KEPPEL'S INCORPORATED
OSHRC Docket No. 77-3020
Occupational Safety and Health Review Commission
June 12, 1979
[*1]
Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Marshall H. Harris, Reg. Sol., USDOL
Robert F. Keppel, Jr., President, Keppel's Inc., for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
This case is before the Commission on interlocutory appeal. Following an inspection, respondent, Keppel's Incorporated, was issued two citations alleging 12 violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. At two informal conferences held during the fifteen working day contest period, certain of these items were amended and two new citations and notifications of penalty issued. n1 The original citations were, in the absence of a notice of contest, to become final orders of the Commission on September 1, 1977. The two amended citations were to become final on September 12 and September 20. On August 29 the respondent mailed a check to the area director covering the proposed penalties for all of the unamended items of Citation 1. A second check was mailed on September 1 with no indication as to allocation. In a letter dated September 9th and received by the area director on September [*2] 12, respondent stated that due to lack of experience and poor advice, he had erred in sending the two checks. He requested that they be returned or held in abeyance until "a hearing can determine if any law has been violated and if we are liable for any penalties." Keppel's letter also stated that it contested all items of both citations.
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n1 Only the amended items were on the new documents. The unamended items were not repeated on the new forms.
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The Secretary subsequently filed his complaint alleging only the amended items. He followed this with a motion to strike respondent's notice of contest as to the unamended items of the citation. Relying on Atlantic Marine, Inc. v. OSAHRC and Dunlop, 524 F.2d 476 (5th Cir. 1975), the judge denied the motion and held a hearing on the question of the timeliness of the notice of contest.
Before the judge, respondent's president contended that he had hand carried a written notice of contest to the second informal conference but felt intimidated by the area director [*3] and failed to present it. The judge found that the Secretary's representatives had behaved properly but that "respondent had been intimidated by the sheer mass of the government resources arrayed against him." The administrative law judge further noted that respondent's president took a written notice of contest to the second informal conference with the area director and that his remarks were intended to convey his objections to the citations. The judge, relying on Florida Power and Light Company, 77 OSAHRC 181/B5, 5 BNA OSHC 1277, 1977-78 CCH OSHD P21,715 (No. 76-2177, 1977), construed the president's remarks at the second informal conference as an oral notice of contest that was subsequently perfected by the written notice of contest mailed September 9, 1977. The judge, at the Secretary's request, certified an interlocutory appeal of this ruling to the Commission pursuant to Commission Rule 75(c), 29 CFR § 2200.75(c).
In Atlantic Marine, Inc. v. OSAHRC & Dunlop, supra, the United States Court of Appeals for the Fifth Circuit remanded a case to the Commission for an evidentiary hearing and findings of fact as to allegations by respondent that the Secretary's actions [*4] had prevented it from filing a timely notice of contest. The court held that a failure to file a notice of contest within the 15-day limit cannot operate to preclude review of the citation "if the Secretary's deception or failure to follow proper procedures is responsible for the late filing."
Subsequent to issuance of the decision in Atlantic Marine, the Commission issued its decisions in Wood Products Company, 78 OSAHRC 9/B13, 4 BNA OSHC 1688, 1976-77 CCH OSHD P21,097 (No. 9206, 1976) and Florida Power and Light Company, supra. In Wood Products Co., supra, respondent made an oral notice of contest within the 15-day period, but was confused after a number of communications with the area director who was unsure when he notified respondent that the notice of contest should be in writing. Under these circumstances and where there was "no indication that respondent acted in bad faith or in a dilatory manner," the Commission held that section 10(a), 29 U.S.C. § 659(a) would not be "an absolute bar to review of the citation." The Commission concluded that respondent duly filed a valid notice of contest. In Florida Power and Light Co., supra,i respondent [*5] made an oral notice of contest on May 7. A Commission majority found that respondent duly filed a valid notice of contest where it was hand delivered on May 13 and the period to contest under 29 U.S.C. § 659(a) terminated on May 10. The Commission found that the area director had told respondent's safety manager on May 11 that the notice of contest would be accepted if it could be gotten to the area director "as soon as [he, the safety manager] could." The Commission also noted that "respondent acted in a reasonable manner and there [was] no indication that it acted in bad faith or a dilatory manner."
In the case before us the judge considered respondent's claim that it had failed to present its written notice of contest because it was intimidated by the Secretary. The judge found that the Secretary had acted properly. He chose to construe respondent's statements at the second informal conference as an oral notice of contest.
