April 23, 1974

Van Namee, Commissioner:

        This matter is before the Commission on my order directing review of a dispositive procedural ruling  made by Judge David H. Harris. We have reviewed the record. For the reasons given below, we reverse and remand.

        On July 31, 1972, Complainant issued his citation whereby he alleged that Respondent had committed 12 non-serious violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter “the Act”). At the same time he issued a notification of proposed penalties.

        On August 16, 1 Respondent advised Complainant’s representative, in writing, as follows:


In Regard [sic] to our citation, dated July 31, 1972, I wish to advise you that all violations are being or have been corrected, with the exception of number 10” Washroom![sic] Failure to provide door interlock on American cascade tumbler/washer.

We have contacted the Walsh Company and American Cascade and have been unable to divise [sic] a way of doing this.  We would appreciate any suggestions or diagrams that you can supply us.


Thereafter, Complainant apparently demanded payment of the proposed penalty because August 25 Respondent wrote the following to Complainant:


In response to your certified letter which stated the proposed $400.00 penalty had become a final order of the Occupational Safety and Health Review Commission.  I ask you to refer to our letter of contestment which I found was misinterpreted. We were contesting eleven items instead of just the American Cascade (number 10).


On September 14 Complainant’s Regional Solicitor forwarded both of Respondent’s letters to the Commission.  In his opinion, , the letter dated August 16 was not a notice of contest. The matter was then referred to Judge Harris.  The referral notice indicated that the Area Director had untimely forwarded a notice of contest (Commission Rule 32)and requested that the Judge rule either to accept jurisdiction or vacate the citation for violation of the Commission rule.

On January 23, 1973, Judge Harris made his ruling.  He noted that the letter of August 16, 1972, was confusing and could be construed as a confession of a violation.  However, he held that it was a notice of contest and that Complainant had not forwarded it within the time specified by our rule.  As required by our then existing precedents he vacated the citation and proposed penalties.

        Thereafter, we indicated that dismissal is an extreme sanction and should not be employed for a procedural default absent a showing of prejudice.  J. Dale Wilson, OSHRC Docket No. 1625, BNA 1 OSHC 1146, CCH Employ. S. & H. Guide, para. 15486 (Rev. Com’n. 1973) ADM Grain Co. OSHARC Docket No. 1767, BNA 1 OSHC 1148, CCH Employ. S.& H. Guide para. 15, 487 (Rev. Com’n. 1973). See also: Brennan v. O.S.H.R.C. & Bill Echols Trucking Company, 487 F.2d 230, 236 (5th Cir. 1973).  Accordingly, we will reinstate the citation and proposed penalties.  However, it would not be appropriate to affirm the citation.

        Section 9(a)2 provides that “[e]ach citation shall … describe … the nature of the violation … [and] shall fix a reasonable time for the abatement of the violation.”  Section 10(a)3 provides that after issuance of the citation an employer upon receipt of a notification of proposed penalties has 15 working days “within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty.”  Since a citation includes two elements and since section 10(a) does not distinguish between elements a notice of contest filed as to either element is roughly sufficient to bring both into contest.  Moreover, it would be difficult if not impossible to separate the elements.  This is so because resolution of the issue of what is the reasonable time for abatement will necessarily require proof of facts concerning the nature of the violation.
        We now turn to the question of whether Respondent has filed a notice of contest in this case.  The rule is that writings filed with the Complainant during the 15 day working day period specified by section 10(a) are to be given “liberal interpretation.” Brennan v. O.S.H.R.C. & Bill Echols Trucking Company, supra, at 234.  In this case, Complainant would have required abatement of item 10 by August 25.  Respondent’s timely reply was that after seeking assistance as it did not know how to abate item 10.  Clearly, Respondent was in the position of not being able to abate by the specified date. 4 Under the circumstances and in view of this rule, we believe that Respondent, by its letter of August 126, was saying that the abatement period for item 10 is unreasonable.  Accordingly, the letter is a notice of contest of that item.

        We turn now to the letter of August 25.  By its terms it clearly is a notice of contest.  However, we are unable to determine whether it was timely filed.  The record is silent as regards to the date Respondent received the notification and proposed penalties. Under the circumstances the parties should be heard on the issue.  And in order to avoid further delay Respondent should be afforded an opportunity for a hearing on the merits if there is any about concerning the question of the timeliness of the letter of August 25.

        Accordingly, the decision to vacate is reversed, and the matter is remanded for further proceedings consistent with this decision.  It is so ORDERED.

