AMERICAN AIRLINES, INC.

OSHRC Docket No. 4532

Occupational Safety and Health Review Commission

November 5, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Henry F. Martin, Jr., dated July 12, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i).

The respondent is disputing a citation under the Occupational Safety and Health Act of 1970 n1 alleging a violation of 29 U.S.C. 654(a)(2) for failure to comply with occupational safety and health standards promulgated under the Act. The citation alleged noncompliance with 29 C.F.R. 1910.132(a) n2 based on the failure of respondent's employees to use safety belts while working on an aircraft undergoing maintenance. We affirm the Judge's decision dismissing respondent's objections because we lack the jurisdiction to hear this case.

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n1 29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act.

n2 This section requires:

Protective equipment including personal protective equipment . . . shall be provided, used, and maintained . . . wherever it is necessary by reason of hazards of processes or environment . . . .

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29 U.S.C. 659(a) sets a firm time limit for contesting a citation under the Act. It provides as follows:

If after an inspection or investigation, the Secretary issues a citation under section 9(a) [29 U.S.C. 658(a)] he shall, within a reasonable time . . . notify the employer by certified mail of the penalty . . . 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, . . . 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).

The evidence here shows that the respondent received the notification of proposed penalty on August 8, 1973. Its notice of contest was dated August 31, 1973, although it wasn't postmarked until September 4, 1973. Under either of these latter dates, the statutory [*3] deadline was missed. Consequently, the citation became final and cannot be reviewed.

Respondent, however, urges that we invoke Rule 108 of our Rules of Procedure which states in part:

In special circumstances not contemplated by the provisions of these rules, or for good cause shown, the Commission may . . . waive any rule or make such orders as justice or the administration of the Act requires.

The emphasis upon this rule is misplaced and the argument fails for two reasons. First, respondent has failed to show "good cause" for its failure to file within the 15-day period. A mere failure to file clearly does not qualify as "special circumstances not contemplated by the provisions of these rules." In any event:

The statutory language clearly forestalls the Commission from considering a notice of contest that is not timely filed by respondent. There is, therefore, no inherent power . . . in the Commission to extend the time for filing . . . . n3

Secondly, respondent's contention fails since Rule 108 applies to the "provisions of these rules" and not to the Act itself. Not only was Rule 108 never intended to apply to the provisions of the Act, but no judicial body can disregard [*4] a statute precluding a subject from its jurisdiction. n4

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n3 Secretary v. Walter A. Podpora,

n4 See generally, Davis, Administrative Law Treatise, chap. 28.

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Therefore, respondent's delay in filing a notice of contest has effectively divested this tribunal of jurisdiction and we cannot consider whether the facts would support a finding of a violation of the Act as alleged in the citation.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur with the decision of Commission Chairman Moran in the disposition of this case. Judge Martin was correct in holding that the failure of American Airlines to contest the alleged violation of 29 CFR 1910.132(a) within the statutory 15 working-day period n5 did not permit jurisdiction to determine the merits of the alleged violation. In addition to Water A. Podpora, No. 721 (May 18, 1972) cited by the lead opinion, I add the Fifth Circuit's decision in Secretary of Labor v. Bill Echols Trucking, 487 F.2d [*5] 230, 233-4 (5th Cir. 1973) and our decision in Blue Ribbon Industries, Inc., No. 1302 (April 19, 1973) as precedent for the holding in this case.

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n5 29 U.S.C. 659(a) the text of which is set out in the lead opinion.

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[The Judge's decision referred to herein follows]

MARTIN, JUDGE: This is a proceeding brought pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. ) contesting one of the items listed on an alleged serious citation issued by the Secretary of Labor (complainant) against American Airlines, Inc., (respondent) under authority vested in complainant by Section 9(a) of the Act.

On August 8, 1973, complainant issued the alleged serious citation which contained three items; however, respondent only contested the alleged violation relating to personal protective equipment and the proposed penalty in connection therewith. Item 10 of the citation alleged that respondent violated Section 29 CFR 1910.132(a) by the failure of its employees to use personal protective [*6] equipment while working on the tail and wing of a BAC aircraft. On the same date another citation was issued containing some seven different items none of which were contested in respondent's notice of contest of August 31, 1973. n1

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n1 The citations herein arose out of an inspection of respondent's work place at its maintenance and engineering center, 3800 North Mingo Road, in Tulsa, Oklahoma, on July 18, 1973.

