UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 15074 |
|
THE
HARVESTER COMPANY, |
|
|
Respondent. |
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February 1, 1979
DECISION
Before CLEARY, CHAIRMAN; BARNAKO and COTTINE,
Commissioners.
CLEARY, Chairman:
A
decision of Administrative Law Judge Paul E. Dixon is before the Commission
pursuant to section 12(j) of the Occupational Safety and Health Act of 1970.[1] Review was directed by
Chairman Cleary and former Commissioner Moran. The pertinent facts are as
follows.
Respondent’s
worksite in Pratt, Kansas, was inspected in August 1975. Two citations were
issued on September 5, 1975, as a result of this inspection. One citation
alleged 15 non-serious violations and the other alleged one serious violation
for failure to comply with six different subparts of 29 CFR § 1910.217. A $550
penalty was proposed for the serious violation.
On
September 23, 1975, Bill Hager, general manager for respondent, filed a notice
of contest contesting the proposed penalty of $550 for the serious citation.
The notice of contest stated that the violative conditions had been or were
being abated. The Secretary filed a complaint on November 4, 1975. Respondent
failed to answer the complaint and on December 3, 1975, Administrative Law
Judge Chaplin ordered respondent to show cause why its notice of contest should
not be dismissed. Respondent failed to answer the show cause order and on
January 22, 1976, Judge Chaplin dismissed the notice of contest and imposed the
$550 penalty. This order became final on February 23, 1976.
On June
30, 1976, Boyd Davies, respondent’s president, petitioned the Commission for
reconsideration of the order dismissing respondent’s notice of contest and
assessing the proposed penalty. On July 29, 1976, the Commission, by unanimous
vote, granted respondent’s petition for reconsideration, reinstated the notice
of contest, and remanded the case for further proceedings.
A
hearing was held September 22, 1976, before Judge Dixon. The Secretary moved
for dismissal on the ground that the Commission had no jurisdiction to
reinstate a notice of contest once Judge Chaplin’s decision had become a final
order, and therefore, the case was not properly before Judge Dixon.
Respondent’s president argued that the alleged violation in citation two had
been abated. Mr. Davies further indicated that he was the sole proprietor of
the business and in the course of his business he found it necessary to be
absent on sales work for approximately two years. It was, therefore, necessary
to appoint someone to manage the business in his absence. He also stated that
he received the impression from his general manager that the citations had been
taken care of, and he was, therefore, not aware that the hearings had been
scheduled until April 1976, when he received the demand for payment of the
penalties. Judge Dixon determined that he lacked jurisdiction and accordingly
dismissed the case on February 15, 1977.
The
case of Monroe & Sons, 77 OSAHRC 14/B7, 4 BNA OSHC 2016, 1976–77 CCH
OSHD ¶21,470 (No. 6031, 1977) is procedurally similar to the instant case. In Monroe,
the Commission determined that the intent of Congress in employing the word
‘final’ in section 661(i)[2] was to make a judge’s
decision ripe for judicial review, if the Commission did not direct review
within thirty days. We concluded that it was not the intent of Congress to
preclude the Commission from retaining limited jurisdiction to reconsider its
order before a Court of Appeals assumes jurisdiction. Further, the Commission
determined that in enacting 29 U.S.C. § 661(f),[3]Congress was aware that
Rule 60(b) of the Federal Rules of Civil Procedure[4] would operate as a
qualification on the finality provision of section 661(i). The Commission,
therefore, concluded that it had jurisdiction under Rule 60(b) Fed. R. Civ. P.
to reinstate a notice of contest even though the thirty day review period had
expired.
