MONROE & SONS, INC.

OSHRC Docket No. 6031

Occupational Safety and Health Review Commission

January 21, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Assoc. Regional Solicitor

Joseph Saslaw, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Louis J. Rubin, dated April 16, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision vacated two citations for serious violations of 29 U.S.C. 654(a)(2) because complainant declined to offer any evidence thereon. Relying on Brennan v. OSAHRC and S.J. Otinger, Jr., Construction Company, 502 F.2d 30 (5th Cir. 1974), complainant had refused to present evidence on the ground that the Commission's prior reinstatement of this case was improper.

The facts are not in dispute. On November 30, 1973, complainant conducted an inspection of respondent's workplace in Willoughby, Ohio. As a result of this inspection, complainant thereafter issued respondent two citations alleging serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"] and one citation alleging five nonserious violations of the Act. Respondent timely contested [*2] the two serious citations. Subsequently, complainant transmitted respondent's notice of contest to the Commission and filed a formal complaint. As a result of respondent's failure to answer, complainant moved to dismiss respondent's notice of contest. Respondent failed to respond to the motion, and the motion to dismiss was granted by Review Commission Judge Charles K. Chaplin. Since no Commission member directed review of that order within 30 days of the date it was issued, it became a final order of the Commission pursuant to 29 U.S.C. 661(i), on May 15, 1974. Following the Secretary of Labor's efforts to collect the penalties therein assessed, respondent retained counsel who requested the Commission to reinstate the notice of contest. The attorney for respondent stated the respondent, who acted pro se prior to Judge Chaplin's order, had thought that its notice of contest satisfied the Commission's requirements for an answer to the complaint. On December 23, 1974, the Commission granted respondent's request for reinstatement of the notice of contest pursuant to Rule 60(b) of Federal Rules of Civil Procedure. n1 Respondent then filed a formal answer to the complaint, [*3] and the case was referred to Judge Rubin for trial.

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n1 Rule 60(b) provides, in pertinent part, that:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment."

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Following Judge Rubin's denial of complainant's pretrial motion to dismiss, a hearing on the merits was scheduled. At that hearing, complainant renewed its motion to dismiss and declined to offer any evidence, asserting that the Commission lacked jurisdiction to reinstate respondent's notice of contest. Thereupon Judge Rubin vacated both contested citations. For reasons that follow, his decision is affirmed.

In Brennan v. OSAHRC and S.J. Otinger, Jr., Construction Company, supra, a case substantially similar to the instant case, the United States Court of Appeals for the Fifth Circuit held that [*4] 29 U.S.C. 661(i) n2 precluded the Commission from reinstating the case because no Commission member had directed review thereof within 30 days after the Judge ordered dismissal of respondent's notice of contest. In so holding, the Court of Appeals rejected the contention that the Commission was empowered to set aside a final judgment under Rule 60(b), Federal Rules of Civil Procedure. After carefully considering that holding and in light of our role in establishing uniformity in national adjudications under the Act, we respectfully decline to follow Otinger. Keystone Roofing Company v. OSAHRC, 539 F.2d 960 (3d Cir. 1976); Secretary v. Grossman Steel & Aluminum Corporation, OSAHRC Docket No. 12775, May 12, 1976.

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n2 That section provides, in pertinent part, that:

"The report of the hearing examiner shall become the final order of the Commission within thirty days after such report by the hearing examiner, unless within such period any Commission member has directed that such report shall be reviewed by the Commission."

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Many of the cases before this Commission involve small employers who do not have a legal staff within their organization and whose financial condition often precludes retaining an attorney. Our experience reveals that those pro se employers are often confused by the legal terms used in various communications involved in these cases and that they genuinely believe that submission of a notice of contest satisfies the requirement for filing an answer to the complaint. Accordingly, this Commission has adopted a liberal policy of allowing employers a hearing in such situations. Moreover, the Commission has applied this policy in an evenhanded manner and has granted appropriate relief requested by complainant in several cases where such relief would be precluded by the Otinger decision. See, e.g., Secretary v. Phoenix, Inc., Legore Quarries Division, 1 OSAHRC 355 (1972), and the unreported decisions in Secretary v. General Sheet Metal Works, Inc., OSAHRC Docket No. 76-59, July 27, 1976; Secretary v. Redman Mobile Homes, Inc., OSAHRC Docket No. 15346, May 21, 1976; Secretary v. West Exploration Company, OSAHRC Docket No. 14461, [*6] February 5, 1976; Secretary v. Farr-Guarino Contracting Corporation, OSAHRC Docket No. 6941, March 25, 1974.

