TURNBULL MILLWORK COMPANY

OSHRC Docket No. 7413

Occupational Safety and Health Review Commission

December 15, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Altero D'Agostini, Regional Solicitor, USDOL

William W. Turnbull, Turnbull Millwork Company, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

This case presents the questions of whether Commission Judge Garl Watkins erred in ruling that: (1) both a citation and penalty were properly before the Commission for disposition when the notice of contest was limited to the penalty; and (2) 29 C.F.R. 1910.213 was not a valid enactment of a national consensus standard. For the reasons stated herein, we find that Judge Watkins properly found both the citation and penalty to be before the Commission, but erred in finding 29 C.F.R. 1910.213 to be improperly promulgated.

Respondent is a small, sole proprietorship engaged in the manufacture of kitchen cabinets. Following an inspection of his workplace, Respondent, on March 20, 1974, was issued a citation for serious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") in that it failed to guard two handfed table saws as required by the standard appearing at 29 C.F.R. 1910.213(c)(1). n1 A penalty of $500 was proposed. [*2]

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n1 Respondent was also cited for a non-serious violation of the Act for which no penalty was proposed. Respondent did not contest the citation and stated that he had no intent to do so. Thus, the citation became a final order of the Commission by operation of section 10(a) of the Act.

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Thereafter, Respondent timely filed the following notice of contest, pro se:

This letter is to notify you that I desire to contest the proposed penalty of $500.00 (five hundred dollars) levied against my firm -- Turnbull Millwork Co., on March 20, 1974.

Subsequently, the Secretary filed his complaint, followed by a motion to dismiss based on Respondent's failure to timely file an answer. Judge Watkins denied the Secretary's motion, stating that he was reluctant to grant such a motion when a respondent appeared without counsel.

On July 2, 1974, Respondent sent a letter to the Commission, stating in part:

We contend that the manner in which we use these saws makes the use of a blade guard very inconvenient and in many ways [*3] impossible and unsafe.

I now realize that my first letter of April 2, 1974, in which I notified you that I desired to contest the proposed penalty, did not meet all the requirements of the commission as I did not state therein my reasons for contesting the penalty.

I am sorry that I was negligent in this matter, and trust that this will serve to meet all requirements.

On July 10, the Secretary submitted a "Request for Admission" to Respondent which asked Respondent to admit that only the penalties were in issue. Respondent replied, in relevant part,

I, William W. Turnbull, in answer to Statement No. 2, wish to inform your office that our Notice of Contest places in issue the penalty of $500.00 which was proposed for Citation #2, and we also contest #2 which concerns the use of table saws. (emphasis added)

Judge Watkins, after finding that both the citation and penalty were properly before the Commission, vacated the citation on the basis that 29 C.F.R. 1910.213 was not a valid enactment by the Secretary of a national consensus standard under section 6(a) of the Act.

In Florida East Coast Properties, Inc., 6 OSAHRC 404 (1974), the Commission ruled that where a timely [*4] notice of contest is clearly limited solely to the penalties, the citation itself becomes a final order of the Commission under section 10(a) of the Act. In this case, there can be no doubt that Respondent's notice of contest was limited solely to the penalties. However, it is equally clear from Respondent's communications subsequent to the notice of contest that his actual intent was to contest the citation as well as the penalties.

We believe this case illustrates the problems that arise from the Florida East Coast rule, as it is presently applied. This rule puts employers, who often appear before the Commission without benefit of counsel, n2 in the position of making a technical judgment, under time pressure, n3 which affects their rights to a hearing on the merits. Subsequently, when they realize that the phrasing of their notice of contest has denied them their right to a hearing on the merits, they will write to the Commission indicating that they did not realize the distinction between a contest of the citation and penalty, and that their actual intent was to contest both.

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n2 29 C.F.R. 2200.22 provides in relevant part:

(a) Any party or intervenor may appear in person or through a representative.

* * *

(d) Nothing contained herein shall be construed to require any representative to be an attorney at law.

n3 Section 10(b) of the Act provides that an employer has fifteen working days within which to file his notice of contest.

