Docket No. 193

NEW YORK PACKAGING CORPORATION

OSHRC Docket No. 193

Occupational Safety and Health Review Commission

March 17, 1972

[*1]

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINION:

BY THE COMMISSION: Construing the Hearing Examiner's letter which accompanied the file in this case as certification of the issue for ruling, the Hearing Examiner's order denying the Secretary's motion to adjudge Respondent in default for failure to file an answer is reversed.

Accordingly, the citation and proposed penalty issued by the Secretary on October 19, 1971 and November 1, 1971, respectively, are hereby affirmed and constitute the final order of this Commission.

DISSENTBY: VAN NAMEE

DISSENT:

VAN NAMEE, COMMISSIONER, dissenting: I cannot concur in the majority's decision for it is erroneous in law and fact.

The Judge did not deny the Secretary's motion to adjudge the Respondent in default of Commission rule 7(e) (29 CFR 2200.7(e)). He did, however, refuse to affirm the Secretary's citation and proposed penalties absent the submission by the Secretary of certain factual information which he deemed necessary for a determination of the serious or non-serious nature of the alleged violations and for a determination of the appropriateness of the penalties which the Secretary proposed. See sections 17(b), 17(c), [*2] and 17(j) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. 651, et seq. )

For the reasons stated in my dissent filed in Secretary of Labor, U.S. Department of Labor v. Exacto Products Corporation,

I would adopt the sound reasoning of the Judge as stated in his order of March 2, 1972, (copy attached here) as ample support for the position he has taken.

[The Judge's decision referred to herein follows]

HARRIS, JUDGE, OSAHRC: Complainant seeks reconsideration of that part of the order herein dated January 10, 1972, which denies his motion to affirm "the citation as issued." Attached to the motion for reconsideration which is dated January 25, 1972, and which was received on January 28, 1972, are copies of: the motion to affirm the citation; an affidavit of service thereof on the respondent and Local 757, International Brotherhood of Teamsters (IBT), the authorized employee representative; the complaint herein; an affidavit [*3] Safety and Health Review Commission (hereinafter Commission) granting complainant's motion to adjudge Max Genser, Inc., in default and to affirm the citation as issued against it.

The motion for reconsideration bears at its foot the notation that copies of the motion and the attachments thereto were mailed by certified mail, return receipt requested, to the respondent and to Local 757, IBT. No reply has been received from either of these to the date hereof.

Complainant rests his prayer for reconsideration upon four points, which, using his numbering, are:

(9) Complainant respectfully suggests that the complaint itself fully supports the conclusions [*4] that the violations charged were of non-serious nature. The violations alleged were not only listed by reference to section numbers in the C.F.R. but also fully described. Section 17(c) of the Act (reference is to the Occupational Safety and Health Act of 1970, 29 USC 65, et seq.) does not appear to require that all facts be listed in the complaint to show that a violation was "determined" to be of a nonserious nature. The determination was made by the description of the violation as stated in the complaint.

(10) Complainant respectfully points out that Item XIII of the complaint specifically states that the size of respondent's business, its good faith, its previous history of violations were taken into account when the penalties were originally assessed. This claim was not controverted by the respondent. The size of the penalties themselves would indicate that these factors were taken into account.

(11) Complainant requests a reconsideration upon the further and added ground that the presiding examiner's order is a (sic) variance, with, and opposed to, the determination made by the Review Commission in another matter of like import. A copy of the complaint in that matter, [*5] Max Genser, Inc.,

(12) Complainant requests a reconsideration on the additional ground that to require complainant to appear at a hearing in the nature of an inquest in order to prove his citation and proposed penalties, as seems indicated by the order of the presiding examiner, would subject complainant to undue hardships and financial burdens, which hardships and financial burdens were never intended by the framers of the Act and appear not to be required by the Act or the Commission itself based upon its ruling in Max Genser, Inc.,

It would appear that complainant has misconceived the thrust of the Act and the careful separation of the prosecutive duties of the Secretary of Labor n1 from the adjudicatory functions under the Act which are the exclusive province of the Commission, created by the terms of the Act expressly for this purpose. n2

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n1 Sections 9; 10(a) and 10(b).

n2 Sections 2(b)(3); 10(c); 11; 12; 17(c), (k) and (j).