The Commission's liberal policy is fully consonant with many decisions of the Federal courts which hold that pleadings by a pro se party will be liberally construed. n3 Furthermore, we are of the opinion that this is not inconsistent with the intent of Congress in enacting 29 U.S.C. 661(i).

In 29 U.S.C. 661(f), Congress also provided that:

"Unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure."

We interpret this provision as a qualification on the finality provision of 29 U.S.C. 661(i). In Atlantic Marine, Inc. v. OSAHRC, 524 F.2d 476, 478 (5th Cir. 1975), a panel of the United States Court of Appeals for the Fifth Circuit, whose composition was entirely different from the panel that decided the Otinger case, suggested that a similar finality provision in 29 U.S.C. 659(b) n4 was not an "impenetrable barrier." We conclude that the same is true as to the finality provisions of section 661(i). This conclusion is supported by the decision of the United States Court [*7] of Appeals for the Third Circuit in an analogous situation.

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n3 See, e.g., John v. Hurt, 489 F.2d 786 (7th Cir. 1973); Willis v. Reddin, 418 F.2d 702 (9th Cir. 1969); Moore v. Coats Company, 270 F.2d 410 (3d Cir. 1959); Escofil v. Commissioner of Internal Revenue, 376 F. Supp. 521 (E.D. Pa. 1974).

n4 That section provides, in pertinent part, that:

"If, within fifteen working days from the receipt of notification [of a failure to correct a violation alleged in a prior citation] 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." (Emphasis added.)

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Bloomfield Mechanical Contracting, Inc. v. OSAHRC, 519 F.2d 1257 (3d Cir. 1975), involved a question of whether another provision of the Federal Rules of Civil Procedure should be read in conjunction [*8] with other sections of the Act which contain absolute phraseology. The Court of Appeals remanded the case to the Commission to determine whether the relation back of amendment provisions of Rule 15(c), Federal Rules of Civil Procedure, applied in Commission proceedings so as to ameliorate the effect of 29 U.S.C. 658(c), n5 the Act's statute of limitations. Thus, despite the seemingly mandatory requirement in 29 U.S.C. 658(a) n6 for a citation to allege a violation with particularity and although there had been no motion to amend the citation, n7 the Court of Appeals found that the Commission possessed the authority to determine the applicability of Rule 15(c). That finding is consistent with Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974), which recognizes that Congress bestowed broad adjudicatory powers on the Commission under 29 U.S.C. 651(b)(3).

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n5 That section provides that

"No citation may be issued . . . after the expiration of six months following the occurrence of any violation."

n6 That section requires that:

"Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the chapter, standard, rule, regulation, or order alleged to have been violated." (Emphasis added.)

n7 After the expiration of the statute of limitations the complainant moved to amend only the complaint.

[*9]

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As the Court of Appeals indicated in Otinger, the Commission is no more than a creature of the Congress, and it may proceed only in conformity with its delegated power. 502 F.2d at 32. Nevertheless, it should be stressed that the Congress created the Commission to carry out the adjudicatory functions under the Act. 29 U.S.C. 651(3). It is a quasi-judicial agency. Staff of the Senate Committee on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, 462, 465, 471 (Committee Print 1971). This being so, although the Commission has no inherent right to reconsider its own decisions, a right to reconsider may be implied from the broad delegation of authority to the Commission. n8 This right must of course be exercised within a reasonable time. It must not interfere with the orderly course of judicial review. Also, it must not unduly disturb the parties who have relied upon the agency's previous order. n9 None of these limitations preclude reconsideration by the Commission in a case such as this.