The
Secretary makes three arguments on review. First, he argues that Monroe
& Sons was incorrectly decided. He argues that the Commission’s
jurisdiction is limited by section 661(i) and that once the thirty days have
elapsed from the entry of the judge’s decision the Commission cannot reconsider
its order. The Secretary cites Brennan v. O.S.H.R.C. & S.J. Otinger,
Jr., Constr. Co., 502 F.2d 30 (5th Cir. 1974), in support of this argument.[5]
Secondly,
the Secretary argues that, assuming Monroe was decided correctly, the facts of
the present case do not warrant reinstatement by the Commission. The Secretary
states two reasons why reinstatement is not appropriate under Rule 60(b): (1)
Five months is an unreasonable time for respondent to have waited before
petitioning the Commission for reinstatement; (2) The absence of respondent’s
president from its home office is not good reason for excusing the failure to
comply with Commission rules, because respondent’s general manager had the
requisite authority to file an answer and to respond to the show cause order.
The
Secretary’s third and final argument is that respondent has not shown that the
penalty is inappropriate.
The
Secretary’s first two arguments address the merits of the request to reinstate.
As to the first argument, the Commission has reaffirmed its decision in Monroe
in the face of similar arguments advanced by the Secretary. C & C
Plumbing Co. and M & M Contractors, Inc., 77 OSAHRC 204/D14, 6 BNA OSHC
1131, 1977–78 CCH OSHD ¶22,361 (Nos. 5422 & 5423, 1977). Secondly, the
reinstatement order issued by the Commission represents a determination that
the facts of this case warrant Rule 60(b) relief. We see nothing in this record
to cause us to reconsider this determination. As to the third argument, the
purpose of the hearing before Judge Dixon was to determine the appropriateness
of the penalties proposed by the Secretary. Since the case was dismissed
without any finding by the judge on this issue, the case must once more be
remanded.
In
the face of the Commission’s order reinstating the case, Judge Dixon erred in
dismissing for lack of jurisdiction.
Accordingly,
the case is remanded for a hearing and decision on the appropriateness of the
$550 proposed penalty.
FOR THE COMMISSION:
RAY H. DARLING, JR.
EXECUTIVE SECRETARY
BY: Gloria W. White
Acting Executive Secretary
DATED: FEB 01, 1979
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 15074 |
|
THE
HARVESTER COMPANY, |
|
|
Respondent. |
|
February 15, 1977
APPEARING ON BEHALF OF COMPLAINANT:
EUGENE F. DeSHAZO, ESQ., Office of the
Solicitor, U. S. Department of Labor, 911 Walnut Street, Kansas City, Missouri
APPEARING ON BEHALF OF RESPONDENT:
MR. BOYD DAVIES, pro se, for the Harvester
Company, Inc., Pratt, Kansas
Paul E. Dixon, Judge:
This
is an action under section 10(c) of the Occupational Safety & Health Act of
1970, 29 USC 651, et seq. (hereinafter referred to as the Act), resulting from
an inspection made on August 21–22, 1975, of respondent’s operations located at
the airport, three and one-half miles north of Pratt on Highway 281, Pratt,
Kansas, wherein respondent was engaged in operations producing popcorn poppers.
Citation
for alleged serious violations of 29 CFR 1910.217(c)(1)(i), 1910.217(d)(4),
1910.217(f)(3), 1910.217(c)(2)(i)(a), 1910.217(e)(1)(i), and 1910.217(e)(1)(ii)
was issued on September 5, 1975, along with total proposed penalties in the
amount of $550.00.
ISSUES
The
sole issue is whether or not the Undersigned has jurisdiction to hear the
merits of the matters contained within the citation.
In
order to resolve this issue, a chronology of events will be enumerated and a
recitation of the evidence taken at the time of complainant’s motion contesting
the Review Commission’s jurisdiction in this matter.
Following
the issuance of the citation on September 5, 1975, a notice of contest under
date of September 23, 1975, and time stamped received September 25, 1975, on
the letter head of respondent and signed by Bill Hager, General Manager, refers
to the various items mentioned in the citation and the abatement or stage of
abatement and objects to the penalty in citation 2, item 1, in the amount of
$550.00.
