UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 8859

OWENS–ILLINOIS, INC.,

 

                                              Respondent.

 

 

May 19, 1976

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY, Commissioner:

A report of Administrative Law Judge Joseph L. Chalk, dated October 22, 1974, is before the full Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [[hereinafter “the Act”]. At issue in this case is whether Judge Chalk erred in dismissing respondent-employer’s notice of contest on the ground that it was untimely filed.

The case has been briefed by respondent. The Secretary of Labor by letter relies upon the Judge’s decision and his briefs below.

The case arose out of a single inspection by two compliance officers. Each compliance officer independently prepared recommendations for the Area Director to issue a citation for other than serious violations. Each citation and its attendant notification of proposed penalty was mailed separately and received by respondent three or four days apart because of an intervening weekend. Respondent contested the earlier issued citation, but mistakenly computed the time in which to contest from the receipt of the later issued citation.[1]

Respondent contends that the failure to file its notice of contest within 15 working days as required by 29 U.S.C. § 659(a) was the result of confusion caused by complainant’s issuance of two citations for nonserious violations contrary to complainant’s own procedures providing that:

Only one citation for nonserious violations will be given an employer for a single inspection, even though there may be several violations.... U.S. Dept. of Labor, Compliance Operations Manual XII–17 (1972).

 

In light of our disposition of the case, we do not rule on respondent’s contention and other possible issues.

The facts of this case are unusual, and suggest that the two citations and the two notifications of proposed penalties, issued as a result of a single inspection and so close together in time, should be read together in the interest of justice.

We hold that the later citation and notification of proposed penalty supplements the first issued citation, and thus the time for filing the notice of contest runs from the date of receipt of the later notification of proposed penalty. Therefore, the notice of contest was timely filed.

We note also that the notice of contest is concerned essentially with the problem of long-term abatement of noise by feasible engineering controls or administrative controls. The citation prescribes, as indeed the standard requires, that in any event personal protective equipment be used when these controls are not feasible. Consequently, the employees are entitled to this protection during this proceeding.

Accordingly, it is ORDERED that the order dismissing the notice of contest is reversed, the notice of contest is reinstated, and the case is remanded for further proceedings consistent with this order.

 

FOR THE COMMISSION

William S. McLaughlin

EXECUTIVE SECRETARY

BY: Gloria W. White

Acting Executive Secretary

DATED: MAY 19 1976

 

MORAN, Commissioner, Concurring:

I concur in the result reached in the lead opinion. The dicta in the penultimate paragraph concerning the contents of the notice of contest and the requirements of the standard, however, are unnecessary to the decision in this case. They represent Commissioner Cleary’s personal views—not mine.

 

BARNAKO, Chairman, concurring:

I concur with my colleagues’ disposition of this case.

In the past we have held that 29 U.S.C. 659(a) is a limitation on our jurisdiction to hear cases where the notice of contest is filed after expiration of the fifteen day period specified by the section. Mississippi Valley Erection Co., 5 OSAHRC 483, BNA 1 OSHC 1527, CCH OSHD para. 17,098 (1973); Atlantic Marine Inc., 14 OSAHRC 6, BNA 2 OSHC 1373, CCH OSHD para. 19,069 (1974), reversed and remanded, 524 F.2d 476 (5th Cir. 1975). In the last-noted case the court said:

The ALJ and OSHRECOM apparently viewed § 659(a) as an impenetrable barrier to further consideration of petitioner’s claims without regard to the special circumstances claimed.

 

Before we undertake to decide such an important issue, we should be certain that it is factually founded and not just a theoretical possibility. 524 F.2d at 478

The court remanded for a hearing to take evidence on respondent’s allegations in that case that it had been prejudiced and misled into an untimely filing of a notice of contest by the Secretary’s deception and violation of procedures. I believe the court’s action and its reasons therefor would be appropriate in the instant case as well.

My colleagues, however, would decide the 659(a) issue in this case without an evidentiary record. I concur in that disposition and with the reasons given for it, but I feel, nonetheless, that the better course would be the one taken by the 5th Circuit in Atlantic Marine Inc., supra.

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 8859

OWENS–ILLINOIS, INC.,

 

                                              Respondent.

 

 

FINAL ORDER DATE: November 21, 1974

DECISION AND ORDER

Chalk, Judge

On July 10, 1974, Respondent filed a motion requesting this Commission to docket a Notice of Contest nunc pro tunc with an “effective filing date of June 20, 1974,” which it had previously forwarded to the Department of Labor area director on June 21, 1974.[2] The record clearly establishes that this Notice of Contest was forwarded to the area director on the sixteenth working day after Respondent’s receipt of the Notification of Proposed Penalty on May 30, 1974.

