KIMBALL OFFICE FURNITURE, INC., A DIVISION OF JASPER CORPORATION
OSHRC Docket No. 9438-P
Occupational Safety and Health Review Commission
June 1, 1976
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Before BARNAKO, Chairman: MORAN and CLEARY, Commissioners.
COUNSEL:
Herman Grant, Regional Solicitor
Fred P. Bamberger, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
This case presents the issue of whether the administrative law judge properly granted a six-month extension for the abatement of an uncontested violation. Petitioner was cited, inter alia, for a non-serious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), in that its failure to install derailers on a railroad spur track, which it leased from a railroad company, was contrary to the requirements of 29 C.F.R. 1910.176(f). The Petitioner did not timely contest the citation, but did file a petition to modify the abatement date which was unopposed and granted. Subsequently, Petitioner filed a second petition to modify the abatement date. This petition was opposed by the Secretary of Labor and is the subject of this case. n1
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n1 The dissenting member does not act upon the petition; rather he would vacate the citation because he finds jurisdiction in the Department of Transportation. Readers of his dissent will recall that his is a minority view, and that the Commission has consistently held 29 U.S.C. 653(b)(1) to be exemptory rather than jurisdictional. See Belt Ry. Co. of Chicago, Dkt. 4616, BNA 3 OSHC 1612, CCH OSHD para. 19,243 (1975); Southern Pacific Transportation Company, 13 OSAHRC 258, BNA 2 OSHC 1313, CCH OSHD para. 19,054 (1974). The Commission's position has been recently affirmed. Southern Railway Co. v. OSHRC, No. 75-1055 (4th Cir., February 9, 1976).
The foundation of the dissenting view is in error for a second reason; it posits that a citation may be vacated in a modification of the abatement period proceeding. That position is not supported by any reason as to why 29 U.S.C. 659 should be so construed. It can be argued that a challenge to a citation can only be made during an original contest under 29 U.S.C. 659(a) or in a failure to abate proceeding under 29 U.S.C. 659(b). As to failure to abate proceedings see: York Metal Finishing Co., 7 OSAHRC 845, BNA 1 OSHC 1655, CCH OSHD para. 17,633; National Rlty. & C. Co., Inc., v. OSHRC, 489 F.2d 1257, 1264-65 n. 31 (D.C. Cir. 1973).
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The Judge extended the abatement date by six months from the date a final order is entered in the case. We affirm this disposition for all but one of the reasons the Judge assigns. n2 In so doing, we note that the Petitioner's reliance on the court of appeals decision in Anning-Johnson Co., et al. v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975) is misplaced. The Court's decision is limited on its face to situations involving subcontractors working at multi-employer construction sites. n3
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n2 The Judge relied in part on the administrative judge's decision in Anning-Johnson Co., 7 OSAHRC 271, 1 BNA OSHC 3331, CCH E.S.H.G. para. 17,296 (1974). Inasmuch as the 7th Circuit reversed that case on appeal, 516 F.2d 1081 (7th Cir. 1975), we do not adopt that reasoning contained in the Judge's decision.
n3 The dissenting Commissioner says that this sentence means that I would not extend that case beyond the construction industry. Of course, the sentence is not such a statement. The dissenting Commissioner neglects to address the threshhold question which is whether the Commission should follow the court's decision, and if so, to what extent. Petitioner, likewise, did not address the threshhold question. Am I to assume that the dissenting Commissioner does not know that the threshhold question is presently under consideration in other cases pending before the Commissioners?
The dissenting Commissioner goes on to say that he fails to see why the court's decision should not be extended unless, says he, the Commission imposes strict liability. As he knows the Commission does not impose strict liability, Engineers Construction Inc., Dkt. 3551, BNA 3 OSHC 1537, CCH OSHD para. 20,012 (1975); Ocean Electric Corp., Dkt. 5811, BNA 3 OSHC 1705, CCH OSHD para. 20,167 (1975). He gives no other reason.
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We note further that the situation presented by this case was avoidable had the Secretary cited the railroad consistent with his and our interpretation of 29 U.S.C. 653(b). n4
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n4 The dissenting member construes this sentence to mean more than it states. The reader should not thereby be misled into translating "avoidable" to mean that the railroad alone is responsible. At the very least the contract between petitioner and the railroad evinces a mutuality of obligations and responsibilities. It should also be noted than petitioner's employees as well as employees of the railroad may be affected by the safety condition involved in this case.
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Accordingly, we affirm the Judge's order. It is so ORDERED.
CONCURBY: CLEARY
CONCUR:
CLEARY, Commissioner, CONCURRING:
I concur in affirming the Administrative Law Judge's decision.
I.
On March 19, 1974, the Secretary issued a multiple-item citation to petitioner, n5 Kimball Office Furniture, Inc., a division [*4] of the Jasper Corporation. The citation in pertinent part set an abatement date of June 19, 1974. Petitioner's representative spent the next 15 working days checking with some suppliers the nature, cost, and effort of installation of the derail device required by 29 CFR § 1910.176(f). Petitioner filed no notice of contest, and the 15-working day period prescribed by section 10(a) expired on April 9, 1974. Consequently, the citation became by operation of law "a final order of the Commission and not subject to review by any court or agency."