Thereafter,
on October 15, 1975, a request for extension of time to file complaint was made
by complainant which was marked received by the Occupational Safety &
Health Review Commission October 17, 1975, by the Office of the Executive
Secretary.
The
request for extension of time to file complaint was granted October 21, 1975,
by the Office of the Executive Secretary.
Complaint
dated October 28, 1975, was filed with Affidavit of Service by mail, in which
the complaint stated on page 5:
NOTICE TO RESPONDENT
You are hereby notified that you must
plead or otherwise answer this complaint either denying or admitting the
allegations, within fifteen days of your receipt of this complainant. Failure
to do so may result in dismissal of your notice of contest. See Rule 33(b),
Rules of Procedure, Occupational Safety and Health Review Commission.
On
December 3, 1975, the Chief Judge of the Occupational Safety & Health
Review Commission entered a show cause order against the respondent wherein the
order stated:
Respondent is hereby ordered to show cause
in writing addressed to the Commission’s Executive Secretary, within ten days
of the receipt of this order, why its notice of contest should not be dismissed
for failure to answer the complaint.
Said
show cause order was sent on December 3, 1975, by certified mail and directed
to Bill Hager, General Manager of the Harvester Company, Inc., West Highway 54,
Pratt, Kansas 67124.
Attached
to the show cause order is the U. S. Postal Service receipt showing delivery to
respondent December 6, 1975, and signed by one Bill Gilbert.
On
January 22, 1976, Charles K. Chaplin, Chief Judge, Occupational Safety &
Health Review Commission, entered his order dismissing respondent’s notice of
contest as to the penalty proposed for citation 2 for serious violation on the
basis of respondent’s lack of response to the show cause order and affirmed a
penalty of $550.00.
By
letter of June 30, 1976, directed to the Occupational Safety & Health
Review Commission, respondent, by Boyd Davies, sought reconsideration of the
order dismissing its notice of contest on the basis of his absence from the
facility for 24 months and the lack of understanding of his production
supervisor of the proceedings.
By
unanimous vote of the three Commissioners of the Occupational Safety &
Health Review Commission the matter was reinstated for further proceedings on
July 29, 1976.
Thereafter,
on August 31, 1976, the matter was assigned to the Undersigned for hearing
scheduled for September 22, 1976.
Boyd
Davies, in opposition to complainant’s motion to dismiss respondent’s notice of
contest, stated that he was a small manufacturer and that he had received a
letter from the Regional Solicitor on June 28, 1976, in response to a letter by
Boyd Davies to the Area Director.
The
Solicitor stated that it was the Solicitor’s position that the order of January
22, 1976, had become final and the penalty of $550.00 assessed by Judge Chaplin
was not subject to review.
The
Solicitor advised the respondent that he could petition the Review Commission
for reconsideration of the order dismissing his notice of contest, but that the
Solicitor would formally oppose the request.
Respondent
further stated that it is basically the sole owner of the company (T. 11), that
for approximately two years Davies was away from the office establishing approximately
60 wholesalers in order to make the company more viable.
Davies
delegated Bill Hager as his General Manager to run the operations in his
absence, who accomplished abatement of the various items cited. (T. 13–14)
DISCUSSION
Section
12(j) of the Act provides:
A hearing examiner [now denominated
Administrative Law Judge] appointed by the Commission shall hear, and make a
determination upon, any proceeding instituted before the Commission and any
motion in connection therewith, assigned to such hearing examiner by the
Chairman of the Commission, and shall make a report of any such determination
which constitutes his final disposition of the proceedings. The report of
the hearing examiner shall become the final order of the Commission within
thirty days after such report by the hearing examiner, unless within such
period any Commission member has directed that such report shall be reviewed by
the Commission. (Emphasis supplied)
The
file reflects no such direction by the Commission for review of Judge Chaplin’s
order entered January 22, 1976.
Complainant
relies upon Peter J. Brennan, Secretary of Labor, Petitioner, v.