Concurring Opinion

Cleary, Commissioner, concurring:

        I concur in Commissioner Van Namee’s opinion.  I add, however,  that it is difficult to determine in a case like this whether or not the notice of contest has been filed concerning reasonableness of an abatement period prescribed in a citation.  Until a notice of contest is filed, or until 15 working-days expire from the receipt of the Secretary’s allegation by the employer, it would seem that the Secretary of Labor would have the power to amend his own citation with respect to an abatement period.

        In making the determination, it is proper to consider  the writing in its most favorable light.  Florida East Coast Properties, Inc., No. 2345 (February 5, 1974).  This does not mean, however, as the Fifth Circuit cautioned in  Brennan v. O.S.H.R.C. & Bill Echols Trucking, Inc., 487 F.2d 230, 234 (1973), that the Commission is empowered to say that “night is day”, i.e. that a contest exists where plainly it does not.  In this case the respondent’s subsequent letter of August 25th, suggests that at least an initial contest as to the abatement of item no. 10 was intended, and perhaps more.  Moreover, the initial letter may have been filed too late within the fifteen-day period to permit timely and effective relief from the Secretary.  This raises doubt as to whether relief from the Secretary was really sought in the first place.

        Because the short fifteen-day filing requirement is jurisdictional, I am inclined to resolve the doubt in favor of the respondent.  Also, because of the shortness of the contest period, I readily concur with Commissioner Van Namee’s order to remand the case to determine whether or not the August 25thletter was also timely filed as a notice of contest.

        Finally, holding that a contest of an abatement period prescribed in the citation also puts in issue the portion of citation alleging the violation to be abated is not inconsistent with Florida East Coast Properties, Inc., supra.

        That decision held that a contest of a proposed penalty did not put in issue the citation itself, and accordingly there was no reason to toll the abatement of the hazards that were the subject of the citation.  Under the terms of section 10 of the Act there must be a tolling of the abatement period in issue that is the subject of the citation.  In this case, there is no reason under the Act for not examining the violation giving rise to the abatement description, and as my colleague observes, there are cogent reasons for that examination.

Dissenting Opinion

Moran, Chairman, dissenting:

        I believe Judge Harris correctly disposed of this case and his ruling should have been affirmed.  Subsequent cases have not altered the wisdom of that deposition.  

        It should not be forgotten that the statute requires the Secretary of Labor to forward employer notices of contest to this agency “immediately,” 29 U.S.C. 659 (c).  There is good reason for such a requirement: the speedy disposition of possible job-safety infractions will lessen the time of an employee’s exposure to hazardous conditions (if, in fact the Secretary’s allegations are true).  In this case, the Secretary held the employer’s letter for 21 days.

        The inspection of respondent’s working conditions which formed the basis for the 12 alleged safety violations took place in July 1972.  It virtually goes without saying that 21 months later memories have faded and and conditions have changed.  To expect the responded to defend the merits of so many charges after such a lengthy period of time is unrealistic.  It also will not serve the purposes of the Act.  Perhaps a new inspection and the correction of presently existing non-complying conditions, if any, are in order.  That is not for this tribunal to decide, however.

        Problems such as those confronted in this case could easily be avoided.  Regrettably, the Secretary of Labor has not seen fit to pay heed  to the works of the U.S. Court of Appeals for the Fifth Circuit:

…We would be remiss… however, if, in the interest of minimizing the need of these parties for the future assistance of this Court, we did not suggest a simple means of eliminating ambiguity in notices of contest. If each citation or notification of proposed penalty sent to an employer were accompanied by a reply form on which the employer could check boxes indicating intent to contest the citation or proposed penalty, or neither or both, with space for listing reasons or making comments, no confusion need ever again arise on the part of either the Secretary or the Commission.5


The adoption of that well-taken suggestion would not only eliminate the time wasted by the judges a members of this agency plus assorted other personnel but, more importantly, it would permit an immediate resolution of the uncertainties arising out of the service of citations rather than a delay of 2 years or more which this case will produce.

        Given the remedial purposes of this Act, this tardy remand seems to me to have about as much remedial effects as the beating of a dead horse.

1 The record is silent concerning the date of receipt of the notification of the proposed penalties.  The August 16th communication obviously was filed within the 15 working days period described by section 10(a) of the Act (29 U.S.C. 659 (a)).

2 29 U.S.C. 658(a).

3 29 U.S.C. 659(a).

4 Respondent’s failure to abate absent a good faith contest would make it liable for daily penalties.  See 29 U.S.C. 659(c) and 666(d).

5 Brennan v. OSAHRC et al. (Bill Echols case) supra.