J Dale Wilson Builder, Docket No.1625

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 1625
J DALE WILSON, BUILDER,
Respondent.

On January 16, 1973, Judge David H. Harris issued an order vacating Complainant’s citation in the above-captioned matter. He based his order on the ground that the Complainant had failed to forward Respondent’s notice of contest to the Commission within seven days of receipt as required by Commission Rule 32 (29 C.F.R. 2200.32).

Pursuant to the authority vested in the members of the Commission by Section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the ‘Act’), I am herewith directing that the Judge’s Order be reviewed by the Commission. For the reasons given hereinafter we reverse and remand.

We have reviewed the record and note that the Respondent was issued a citation and notification of proposed penalty dated September 27, 1972. Thereafter, Respondent filed a notice of contest which was received by the Complainant’s Area Director on October 11, 1972. The notice of contest was not received by the Commission until October 30, 1972 and thus was filed outside the period prescribed by Rule 32.

In the past the Commission has applied the extreme sanction of vacation of a citation where an Area Director has not forwarded a notice of contest because in his view the employer’s writing was not a notice of contest. (Secretary of Labor v. Pleasant Valley Packing Co., Inc., OSHRC Docket No. 464; Secretary of Labor v. Brent Towing Co., Inc., OSHRC Docket No. 1003, Pet. for Jud. Rev., Docket No. 72–3511, filed November 21, 1972, 5th Cir.; Secretary of Labor v. Lennox Industries, Inc., OSHRC Docket No. 1106). We used the sanction in these cases because the function of determining the legal sufficiency of a notice of contest is an adjudicatory function, and the action of the Area Director operated to deprive an employer of his statutory right to a hearing as provided for by section 10(c) and to usurp the responsibility of this Commission to provide the hearing.

The question in cases of this kind is one of balancing interests. Thus in the cited cases the action of the area director operated to prejudice the rights of the contesting employer. On the other hand the vacation of a citation might operate to prejudice the public’s right to have abatement of occupational safety and health hazards.

The record in this case is silent regarding the reasons for delay in transmittal of the notice of contest. Accordingly, there is no basis for making a determination of prejudice as to Respondent so as to justify imposition of the extreme sanction of vacation of the citation. In cases of this kind the Secretary should be afforded the opportunity to explain the delay and Respondent the right to show that it has been prejudiced thereby. The matter may be handled by acting on the responses to an order to show cause issued by the judge having responsibility for the case.

It is therefore ORDERED that the Judge’s order be and the same is hereby set aside and the case is remanded for further proceedings consistent with this order.

This case is virtually identical to Secretary v. ADM Grain Company, OSAHRC No. 1767, decided today (hereinafter ADM Grain), from which I also dissented.

For the same reasons set forth therein and for the additional reasons which follow, I also dissent from this decision. As in ADM Grain, the decision in this case ignores existing Commission precedent, as well as the language of Section 10(c) of the Act and of Commission Rule 32.

The Commission cites Secretary v. Lennox Industries, Inc., OSAHRC No. 1106, July 7, 1972; Pleasant Valley Packing Co., Inc., OSAHRC No. 464, January 4, 1973; and Brent Towing Co., Inc., OSAHRC No. 1003, September 22, 1972, as standing for the proposition that we used the sanction of dismissing a citation only because: a) the Secretary of Labor took it upon himself to determine the legal sufficiency of a notice of contest thereby usurping the Commission’s function, and b) such action operated to deprive the employer of his statutory right to a hearing.

A perusal of those decisions reveals that the citation in each case was vacated simply because of the failure of the Secretary of Labor to comply with Commission Rule 32 (previously Interim Rule 7). In none of those decisions did we rely on the rationale recited at page 2 of today’s decision. Neither did we in any of those decisions even allude to the proposition that the Secretary was entitled to explain his reasons for noncompliance with the Commission’s Rules of Procedure, or to a rule that a respondent must be shown to have been prejudiced by the delay in notifying the Commission of the contest before we would apply Section 10(c) of the Act and our Rule 32.

In a sudden about-face, the Commission has decided to depart from the precedent followed as recently as January 1973

and ignore the provisions of Section 10(c) of the Act, as well as the provisions of Commission Rule 32, and to create a new rule authorizing an extended period of unspecified duration for the Secretary of Labor to forward a notice of contest to the Commission unless it can be shown either that respondent was prejudiced by the delay or that the delay by the Secretary was inexcusable.

