FLORIDA POWER AND LIGHT COMPANY

OSHRC Docket No. 76-2177

Occupational Safety and Health Review Commission

April 8, 1977

[*1]

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobby D. Spears, Regional Solicitor, U.S. Department of Labor

Wade V. Mallard, Jr., for the employer

A. J. Dubberly, IBEW, for the employees

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: An order of Review Commission Judge Cecil L. Cutler, Jr., dated August 19, 1976, which is attached hereto as Appendix A, n1 is before the Commission for review pursuant to 29 U.S.C. 661(i). That order dismissed respondent's notice of contest because of its failure to file a written notice of contest to the citation within 15 working days after receipt of complainant's notice of proposed penalty. For reasons that follow, we reverse and remand for a hearing and decision on the merits.

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n1 Chairman Barnako does not agree to this attachment.

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The parties have agreed that the 15 working days in which respondent was entitled to contest the citation under 29 U.S.C. 659(a) terminated on May 10, 1976. Although complainant did [*2] not receive a written notice of contest until May 13, 1976, when it was hand delivered to his area office, respondent orally communicated to complainant's acting area director an intent to contest the citation at a meeting on May 7, 1976. Respondent had prepared a written notice of contest on May 3, 1976, but inadvertently failed to take it to the meeting. At the meeting, respondent's safety manager was told by the acting area director that he could put it in the mail the following Monday, May 10, 1976. The safety manager failed to do so because of a company safety emergency. Although he tried to contact the area director by telephone after 5:00 p.m. on May 10 to obtain an extension, he was unsuccessful. He contacted the acting area director on May 11, 1976, and was told by him that he could bring in the notice of contest "the next day or the day after" and that "it would be accepted if [he] would get it up there as soon as [he] could."

Section 10(a) of the Act, 29 U.S.C. 659(a), provides that an employer has 15 working days after receipt of the Secretary of Labor's proposed penalty within which to notify the Secretary of Labor that he wishes to contest a citation or proposed [*3] assessment of penalty. If the employer fails to do so within that time, the citation and the penalty assessment, as proposed, become a final order of the Commission which is not subject to review by any court or agency.

By a regulation codified at 29 C.F.R. 1903.17(a), complainant has interpreted the word "notify" to mean that respondent must submit a written notice of contest within the 15 working-day period. As we pointed out in Secretary v. Wood Products Co., OSAHRC Docket No. 9206, September 16, 1976, we recognize the administrative utility of this interpretation, but the regulation does not establish "an absolute requirement in every case." In the instant case, respondent acted in a reasonable manner and there is no indication that it acted in bad faith or in a dilatory manner. Under the circumstances, we find that respondent duly filed a valid notice of contest. See Secretary v. Wood Products Co., supra.

Accordingly, the decision below is reversed, and the case is remanded for a hearing and decision on the merits.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I dissent. In my opinion the Administrative Law Judge correctly decided the case.

This decision [*4] permits an oral notice of contest of a citation because the majority finds no indication that the respondent employer acted in bad faith or in a dilatory manner. The decision does so after noting that in Wood Products Co., BNA 4 OSHC 1688, 1689, CCH 1976-77 OSHD para. 21,097, p. 25,396 (No. 9206, 1976), the same Commission majority observed that there is not "an absolute requirement in every case" that there be a timely written notice of contest.

The decision actually inverts the law as stated in Wood Products Co. It appears now that generally oral notices of contest are permitted, except when an employer has acted unreasonably, in bad faith, or dilatorily.

Wood Products Co. was wrongly decided for the reasons stated in my dissenting opinion in that decision. The present decision is worse.

APPENDIX A

ORDER GRANTING COMPLAINANT'S MOTION TO DISMISS

Complainant moves to dismiss the respondent's notice of contest, or in the alternative, for summary judgment for the failure of the respondent to timely file a written notice of contest to the Secretary's citation.