[*6]

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The authority to assess civil penalties under the Act resides exclusively with the Commission which in Section 10(c) is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a) and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b). The single instance where a citation or notification issued by the Secretary or a penalty proposed by him may become an order of the Commission without being subject to review by it occurs when a cited employer fails to file a notice of contest required by Sections 10(c) or 10(b) and thereby to invoke the jurisdiction of the Commission.

The Act contains no provision for the withdrawal of a notice of contest served upon the Secretary by means of which the jurisdiction of the Commission is invoked. By the service of a notice of contest, all adjudicatory functions devolve upon the Commission and the Commission is charged with affirming, modifying or vacating a citation or notification issued by the Secretary or a penalty proposed by him "based on findings of fact" (italics supplied) [*7] or directing other appropriate relief (Section 10(c)).

The fact that an employer, after serving a notice of contest, fails to defend or may be adjudged to be in default of the Commission's rules, cannot affect the Commission's duty to carry out its adjudicatory functions under Section 10(c) and to assess an appropriate penalty under Section 17 of the Act.

The Commission, by Section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. See, Hodgson v. Nacirema Operating Company, Inc., Section 17(c) requires a specific determination that a violation is not of a serious nature. Clearly such a determination must be based upon facts which fairly support a conclusion [*8] that the violation is one which does not meet the test laid down in Section 17(k). Such a finding is clearly necessary in view of the fact that occupational safety and health standards do not themselves provide that a violation is, ipso facto, a serious one or not of a serious nature, for the purpose of the assessment of penalties under the Act.

Furthermore, it is "hornbook" that where jurisdiction does not exist factually, it may not be conferred upon a court or an administrative tribunal, by the consent of the parties. The Commission must find the existence of facts which will meet the jurisdictional requirements of Section 3 of the Act.

Nor is it necessary, where the employer fails to defend after serving a notice of contest or is adjudged to be in default of the Commission's rules, to hold a hearing or an inquest to secure factual information from which the Commission may make findings of fact upon which to base its adjudications as the Act demands.

Pursuant to Rule 55 of the Federal Rules of Civil Procedure (FRCP), applicable under Section 12(g) of the Act, a default judgment may be entered on motion of the Secretary on three days notice to the parties (6 days [*9] if by mail). n3 The information needed by the Commission to support the findings required by the Act, which are alluded to hereinabove, may be supplied by the complaint wherein all matters well pleaded are deemed admitted under Rule 8(d) FRCP and any missing factual information may be supplied by a supporting affidavit.

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n3 The service of the notice of contest is equivalent to the entry of an appearance by the respondent. Furthermore, although the Secretary has proposed a fixed amount, until assessed by the Commission under Section 17(j), the amount of the penalty remains unliquidated.

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Were the Commission to adopt the implied suggestion in complainant's point (10) it would, in effect, abdicate the authority conferred upon it by Section 17(j) of the Act and unlawfully delegate the duty of assessing a penalty to the Secretary.

No basis, beyond the similarity in language of the motion made in the Genser matter, is offered upon which the undersigned may make a determination that the Commission's approval [*10] of the motion in that matter is stare decisis or binding upon him.

For the reasons expressed hereinabove, it is

ORDERED that:

1. Complainant's motion for reconsideration of his motion to affirm the citation and penalty proposed herein be and the same is hereby denied.

2. Complainant be and he is hereby granted leave to appeal to the Commission from the order or January 10, 1972, denying his motion to affirm the citation and proposed penalty and from the within order denying his motion for reconsideration.