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n5 The Judge inadvertently referred to Kimball as a "respondent."
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Thereafter, Kimball encountered what it thought to be difficulties in abatement. It accordingly submitted on June 18, 1974, an unopposed petition for extension of the abatement date to August 19, 1974. This was granted by this Commission. On August 14, 1974, almost five months after receipt of the citation, and still not having abated the violation, respondent submitted what it now understandably concedes to [*5] have been an invalid "notice of contest" letter. Judge Larkin granted Kimball's motion to treat the letter as a second petition for modification of the abatement date (PMA), an action which Kimball characterizes as "proper." Accordingly, as the Judge recognized (J.D. at 8), under the fourth sentence of section 10(c) of the Act, the only material issues of fact are whether: (1) petitioner-Kimball has made "a good faith effort to comply with the abatement requirements of [the] citation," and (2) "abatement has not been completed because of factors beyond [its] reasonable control." n6 There are no other material issues of fact in a PMA proceeding and the only relief permitted to an employer is affirmation or modification, but not vacation, of the abatement requirement. This is because the citation is a final order, and consequently not subject to vacation. n7 See Brennan v. Winters Battery Manufacturing Company, No. 75-1367 (6th Cir., December 19, 1975), reported in BNA 3 OSHC 1775, CCH 1975-76 OSHD para. 20,244, pet. for cert. filed, 44 U.S.L.W. 3550 (U.S., February 17, 1976) (No. 75-1162). The Act itself, in section 10(c), recognizes this, for in an enforcement [*6] proceeding, it permits us to affirm, modify or vacate the citation, but in a PMA proceeding, it permits only affirmation or modification of the abatement requirements. Accordingly, the "defenses" urged by Kimball are immaterial and its prayer for relief (that the citation be "withdrawn" and declared "null and void") is simply misdirected. Simply put, they cannot be properly entertained in a PMA proceeding. As we said in York Metal Finishing Co., 7 OSAHRC 845, BNA 1 OSHC 1655, CCH 1973-74 OSHD para. 17,633 (No. 245, April 8, 1975):
. . . the final order of the Commission as to the original citation and notification of proposed penalty will not be disturbed. Even if, in a failure to abate proceeding, the respondent [employer] were to prevail by proving that there was no violation originally, . . . we would not go behind that final order. To vacate the original citation would be to entertain a contest of the first citation outside the time allowed in section 10(a) of the Act. n8
Though nothing more need be said to dispose of this case, n9 I add that Kimball may not be entirely without a remedy. Under York Metal Finishing Co., 7 OSAHRC 845, BNA 1 OSHC 1655, CCH 1973-74 [*7] OSHD para. 17,633 (No. 245, April 8, 1974) and subsequent cases, it could have avoided additional penalties for failure to abate if such penalties had been proposed by the Secretary. It may also be that a Court of Appeals, in a contempt proceeding under the second portion of section 11(b), would likely weigh the good faith and merit of Kimball's claim in arriving at any penalty under section 17, as well as fashioning other remedial orders. n10 In addition, Kimball could arguably have sought relief on the narrow grounds set forth in Fed. R. Civ. P. 60(b), which section 12(g) of the Act (and Commission Rule 2(b), 29 CFR § 2200.2(b)), makes applicable to our proceedings. See Nabisco, Inc., No. 12460 (October 7, 1975) (Order Directing Review), reported at BNA 3 OSHC 1903 n. But see, Brennan v. O.S.H.R.C. and S. J. Otinger, Jr., Constr. Co., 502 F.2d 30 (5th Cir. 1974). Petitioner, however, has not sought to come within the narrow confines of the Rule, that requires, among other things, a motion for relief be filed within a "reasonable time."
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n6 Petitioner Kimball must bear the burden of proof. Section 10(a) of the Act; Commission Rule 73(c) (29 CFR § 2200.73(b)); 5 U.S.C. § 556(d).
n7 Kimball could have litigated the validity of the citation, or the reasonableness of its abatement period, or both, by filing a notice of contest of the citation under section 10(a) and the first sentence of section 10(c) of the Act. This was not done.
n8 In York Metal our order was confined to the enforceability of the subsequent additional proposed penalties for failure to abate, and did not vacate any part of the original citation or proposed penalties. (Footnote added).
n9 The Secretary does not challenge the correctness of the Judge's findings that "[petitioner] has shown a good faith effort to comply with the abatement requirement and that abatement has not been completed because of factors beyond its reasonable control," nor does the Secretary dispute the Judge's decision to extend the abatement date for six months. Therefore, at least to this extent, the Judge's order should be affirmed. Also, under Commission precedent, the question may be moot because the six-month extension period has long passed. Cf. Coleman Company, Inc., BNA 3 OSHC 1937, CCH 1975-76 OSHD para. 20,344 (No. 7885-P, January 26, 1976). What is not moot is the petitioner's request for further relief, but which in this proceeding, we have no authority to grant.
n10 Any application of the principles of York Metal to a citation for a "repeated" violation would not seem to affect the finality of the original citation. Characterization of a violation as "repeated" has significance only for resulting assessment.