The facts are relatively simple. The respondent was issued a citation and notification of proposed penalty [*5] which was received by respondent on April 19, 1976. During an informal conference at the area office of the Occupational Safety and Health Administration held on May 7, 1976, Mr. J. T. Harley, respondent's safety manager, advised Mr. David A. Norris, then acting area director, OSHA, that he would definitely file a notice of contest.

In an affidavit submitted by respondent in response to the motion, Mr. Harley explained that he had prepared and signed a notice of contest but inadvertently failed to bring it to the May 7 meeting. At that meeting he was told by Mr. Norris that it was not necessary to file it that day but that it could be put in the mail the following Monday, May 10, 1976, the fifteenth day. Mr. Harley, however, failed to place the notice in the mail on May 10 due to a company safety emergency. He relates that he called Mr. Norris the next day and explained the circumstances and asked if it was permissible to hand carry the notice the following day. According to Mr. Harley, he was assured by Mr. Norris that the notice would be accepted if it was received within the next day or two. The notice of contest was hand delivered to the area office on May 13, 1976.

Section [*6] 10(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) provides pertinently that an employer has fifteen working days within which to notify the Secretary that he wishes to contest a citation or proposed assessment of penalty. It 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.

The rule promulgated by the Secretary in implementation of the Act is set forth in 29 C.F.R. 1903.17(a) and states, in pertinent part, as follows:

"any employer to whom a citation or notice of proposed penalty has been issued may, under section 10(a) of the Act, notify the Area Director in writing that he intends to contest such citation or proposed penalty before the Review Commission. Such notice of intention to contest shall be postmarked within the 15 working days of the receipt by the employer of the notice of proposed penalty. . . ." (Underscoring added)

Two Review Commission [*7] cases which have permitted oral notifications of contest are factually distinguishable from the case at hand. In Secretary v. H.E. Lowdermilk Company, 7 OSHRC 987 (1974), the employer's oral contest of one violation made at the hearing was deemed by the Commission to be timely filed because the initial notification of proposed penalty was imprecise and misled the employer.

These cases cannot be deemed authority for the proposition that an oral notice of contest, without more, made within the fifteen day period complies with the requirement of the statute and implementing regulation.

In his memorandum in response to the complainant's motion, respondent cites Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975), in which the court stated a petitioner should not be denied review for not having filed a notice of contest within the fifteen day limit if the Secretary's deception or failure to follow proper procedures [*8] is responsible for late filing. Respondent does not aver that the facts and circumstances are identical to those in Atlantic Marine, Inc., supra, but alleges that prejudice in that, as a result of the apparent acquiescence by complainant's office to a late filing, respondent expended time and money in preparation of the defense of its case.

Respondent's reliance upon Atlantic Marine, supra, however, is misplaced. That case involved a notification of failure to correct a violation in which a notice of contest was not timely filed. The petitioners asserted that (1) they were led to believe by the Secretary that a longer period of abatement was satisfactory; (2) that the Secretary failed to advice the petitioners of a continuing violation immediately after the reinspection, and (3) that the notification of failure to correct and proposed additional penalty was not issued "with reasonable promptness."

In the instant case, there is no showing that respondent was misled or deceived in any way prior to or during the fifteen day statutory period by any person in the OSHA area office. It cannot be said that Mr. Harley was unaware of the requirement for a written notice [*9] of contest for his statements clearly reflect this knowledge. As a result of unfortunate circumstances, he was unable to file the written notice within the prescribed period, and it was only after that time that he called the area office about his problem. Therefore, what may have occurred after the expiration of the statutory period is irrelevant for the citation and proposed penalty by then become the final order of the Commission by operation of law.

Complainant's motion to dismiss is granted and respondent's notice of contest filed May 13, 1976, should be and is hereby dismissed. SO ORDERED.

Dated this 19th day of August, 1976.

CECIL L. CUTLER, JR., Judge