UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 10888

R.C. SMITH, d/b/a R.C. SMITH &

COMPANY,

Respondent.

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

This case is before the Commission pursuant to a sua sponte order for review. The parties

have filed no objections to the Administrative Law Judge’s decision, either by way of petitions

for discretionary review or response to the order for review. Accordingly, there has been no

appeal to the Commission, and no party has otherwise expressed dissatisfaction with the

Administrative Law Judge’s decision.

In these circumstances, the Commission declines to pass upon, modify or change the

Judge’s decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA

OSHC 2032, 1975–76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC

1015, 1975–76 CCH OSHD para. 20,508 (No. 3336, 1976); see also keystone Roofing Co., Inc.,

v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no

compelling public interest issue.

The Judge’s decision is accorded the significance of an unreviewed Judge’s decision.

Leone Constr. Co., 3 BNA OSHC 1979, 1975–76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

Dated: DEC 22, 1976

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

(SEAL)

MORAN, Commissioner, concurring:

I would affirm the Judge’s decision for the reasons set forth in his decision which is attached

hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz

Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority’s

view regarding the significance of decisions rendered by Review Commission Judges.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 11553

BURTEX CONSTRUCTORS, INC.,

Respondent.

APPEARANCES:

James H. Barkley, Esq., of Denver, Colorado, for the Complainant,

R. C. Smith, (Pro Se) of Grand Forks, North Dakota, for the Respondent.

DECISION AND ORDER

Carlson, Judge, OSAHRC:

This is a proceeding brought under Section 10 of the Occupational Safety and Health Act

of 1970 (29 U.S.C. 2651, et seq.), hereafter referred to as ‘the Act’. Complainant on August 29,

1974 issued four citations to respondent alleging violation of § 654(a)(2) of the Act owing to

noncompliance with certain Construction Industry Standards promulgated under § 655. Each of

three of the citations charged a single serious violation of the standards: a fourth citation alleged

10 items of nonserious violation. Complainant sought a penalty of $500 for each of the serious

violations and a penalty of $40 for item 9 of the alleged nonserious infractions. The notice of

these proposed penalties was dated August 29, 1974.

The procedural history of this cause is extensive and used not be fully recited here. The

case was assigned to this Judge on December 3, 1974. Formal complaint had not been filed as of

that time owing to a pending motion for dismissal based upon respondent’s alleged failure to file

a timely notice of contest. Immediately prior to the assignment of the case for trial the Chief

Judge denied complainant’s motion, subject to the right of renewal at trial. Thereafter, complaint

and answer were filed. In the meantime respondent, whose customary occupation was that of

merchant seaman, had departed the United States as a crew member of a merchant ship.

Owing to that circumstance, as the file will reflect, it was impossible to set and hold a

hearing in Grand Forks, North Dakota the sites of the alleged violations, until August 26, 1975.

Two days of hearings were held at that time in which the factual matters relating to the

timeliness of respondent’s notice of contest as well as the general merits of the case were tried.

No employees sought party status.

Complainant filed a post-hearing brief which was stricken sua sponte by this Judge. That

action was taken owing to the fact that numerous photographs, which complainant had not been

able to locate at the time of the trial, were appended to the brief. These were offered as additional

evidence on the merits and were accompanied by no motion to reopen the evidentiary record. In

addition to the appended photographs the brief itself was excluded and sealed since its contents

were deemed inseparable from the proffered additional evidence. Complainant was granted

additional time in which to file another brief, but none was filed. Respondent made -hearing

submissions.

It should be observed that the the reporter’s transcript of the hearing is rife with

inaccuracies. No motion has been received from either party for correction of the transcript; and

the inaccuracies referred to are not judged to have substantially altered essential meanings as to

any material matters.

I

As mentioned, a threshold question of jurisdiction exists here. Respondent’s notice of

contest was not filed until October 31, 1974—long after the apparent completion of service on

September 5, 1974, and well after the 15 working day period permitted by § 659(a).

The matter to be decided, then, is whether under all the circumstances complainant’s

service of notice of the proposed penalties and the citations was effective. In resolving the issue

the following findings of fact are made:

(1) Respondent’s principal occupation at the times material hereto was that of merchant

seaman—specifically a radio and electronics officer. The voyages for which he ordinarily signed

on lasted about two months (Tr. 40, Commission document 3).

(2) At all times material hereto respondent owned a dwelling house at 1104 Boyd Drive,

Grand Forks, North Dakota. It was to this place he customarily returned and lived between

voyages. (Tr. 44, 64.)