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II.
The Chairman would adopt the Judge's decision, which assumes arguendo our authority to grant this relief in a PMA proceeding, and finds that relief is unwarranted. Judge Larkin and he are both unimpressed by respondent's claims. Although it does not form the basis for my concurrence, I note that I would if necessary join in their evaluation of Kimball's theories. I prefer, however, a more comprehensive examination of them.
Kimball claims that it need not abate because section 4(b)(1) of the Act exempts from the coverage of the Act "all matters related or pertaining to safety upon railroads." It is urged that the mere possession by the Department of Transportation of statutory authority to issue regulations affecting occupational safety and health triggers the exemption. No claim is made that such authority has been exercised, or that any such exercise affects the specific working conditions at issue. Under these circumstances, controlling percedent requires us to hold that no exemption has been proved. Southern Pacific Transportation Company, 13 OSAHRC 258, BNA 2 OSHC 1313, CCH 1974-75 [*9] OSHD para. 19,054 (No. 1348, November 15, 1974), approved, Southern Railway Company v. O.S.H.R.C., No. 75-1055 (4th Cir., February 9, 1976). Petitioner's "impossibility" theory, discussed later in this opinion, is also undercut by these holdings.
Kimball also makes the sweeping assertion that "[n]either the Commission nor the Secretary are empowered by the Act . . . to override prior existing legal contracts and prior State laws." It is stated that this Commission may neither set aside "valid" contracts nor "enforce [federal] regulations contrary to prior existing State law." Kimball states that it "know[s] of no authority which would permit Congress to indirectly or directly override a State statute . . . or impair the obligation of a prior valid written agreement . . . ." The obvious must be stated. Article VI, Clause 2, of the Constitution of the United States, provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
In Nash v. Florida Industrial [*10] Commission, 389 U.S. 235 (1967), Mr. Justice Black, speaking for a unanimous Court and following a long line of authority, held that the States were devoid of power to retard, impede, burden, or in any manner control, the operations of federal law.
In Davis v. Elmira Savings Bank, 161 U.S. 275, 16 S.Ct. 502, 40 L.Ed. 700 decided in 1896, this Court declared that a state law cannot stand that either "frustrates the purpose of the national legislation or impairs the efficiency of those agencies of the Federal government to discharge the duties, for the performance of which they were created." 161 U.S., at 283, 16 S.Ct. at 503. And again in Hill v. State of Florida ex rel. Watson, 325 U.S. 538, 542-543, 65 S.Ct. 1373, 1375, 89 L.Ed. 1782, decided in 1945, this Court struck down a labor regulation saying that it stood "'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. . . .'" 325 U.S., at 542, 65 S.Ct. at 1375.
389 U.S. at 240. Accordingly, no state law may impair the enforcement of federal regulations promulgated under a grant of Federal power. See e.g., Free v. Bland, 369 U.S. 663 (1962) (Treasury regulations). Section [*11] 10 of Article 1 of the Constitution, which forbids the states from passing laws impairing the obligations of contracts has no force in this case. By its terms, it operates as a restriction on the operation of state law, and not upon the Congress. State of New York v. United States, 257 U.S. 591 (1922). Whatever measure of protection exists against contract impairment by the federal government is given by the due process clause of the Fifth Amendment. John McShain, v. District of Columbia, 205 F.2d 882 (D.C. Cir. 1953). It is nevertheless well-settled that private contracts can neither fetter nor frustrate the Constitutional authority of Congress to regulate interstate commerce, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO v. Connally, 337 F. Supp. 737 (D.C.D.C. 1971) (three judge court, per Leventhal, J.), for "[i]mmunity from federal regulation is not gained through forehanded contracts." Fleming v. Rhodes, 331 U.S. 100, 107 (1947). As the First Circuit cogently stated in South Terminal Corp. v. Environmental Protection Agency, 504 F.2d 646 (1st Cir. 1974):
An otherwise valid governmental regulation does not become impermissible [*12] merely because an object of the regulation is a party to some contracts. Nor can a party make otherwise unlawful action permissible merely by making a contract about it.
504 F.2d at 680. n11 Kimball's attacks on the legal underpinnings of Judge Larkin's order are clearly without substance.
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n11 If any significance is to be accorded to previous private contracts, it would relate only to the formulation of policy by the administrative officials entrusted with the execution of the Act, and not to questions of statutory or constitutional law. See Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO v. Connally, 337 F. Supp. 737, 764 (D.C.D.C. 1971) (per Leventhal, J.).