There was no oral notice of contest. Record evidence, including the testimony of a disinterested witness, demonstrates that although respondent's president participated in the second informal conference, he never stated to the area director an intention [*6] to contest either of the citations.
The test mandated by Atlantic Marine is an objective one, concerned with determining if the Secretary's "deception or failure to follow proper procedures is responsible for the late filing." Here the record reveals no evidence of deception and it demonstrates that the Secretary followed established procedures. The subjective feeling of "intimidation" assertedly suffered by respondent's president apparently existed despite the Secretary's adherence to proper procedure and lack of deception. While the feeling of "intimidation" may have been responsible for respondent's late filing of its written notice of contest, it was not precipitated by improper activities on the part of the Secretary's representatives and thus it cannot, under the Atlantic Marine test, serve as a basis for finding the facially late notice of contest to have been timely.
Having re-examined our prior decisions regarding oral notices of contest we hold that a notice of contest must be in writing.
Section 10(a) of the Act, 29 U.S.C. § 659(a), reads as follows:
Sec. 10. (a) If, after an inspection or investigation, the Secretary issues a citation under section 9(a), [*7] he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under section 17 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, and no notice is filed by any employee or representative of employees under subsection (c) within such time, 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.
Although the statute does not expressly require that a notice of contest to the Secretary be in writing, both the Secretary of Labor in a regulation published at 29 CFR § 1903.17(a) shortly after the Act's effective date and Commission rule 32, 29 CFR § 2200.32, contemplate a writing. These rules interpret section 10(a), 29 U.S.C. § 659(a), of the Act. The Act, specifically section [*8] 9(a), 29 U.S.C. § 658(a), requires the Secretary to issue citations in writing. Section 10(a), 29 U.S.C § 659(a), requires the Secretary to notify respondent of the proposed penalty, if any, by certified mail. Similarly, under section 10(a) an affected employee must file a notice with the Secretary if he wishes to appear under section 10(c), 29 U.S.C. § 659(c). Equal treatment would require that a notice of contest by an employer be in the form of a writing placed with the area director. Failure to file such a written notice of contest within the fifteen working day period is not merely a violation of the Secretary's rule, but operates to preclude Commission jurisdiction. Wood Products Company, supra (dissenting opinion). n2
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n2 The present case is not controlled by Florida East Coast Properties, Inc., 74 OSAHRC 5/C7, 1 BNA OSHC 1532, 1973-74 CCH OSHD P17,272 (No. 2354, 1974), or other Commission decisions that resolve ambiguities in timely notices of contest. See Turnbull Millwork Company, 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD P20,221 (No. 7413, 1975); Haugan Construction Company, 77 OSAHRC 182/G3, 5 BNA OSHC 1956, 1977-78 CCH OSHD P22,248 (No. 14675, 1977) aff'd No. 77-1942 (8th Cir., Nov. 13, 1978). Here we decide only whether respondent timely contested.
[*9]
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This is consistent with the purposes of the Act, to assure so far as possible every working man and woman in the nation safe and healthful working conditions. An attempt to alter the requirements of the Act and allow an untimely notice of contest to toll the abatement period dilutes that purpose. Although the procedural requirements of the Act are not particularly burdensome, they do require that citations be contested within a definite period. Tolling of the abatement date after the notice of contest period has expired, as respondent requests, allows continued employee exposure to allegedly violative conditions contrary to both the Congressional purposes expressed in the Act and to the method specified by Congress for determining when a notice of contest is actually filed. On the other hand, the receipt by the Secretary of a writing from an employer is an effective and accurate method for determining when a notice is actually filed. Merrit-Meridian Corporation, 77 OSAHRC 14/F2, 4 BNA OSHC 2025, 1977-78 CCH OSHD P21,477 (No. 76-2467, 1977).
We accordingly hold that a notice of contest must [*10] be in writing and that a notice of contest not filed "within fifteen working days from receipt of the notice issued by the Secretary," section 10(a), 29 U.S.C. § 659(a), is invalid unless the employer can show the delay in filing its notice of contest was caused by "the Secretary's deception or failure to follow proper procedures." Atlantic Marine, supra. To the extent that our decisions in Wood Products, Supra, and Florida Power and Light Co., hold otherwise, they are overruled.