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n8 See Bookman v. United States, 453 F.2d 1263 (Ct. Cl. 1972); Dayley v. United States, 16 Ad. L. 2d 746, 748, 169 Ct. Cl. 305 (1965); Southern Bleachery & Print Work, Inc., 115 NLRB No. 247, 38 NRRM 1108, 6 Ad. L. 2d 288 (1956); K. Davis, Administrative Law Text 18.09 at 369 (3d ed. 1972). See also American Trucking Assn. v. Frisco Transportation Company, 358 U.S. 138, 145 (1958) (implied power to correct clerical errors).

n9 See Dayley v. United States, supra note 8.

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Section 11(a) of the Act, 29 U.S.C. 660(a), prevents any possible collision of judicial and administrative proceedings. It provides among other things that, upon the filing of the record with a Court of Appeals, the jurisdiction of the court is exclusive. The remaining limitations are satisfied by Rule 60 of the Federal Rules of Civil Procedure which applies here by virtue of 29 U.S.C. 661(f). Although Rule 60(a) provides that clerical mistakes may be corrected at any time, Rule 60(b) requires that relief from a final order may be granted if a motion [*11] is filed within a "reasonable time," in some cases not to exceed one year. Finally, the reasonable expectations of the parties may be accommodated by the Rule's discretionary provision for the conditioning of relief upon just terms.

We read the 30-day period prescribed in 29 U.S.C. 659(c) n10 and 661(i) to be intended only to provide the Commission with a special period in which to decide whether to exercise its discretion to review an Administrative Law Judge's decision. This discretion is broader than that employed in reconsideration under Rule 60. See Keystone Roofing Company v. OSAHRC, 539 F.2d 960, 964 (3d Cir. 1976). We do not read the sections as foreclosing subsequent reconsideration under Rule 60. A contrary reading would render redundant the provision in 29 U.S.C. 660(a) that "[u]pon the filing of the record with it, the jurisdiction of the [United States] court [of appeals] shall be exclusive." If the Commission could not reconsider its final orders, then these would have been no need for Congress to have made the jurisdiction of the Court of Appeals exclusive.

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n10 This section requires after a hearing in a contested case that the Commission issue an order that affirms, modifies, or vacates the citation or proposed penalty or directs other appropriate relief. It also provides that "such order shall become final thirty days after its issuance."

[*12]

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Under 29 U.S.C. 661(i) the Judge's decision becomes "the final order of the Commission" unless a member of the Commission directs review of that decision within 30 days after it is filed with the Commission. The question is whether Congress meant that such an order becomes "final" in the sense that it is ripe for judicial review or that it becomes "final" in the sense that even limited reconsideration by the agency is no longer permitted. n11 We conclude that Congress intended in section 661(i) to indicate only that an Administrative Law Judge's decision may be judicially reviewed by a Court of Appeals if it has not been directed for review by the Commission within 30 days and not that the Commission may not appropriately reconsider its order before a Court of Appeals assumes jurisdiction over a case.

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n11 The administrative finality of an order does not necessarily terminate the reconsideration powers of an agency. It may indicate only ripeness for judicial review. See United Trucking Service, Inc. v. United States, 33 Ad. L. 2d 724 (E.D. Mich., May 25, 1973). It is for this reason that courts often speak of "finality for purposes of judicial review," and not of finality for all purposes. C.A.B. v. Delta Air Lines, Inc., 367 U.S. 316, 326, 327 n. 9, (1961). "[Q]uestions of administrative finality [do not] present the same problems, and therefore [do not] warrant the same solutions, as questions concerning the timeliness of an appeal." Id. at 326-327.

We are confident that penultimate paragraph in C.A.B. v. Delta Air Lines, Inc., does not prohibit our disposition here. The Court's comment that "administrative and judicial feelings have been opposed to the proposition that the agencies may expand their powers of reconsideration without a solid foundation in the language of the statute" was stated to be "a broad observation." The Court's general observation dealt with a dissimilar statutory scheme, and addressed only the question of whether the CAB must afford a hearing upon reconsideration of a certificate, not when such reconsideration is proper. We therefore note that a court's "[g]eneral expressions transported to other facts are often misleading." Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944) (Jackson, j.).