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Kimball also claims that compliance is impossible. It is now well-settled, by both Commission and judicial decisions, that this claim, if it is to be recognized at all, n12 is at most an affirmative defense to be proved by the employer, and is not easily established. See e.g., Diebold, Inc., BNA 3 OSHC 1897, CCH 1975-76 [*13] OSHD para. 20,233 (Nos. 6767 etc., January 22, 1976); Clark Equipment Company, BNA 3 OSHC 1834, CCH 1975-76 OSHD para. 20,238 (No. 7925, December 22, 1975) and cases cited. The existence of a supposedly inhibitory contract obviously does not establish the defense. Kimball's difficulties are of its own making. In any event, Kimball may not by contract evade its responsibilities under the Act by surrendering its control over its employees' safety and health. Accordingly, Judge Larkin was clearly correct in holding that Kimball cannot hide behind its contract, n13 and it must be concluded that even if Kimball's assessment of the facts were accurate, an impossibility defense could not be established thereby.
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n12 My own view is that we should ordinarily refuse to entertain any impossibility defense until the variance procedures provided by the Act have been exhausted by an employer. Deemer Steel Casting Company, BNA 2 OSHC 1577, CCH 1974-75 OSHD para. 19,221 (No. 2792, January 23, 1975). Cf. G.A. Hormel & Co., BNA 2 OSHC 1190, CCH 1974-75 OSHD para. 18,685 (No. 1410, September 20, 1974), pet. for reconsideration denied, BNA 2 1282, CCH 1974-75 OSHD para. 18,881 (October 21, 1974). In this way, employees would be required to comply either with the standard, or with a variance order requiring a place of employment as safe and healthful as that which compliance with the standard would provide.
n13 See Theodore D. Bross Line Construction Company, BNA 3 OSHC 1935, CCH 1975-76 OSHD paras. 20,353, 18,831 (No. 5421, January 27, 1976); R.H. Bishop Company, 8 OSAHRC 930, BNA 1 OSHC 1767, CCH 1973-74 OSHD para. 17,930 (No. 637, May 30, 1974); Robert E. Lee Plumbers, Inc., 17 OSAHRC 639, BNA 3 OSHC 1151, CCH 1974-75 OSHD para. 19,594 (No. 2431, May 2, 1975) (concurring opinion.
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Judge Larkin correctly pointed out that Kimball is bound by its contract to conform to "all requirements of law, all administrative rules, regulations and orders. . . ." Also, a derail device is hardly an "obstruction" within the meaning of the contract. True, Indiana law places title to the siding in the carrier, but the railroad leased the siding back to Kimball and the terms of the lease would therefore control. In any event, state property statutes cannot control the enforcement of the Act. Moreover, there is no evidence that resort to other means of transportation is physically impossible, n14 and there is evidence that Kimball's contract expires every six months. Hence, the most it need do is simply not renew it, or negotiate new terms.
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n14 Kimball also misconceives one of Judge Larkin's findings of fact. The Judge found that "abatement has not been completed because of factors beyond [Kimball's] reasonable control." (Emphasis added). Judge Larkin was only referring to present and past conditions which had so far prevented completion of abatement; the Judge also found that abatement could nevertheless be accomplished if Kimball did more on behalf of its employees.
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I join in Chairman Barnako's view that petitioner's reliance on the narrow holding in Anning-Johnson Company v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975) is misplaced for the reasons assigned in the text of his opinion. n15 I do not, however, join in his suggestion that the Secretary was derelict in also failing to cite the railroad. Under Commission precedent at the time the Secretary would have had to have shown actual exposure of the railroad's employees. The railroad could not then have been ordered to abate solely for the safety of Kimball's employees. n16
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n15 I do not join in footnote two or the first paragraph of footnote three of his opinion. It is enough here to note that the Seventh Circuit's decision concerned unique problems of a multi-employer construction site that do not appear here. Anning-Johnson is accordingly inapposite. The resolution of the question of whether we should follow it as a matter of Commission policy is therefore not necessary for this decision.
n16 See Gilles and Cotting, 4 OSAHRC 1080, BNA 1 OSHC 1388, CCH 1971-73 OSHD para. 16,763 (No. 504, October 9, 1973).
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DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
Because the Secretary of Labor lacked statutory authority to issue the citation for noncompliance with 29 C.F.R. § 1910.176(f) under the circumstances of this case, any abatement date fixed for this alleged violation is void and unenforceable.
Petitioner Kimball, a manufacturer and retailer of office furniture and television cabinets, contracted with the Louisville and Nashville Railroad (L & N) concerning the use and operation of L & N's railroad tracks or "siding" which was located on Kimball's premises. n17 Pursuant thereto, Kimball used the siding for loading and unloading. The maintenance and repair of the siding, however, was an exclusive obligation of L & N, who also had "full control of the operation of the siding."
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n17 The petitioner and L & N, successors of the original parties, are bound by the contract through its continuation clause.