After Complainant filed a response to Respondent’s motion and Respondent filed a supplemental written argument, a motions judge granted Respondent’s motion on August 2, 1974. Complainant then moved the Commission for special leave to appeal such ruling, and Respondent filed a response thereto; but the Commission denied the motion on September 11, 1974. On September 16, 1974, the case was assigned to me on regular assignment for final disposition.

On October 1, 1974, I issued an Order to Respondent directing Respondent to show cause within ten (10) days of its receipt of my Order why its Notice of Contest should not be summarily dismissed because it was not filed timely. In response thereto, in addition to relying upon its arguments advanced in previous submissions which I find unpersuasive, Respondent argues that the prior ruling by the motions judge is binding upon me under the doctrine of res judicata. As a second argument, Respondent claims that the Commission, by denying Complainant’s motion for leave to file a special appeal, in effect considered the issue on its merits and upheld the ruling of the motions judge.

The doctrine of res judicata, in accordance with the very case cited by Respondent in support of its argument, applies only where there has been “final judgment on the merits ... with respect to the same cause of action” (Rhodes v. Jones, 351 F2d 884 (8th Cir., 1965)). As there has been no final order issued in this case, this argument must fall of its own weight. Respondent’s second contention also falls of its own weight, for in denying Complainant’s motion for leave to file a special appeal from the ruling, the Commission, in accordance with its own rules, was merely denying the motion itself, without addressing itself in any way to the merits of the issue raised therein (29 CFR 2200.75). On the contrary, the Commission would have granted the motion if it had desired to resolve the issue at that point in the proceedings.

When a Notice of Contest is not filed within fifteen working days after the employer’s receipt of the Notification of Proposed Penalty, the citation and proposed penalty assessment become a final order of the Commission “not subject to review by any court or agency” (29 USC 659(a)). By its unequivocal terms, therefore, the statute specifically prohibits this Commission from doing what Respondent’s motion of July 10, 1974 requested it to do, regardless of the reasons, perhaps persuasive but nonetheless unredeeming, that prompt the late filing, such as those advanced by Respondent throughout these proceedings (Secretary v. Walter A. Podpora, Docket No. 721, May 18, 1972; see Secretary v. FMC Corporation–Fibers Division et al, Docket No. 5355, July 17, 1974; Peter J. Brennan, Secretary of Labor v. Occupational Safety and Health Review Commission and S.J. Otinger Jr., ––– F2d ––––, Docket No. 73–3068 (5th Cir., October 3, 1974). A fortiori, as the Citation and Notification of Proposed Penalty in this case became a final order of the Commission by operation of law when Respondent failed to file its Notice of Contest on or before June 20, 1974, the motions judge’s Order purporting to override the finality of that Order was of no legal effect (id).

The motions judge’s Order of August 2, 1974 is set aside, Respondent’s motion is denied, and Respondent’s Notice of Contest filed nunc pro tunc on June 21, 1974 is dismissed.

 

So ORDERED.

JOSEPH L. CHALK

Judge, OSHRC

Dated: October 22 1974

Washington, D.C.

 


[1] The inspection took place on April 17, 1974. One of the inspectors was an industrial hygienist. The industrial hygienist and the other inspector filed separate reports. The industrial hygienist recommended citing Owens–Illinois for a failure to comply with 29 CFR 1910.95, a standard regulating excessive noise. The other inspector recommended citing Owens–Illinois under the general duty clause in section 5(a)(1) of the Act and for additional violations of standards under the special duty clause in section 5(a)(2) of the Act. A citation alleging a violation of the noise standard was issued on May 29, 1974. A citation alleging a violation of the general duty clause and the additional standards violations was issued on May 31, 1974. The citation and notice of proposed penalty for the alleged noise violation were apparently received on May 30, 1974, at the company’s plant. The citation and notice of proposed penalty for the remaining alleged violations was received at the plant on June 3, 1974. Both sets of citations and notices of proposed penalties were forwarded together from the plant in Virginia to the company’s legal department in Toledo, Ohio. There, the date of receipt on the later issued citation was mistakenly taken to be the only date of receipt and the notice of contest as to the earlier issued citation was mailed on June 21, 1974.

On July 1, 1974, the Area Director notified the company that its notice of contest had been filed one day late since the fifteenth working day from the May 30 receipt would expire on June 20, 1974. The company moved that the Commission take jurisdiction of the contest. The motion was granted by Administrative Law Judge Brennan. The Secretary requested leave to file an interlocutory appeal to the full Commission, but the request was denied. The case was assigned to Judge Chalk for hearing. Judge Chalk dismissed the notice of contest on the ground that it was untimely filed.

[2] The record indicates that the Secretary wrote Respondent’s attorney on July 1, 1974, informing him that this Notice of Contest was not timely filed.