[*13]

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The Administrative Procedure Act (APA) lends considerable support to this reading on finality. Under that Act an Administrative Law Judge's initial decision becomes the agency decision unless there is an appeal to the agency or the agency orders that the decision be reviewed within the time provided by the agency's rules of procedure. 5 U.S.C. 557(b). That provision, however, does not prohibit any agency from reconsidering such a final order. Indeed, the last sentence of section 29 U.S.C. 661(i), n12 with one difference, is virtually identical to this provision of the APA. The one difference between the two sections is that in section 661(i) Congress sets the special review period itself rather than permitting the Commission to set it by rule. Other than this, no significance can be attached to section 661(i).

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n12 See footnote 2, supra, for the text thereof.

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Moreover, our retention of limited jurisdiction over the final [*14] order in this case is consistent with the Act's provisions for the finality of orders because the Act itself provides for the Commission's limited continuing jurisdiction over orders which have become final. Under 29 U.S.C. 659(c) n13 the Commission n14 may issue an order modifying the abatement requirements of a citation that has become a final order upon a showing by the employer of a good faith effort to comply with the abatement requirements of the citation and that abatement has not been completed because of factors beyond its reasonable control. n15 Thus, the Act permits the Commission to alter a final order insofar as abatement is concerned. Additionally, 29 U.S.C. 659(b) provides that the Secretary of Labor may issue a notice of additional penalties against an employer for the failure to abate as required by a prior final order. The employer may interpose as a defense against a failure to abate charge the fact that the violative condition affirmed in the prior final order did not indeed exist. Secretary v. York Metal Finishing Company, 7 OSAHRC 845 (1974), petition for review dismissed per stipulation, No. 74-1554 (3d Cir., September 9, 1974). Thus, the Commission [*15] retains the power to reexamine a final order and declare that no abatement was required where the employer shows the absence of a violation at the first inspection.

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n13 We disagree with the Court's conclusion in Otinger that the conferring of the specific power contained in this section makes "[i]t . . . clear that general jurisdiction to reconsider final orders was not contemplated." 502 F.2d at 33. Expressio unius est exclusio alterius is of course only a rule of statutory construction and must yield to more persuasive evidence of legislative intent. Here, we find such evidence. The provision in section 659(c) for a special abatement modification procedure does not purport to limit the Commission's implicit powers of reconsideration. That provision speaks only to the modification of an abatement order the underlying merits of which are not under reconsideration. It sets forth a special procedure and conditions for the granting of such modifications. It says nothing about whether and under what conditions an employer may be relieved entirely of a meritless abatement order.

n14 The Commission's jurisdiction to act upon petitions for the modification of abatement was established by a divided Commission in H.K. Porter Co. v. Secretary, 11 OSAHRC 53 (1974).

n15 Senate Report Number 91-1282, United States Code Congressional and Administrative News 5192 (1970).

[*16]

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It is true that in both the above-mentioned proceedings the Commission does not go behind the final order to vacate an affirmed citation which has become final, but as a practical matter, the Commission's reconsideration of abatement requirements touches in a crucial way on the final order and may, in effect, render it a nullity. n16 That the Act itself specifically permits such a reconsideration is strong evidence that the finality provisions are not to be considered absolute in all circumstances.

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n16 See, e.g., the divided Commission decision in Secretary v. B.W. Harrison Lumber Co., OSAHRC Docket No. 2200, April 14, 1975.

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Finally, if the Commission could not utilize Rule 60(b) to exercise limited jurisdiction over final orders, it would cause unnecessary litigation in many instances. One example is the situation where an employer is issued a notification of failure to abate a condition specified in a citation which [*17] could have been vacated if the Commission had authority to use Rule 60(b). Vacation under that Rule would eliminate useless reinspections to ascertain whether employers have abated previously cited violations and obviate the necessity for the needless litigation that usually follows such reinspections. Therefore, the Commission's utilization of Rule 60(b) is necessary in the interests of enforcement and judicial efficiency.

Accordingly, the Judge's decision is affirmed.