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As a result of an inspection, Kimball was cited [*17] for numerous non-serious violations, including item one of the citation for failure to comply with 29 C.F.R. § 1910.176(f) because no derailer was provided on the siding. The citation was not contested and became a final order of this Commission pursuant to 29 U.S.C. § 659(a). Because of the abatement requirement, Kimball contacted L & N in conformance with its contractual obligations for permission to install derailers. Permission was denied. A hearing followed as the result of a letter submitted by Kimball which has been treated as a timely petition for modification of abatement.
Judge Larkin found that Kimball had made a good faith effort to comply with the citation's abatement requirements and that abatement had not been accomplished due to factors beyond its reasonable control. In considering Kimball's contention that it was caught "between a rock and a hard spot," he agreed that the situation presented a "nightmare." I agree with this assessment, but not with the Judge's disposition.
The responsible party in this case is L & N, and it is the employer who should have been cited in this case. However, for the reasons set forth in my separate opinion in Secretary v. Belt [*18] Railway Company of Chicago, 20 OSAHRC 568 (1975), 29 U.S.C. § 653(b)(1) provides an industry-wide exemption for the railroad industry from the jurisdiction of the Occupational Safety and Health Act of 1970. As I indicated in that opinion, jurisdiction over railroad safety rests solely with the Department of Transportation. Therefore, that department is responsible for the initiation of corrective action against L & N.
Chairman Barnako indicates agreement with the conclusion that L & N is the responsible party, but, for reasons not apparent in his opinion, requires Kimball to abate the alleged violative condition. The injustice in that action is apparent on its face and is not obviated by the double talk in footnote 4. Moreover, it is contrary to the well-accepted principle that the Act does not impose absolute liability on employers. See, e.g., Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975); National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257 (D.C. Cir. 1973).
In recognition of the Act's purpose of achieving compliance with safety standards and the abatement of unsafe conditions, rather [*19] than punishment of employers, it was held in Anning-Johnson Company v. OSAHRC, 516 F.2d 1081, 1091 (7th Cir. 1975), that employers are not liable for "conditions which they neither created, caused, nor are otherwise responsible for." I am unable to understand why that sound rule should only apply to "multi-employer construction sites" as advocated by Chairman Barnako, unless one concludes, contrary to congressional intent, that the Act imposes strict liability on employers. n18
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n18 Cert only, a person of ordinary intelligence would conclude that this means that I would apply the Anning-Johnson rationale in this case. Apparently, Commissioner Cleary has so concluded because he declines in footnote 15 to associate himself with Chairman Barnako's remarks in the first paragraph of footnote 3. If Chairman Barnako does not reject the Anning-Johnson rationale because this is not a multi-employer construction site, why does he reject it? Furthermore, the facts that "the threshold question is presently under consideration in other cases pending before the Commissioners" as asserted in footnote 3, supra, does not advise the respondent of why his reliance on Anning-Johnson is misplaced. The parties to this case are entitled to a disposition thereon in accordance with the applicable law. They should not have to wait for reasons simply because similar questions are presently under consideration in other cases.
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What now is Kimball supposed to do? Commissioner Cleary advises, in effect, the termination of the contract and "resort to other means of transportation" with absolutely no record evidence or knowledge as to whether such recourse is feasible. The Judge advises Kimball to "take legal action to determine its right under the lease to conform with the Act." Both of these suggestions are contrary to the principles enunciated in the Anning-Johnson case that an employer need not terminate his operations to abate a minor hazard over which he has no control (516 F.2d 1090) and that it is undesirable and contrary to congressional intent "[t]o require the parties in an ongoing relationship to resort to the courts to accomplish . . . fixing final responsibility for the abatement of minor hazards." (516 F.2d 1089.)
Irrespective of the finality provisions of 29 U.S.C.§ 659(a), the citation should be vacated in this case because it is jurisdictionally defective in that jurisdiction over the responsible employer is vested in the Department of Transportation. It is well-settled that the Commission may raise jurisdictional [*21] issues at any time and even on its own motion. n19 See Clark v. Paul Gray, Inc., 306 U.S. 583, 588 (1939); Hackner v. Guaranty Trust Company of New York, 117 F.2d 95 (2d Cir. 1941); Secretary v. Phoenix, Inc., Legore Quarries Division, 1 OSAHRC 355 (1972); Fed. R. Civ. P. 12(h)(3).
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n19 In regard to the remarks in the second paragraph of footnote 1, I must conclude that Chairman Barnako has failed to see this sentence and the citation of authority that follows it.
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One further matter in the lead opinion merits comment. In footnote 3 supra, Mr. Barnako replies to my expressed concern about applicability of a theory of strict liability by stating:
"As he [Moran] knows the Commission does not impose strict liability. Engineers Construction Inc., Dkt. 3551 . . . ."
