OSHRC Docket No. 467

Occupational Safety and Health Review Commission

September 27, 1972


Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners



  BURCH, COMMISSIONER: In an undated order filed with the Commission on August 28, 1972, Judge Alan M. Wienman issued his recommendation in this case dismissing respondent's notice of contest and affirming the citation and notification of proposed penalty in all respects because respondent had failed to comply with the requirements for hospitable consideration by the Commission of a motion to withdraw notice of contest.

The Commission has reviewed the record herein and notes that on January 7, 1972, respondent was issued a citation for 9 other than serious violations of the Secretary's safety and health standards together with a notification of proposed penalty in the amount of $165.   The dates on which the alleged violations were to be abated varied from January 20 to February 9, 1972.   Subsequent to the filing of a timely notice of contest by respondent, the Secretary issued his complaint in this case.   For reasons not disclosed by the record, the complaint deleted 2 items listed in the citation and the penalties of $25 each proposed therefor.   These actions by the Secretary constituted amendments to the citation [*2]   and notification of proposed penalty. The Judge's order failed to reflect the amendments.

Additionally, we note with interest, Judge Wienman's reservations with regard to the Commission's conditions precedent to hospitable consideration for   motions to withdraw notices of contest. n1 The Commission did, in fact, relax its requirements as to "assurance of continuing compliance" in Secretary of Labor v. Mueller Boat Works, Secretary of Labor v. Arlene Separates, Inc.,

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n1 See footnote 1 of Judge's decision.   His comments with regard to the Commission's modification of procedures to be utilized for motions to withdraw notices of contest under the revised Rules of Procedure is mere speculation on his part without substantial basis in fact.

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Unfortunately however, Judge Wienman misconstrues the purpose for which the Commission must insist upon [*3]   certification of inter alia abatement of the violations.   Section 10(b) of the Act provides parenthetically that an abatement 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 instituted by the employer in good faith and not solely for delay or avoidance of penalties". n2

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n2 This tolling provision is also found in section 17(d) of the Act dealing with a notice of contest filed as to a notification of additional penalties for failure to abate a violation.

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By virtue of the facts in this case, the abatement periods for each of the violations set forth in the citation could have been tolled some six to seven months, assuming the good faith of the respondent's contest. Respondent's failure to certify abatement, in spite of the Judge's July 7 and August 10 requests, calls into question that good faith.   And while, as the Commission also stated in Secretary of Labor v. Arlene Separates, Inc., supra, lack of good faith cannot [*4]   lightly be presumed, the Commission is without alternative to   affirming the Secretary's actions in all respects. [Emphasis supplied.] The Commission is, by virtue of its affirmation, reinstating the initially proposed abatement dates for whatever action the Secretary deems appropriate.

Accordingly, it is ORDERED that the Judge's order is amended to provide that respondent's notice of contest is dismissed, and the citation and notification of proposed penalty as amended by the Secretary's complaint are affirmed in all respects.

[The Judge's decision referred to herein follows]

WIENMAN, JUDGE, OSAHRC: This case is properly before this judge upon assignment for hearing by the Occupational Safety and Health Review Commission pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590).

The file reflects that the cause was assigned to the undersigned judge by an order of the Commission dated April 17, 1972.   The judge thereupon corresponded with counsel for the parties relative to a hearing date during the week of July 12, 1972, and received the following letter, dated May 11, 1972, from Mr. Bruce P. Badley, attorney for the Respondent:   [*5]  

DEAR JUDGE WIENMAN: In reference to your letter dated May 3, 1972, we will be unable to appear on July 12, 1972 due to prior commitments.

Our schedule and the schedule of Cook Ford Sales, Inc., will not allow for a hearing until after September.

Please advise.


On May 19, 1972 the undersigned judge replied to Mr. Badley's letter, concluding: ". . .   I will not consider   postponing a hearing for several months in the absence of extremely unusual circumstances.   A copy of OSHRC Rule 2200.19 (Postponements) is enclosed for your information."

Respondent filed no motion for a postponement and on June 13, 1972 Notices were sent to the parties by registered mail informing them that hearing would be held at 9:00 A.M. July 12, 1972 in the Courthouse, Sheridan, Wyoming.

Subsequently Respondent filed no motion for a postponement but on July 5, 1972 wrote:

DEAR JUDGE WIENMAN: Because Mr. W. E. Cook, Sr. is unable to attend the hearing on July 12, 1972, and because his request for a hearing in September has been denied, enclosed is Cook Ford Sales' check in the amount of $140.00 to the Federal Government for the fines heretofore imposed pursuant to Mr. Ronald G.   [*6]   Whiting, Attorney's complaint.

Please acknowledge receipt of the check and dismiss all proceedings with prejudice.

Very truly yours,

On July 7, 1972 the undersigned judge wrote Mr. Badley informing him that his letter would be treated as a Motion for Withdrawal of Notice of Contest. Mr. Badley was also informed that the Commission required certification that certain conditions precedent were met in order to consider such a motion, namely:

(1) Certification of the dates, as specified in the Citation, upon which abatement had been or would be completed.

(2) A statement of continuing compliance.

(3) Tender of payment of the proposed penalty to the Secretary of Labor.   (Accomplished)

(4) Service on all parties of the Motion to Withdraw in accordance with Commission Rule 2200.7(i).

Mr. Badley did not reply to the July 7, 1972 letter, nor did he respond to a subsequent letter from the   undersigned judge, dated August 10, 1972, which concluded:

Unless the supporting documents are received on or before August 21, 1972, I shall enter an order dismissing the Notice of Contest and affirming the Citation and Proposed Penalties.

The file contains no assertion of party status [*7]   by any affected employees, and no objection by Complainant to disposition of the cause by entry of an order affirming the Citation and Proposed Penalties.

The action of the Respondent in requesting "dismissal with prejudice" and his disregard of requests for supporting documents to comply with Commission "conditions precedent" for favorable consideration of a Motion to Withdraw a Notice of Contest raises a number of interesting procedural questions in re the aforesaid "conditions precedent".   However, a detailed review and discussion of such questions is unnecessary for the disposition of this cause n1 since the result sought   by the Respondent and the penalty uniformly invoked by the Commission in instances where a Respondent fails to satisfy the notice requirements of Commission Rule 2200.7(i) are identical, namely, entry of an order dismissing Respondent's Notice of Contest and affirming the Citation and Proposed Penalties in all respects.

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n1 Nor would such discussion serve to clarify or create precedent.   Language in the Commission decision issued June 20, 1972 in Mueller Boat Works (Docket #553) appears to indicate the Commission is relaxing its criteria for considering Motions to Withdraw Notice of Contests in respect to "assurance of continuing compliance." The evident rationale is that the Respondent has the legal responsibility for future compliance with the Act, whether or not it acknowledges such responsibility.   It would appear that similar reasoning would apply to obviate the necessity for assurances that abatement has been accomplished. Under the Act failure to abate exposes a Respondent to imposition of substantial penalties irrespective of any "certification" or "assurances."

Also due to undergo change with the adoption of proposed revisions of the Commission Rules of Procedure is the manner in which a Respondent is required to give "affected employees" notice of contest, pleadings, etc.

The undersigned judge admits to entertaining reservations about the procedural requirements which have been imposed on an employer who has second thoughts about contesting a citation and simply elects to change his mind and pay the proposed penalty. However, with the Commission itself modifying procedures in this regard, a lengthy discussion of this subject would be irrelevant and quickly outdated.


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Now, therefore, it is ORDERED that Respondent's Notice of Contest is dismissed, and the Citation and Notification of Proposed Penalties are affirmed in all respects.