The record in the present case demonstrates that respondent timely contested the amended items of the citations. The judge properly held a hearing to consider respondent's claim that the Secretary's actions prevented him from making a timely notice of contest to all the items. Since the judge found and the record demonstrates that the Secretary acted properly, the unamended items of the citation were not timely contested.
Accordingly, the judge's order is reversed in part. The unamended items of the citations: items 3, 4, and 6 of Citation No. 1 and items 3, 4, and 5 of Citation No. 2 are, therefore, final orders of the Commission. This case is remanded to the judge for further [*11] proceedings consistent with this decision.
So ORDERED.
CONCURBY: BARNAKO
CONCUR:
BARNAKO, Commissioner, concurring in the result:
I agree that Keppel's did not give the Secretary an oral notice of contest. Therefore, Keppel's written notice of contest, filed more than 15 working days after the original citations were received, was untimely as to the unamended items of the citations. Those unamended items thus became unreviewable final orders and cannot now be contested.
Despite our agreement on these points, my colleagues are unwilling to restrict their ruling to the alleged oral notice, but go beyond this question to address a point which is unnecessary for the disposition of this case. They state, in effect, that even if Keppel's had given a timely oral notice of contest followed closely by a written notice of contest filed outside the 15 working day period as in Florida Power and Light Co., 77 OSAHRC 181/B5, 5 BNA OSHC 1277, 1977-78 CCH OSHD P21,715 (No. 76-2177, 1977), and Wood Products Co., 78 OSAHRC 9/B13, 4 BNA OSHC 1688, 1976-77 CCH OSHD P21,067 (No. 9206, 1976, Keppel's notice of contest still would have been untimely. While this hypothetical issue is not presented by the facts [*12] of this case, n1 the lead opinion's discussion of it compels me to comment.
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n1 Indeed, the Secretary, in his appeal brief, expresses no disagreement whatsoever with the rulings in Florida Power and Wood Products, but contends only that this case is factually distinguishable in that there was no oral notice of contest.
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In Wood Products Co., within 15 working days after receipt of a citation and notification of proposed penalty, the employer orally informed the Secretary's area director that he intended to contest the citation. The area director later informed the employer that his notice of contest should be in writing. Not more than five days thereafter, the area director received the employer's written notice of contest. Although this written notice of contest was not submitted within the 15 working day period, the Commission held the notice of contest to be valid since the employer's oral notice of contest was timely, the employer promptly filed a written notice of contest when he was belatedly informed [*13] of this requirement by the Secretary, and the employer did not act in bad faith or in a dilatory manner.
The Wood Products precedent was followed in Florida Power and Light Co. There the cited employer timely gave the Secretary's area director an oral notice of contest at a Friday meeting and was told he could mail his written notice of contest the following Monday. However, he was unable to do so because of an emergency which occurred on Monday. The following day he contacted the area director, who told him he could hand deliver the notice of contest on Wednesday or Thursday. He did deliver it on Thursday, three days after the expiration of the 15 working day period. The Commission held that notice of contest to be timely, since the oral notice was timely, and the written notice was filed shortly thereafter and within the time limits contained in the area director's instructions.
The holdings of Wood Products and Florida Power serve the Act well. While they do not uphold the broad use of oral notices of contest, which could cause significant administrative difficulties, n2 they do permit an equitable and flexible approach to dealing with practical problems [*14] that arise from the short 15 working day deadline for contesting citations and proposed penalties. They allow for the contest of citations when oral notice of contest is timely given and is followed without significant delay by the filing of a written notice of contest, thus avoiding the practical problems that an oral notice alone would present. n3 Under such circumstances, finding the notice of contest untimely and precluding review of the citation is unduly harsh and is not "consistent with the Commission's liberal policy of allowing employers a hearing . . . ." n4
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n2 As in this case, informal discussions between a cited employer and the Secretary's representative often occur within the 15-day contest period. See 29 CFR § 1903.19. In many such discussions, the employer presumably expresses some disagreement with the charges against him. If the Commission were to hold that an oral notice of contest alone was sufficient, serious administrative problems would arise in determining whether an employer's expression of disagreement reflected his intent to contest any or all of the charges, and the scope of any such contest. Moreover, well after a citation has apparently become a final order by virtue of the employer's failure to file a written notice of contest, an employer could contend that he did indeed orally notify the Secretary's representative of his intent to contest and the resolution of the issue would depend on the testimony of witnesses about the content of routine informal discussions which took place some time previously. This potentially would subject all such citations to collateral attack long after the relevant events have occurred. This result would be inconsistent with one of the obvious Congressional purposes underlying § 10(a) - to provide a high degree of certainty in the time uncontested citations become final orders. For these reasons, oral notice of contest should not generally be deemed valid.