I thought I knew - since I was the author of the majority opinion in the cited cases [Secretary v. Engineers Construction, Incorporated, 20 OSAHRC 348 (1975)]. However, I don't think it is possible to know where Mr. Barnako stands [*22] on this issue at any one time. For example, it has recently been called to my attention that on November 19, 1975, nearly two months after issuance of the Engineers Construction decision, the following letter from Messrs. Barnako and Cleary was submitted to the U.S. Court of Appeals for the Fifth Circuit during oral argument in the case of Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564 (5th Cir. 1976):
Allen Sachsel, Esq., U.S. Department of Justice, Civil Division, Appellate Section, Washington, D.C. 20530
Dear Mr. Sachsel:
You have requested an opinion whether the Commission's decision in Engineers Construction, Inc., Docket No. 3551 of September 29, 1975, has the effect of overruling the Commission's prior decisions to the effect that the knowledge of a supervisory employee will be imputed to his employer for the purpose of establishing a violation under the Occupational Safety and Health Act.
To remove the uncertainty resulting from this issue, the Commission took up this matter in its meeting of November 18, 1975. The members present were Chairman Barnako, who assented to the lead opinion in Engineers, Inc., and Commissioner Cleary, the dissenting [*23] member. It was the opinion of the members that the Commission adheres to its general rule that the actions of a supervisory employee are imputable to his employer. Horne Plumbing & Heating Company, 12 OSAHRC 155 1974; Structural Steel Erectors, Inc., dba Peco Steel-Arizona, 15 OSAHRC 141 1975 and Floyd S. Pike, Electrical Constructors, Inc., 15 OSAHRC 302 1975.
To the extent that Engineers, Inc. may be read to articulate any different rule, Chairman Barnako would view Engineers, Inc. as articulating a rule of prevent-ability consistent with National Realty & Constr., Inc. v. Brennan, 489 F.2d 1257 (D.C. Cir. 1973) and Standard Glass Co., Inc., 1 OSAHRC 594 1972. Commissioner Cleary adheres to his views concerning the application of the general rule in Engineers, Inc.
Very truly yours,
Frank R. Barnako, Chairman
Timothy F. Cleary, Commissioner
Persons interested in knowing Chairman Barnako's views on any strict liability theory can compare his statements in the foregoing letter with the Engineers Construction decision and the decision in Secretary v. Horne Plumbing & Heating Company, 12 OSAHRC 155 (1974). I have done so but must confess [*24] that I still cannot understand his views.
In view of the numerous references in this decision to Judge Larkin's decision, the same is attached hereto as Appendix A.
APPENDIX A
ORDER AND DECISION
Ronald L. Barson, for the United States Department of Labor
Fred P. Bamberger, for the Respondent, Kimball Office Furniture, Inc.
LARKIN, Judge
On March 19, 1974, the Occupational Safety and Health Administration issued a citation to respondent alleging as one of several items that respondent failed to provide a derail as specified in 29 CFR 1910.176(f) for protection of employees working on or in railroad cars. Respondent was given until June 19, 1974, to correct the condition. On June 12, 1974, respondent's Manager of Materials wrote a letter to the U.S. Department of Labor (referred to as the Secretary) requesting an extension of time from June 12 to August 19, 1974, to correct the alleged violation. This request was referred to the Commission and granted by it on July 18, 1974. On August 14, 1974, respondent's Manager of Materials again wrote to the Secretary as follows:
"we are contesting the citation issued against the alleged violation of 29 CFR 1910.176F noted in your item [*25] #1 OSHA #M-8120.
We recognize the late date of contest, however, due to circumstances beyond our control it now becomes necessary to exercise our privilege under the Act.
We have, from the earliest date of this citation, fully intended to comply with this order, and proceeded to procure the equipment necessary to install the D-rail on the L & N track.
We have been refused permission by the L & N to install D-rails and find ourselves between enforcement from OSHA on one hand and potential liability from the railroad on the other.
Inasmuch as the compliance date is very close, we would appreciate your early attention to this matter."
Respondent moves for acceptance of the foregoing letter as a petition for extension of time to correct the condition. The Secretary moves to dismiss the letter as an untimely notice of contest.
The Secretary contends that respondent intended that its letter be treated as a notice of contest and that respondent is bound by its original intention. He relies upon the case of Brennan v. Occupational Safety and Health Review Commission and Bill Echols Trucking Company 487 F.2d 230 (CA 5, 1973).
Respondent argues that the Commission has absolue [*26] discretion as to how it shall treat letters concerning filing form. Respondent relies also upon Bill Echols Trucking Company, supra.
It is clear under section 10(a) of the Act and the Bill Echols Trucking Company decision that if the letter is treated solely as a notice of contest, it must be dismissed as untimely. The more difficult question is whether the letter can and should be treated as a petition for modification of the abatement requirement of the citation.
If the letter can be treated as a petition for modification of abatement, then it was timely filed as it was filed within the period as extended on the basis of the June 12 letter. There are recognizable distinguishing circumstances between the present case and the Bill Echols Trucking Company decision. The regulation has since been changed and now provides only:
"Except as provided herein, there are no specific requirements as to the form of any pleading. A pleading is simply required to contain a caption sufficient to identify the parties in accordance with Rule 31 of this subpart, which shall include the Commission's docket number, if assigned, and a clear and plain statement of the relief that is [*27] sought, together with the grounds therefore." 29 CFR 2200.30.