(3) Across the street from his house respondent also owned a parcel of land upon which

he undertook to build, beginning in 1971, a three story apartment building (Tr. 53, 41);

construction was interrupted a number of times owing to financial and other problems.

(4) On August 22, 1974, one James R. Wilson, a compliance officer for complainant,

inspected the aforementioned building construction site, where be observed men doing various

kinds of work (Tr. 26).

(5) Compliance officer Wilson, upon identifying himself and the purpose of his visit

when he arrived at the site, was directed by a worker to see respondent, P. C. Smith. The

compliance officer did so and Smith accompanied him on the inspection of the site. (Tr. 79–80.)

During the course of the inspection Smith referred to the workmen as his ‘subcontractors’ (Tr.

67) but identified a welder as his employee (Tr. 68), a relationship which the welder affirmed

(Tr. 142–143).

(6) At a ‘closing conference’ immediately following the inspection the compliance

officer advised respondent that conditions or practices observed could result in the issuance of a

citation (Tr. 27). Respondent advised the compliance officer that he would be ‘leaving town

within a week to ten days’ and was ‘going to Hong Kong and the Far East’ (Tr. 26).

(7) Respondent also furnished the compliance officer with a sheet of stationery with the

printed heading ‘R. C. Smith & Co., 1101 Boyd Drive, Grand Forks, North Dakota’

(complainant’s ex. 6). The address given was the incompleted building. The letterhead included

two telephone numbers: one was that of respondent’s house; the other of a telephone in the

building. (Tr. 52.) At one point respondent spoke of the incomplete building as the ‘future home

of R. C. Smith & Co.’ (Tr. 87.)

(8) In connection with the discussion of a possible citation respondent further indicated to

the compliance officer that someone would be in charge of his business affairs and that mailings

should be directed to his home address: 1104 Boyd Drive. (Tr. 26–27, 34–35.)

(9) On August 29, 1974 complainant mailed the citations and notification of proposed penalty

herein to 1104 Boyd Drive by certified mail. The Postal Service return receipt form was duly

returned to the Billings, Montana office of complainant signed by one ‘Steve R. Meher’ in the

block designated ‘Signature of Addressee’s Agent, If Any.’ ‘R. C. Smith & Co.’ had been

written in the block for ‘Signature or Name of Addressee.’ The receipt was dated September 5,

1974.

(10) No communication in any form was received by complainant from respondent

himself until a letter (Commission document 3), bearing an October 31, 1974 date, was received

by the Office of the Solicitor for the Department of Labor in Denver, Colorado on November 4,

1974. The body of that letter reads as follows:

1

In reference to a letter from Mr. Henry C. Mahlman, Associate Regional

Solicitor, dated 24 October 1974, I wish to reply as follows.

‘We take exception to the OSGA [sic] items cited on the project at 1101 Boyd

Drive, Grand Forks, North Dakota. We feel they were arbitary, [sic] taken out of

context, and with variance of the facts as we know them to be.

‘The formal notice of items cited was incorrectly delivered and I have not

been advised nor seen these items until yesterday. The delivery was made to a

tenant of my former residence who has no connection nor knowledge of my

affairs and apparently placed it with an accummulation [sic] advertising materials

and other such mail, held until I returned from the far east. We have a

Professional Engineer and an attorney who handle such things in my absence

[sic]. They had no knowledge of such material being received either.

A part time bookkeeper, who does not work for me now, ran across this envelope

in routine manner when she came in to voluntarily [sic] do a few quarterly reports

due October 31st, knowing I would not be back in the United States by then. She

called your office advising of the circumstances, leaving the material until I

returned for my consideration.

In view of the incorrect delivery process and in view of no opportunity being

reasonably allowed me to reply, I hereby request the fine and citations be

terminated.

For your information, I departed from the United States August 25, 1974 and did

not return (New York) until October 28, 1974. I returned to Grand Forks October

31st and this is the first I have ever seen of the citations and your relevent [sic]

mail.

(11) The above letter was an adequate notice of contest if timely filed.

(12) Respondent had in fact rented his house to one Steve R. Meher, a college student, for

the period of Smith’s absence while at sea. Meher had no specific connection with any business

enterprise of respondent, but agreed, when requested by respondent, to pay his telephone bills

and forward his mail. Meher failed, however, to do either (Tr. 40, 55, 58.).

1 Presumably the letter referred to was related to the Solicitor’s collection efforts which had

begun on the assumption that the citations were uncontested.