n3 See note 2, supra.
n4 Seminole Distributors, Inc., 77 OSAHRC 211/D9, 6 BNA OSHC 1194, 1195, 1977-78 CCH OSHD P22,412 (No. 15761, 1977). In Seminole the Commission permitted an employer to contest a notification of failure to abate a violation even though it filed its notice of contest more than two months after receipt of the notification. The Commission based its relaxation of the 15 working day notice of contest period on the ground that the notification form received by the employer failed to state that a notice of contest had to be filed within 15 working days. Such information normally is printed on the reverse side of the notification form. The Commission noted that the judge found the employer had chosen simply to ignore the failure-to-abate notification; the Commission also found supported by the record the judge's ruling that the employer had been informed of the procedure for contesting the original citation. The Commission nevertheless held the notification's lack of a statement concerning the 15 working day time period requirement a sufficient basis for relaxing that requirement and affording the employer a hearing on the merits "in the interest of justice." The Commission stated that in doing so its action was "consistent with the Commission's liberal policy of allowing employers a hearing in similar situations." The Commission's abandonment today of Wood Products and Florida Power makes a shambles of this "liberal policy."
[*15]
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The lead opinion cites two bases to support its disavowal of Woods Products and Florida Power. First, after acknowledging that the Act itself does not expressly require a notice of contest to be in writing, the lead opinion suggests that an employer's notice of contest nevertheless should be in writing because § 9(a) requires the Secretary's citations to be in written form and § 10 requires notices of proposed penalties to be sent by certified mail and employees' notices of contest to be "filed," thereby suggesting these notices must be written. n5 The lead opinion concludes from these provisions that "equal treatment" requires employers' notices of contest under § 10(a) also to be written. However, the fact that the Act requires citations, proposed penalties and employees' notices of contest to be written while remaining silent on the requisite form of employers' notices of contest tends to support the opposite conclusion. It is a basic principle of statutory construction that:
When the legislature has carefully employed a term in one section of a statute and has excluded it in another, it [*16] should not be implied where excluded.
Bolt v. Amercian Hydrocarbon Corp., 458 F.2d 229, 233 (5th Cir. 1972); accord, Federal Trade Commission v. Sun Oil Co., 371 U.S. 505, 514-515 (1963); Feldman v. Philadelphia National Bank, 408 F. Supp. 24, 34 (E.D. Pa. 1976); Commonwealth of Kentucky ex rel. Hancock v. Ruckelshaus, 362 F. Supp. 360, 365 (W.D. Ky. 1973). Thus, the fact that the Act explicitly requires certain items to be in writing while not expressing such a requirement as to employers' notices of contest supports, if anything, the conclusion that Congress intended that employers' notices of contest need not be written. n6
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n5 The majority also notes that both the Secretary and the Commission have adopted rules that contemplate a writing.
The Secretary's rule, 29 C.F.R. § 1903.17(a), provides in pertinent part:
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 panlty before the Review Commission. Such notice of intention to contest shall be postmarked within 15 working days of the receipt by the employer of the notice of proposed penalty.
While this rule provides useful guidance to employers, the Secretary cannot by rule limit the Commission's jurisdiction. J.D. Blum Construction Co., 76 OSAHRC 58/D14, 4 BNA OSHC 1255, 1976-77 CCH OSHD P20,735 (No. 3543, 1976). Hence, this rule cannot be considered an authoritative interpretation of § 10(a).
The Commission's rule, 29 C.F.R. § 2200.32, provides:
The Secretary shall, within 7 days of receipt of a notice of contest, transmit the original to the Commission, together with copies of all relevant documents.