Gone is the language relied heavily upon in the Bill Echols Trucking Company decision that:
"'(i)n its absolute discretion, and without affirmative action by order or otherwise, the Commission or the Examiner may permit the filing of pleadings or other documents which it deems to comply substantially with. . .' the regulations concerning form, filing, and service. 29 CFR 2200.7(b)(4)."
As a matter of practice, the form of respondent's letter in the present case is typical of that usually accepted by the Commission as a petition for modification of abatement. The employer writes the Secretary requesting additional time to correct the violation and this letter is forwarded by the Secretary to the Commission. The first document, form wise conforming with the requirements of 29 CFR 2200.30(a) is the Secretary's answer. Hence, usual practice or precedent has been written into 29 CFR 2200.30(a) recognizing a very liberal application in treating very informal letters as petitions for modification of abatement periods. Also established in the law as to administrative proceedings is the proposition that:
"So long as [*28] fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue. This follows from the familiar rule that administrative pleadings are very liberally construed and very easily amended. The rule has particular pertinence here, for citations under the 1970 Act are drafted by non-legal personnel, acting with necessary dispatch." National Realty and Construction Company, Inc. v. OSAHRC 489 F.2d. 1257 (D.C. Cir. 1973).
The letter comment as to non-legal personnel applies to the present case as the letter was drafted by respondent's "Materials Manager." Lay practice before the Commission is not unusual as 29 CFR 2200.22(d) provides "Nothing contained herein shall be construed to require any representative to be an attorney at law."
Also, it is not unusual as a matter of practice before the Commission to allow the Secretary to rewrite his citation by his pleadings. Perhaps, the best example is the case of J. L. Mabry Grading, Inc. 9 OSAHRC 108 (April 27, 1973). In the Mabry case, the Secretary set forth in the citation a regulation that had not become law [*29] under the procedures prescribed in section 6(a) of the Act. The Commission permitted an amended complaint to cite a different regulation that would also be applicable to the factual situation. Although much emphasis is placed upon the fact that the Act was passed to protect employees, such reliance standing along should not permit the application of the law to beome prejudicial and a "one way street" solely because of the party's identity or status. A legal right, if not equally applied, irrespective of the status of a party, destroys respect for the law and ultimately creates lawlessness. It gnaws at the fundamentals necessary to sustain a democracy.
The respondent in the present case finds itself in a situation of being "between a rock and a hard spot." It acquired the equipment to abate, but was denied the right by the owner of the railroad siding. Section 17(d) provides a penalty of up to $1,000 a day for failure to correct a violation. If respondent's letter of August 14 is not treated as a petition for modification of abatement, it could be subjected to the penalty provided in section 17(d). Such period would run from August 19, 1974, and theoretically respondent could [*30] be liable for penalties exceeding $200,000. Thus, a condition for which no penalty was proposed in the citation becomes a "nightmare."
In view of the precedent written into 29 CFR 2200.30(a) in treating very informal letters as petitions for modification of abatement periods; the fair notice doctrine recognized in administrative proceedings permitting an issue to be decided not even raised by pleadings; and the very liberal right to amend pleadings under the Federal Rules; it is held that respondent's letter of August 17, 1974, was timely filed and may be treated as a petition for modification of the abatement period set forth in the citation issued on March 19, 1974. Cf. J.L. Mabry Grading, Inc., supra.
Petition To Extend Time To Correct Item 1 of Citation Issued On March 19, 1974.
Section 10(c) of the Act provides in part:
"Upon a showing by an employer of a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control, the Secretary (interpreted by the Commission for Congress to have intended it instead of the Secretary -- see H.K. Porter Company, Inc. 13 OSAHRC [*31] 636 (1974) after an opportunity for a hearing * * * shall issue an order affirming or modifying the abatement requirements in such citation."
Respondent was cited for failure to provide a derail as specified in 29 CFR 1910.176(f) for protection of employees working on or in railroad cars. The respondent consulted with suppliers of derail devices but upon contacting the Louisville and Nashville Railroad Company, respondent was advised by letter by the latter in part as follows:
"It is my understanding that the Borden Cabinet Corporation has been cited by an Inspector representing the U.S. Department of Labor's Occupational Safety and Health Administration for violation of certain O.S.H.A. Standards by failing to provide derails on the L & N industrial spur tracts servicing your plant at Borden, Indiana. Since the spur tracts in question are the property of the L & N Railroad, I am at a considerable loss to see how your company could be held responsible for an alleged safety infraction in this regard. Under the circumstances, I suggest that the ultimate decision of whether derails will or will not be provided on these tracts rests with the L & N Railroad."
