citation and proposed penalties, and an evidentiary hearing was held on this motion February 10, 1976.   The parties stipulated that the citation was received by respondent on November 18, 1975, and that the notice of contest, in the form of a letter dated December 8, 1975, was postmarked December 15, 1975.

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n1 The notice of contest so indicated, but respondent's representative indicated orally that respondent intended to contest the citations as well.

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Joseph M. Walker, respondent's vice-president, testified that he signed the notice of contest December 8, 1975, but that due to an error of his secretary it was not mailed until December 15, 1975.   He said that James Walker, who signed a certified mail receipt for the citation and notice of proposed penalty on November 18, 1975, is respondent's president.

Under Section 10(a) of the Act, n2 the notice of contest was required to have been filed within 15 working days after respondent's receipt of the [*5]   notice of proposed penalty. Under the Commission's Rule 4(a) for computation of time, n3 the notice of contest was required to have been filed n4 on or before December 10, 1975.   Such timely filing is jurisdictional, for until this event the Commission has nothing whatever to do with the enforcement procedure.   It triggers the whole adjudicatory procedure.   On the other hand, in the absence of a timely notice of contest, the citation and proposed penalty (whether correct or not n5) "shall be deemed a final order of the Commission and not subject to review by any court or agency" under the strict provisions of section 10(a) of the Act.

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n2 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 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."

n3 "In computing any period of time prescribed or allowed in these rules, the day from which the designated period begins to run shall not be included.   The last day of the period so computed shall be included unless it is a Saturday, Sunday, or Federal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or Federal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and Federal holidays shall be excluded in the computation."

n4 Under Commission Rule 7(c), "Service is deemed effected at the time of mailing (if by mail). . . ."

n5 Secretary v. Gelhaar Uniform Co., No. 1810 (December 31, 1974), 1974-1975 OSHD P19,186.


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Timely filing of the notice of contest is not something the Commission may waive.   Secretary v. American Airlines, Inc., 13 OSAHRC 99. It has no inherent power to extend the time for filing, or to consider mitigating circumstances for failure to file in time, the notice of contest. Secretary v. Walter A. Podkora, No. 721 (May 18, 1972), 1971-1973 OSHD P15,129. Here the mitigating circumstance is a clerical error or omission on the part of respondent's own office staff.   Respondent candidly admits that his secretary failed to mail the notice of contest until a week after it was prepared and signed, and five days after the statutory time limit.   There simply is no way this jurisdictional defect can be waived.

Accordingly, it is ORDERED that the respondent's notice of contest be and it hereby is dismissed, that the complainant's Motion to Affirm Citation and Proposed Penalties be and it hereby is granted, and that the citation issued on November 12, 1975, and the penalties proposed therefor, be and they hereby are affirmed in all respects.


March [*7]   16, 1976