SECRETARY OF LABOR, Complainant v. ELMER CONSTRUCTION CORPORATION Respondent. OSHRC Docket No. 83-0040 _DECISION _ BEFORE: BUCKLEY, Chairman; RADAR and WALL, Commissioners. BY THE COMMISSION: This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. § 659(c). This case is before the Commission for the second time. In our previous decision, we concluded that Administrative Law Judge Jerome C. Dieter had erred in dismissing Elder's notice of contest to the Secretary's citation and proposed penalty of $320 on the ground that Elder's letter stating it wished to contest was filed two days after the expiration of the 15-day contest period prescribed in section 10 of the Act, 29 U.S.C. § 659.[[1]] We found Elder's contest to be valid because Elder's attorney within the 15-day contest period had orally advised the supervisor of the OSHA area office that he wished to contest the citation but delayed in filing his letter confirming that intent because in his conversation with OSHA's supervisor he became confused as to when the contest period expired. We noted that at one point in their conversation the OSHA supervisor speculated that the time for contesting had already elapsed. We held that in these circumstances Elmer should not be denied a hearing, and accordingly we remanded for proceedings on the merits. On remand before Judge Dieter, the Secretary contended that, contrary to our decision, the citation had become a final order under the Act as a result of Elder's "failure to timely file a notice of contest . . . . " The Secretary therefore declined to file a complaint and to present evidence as required by our remand order. Accordingly, Judge Dieter vacated the Secretary's citation and proposed penalty with prejudice under Federal Rule of Civil Procedure 41(b) (dismissal for failure to prosecute). Chairman Buckley thereafter directed review on the issue of whether an oral notice of an employer's intent to contest subsequently confirmed in writing constitutes a valid notice of contest under the Act. Our decision in Pa-Saver Manufacturing Co., No. 84-733 (August 28, 1986), holds that an oral notification within the statutory time period of an employer's intent to contest is acceptable as a valid notice of contest in circumstances such is those present in this case. We therefore adhere to our prior decision that Elder's notice of contest was valid. Accordingly, we affirm Judge Dieter's order vacating the citation and proposed penalty for failure of the Secretary to prosecute this matter. See Gill Hague, 77 OSAHRC 182/G3, 5 BNA OSHC 1956, 1977- 78 CCH OSHD ¶ 22,248 (No. 14,675, 1977), aff'd, 586 F.2d 1263 (8th Cir. 1978); Monroe & Sons, Inc., 77 OSAHRC 14/B7, 4 BNA OSHC 2016, 1976-77 CCH OSHD ¶ 21,470 (No. 6031, 1977), aff'd, 615 F.2d 1156 (6th Cir. 1980). FOR THE COMMISSION Ray H. Darling Executive Secretary DATED: August 28, 1986 ------------------------------------------------------------------------ SECRETARY OF LABOR Complainant v. ELMER CONSTRUCTION CORPORATION Respondent. OSHRC DOCKET No. 83-0040 Appearances: Jay S. Burke, Regional Solicitor U. S. Department of Labor Attorney for Complainant by William G. Staten, Esq., of Counsel Biaggi and Ehrlich Attorney for Respondent by Richard M. Biaggi, Esq., of Counsel _MEMORANDUM AND ORDER_ On June 10, 1983, after a hearing on Complainant's motion to dismiss, Judge Jerome C. Dieter entered an order dismissing Respondent's notice of contest as untimely filed. On September 18, 1984, the Commission, after a review of the order of Judge Jerome C. Dieter rendered a decision setting aside the Judge's order, reinstating Respondent's notice of contest and remanding the case for a hearing on the merits. Upon remand, an order was entered on October 3, 1984, which scheduled a hearing for November 27, 1984, and, among other matters, required Complainant to file a Complaint by October 17, 1984. On October 17, 1984, Complainant by letter of his counsel, stated he would not comply with the order of October 3rd. He con-tended that, contrary to the Commission's decision of September 18, 1984, the citation had become a final order because Respondent's notice of contest was untimely filed. Therefore the citation was not subject to review by any court or agency (Item J-2A of file). On October 22, 1984, Respondent by letter of its counsel, in response to Complainant's letter of October 17, 1984, requested that the case be dismissed (Item J- 3A of file). Based on Complainant's letter of October 17, 1984 and Respondent's response of October 22, 1984, a hearing was held on November 2, 1984, requiring Complainant to show