In my view, this new direction taken by the Commission can only lead to confusion. For example, Section 10(c) requires the Secretary to forward a notice of contest ‘immediately.’ In its interim rules (Interim Rule 7), the Commission established a three-day period on the premise that forwarding a notice of contest within three days satisfied the immediacy requirement of Section 10(c). When permanent rules were adopted, that time period was expanded to seven days after the Department of Labor complained that three days was too short a time period. By its decision in this case and in ADM Grain, the Commission has now said that seven days is too short a period. ADM Grain extended the time to 15 days. That period was apparently not long enough, so this decision further expands immediacy to mean 19 days. Is it unreasonable to expect a future decision which will hold that forwarding a notice of contest within six months satisfies Section 10(c)’s immediacy requirement?

This practice of continually expanding the time within which the Secretary of Labor may forward a respondent’s notice of contest to the Commission destroys any of the meaning which we previously attached to the language of Section 10(c) of the Act. It totally emasculates Rule 32, and in effect, says that we meant what we said in our prior decisions, but don’t count on it.

As I said in the ADM Grain case, ‘It makes one wonder where all this is leading.’

On the record herein the Respondent’s notice of contest was received by the Complainant on October 11, 1972, and filed with the Occupational Safety and Health Review Commission on October 30, 1972, a period of 19 days. This delay is a failure to comply with 29 C.F.R. 2200.32 and in violation of Section 10(c) of the Act, 29 C.F.R. 651, et seq. and the citation herein is hereby vacated.

On September 27, 1972, the United States Department of Labor, Occupational Safety and Health Administration, issued a Citation to the Respondent for three alleged Non-Serious Violations of the Occupational Safety and Health Act of 1970 and proposed a penalty of $35.00. Under date of October 9, 1972, and received by the Department of Labor in Milwaukee, Wisconsin, on October 11, 1972, the Respondent filed a Notice of Contest. This Notice of Contest was received by the Commission’s Office of the Executive Secretary on October 30, 1972.

On October 31, 1972, the Secretary of Labor filed a Complaint with this Commission to affirm the Citation and the proposed penalty; and the matter was referred to Commission Judge David H. Harris for disposition. In his Order of disposition Judge Harris ruled that a period of 19 days elapsed from the date the Notice of Contest was received by the Department of Labor to the date filed with the Commission. Inasmuch as the delay was considered a failure to comply with 29 CFR 2200.32 and in violation of Section 10(c) of the Occupational Safety and Health Act, 29 C.F.R. 651, et seq., the Citation was vacated.

Upon receipt of the Judge’s Order, the Secretary of Labor moved the Commission to review the ruling since neither the Secretary nor any affected employees were given the opportunity to be heard on the issue of whether the Commission was advised by the Secretary of receipt of Respondent’s Notice of Contest ‘immediately’ as required by Section 10(c) of the Act.

The Commission thereupon remanded this case to the undersigned for further proceedings, ruling that:

In cases of this kind the Secretary should be afforded the opportunity to explain the delay and the Respondent the right to show that it has been prejudiced thereby. The matter may be handled by acting on the responses to an order to show cause issued by the judge having responsibility for the case.

In conformance with the directive of the Commission, the parties were offered the opportunity to furnish whatever material they desired to be considered in the disposition of this feature of the case. In response to the order to show cause, the Secretary produced an affidavit from his Area Director, the material portions of which are copied below:

On October 11, 1972, a letter from Respondent, addressed to the attention of Mr. Robert B. Hanna was received at the Milwaukee, Wisconsin, office of the Occupational Safety and Health Administration. A copy of the aforesaid letter is attached hereto as Attachment A.

After reading the aforesaid letter from Respondent, Carlton H. Heise concluded that a telephone call should be made to the Respondent to get clarification as to Respondent’s intention, so as to ascertain whether the letter was intended to be a Notice of Contest. On October 11, 1972 (at 11:00 a. m.), Carlton H. Heise telephoned the home of J. Dale Wilson. A child answered the telephone and said that no one else was at home and that Respondent, J. Dale Wilson, was at work.

*2 On several subsequent days, at various times of the day, Carlton H. Heise made telephone calls to the home of J. Dale Wilson and was unable to reach him until approximately 9 or 10 days after his first telephone call on October 11, 1972.

On or about October 20 or October 23, 1972, Carlton H. Heise talked by telephone with J. Dale Wilson, who then stated that he did intend (by the aforesaid letter) contest the Notification of Proposed Penalty.

