MERRITT-MERIDIAN CORPORATION
OSHRC Docket No. 76-2467
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
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
Dennis Paise, Assistant to the Executive Director, Construction Employers of the Hudson Valley, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
On July 21, 1976, Judge Gold granted the Secretary of Labor's motion to dismiss respondent employer's notice of contest for not being timely filed. The case is before us on orders for review by the Chairman and Commissioner Moran.
Respondent was cited for five safety violations under the Occupational Safety and Health Act while engaged on school construction in Wallkill, New York. The Secretary proposed a total penalty of $105 for the violations. A signed return receipt of the notice of proposed penalty was postmarked on April 24, 1976.
Respondent had an informal conference in the Secretary's area office on May 11, 1976. At the conference respondent orally informed the Secretary's representative of its intent to contest. This oral notice was within the fifteen working-day period permitted by section 10(a) of the Act n1 for giving notice of a contest. [*2] However, because of clerical error respondent's written notice of contest was not filed until June 1, 1976. The June 1 date is beyond the 15 working-day period permitted by section 10(a) of the Act giving notice of contest.
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n1 Section 10(a) reads as follows:
If . . . the Secretary issues a citation . . . he shall . . . notify the employer by certified mail of the penalty, if any, proposed to be assessed . . . 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.
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The issue before us is whether the oral notice to the Secretary's representative on May 11 is sufficient [*3] to meet the statutory requirement for a notice of contest.
A divided Commission has reversed the precedent represented by American Airlines, Inc., 13 OSAHRC 99.2 BNA OSHC 1320, CCH OSHD para. 18,908 (No. 4532, 1974) and held that a timely field notice of contest may be permissible of section 10(a) under limited circumstances. In Wood Products Co., 4 BNA OSHC 1688, 1689, CCH 1976-77 OSHD para. 21,097, p. 25,396 (No. 9206, 1976), the Commission by divided vote held that an oral notice of contest for an employer appearing pro se was permissible when the employer had been confused by the events involved and misunderstanding resulting from communications with the Secretary's area director. In P & M Sales, Inc., 4 BNA OSHC 1158, CCH 1975-76 OSHD para. 20,673 (No. 3443, 1976), the Commission again by divided vote held that a filing of a written notice of contest as to the penalty and an oral notice of contest concerning the citation was sufficient notice concerning the citation under the facts of the case.
We decline to extend this line of cases to the present situation where the failure to file a written notice of contest was simply due to clerical error. We must [*4] draw an appropriate line for avoiding possible abuse in the use of oral notices of contest under this precedent. The timely receipt by the Secretary of a writing from an employer is an effective and accurate method for determining when a notice is actually filed (29 CFR § 1903.17), and when a notice must be transmitted to the Commission from the Secretary (29 CFR § 2200.32).
Therefore, we affirm Judge Gold's granting of the Secretary of Labor's motion to dismiss the notice of contest. It is so ORDERED.
CONCURBY: BARNAKO
CONCUR:
BARNAKO, Chairman, Concurring:
I concur in dismissing the notice of contest. Seventeen calendar days elapsed between the expitation of the statutory 15-day contest period and Respondent's filing of its written notice of contest, and Respondent admits that the delay was due solely to its own clerical error. This is an insufficient reason to justify a variation from the usual requirement that a written notice of contest must be filed within the 15-day period. 1688, CCH OSHD para. 21,097 (1976); Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975).
I do not agree with Commissioner Cleary's interpretation of the decisions cited in the lead opinion, and I therefore do not join in his discussion.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
The action of the majority in this case is totally irreconcilable with their excusal of dilatory conduct by the Secretary of Labor in numerous other cases. For example, in Secretary v. Baltimore & Ohio Railroad Company, OSAHRC Docket No. 10687, November 16, 1976, where the Secretary did not issue the citation until 101 days after the time allowed by the statutory requirement to issue citations with "reasonable promptness," n2 my colleagues reversed the Judge's vacation of the citation and affirmed the citation and proposed penalties on the grounds that "[r]espondent offers no evidence that it was prejudiced by the delay" or that the delay was "unconscionable." In Secretary v. Rollins Outdoor Advertising Corporation, OSAHRC Docket No. 6954, November 24, 1976, where the Judge vacated the citation because the Secretary exceeded the time specified in Commission Rule 32 n3 by 79 [*6] days in transmitting the respondent's notice of contest to the Commission, my colleagues reversed the Judge because of the "absence of a showing of prejudice to respondent." In the instant case, however, they deny respondent its day in court even though respondent has fully complied with the statutory requirements for contesting a citation. I cannot join in such an injustice. Fundamental fairness and equal protection of the law requires that both parties to a case be judged by the same rules. In this case, the Judge's decision should be reversed and the case remanded for a hearing on the merits.
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n2 29 U.S.C. § 658(a).
n3 29 C.F.R. § 2200.32. This rule implements the statutory requirement for the Secretary to "immediately" advise the Commission of his receipt of a notice of contest. 29 U.S.C. § 659(c).
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The Act provides the following procedures in regard to citations and notices of contest:
"If . . . the Secretary issues a citation . . ., he shall . . . nofity the employer by certified mail of the penalty, [*7] if any, proposed to be assessed . . . 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."
29 U.S.C. § 659(a) (emphasis added). Thus, the Act does not require an employer's notice of contest to be in writing. It merely requires him to "notify the Secretary" of his desire to contest the citation within 15 working days of his receipt of the notification of proposed penalties. n4 If Congress had intended to require employers to submit written notices of contest, it would have been an easy matter for it to have said so just as it did in requiring the Secretary to notify the employer "by certified mail" of the penalty proposal. Its failure to do so can only be construed as an intent to permit any type of notification to [*8] the Secretary of an intention to contest a citation. Cf. Brennan v. OSAHRC and S.J. Otinger, Jr., Construction Company, 502 F.2d 30, 33 (5th Cir. 1974).
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n4 By a regulation codified at 29 C.F.R. § 1903.17(a), the Secretary has interpreted the word "notify" to mean that the employer must submit a written notice of contest within the 15 working-day period. Although he have recognized the administrative desirability of this rule in Secretary v. Wood Products Company, OSAHRC Docket No. 9206, September 16, 1976, we also refused to treat it as an "absolute requirement." Obviously, the statutory provision should prevail in ascertaining the validity of an employer's notice of contest, except, possibly, where an employer intentionally disregards the Secretary's regulation.
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I can't conceive of a case where the Secretary could be prejudiced by a failure of an employer to file a written notice of contest where the employer has duly provided oral notification of his intent to contest the citation. More importantly, [*9] however, complainant has not contended in this case that he has been prejudiced by respondent's failure to file an earlier written notice of contest or that the delay was "unconscionable." In view of their positions in the Baltimore & Ohio and Rollins cases, one would think that this would be significant to my colleagues. Apparently, they apply their requirement for a showing of prejudice only when it works to the advantage of the Secretary. Furthermore, they don't explain why the 18-day "clerical error" in this case should be treated differently than the 79-day one in the Rollins case. I submit that the difference is that the error is by the employer in this case and was by the Secretary in the Rollins case. Obviously, that is an improper distinction and should not be the basis for denying respondent its right to litigate the propriety of the citation.