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Following the filing of the notice of contest, the complaint and answer were filed and this matter was referred to the undersigned Judge for disposition. Pursuant to formal notice a hearing was held in Dallas, Texas, on March 15, 1974. Complainant was represented by Mr. Heriberto de Leon of the Regional Solicitor's Office in Dallas, Texas, and respondent was represented by its attorney, Mr. A. Joaquin Yordan of New York City, New York. Subsequent to the hearing, briefs were submitted by the parties.

When the hearing was convened, counsel for complainant moved to dismiss respondent's notice of contest because [*7] it was not timely filed, n2 stating that this fact had just been called to his attention. A review of the documents in the file indicate that respondent's notice of contest was not filed within "15 working days" n3 from receipt of the notice of the proposed penalty.

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n2 Complainant's motion was taken under advisement.

n3 Rule 4(a) of the Commission's Rules of Procedure provides as follows:

"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, Sundary, 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."

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Section 10(a) of the Act provides as follows:

If, after an inspection or investigation, [*8] 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.

As previously pointed out, the citations were issued on August 8, 1973, and the notification of proposed penalty form was issued on the same date. Attached to the notification of proposed penalty is a receipt for certified mail showing that the same was mailed to respondent at 3800 North Mingo Road in Tulsa and the return receipt [*9] card (Postal Form 3811) shows receipt of said mail by an agent of respondent on August 9, 1973. A postal stamp mark indicates that the card was mailed to complainant's Tulsa area office on August 9, 1973.

Respondent's notice of contest, signed by Mr. S. T. Armstrong, was dated August 31, 1973; however, the attached envelope reveals that it was not postmarked until September 4, 1973. In view of the foregoing, it can be seen that respondent failed to comply with the statutory (15 working days) requirement of Section 10(a) of the Act.

In the case of the Secretary of Labor v. Walter A. Podpora, Docket No. 721, decided by the Review Commission on May 18, 1972, respondent admitted that its notice of contest was one day late, but sought a 30 day extension to answer and contest the citation. Respondent cited the newness of the Act and his unfamiliarity with the Commission rules. The Review Commission, however, stated:

The statutory language clearly forestalls the Commission from considering a notice of contest that is not timely filed by respondent. There is, therefore, no inherent power, in view of the specific statutory time requirement, in the Commission to extend [*10] the time for filing under the facts of this case and no statutory provision for consideration of alleged mitigating circumstances as urged by respondent.

In the case of the Secretary of Labor v. Mississippi Falley Erection Company, Docket No. 524, decided by the Review Commission on December 26, 1973, the employer had been cited for two alleged violations; however, only one of them had been contested. The employer in his answer sought to amend his notice of contest so as to bring both citations into contest and on this basis both matters were tried at the hearing. The Review Commission stated:

Because respondent did not timely contest the violation, it was not properly before the Judge. He had no jurisdiction to take evidence with respect to a matter deemed a final order of the Commission or to examine into complainant's proposed penalty.

We conclude, as a matter of law, that respondent violated the cited regulation. In so concluding we express no opinion as to what result we would reach were the issue of the violation before us. Our conclusion is based solely on respondent's failure to contest timely. For like reasons, we do not pass on the appropriateness of the [*11] penalty (none) proposed by complainant. n4

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n4 See also Brennan v. Occupational Safety and Health Review Commission and Bill Echols Trucking Company decided in the U.S. Court of Appeals for Fifth Circuit, November 13, 1973.

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Respondent, on brief, has suggested that there has been no prejudice to complainant, and even if tardiness in filing the notice of contest were assumed, that this Commission might in the exercise of its discretion allow respondent to participate further in this processing. Further, respondent contends that the objection by the complainant to a lack of timeliness on the part of respondent was in effect waived by his filing a formal complaint on September 26, 1973. The aforementioned contentions of respondent may be cast aside in view of prior decisions of the Review Commission holding that a Judge no longer has jurisdiction where the employer fails to file a timely notice of contest. As stated in Section 10(a) of the Act if an employer fails to contest a citation or penalty within [*12] 15 working days the citation or assessment of the penalty will become a final order and is not subject to review by any court or agency.

Since it is concluded that the respondent's notice of contest was not timely filed, complainant's motion to dismiss must be granted. In view of the foregoing ruling, no opinion is expressed as to whether the record herein would support a violation of Section 29 CFR 1910.132(a).

ORDER

Accordingly, it is ORDERED that complainant's motion to dismiss be and the same is hereby granted. It is further ORDERED that the citations issued on August 8, 1973, and the penalties proposed therefore be and the same are hereby affirmed.