After such advice from J. Dale Wilson that his letter (Attachment A hereto) was intended to be a Notice of Contest, Carlton H. Heise duly and promptly prepared the necessary transmittal documents for the aforementioned letter containing the Notice of Contest, and the Notice of Contest was filed (by mailing) on October 25, 1972.

The Respondent submitted no evidence to establish that his position was jeopardized by the delay in transmission of the Notice of Contest to the Commission. However, his Notice of Contest is shown below:

Your attempt to levy a fine based upon citation dated September 27, 1972, is arbitrary and capricious in the extreme. ITEM 1—In the presence of your inspector we removed the offending ungrounded cord and used the grounded one which was on the job-site, just not used. ITEM 2—The 5 foot step ladder has been repaired (new top platform) the 6 foot step ladder has been retired from service, and the 20 base section of the extension ladder will not be used until either cut off or the cracked rung repaired. ITEM 3–We were unaware of this requirement, particularly when used on ground, but being concerned for our own safety we will surely find some feet for the ladders we use even though they are not ours but being borrowed.

William T. Smith and myself work together on a share alike basis. As we were the only persons using the ladders and the power equipment, I fail to see how the provisions of the OSHA Act are applicable to our situation. In addition we removed from service immediately in the presence of your inspector the offending electric cord. I (we) therefore feel your proposed fine is unjustified and we do protest.

Under the foregoing circumstances, the question arises as to whether the Secretary of Labor timely forwarded to this Commission the Notice of Contest submitted by the Respondent as required by Section 10(c) of the Occupational Safety and Health Act of 1970, which provides as follows:

If an employer notifies the Secretary that he intends to contest a citation . . . the Secretary shall immediately advise the Commission of such notification. . . .

Amplification of this Section of the law may be found in Section 1903.17(a) of the Regulations relating to the Occupational Safety and Health Administration (29 C.F.R. 1903.17(a)) stating that:

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 penalty 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. Every notice of intention to contest shall specify whether it is directed to the citation or to the proposed penalty, or both. The Area Director shall immediately transmit such notice to the Review Commission in accordance with the rules of procedure prescribed by the Commission.

Under the Rules of Procedure adopted by the Occupational Safety and Health Review Commission, it is provided:

The Secretary shall, within 7 days of receipt of notice of contest, transmit the original to the Commission, together with copies of all relevant documents (Rule 32, Notices of contest).

The record in this case establishes that the Area Director of the Occupational Safety and Health Administration received the Notice of Contest from the Respondent on October 11, 1972, and that the Notice did not reach the offices of this Commission until October 30, 1972. Thus, the Secretary did not forward the Notice of Contest ‘immediately’ as required by Section 10(c) of the Act and as defined in Regulation 1903.17(a) and Rule 32 of the Rules of Procedure of this Commission which requires the Secretary to transmit the Notice of Contest to this Commission within 7 days of its receipt.

The Commission, at the request of the Secretary, offered an opportunity to explain the delay in submitting the Notice of Contest. In response the Secretary forwarded an affidavit of his Area Director. In this document the Area Director explained that he did not immediately forward the Notice of Contest in order to contact the Respondent to ascertain whether the letter dated October 9, 1972, and received by him on October 11, 1972, was intended as a Notice of Contest.

An examination of the Respondent’s letter could not leave much doubt as to his intentions with respect to the desire to contest the citation and penalty proposed. In his opening sentence the Respondent referred to the citation and penalty as ‘. . . arbitrary and capricious in the extreme.’ In the second paragraph of the letter the Respondent noted that he failed to see how the provisions of the Act were applicable to his situation. Concluding, the Respondent remarked that he felt the ‘. . . proposed fine is unjustified and we do protest.’

With this strong language of protest before him the Area Director could not reasonably conclude that it was necessary to contact the Respondent personally to ascertain if in fact it was his intention to file a Notice of Contest to the Citation and proposed penalty. In any event, if in doubt, the Area Director could have forwarded the letter to the Commission for its consideration. I therefore find that there was no good cause for the failure to transmit to the Commission the Notice of Contest as required by its Rules of Procedure.

On the basis of the foregoing, it is concluded that the Secretary failed to comply with the statute, Regulation and Rules of Procedure of the Commission in Connection with the transmittal of the Notice of Contest in this matter. Accordingly, it is ORDERED that the Citation and proposed penalty be and hereby are VACATED.