[*5]

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The U.S. Court of Appeals for the Fifth Circuit was aware of these problems when they stated in Brennan v. Bill Echols Trucking Co., n4

This Court claims no bureaucratic expertise and seeks no authority to make rules for the Secretary or the Commission. We would be remiss, however, if, in the interest of minimizing the need of these parties for the future assistance of this Court, we did not suggest a simple means of eliminating ambiguity in notices of contest. If each citation or notification of proposed penalty sent to an employer were accompanied by a reply form on which the employer could check boxes indicating intent to contest the citation or proposed penalty, or neither or both, with space for listing reasons or making comments, no confusion need ever again arise on the part of either the Secretary or the Commission.

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n4 487 F.2d 230 at 234 n.7 (5th Cir. 1973).

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We believe the suggestion of the Fifth Circuit in Echols [*6] is well taken. Yet, two years have passed since the issuance of that opinion and no response has been forthcoming from the Secretary. In view of the Secretary's failure to act, we believe it is necessary in cases like the instant one, to look at pleadings subsequent to the notice of contest in order to determine the respondent's true intent. Thus, in the absence of the Secretary's implementation of the Court's suggestion in Echols, we will construe notices of contest that are limited to only the penalty to also include a contest of the citation, if a respondent indicates at a later time that it was its intent n5 to also contest the citation. In this regard, we note that pursuant to Rule 15(c) of the Federal Rules of Civil Procedure, amendments to pleadings can be treated as relating back to the date of the original pleading. See Bloomfield Mechanical Contracting, Inc. v. O.S.H.R.C., 519 F.2d 1257 (3rd Cir. 1975).

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n5 In adopting this interpretation, we are not unmindful of the statement of the Fifth Circuit in Dan J. Sheehan Company v. O.S.H.R.C., 520 F.2d 1036, 1039 (5th Cir. 1975) with regard to their holding in Echols that a contest of the penalty does not bring the citation into issue:

We decline to depart from this court's decision in Echols at the present time. If the Commission should determine to take the other view in a consistent course of administrative interpretations, in another case this court may choose to give controlling weight to that persuasive factor.

[*7]

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In view of the foregoing, we agree with Judge Watkins that the citation as well as the penalty was in issue. After making that determination, Judge Watkins vacated the citation for the same reasons given in his decision in Noblecraft Industries, Inc., Docket No. 3367 (Nov. 21, 1975); that is, that 29 C.F.R. 1910.213 was not a valid enactment of a national consensus standard under section 6(a) of the Act. We concluded in Noblecraft, however, that this standard has been adopted in conformity with the rulemaking provisions of the Act. Therefore, a similar conclusion is necessary here.

Judge Watkins found that the two saws in question were in fact used without guards on the day of inspection by Respondent's employees. The record supports Judge Watkins' finding. n6 Accordingly, we will affirm the citation.

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n6 We find the record fails to support Respondent's contention that the use of the guards will result in a greater hazard to his employees.

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We have reviewed the penalty factors specified in section 17(j) of the Act and find that the penalty proposed by the Secretary is excessive. In this regard, Respondent is a small employer, employing only 4 employees. He has a good safety record and no prior citations under the Act. Furthermore, his good faith is reflected by his concern for his employees and the fact that he abated the violations after the inspection. On the basis of these facts, we find a $100 penalty to be appropriate.

Accordingly, the citation is affirmed and a penalty of $100 is assessed. It is so ORDERED.

CONCURBY: MORAN (In Part); CLEARY (In Part)

DISSENTBY: MORAN (In Part); CLEARY (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with the rule enunciated in the lead opinion in regard to employer notices to contest. However, I disagree with the Commission's affirmance of the citation.

This decision modifies the rule of the Florida East Coast case, supra, to which I assented. I regret the necessity of retreating from the rule of that case because I believe it is consistent with the statute, makes for a clearer definition of issues in dispute and thereby cuts down the [*9] trial time of the Judge and the parties. However, the Secretary of Labor has been using that rule as a sword on which to impale unwitting respondents who want - and are entitled - to have their day in court.