Section [*32] K of the Indiana Code, I.C. 1971 - 8 - 3 - 1 - 1; Burn's 55-101 provides in part ". . . That the title to any such siding shall remain in the carrier. . ."
Respondent's lease provides in part:
"Monon (now L & N Railroad) shall have full control of the operation of the siding . . . and shall have the right to use it for general railroad purposes where such use will not unreasonably interfere with the handling of the freight business of the industry (respondent) . . ."
* * *
". . . the industry (respondent) further agrees to comply with all reasonable rules and regulations of (L & N), all requirements of law, all administrative rules, regulations and orders, and all municipal ordinances, relating to clearances, the use of the siding, the shipping and receiving of freight, and the loading and unloading of cars; and, in any event, the industry (respondent) agrees that it will not place or permit any obstruction or obstacle within eight (8) feet from the center line of any tract in the siding . . . Nothing in this paragraph shall be construed as giving the industry (respondent) a right or privilege to place obstructions or obstacles of any kind or character upon the premises of Monon [*33] (L & N)."
Respondent argues that it is exonerated from complying with the regulation due to its agreement with the railroad. Assuming that it can raise this issue even though the citation has become final under section 10(a) of the Act, Cf. York Metal Finishing Co. 7 OSAHRC 845 (1974) it is concluded that respondent has failed to prove that it can not comply with the regulation. The contract provides that respondent must conform with "all requirements of law, all administrative rules, regulations and orders . . ." Respondent has not pursued its right under this provision of the contract. Moreover, respondent has not cited any cases to support the proposition it can hide behind the contract to avoid compliance. The Commission has ruled that a contract between prime contractor and sub-contractor as to rights between the two, can not be relied upon by the subcontractor as a defense for failure to conform with a regulation under the Act. Cf. Anning-Johnson Company, 7 OSAHRC 271 (1974) Appeal filed May 13, 1974, CA-7 No. 74-1382.
The trial of the case was originally set for October 29, 1974, and continued as the parties felt that the matter could be settled by working [*34] out an agreeable arrangement with the railroad. These attempts proved unsuccessful. Respondent is willing to apply the derail if permitted by L & N. L & N refuses apparently taking the position that the O.S.H.A. has no jurisdiction over railroads and that such jurisdiction rests with the Department of Transportation. The Review Commission has ruled that the Act applies to the railroad industry. Southern Pacific Railroad 13 OSAHRC 258 (1974).
Be that as it may, the issue pending is whether respondent has shown ". . . a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control. . ." as provided in section 10(c) of the Act.
It is concluded that respondent has carried its burden of proof and is entitled to an extension of time to abate the condition. Respondent is granted a six month extension from the date that this decision becomes final. In granting such extension, it is emphasized to respondent that it cannot continue to hide behind its agreement with the railroad as an excuse for failure to comply with the Act. During the extension period, respondent must [*35] either work out an agreement with the railroad to permit installation of the derail device or else take legal action to determine its right under the lease to conform with the Act. The Secretary may want to consider his right to cite the railroad as owner of the siding as in violation of the Act for failure of it to install a derail device to protect respondent's employees. See and Cf. Brennan v. O.S.A.H.R.C. and Underhill Construction Corporation and Dic Concrete Corp. (Ca. 2, March 10, 1975) (Docket Nos. 74-1579, 74-1568).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Respondent is engaged in the manufacture and sale of office furniture and television cabinets at State Road 60, Borden, Indiana. Respondent is an employer engaged in a business affecting interstate commerce as defined under section 3(3) of the Act.
2. On March 19, 1974, respondent was issued a citation by the Secretary for failure to provide a derail on a railroad siding serving its plant as required by 29 CFR 1910.176(f). Respondent was given until June 19, 1974, to correct the condition. Respondent failed to contest the citation and it became a final order of the Commission pursuant to [*36] section 10(a) of the Act. By letter of June 12, 1974, respondent's manager of materials wrote to the Secretary requesting an extension of time to August 19, 1974, within which to correct the violation. This request was granted on July 18, 1974, by the Review Commission.
3. By letter of August 14, 1974, respondent's manager of materials wrote the Secretary purporting to contest the item in the citation and requested immediate action as its time within which to correct the condition would expire on August 19, 1974. At the trial on January 15, 1975, respondent moved to have the letter treated as a petition for extension of time to correct the condition. This motion was granted.
4. After receiving the citation, respondent thought its employees contacted a supplier of derail devices to obtain cost and other data as to installation of the device. The employee also contacted the railroad owning the siding for permission to install the device. The railroad denied respondent this right.
5. Respondent has shown a good faith effort to comply with the abatement requirement and that the abatement has not been completed because of factors beyond its reasonable control.
Wherefore it [*37] is ORDERED:
The time within which respondent must correct the condition set forth as Item 1 in the citation issued on March 19, 1974, is extended from August 19, 1974, to the date occurring six months from the date this order becomes final.
Dated this 5th day of May, 1975.
JOHN J. LARKIN, Judge OSAHRC