While this rule contemplates that, at some point, any notice of contest will be reduced to writing, it is not inconsistent with Wood Products and Florida Power and Light, where the oral notices of contest were reduced to writing within a very short time. Moreover, it could hardly be argued that the short delay that resulted in those cases between the oral notices of contest and the written versions is inconsistent with the purposes of the Act. The Commission has recognized that much longer delays are excusable in a number of contexts. See Louisville and Nashville Railroad Company, 76 OSAHRC 141/A2, 4 BNA OSHC 1868, 1976-77 CCH OSHD P21,310 (No. 9740, 1976) (citation issued 86 days after inspection complies with "reasonable promptness" requirement of 29 U.S.C. 658(a)); Monroe & Sons, Inc., 77 OSAHRC 14/B7, 4 BNA OSHC 2016, 1976-77 CCH OSHD P21,470 (No. 6031, 1977), pet. for review filed, No. 77-3157 (6th Cir., March 16, 1977) (Commission can reinstate case that has become final order subject to "reasonable time" limitation of Fed. R. Civ. P. 60(b)); Jensen Construction Co. of Oklahoma, 77 OSAHRC 180/B1, 5 BNA OSHC 1906, 1977-78 CCH OSHD P22,215 (No. 12940, 1977) (Secretary's filing of complaint 28 days late is excused in light of absence of prejudice to employer); Seminole Distributors, Inc., supra, note 4.
n6 In Federal Trade Commission v. Sun Oil Co., supra, a case dealing with interpretation of the Clayton Act, the Supreme Court applied similar statutory construction. Addressing the definition of "competition" in § 2(b) of that Act, the Court stated:
Thus, since Congress demonstrated in the immediately preceding provision of the Act that it knew how to expand the applicable concept of competition beyond the sole level of the seller granting the discriminatory price, it is reasonable to conclude that like clarity of expression would be present in § 2(b) if the defense available thereunder were similarly intended to be broadly read to encompass, as is urged, the meeting of lower prices set not only by the offending seller's competitor, but also by the purchaser's competitor. There is no reason appearing on the face of the statute to assume that Congress intended to invoke by omission in § 2(b) the same broad meaning of competition or competitor which it explicitly provided by inclusion in § 2(a); the reasonable inference is quite the contrary.
371 U.S. 505, 514-515. Similarly, there is no reason to believe that Congress intended employers' notices of contest under § 10(a) of the Occupational Safety and Health Act to be in writing even though it failed to expressly state such a requirement, when in the previous section of the Act it conveyed its intention that citations be in written form by making explicit the requirement of a writing.
[*17]
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In candor, however, my examination of the provisions of the Act dealing with the issuance of citations and the filing of notices of contest leads me to the conclusion that the language of the various provisions provides little, if any, reliable evidence of the intent of Congress on this issue; indeed, I think it reasonable to infer that Congress did not explicitly consider this particular point, thus leaving the issue to be resolved administratively in conformity with the overall purposes of the Act. It is not enough, however, to say, as does the majority, that equal treatment of employers, employees, and the Secretary requires that an employer's oral notice of contest can never be accepted. The rights and responsibilities of these three entities are different and to speak of "equal treatment" in this context is meaningless. For example, the time constraints on the Secretary's actions are not jurisdictional, as is the 15-day contest period. Louisville and Nashville Railroad Co., supra, note 5; Jensen Construction Co. of Oklahoma, supra, note 5. Thus, the consequences to an employer of an [*18] untimely notice of contest are considerably more severe than those suffered by the Secretary if he issues a citation after an unreasonable delay; the employer is entirely denied a hearing while the Secretary suffers a sanction only if the employer is prejudiced, which will rarely occur.
The lead opinion also supports its disavowal of Wood Products and Florida Power by asserting that allowing an untimely notice of contest to toll the abatement period dilutes the Act's purpose of assuring safe and healthful working conditions. However, Wood Products and Florida Power do not permit untimely notices of contest; they merely recognize timely oral notices of contest to be valid in limited circumstances. Moreover, while the purposes of the Act are served by abatement of violations, they are not served by precluding the employers' right of contest and requiring employers to "abate" conditions which, if brought before the Commission, would not be found to constitute violations of the Act. Thus, it is difficult to see how the purposes of the Act are furthered by holding invalid timely oral notices of contest to the extent they have been recognized in Wood Products and [*19] Florida Power. n7
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n7 In an analogous context, the Commission has held that it may reopen a final order resulting from a contested case pursuant to Fed. R. Civ. P. 60(b). Monroe & Sons, Inc., supra, note 4. We noted there that a final order that was not meritorious did not serve the purposes of the Act because such an order would not protect employees but could lead to unnecessary reinspections and litigation.
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Since I believe Wood Products and Florida Power were correctly decided and the lead opinion does not persuade me otherwise, I do not join my colleagues in disavowing these decisions. However, I agree with the lead opinion's result in this case for the reasons I noted at the outset.