cause why the citation in this action should not be dismissed. At the hearing Complainant through his counsel, reiterated his position that the citation was a final order of the Commission not subject to review by any court or agency; that he would not file a complaint as required by the order of October 3, 1984; that if he was required to appear at the hearing scheduled for November 27, 1984, he would appear but would not prosecute the merits of the case at that time or any other time (T. 4-6). Respondent in response to Complainant's position and statements, moved to dismiss the action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure (T. 7-10). Based on the position and statements of the Secretary at the hearing, and on his refusal to obey the order of October 3. 1984, or to proceed further in this action, Respondent's motion to dismiss the action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, is granted _ORDER_ Due deliberation having been had on the whole record, it is hereby ORDERED that Respondent's motion to dismiss this action is granted, it is further ORDERED the citation herein is dismissed with prejudice, it is further ORDERED that the proposed penalty is vacated. JEROME C. DIETER JUDGE, OSHRC Dated: December 20, 1984 New York, New York ------------------------------------------------------------------------ SECRETARY OF LABOR Complainant, v. ELMER CONSTRUCTION CORP., Respondent. OSHRC Docket No. 83-0040 _DECISION _ Before: BUCKLEY, Chairman; CLARE Commissioner. BY THE COMMISSION: This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.§ 661(I), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. § 659(c). The question in this case is whether the administrative law judge properly dismissed Elmer Construction Company's notice of contest for being untimely. We reverse the administrative law judge's decision and remand the case for a hearing on the merits. On September 21, 1982, an OSHA compliance officer inspected Elder's New York City workplace. On October 6, 1982, the Secretary issued a citation alleging serious violations of two OSHA standards and proposing a penalty of $320. Elmer received the citation on October 20. On October 26, Elmer sent a check for $320 in full payment of the penalty. Toward the end of October, Elmer hired Richard Biaggi as its attorney. On November 1, Biaggi called the New York OSHA office and spoke to Lawrence Climate, the Safety Supervisor. According to Climate, the tenor of the conversation was that Biaggi "would like to contest the violation that was issued against (Elmer) on October 6." Climate told Biaggi that Elmer had paid the $320 penalty and that the case was ready to be closed. Biaggi expressed surprise that Elmer had paid the penalty. Testimony at the hearing indicated that the president of Elmer had limited skills in English and this might have led to some of the confusion. Biaggi and Climate also discussed when Biaggi would have to submit a notice of contest.[[1]] At the time of the conversation, neither man knew when Elmer had received the citation. Climate knew that the citation had been issued on October 6 and, assuming that Elmer had received the citation within a few days, speculated to Biaggi that the time for the notice had already passed. In fact, this assumption was not true. Since Elmer had received the citation on October 20, under section 10(a) of the Act Elmer had until November 10 to notify the Secretary that it contested the citation. In a letter dated November 12, Biaggi wrote the New York OSHA office that, . . . it is the position of my client, Elmer Construction Corporation, that it has not violated any act, statute or regulation concerning the above captioned matter. I write this letter knowing that Elmer Construction Corporation has issued a check in payment of said violations. I first became aware of the payments on November 1st when I spoke with Larry Climate of your office. On that date I called to contest the violations. Please do not consider said payments as an admission of wrongful conduct by my client. Mr. Oregano of Elmer Construction Corporation was not fully aware of his right to contest the violations. Climate did not consider the November 12 letter a notice of contest. Rather, he testified that he considered the letter "a disclaimer of guilt," which he said are fairly common. The letter was added to the case file. The Commission has allowed a late notice of contest if the circumstances surrounding the late notice warrant a relaxation of the 15-day rule of section 10(a). See Con-in Construction Co., 83 OSAHRC , 11 BNA OSHC 1757, 1983 CCH OSHD ