UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

†††††††††††††††††††††††††††††††††††††††††††† Complainant,

 

†††††††††††††††††††††††† v.

OSHRC DOCKET NO. 15074

THE HARVESTER COMPANY,

 

††††††††††††††††††††††††††††††††††††††††††††† Respondent.

 

 

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.

††††††††††† Respondentís 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 ß 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, respondentís president, petitioned the Commission for reconsideration of the order dismissing respondentís notice of contest and assessing the proposed penalty. On July 29, 1976, the Commission, by unanimous vote, granted respondentís 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 Chaplinís decision had become a final order, and therefore, the case was not properly before Judge Dixon. Respondentís 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, 1976Ė77 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 Ďfinalí in section 661(i)[2] was to make a judgeís 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. ß 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 Commissionís jurisdiction is limited by section 661(i) and that once the thirty days have elapsed from the entry of the judgeís 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 respondentís president from its home office is not good reason for excusing the failure to comply with Commission rules, because respondentís general manager had the requisite authority to file an answer and to respond to the show cause order.

††††††††††† The Secretaryís third and final argument is that respondent has not shown that the penalty is inappropriate.

††††††††††† The Secretaryís 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, 1977Ė78 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 Commissionís 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 21Ė22, 1975, of respondentís 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 complainantís motion contesting the Review Commissionís 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 Commissionís 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 respondentís notice of contest as to the penalty proposed for citation 2 for serious violation on the basis of respondentís 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 complainantís motion to dismiss respondentís 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 Solicitorís 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. 13Ė14)

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 Chaplinís 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 examinerís dismissal ruling was issued, respondent first filed its answer.

††††††††††† On December 29 the hearing examinerís 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 respondentís 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., ß 660. The statute makes no provision for further Commission consideration of the merits of the controversy.

 

FINDINGS OF FACTS

††††††††††† 1. Respondentís duly delegated representative and General Manager received a citation and notice of proposed penalties for serious violations at respondentís worksite, as a result of an inspection made August 21 and 22, 1975, and issued September 5, 1975.

††††††††††† 2. On September 23, 1975, respondentís 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 respondentís notice of contest on the basis of not having responded to the Solicitorís complaint, assessing a penalty of $550.00.

††††††††††† 6. A period of time in excess of 30 days expired following Judge Chaplinís order, during which time the Chaplinís order, during which time the review.

CONCLUSIONS OF LAW

††††††††††† 1. Judge Chaplinís 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. ß 651 et seq., hereafter, Ďthe Actí.

[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.