Occupational Safety & Health Review Commission and S. J. Otinger, Jr.,
Construction Co., Respondents, 502 F.2d 30 (5th Cir., 1974).
As in
the case at bar, no timely answer was filed by the respondent and a motion to
dismiss was granted 79 days after the complaint was received, but 16 days after
the hearing examiner’s dismissal ruling was issued, respondent first filed its
answer.
On
December 29 the hearing examiner’s dismissal became the final order of the
Commission: No Commission member had directed review.
On
January 23, 1973, the Commission received a petition for reinstatement of
notice of contest from respondent on the basis of respondent’s confusion from
attempting to handle the matter pro se.
On
March 14, 1973, the Commission ordered the case reinstated.
The
Secretary refused to participate in any further proceedings, alleging that the
Commission lacked jurisdiction to reinstate the case.
The
Court stated in part:
To allow the Commission to avail itself of
Rule 60(b), F.R.Civ.P. in the situation here present would be to extend the
limits of statutorily conferred jurisdiction through the expediency of a
procedural rule, a result we cannot countenance. (citing cases, p. 33)
[2] Since the Commission is no more than a
creature of Congress and, as such, may proceed only in conformity with its
congressional grant of authority, we look to the Act for a delineation of the
powers of the Commission.
The statutory scheme clearly does not
permit any order which purports to dispose of the entire controversy to become
the final order of the Commission unless it has passed through a thirty day
discretionary review period, within which no Commission member has directed
full Commission review. Once an order does achieve this finality, the sole
statutory recourse for an aggrieved party is by petition to the appropriate
court of appeals. Title 29, U.S.C., § 660. The statute makes no provision for
further Commission consideration of the merits of the controversy.
FINDINGS OF FACTS
1.
Respondent’s duly delegated representative and General Manager received a
citation and notice of proposed penalties for serious violations at
respondent’s worksite, as a result of an inspection made August 21 and 22,
1975, and issued September 5, 1975.
2. On
September 23, 1975, respondent’s General Manager filed notice of contest as to
the penalty proposed in citation 2, item 1.
3. On
October 28, 1975, complaint was filed by the Solicitor.
4. On
December 3, 1975, a show cause order was issued by Chief Judge Charles K.
Chaplin for respondent to show cause why its notice of contest should not be
dismissed for failure to answer the complaint.
5. On
January 22, 1976, an order was entered by Chief Judge Chaplin dismissing
respondent’s notice of contest on the basis of not having responded to the
Solicitor’s complaint, assessing a penalty of $550.00.
6. A
period of time in excess of 30 days expired following Judge Chaplin’s order,
during which time the Chaplin’s order, during which time the review.
CONCLUSIONS OF LAW
1.
Judge Chaplin’s order of January 22, 1976, became a final order of the
Commission on February 23, 1976.
2.
The respondent is bound by the acts or failure to act by its duly delegated
agent manager.
3.
This Judge is without jurisdiction to hear the matter.
4.
The order of Judge Chaplin of January 22, 1976, is a final order, and the
notice of contest is vacated and the penalty in the amount of $550.00 is
assessed.
ORDER
Citation
2, item 1, for serious violation is affirmed. A penalty of $550.00 is assessed.
Paul E. Dixon,
Judge, OSHRC
DATE: February 15, 1977
[1] 29 U.S.C. § 651 et seq., hereafter, ‘the Act’.
[2] That section
provides, in pertinent part that:
The report of the hearing examiner shall become the final order of the Commission within thirty days after such report by the hearing examiner, unless within such period any Commission member has directed that such report shall be reviewed by the Commission.
[3] That section
provides, in pertinent part that:
Unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure.
[4] Rule 60(b)
provides, in pertinent part, that:
On motion and upon such terms as are just,
the court may relieve a party or his legal representative from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment.
[5] The Commission expressly declined to follow Otinger in Monroe & Sons, 4 BNA OSHC 2016, 2017.