(13) Respondent had departed from Grand Forks for New York on the day following the

inspection herein, and shortly thereafter departed the United States on his ship which sailed for

Hong Kong with numerous intermediate stops of less than a day at various Pacific ports (Tr. 40).

(14) Respondent first learned of the citation and notice of proposed penalties from one

Darlene Nelson, who did bookkeeping for him on an occasional basis (Tr. 40, 50, 58–59).

(15) A caller identifying herself as Darlene Nelson telephoned complainant’s Billings,

Montana Area Office on September 27, 1974 [the 16th working day following the receipt of the

certified mailing by Meher], and represented that R. C. Smith was out of the country, and that his

company was a one man operation. The official taking the call suggested a filing of a notice of

contest, but the matter was not further pursued by the caller. [See compl’s. ex. 8. The

memorandum of the call was made on the sample of respondent’s ‘R. C. Smith & Co.’ stationery

in complainant’s file and was received in evidence as an accurate recital of the substance of the

telephone conversation (Tr. 209–214).]

(16) Complainant on the basis of information furnished by R. C. Smith to the compliance

officer, coupled with the compliance officer’s personal observations, had ample cause to believe

that respondent, despite his impending departure, was the proprietor of an active business

enterprise known as ‘R. C. Smith & Co.’ and had reasonable further cause to believe that

respondent was an employer at the construction site in question.

(17) Complainant also had reasonable cause to believe that copies of the citations and

notification of proposed penalties, dispatched by certified mail to the address respondent

furnished in connection with the discussion of a possible citation, would impart notice thereof to

respondent.

(18) Respondent, himself, did not in fact receive copies of the citations and notification of

proposed penalty until more than 15 days after the date Meher had signed the certified mail

receipt.

It should be noted that most of the evidence material to the making of the above findings

was not in real dispute. As to some facts relating to the service question, however, the testimony

of the compliance officer and Mr. Smith, the only witnesses, was in sharp conflict. Smith, for

instance, denied that he ever told the inspector that the building under construction was to be ‘the

future home’ of R. C. Smith & Co. Where conflicts did exist, they were generally resolved in

favor of the compliance officer’s version. This was so because of fundamental inconsistencies in

2

Mr. Smith’s factual positions.

II

The statutory provision governing notice and the initiation of contests is § 659(a) of the

Act which declares:

If, after an inspection or investigation, the Secretary issues a citation under section

9(a), 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.

It is clear that respondent’s right to institute a contest, and thus invoke the power of the

Commission to decide the validity of complainant’s citations or penalties, is extinguished upon

the passing of the statutory 15 working days from the date of receipt of the penalty

3

notice. Neither the above cited section nor any other section of the Act contains further guidance

as to the particulars of service beyond the solitary declaration that the Secretary shall ‘. . . notify

the employer by certified mail’. No rules of the Secretary or of the Commission purport to set out

further criteria.

The Commission has indicated that alternative service may be achieved by non-mail

delivery of notice provided strict compliance is had with the appropriate requirements of the

Federal Rules of Civil Procedure. Secretary v. Donald K. Nelson Construction, Inc. docket no.

4309 (January 13, 1976). That case, of course, is not directly applicable here since the mode of

service specified in the statute—certified mail—was used in the instant case. By implication,

2 To cite one example, respondent declared in his notice of contest letter, (Commission document

3, supra), with regard to what persons were looking after his affairs in his absence: ‘We have a

Professional Engineer and an attorney who handled such things in my absence’. Yet, at the

hearing, respondent testified unequivocally that nobody, including any attorney, was connected

with his affairs during the absence here in question (Tr. 53, 55, 61–62).

3

See, for example, Brennan v. OSAHRC and Bill Echols Trucking Co., 487 F.2d 230 (1973).

however, it does raise a question as to whether, when service is undertaken by certified mail, the

sufficiency of such service should be directly judged by the principles which control under the

Federal Rules of Civil Procedure. I believe Congressional partiality toward service by mail as

expressed in the Act must be taken as an indication that the specific requirements of the Federal

4

Rules should not be rigidly superimposed upon the method of service mentioned in the statute.

What criteria, then, should govern? Obviously, there must be conformity to the basic

requirements of due process of law. The essential due process requirements for notice are set out

in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) as follows:

An elementary and fundamental requirement of due process in any proceeding

which is to be accorded finality is notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and

afford them an opportunity to present their objections.

It is well settled that notice served by registered or certified mail suffers from no inherent

due process infirmities. NLRB v. O’Keefe & Merritt Mfg. Co., 178 F.2d 445 (9th Cir. 1949);

NLRB v. Wiltse, 188 F.2d 917 (6th Cir. 1951); Wise v. Herzog 114 F.2d 486 (D.C. Cir. 1940).