I would be most happy to return at an early date to the strict application of the Florida East Coast rule and I will do so just as soon as the Secretary implement the beneficial suggestion contained in the Echols decision to which my collague makes reference supra. With adequate advance information on the legal intricacies of contesting an enforcement action no respondent should be permitted to change the issues which he contested. However, when that information is not given, I believe the only just thing to do is to follow the sensible course set out in Chairman Barnako's well-written decision in this case.

The filing of a notice of contest or a legal pleading should not be a trap for the unwary. When it becomes one - and it has in many OSHA cases - it is time for a change.

On the other hand, my colleague is mistaken on the merits of this case. Judge Watkins was correct in holding that 29 C.F.R. 1910.213(c)(1) was improperly promulgated. Accordingly, I would [*10] affirm his vacation of the citation.

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I agree with Chairman Barnako in affirming the citation in light of our Noblecraft precedent and in the penalty assessment. I do not, however, agree with the majority's retreat from the rule of Florida East Coast Properties, Inc., No. 2354 (February 5, 1974).

As I understand the new policy announced by the majority an employer, whether represented by counsel or not, is free to amend his notice of contest by subsequent pleadings or other documents to contest not only a penalty proposed by the Secretary of Labor but the citation as well, when the notice of contest challenges only the penalty.

The majority's concern for hardship to a contested employer, particularly when he is acting without counsel, is laudable. But in my view it goes too far and lacks support in law. If Rule 15(c) of the Federal Rules of Civil Procedure is to be applied, any alleviation of hardship to the employer resulting from a failure to contest in [*11] a timely manner a citation issued by the Secretary of Labor must be balanced against the prejudice that would result to any other party. See, for example, Scott v. Crescent Tool Co., 306 F. Supp. 884 (D. Ga. 1969). Here there is prejudice to employees, who have a statutory right to become parties, and therefore are to be treated as parties under the Administrative Procedure Act. See 5 U.S.C. section 551(3). Under the express terms of section 10(b) of the Act, there is no requirement for abatement of a cited hazard when a citation is under review by the Commission. The safety or health of employees may be in danger when there is an amendment to the notice of contest to challenge a citation in addition to a penalty because the employer is under no obligation to abate the cited hazard during the period of the contest. The new policy is for the same reason inconsistent with the essential statutory purpose of assuring a safe and healthful workplace for employees. In light of section 10 and the statutory purpose it seems to me that Congress itself has struck a balance between the interest of employees and employers which cannot be upset by any amendment of a notice [*12] of contest in this manner beyond a statutory 15-working day period.

The announced intent of the majority is to pursue this policy until the Secretary of Labor adopts the Fifth Circuit's suggestion in Echols for the use of a check list form on which the employer could check the precise matters of contest. The majority is actually adopting a rule n9 itself, a temporary rule, without complying with the publication requirements of the Administrative Procedure Act n10 and the Federal Register Act. n11 The majority is plainly adopting a rule that it considers necessary for the ordinary transaction of Commission proceedings. See section 12(g) of the Act. In adopting this rule the lead opinion ignores, and Commissioner Moran dismisses with shrill rhetoric, alternatives to its course of action. There is no discussion for example of the fact that the OSHA Compliance Manual requires that each citation be accompanied by Form OSHA 2c, a transmittal letter. n12 The third paragraph of this letter reads, in part, as follows:

You have the right to contest any or all parts of either the citation(s) or the proposed penalty(ies) before the Occupational Safety and Health Review Commission. [*13]

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n9 See section 5 U.S.C. 551(4).

n10 See section 5 U.S.C. 552 and 553.

n11 See 44 U.S.C. 1505.

n12 BNA Occ. Safety & Health Reporter, 77:3924.

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Although this letter is not so obvious a device as that suggested by the Bill Echols Court, it sufficiently informs employers what is required of them. Especially is this so when the transmittal letter also advises the employer of its right to confer with the Area Director.

Finally, as a matter of policy, the tack of the majority has major shortcomings. It opens the door to possible abuse by providing an easy avenue for staying the abatement requirements of any citation. It also seems destined to have a glaciating effect upon the decision-making process.