NORKIN PLUMBING CO., INC.

OSHRC Docket No. 76-4316

Occupational Safety and Health Review Commission

October 27, 1977

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Steven K. Meier, for the employer

OPINION:

DECISION

BY THE COMMISSION: This case is before the Commission for review pursuant to a direction for review under 29 U.S.C. 661(i). At issue is whether Review Commission Judge Seymour Fier erred in granting the complainant's motion to dismiss the respondent's notice of contest because it was filed untimely. n1

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n1 If an employer fails to notify the Secretary of Labor within 15 working days after receiving a notice of a proposed penalty 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).

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Three citations, which included proposed penalties, were received at the respondent's corporate headquarters on August 13, 1976. In a letter [*2] to complainant's area director, dated September 23, 1976, the respondent's attorney requested that the respondent be allowed to contest the alleged violations "even though the 15-day period has expired." This letter states that "[d]ue to inadvertence of employees" the citations and penalty proposals "were not brought to Mr. Norkin's attention and our attention until this week." After the letter was forwarded to the Commission, the case was assigned a docket number. Following the filing of the complainant's motion to dismiss and the respondent's affidavit opposing the motion, the case was assigned to Judge Fier for disposition.

On review, the respondent relies on its affidavit in opposition to the Secretary's motion to dismiss. In that affidavit, the respondent contends:

(1) That the Commission's docketing of the case and assignment to a Commission Judge constituted a waiver of the 15-day contest period.

(2) The failure to file a notice of contest within 15 working days of receipt of the penalty notice "was excusable and due to inadvertence inasmuch as the principals of Respondent were at the time negotiating contracts in Nigeria and the copies of the violations were placed on [*3] their desks."

The affidavit further states that "copies of the violations" were delivered to the respondent's counsel as soon as the respondent's principals returned from Nigeria. Reference is also made to the September 23, 1976, letter which was "[t]hereafter . . . written to the Commission."

The respondent's first contention is rejected. The Secretary must advise the Commission of receipt of a notice of contest. 29 U.S.C. 659(c). Commission Rule 32 n2 requires him to do so by forwarding the original notice of contest to the Commission within seven days after he has received it. A question regarding the timeliness of a notice of contest presents a legal issue that requires a judicial determination. See, e.g., City Mills Company, 77 OSAHRC 27/A2, 5 BNA OSHC 1129, 1977-78 CCH OSHD para. 21,591 (No. 15196, 1977), and the cases cited in that decision. Therefore, the docketing of the case and its assignment to the Judge was not a waiver of the 15-day contest period. n3

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n2 29 C.F.R. 2200.32.

n3 Also see American Airlines, Inc., 74 OSAHRC 81/B3, 2 BNA OSHC 1326, 1974-75 CCH OSHD para. 18,908 (No. 4532, 1974). In that decision, the Commission held that it lacked authority to waive a failure to comply with the statutory requirement for filing notices of contest.

[*4]

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The Commission members agree to remand the case on the basis of the precedent established in Imperial Lumber Co., 4 BNA OSHC 1908, 1976-77 CCH OSHD para. 21,352 (No. 12699, 1976). Under circumstances almost identical to those in the instant case, a divided Commission remanded Imperial Lumber for a determination as to whether the evidence established that the absence of corporate officials empowered to act on the citation and proposed penalties justified the untimely filing of a notice of contest. Chairman Cleary dissented in that case, but agrees to the applicability of that precedent in this case. In his opinion, however, the precedent established in Imperial Lumber is unsound for the reasons stated in his dissent thereto and should be reexamined upon the appointment of a third member.

Accordingly, the case is remanded for appropriate proceedings consistent with this opinion.