In my view the test utilized in NLRB v. Clark, 468 F.2d 459 (5th Cir. 1972) should

govern generally in determining the sufficiency of service by certified mail under the

Occupational Safety and Health Act. There the Court concerned itself with the effectiveness of a

statutorily authorized registered mail service of a charge (and later a complaint) under the

National Labor Relations Act. The Court identified the proper test to be:

‘. . . whether in the circumstances the procedure used would in all probability

have informed the defendant of the proceedings against him’ (emphasis

5

supplied).

6

As shown in the authorities cited by the Court this is likely the fairest test devisable. It

permits a broad scrutiny of the factual substrata to determine whether notice should likely have

been received by respondent. In so doing it avoids the unfairness which can result if effective

service is mechanically found to exist in every case where the serving party complies with literal

4

Cf. Buckley & Company, Inc. v. Secretary of Labor, 507 F.2d 78 (1975).

5

NLRB v. Clark, supra, at 465.

6

Blackhawk Heating & Plumbing Co. v. Turner 50 F.R.D. 144 (1970); 17 U. Kan. L. Rev. 125

(1968). [The ‘probability’ test was originally suggested as the best means for determining the

validity of substituted service of process on individuals under Rule 4(d)(1), F.R.C.P., by leaving

the same ‘at their usual place of abode’.]

requisites. On the other hand, where the evidence may show that the service did not impart actual

notice, it also avoids a possibly specious finding of ineffective service based upon that fact alone.

In Clark there was no evidence that the respondent had personally received the charge

which, under the governing statute, was to have been mailed to him at his ‘principal place of

business.’ The respondent had been the owner-operator of a nursing home when the alleged

unfair labor practice took place. Well before the charge was mailed, however, he leased his

facility to another operator—the individual who had served as his manager or administrator of

the facility. The lessee received the notice. The Court, noting that respondent had failed to

register the change with the state licensing authority, held that the NLPB was justified in relying

on the ‘outward appearances’ which Clark helped to create and thereafter countenanced. The

service was held valid. The Court specifically declared:

Clark, by his own actions, created the appearance that the home remained his

7

principal place of business. He is not entitled to benefit from this confusion.

In essence, the Court invoked a species of estoppel against the party intended to be

served. This was done because that party was knowingly instrumental in creating or perpetuating

appearances which would lead an objective observer to conclude that the means of service used

would, in all probability, impart effective notice.

The parallels between the positions of the respondent in Clark and the respondent in the

present case are manifest. Mr. Smith accompanied the compliance officer through a relatively

lengthy inspection of the worksite. This was followed by a closing conference in which he was

expressly alerted by the government’s inspector to the fact that citations and proposed penalties

might be forthcoming. Respondent knew full well of his sea voyage at the time, and in fact

advised the inspector of his impending departure. Nevertheless, when asked, he specifically

directed that mail be sent to his home address. He further affirmatively indicated that unspecified

persons in Grand Forks would be looking after his affairs during he period of his absence.

Moreover, Meher, the very person whom he designated to handle his mail, actually received and

signed for complainant’s notice.

Respondent now complains that he did not receive service owing to the neglect of Meher

in forwarding his mail—and maintains that the Commission should therefore assume jurisdiction

and render a decision on the merits. I cannot agree. In the present case the outward indicia, as in

7

NLRB v. Clark, supra at 464.

Clark, were of the sort that invited the specific attempt at service which was made. Here,

however, the respondent did even more: he actually told the complainant’s representative where

future mailings were to go. The following reasoning of the Court in Clark should apply with

even greater force in this case:

To effectuate the Congressional policy in favor of service by mail, it is necessary

that the NLRB be able to judge the quality of its attempts at service by something

more than the fortuity of whether a defendant can be shown to have had actual

8

notice.

I must conclude that respondent, after proper and effective delivery of notice to the place

designated by him, failed to file a notice of contest within the time prescribed by § 659(a) of the

Act, and that this Commission is hence without jurisdiction to entertain the purported notice of

contest filed by respondent on October 31, 1974.

Accordingly, it is hereby ORDERED that respondent’s purported notice of contest is

dismissed and that the citations and accompanying notification of proposed penalty are deemed

to have become the final orders of the Commission pursuant to § 659(a) of the Act.

John A. Carlson

Judge, OSAHRC

Dated: March 25, 1976

8

NLRB v. Clark, supra at 465.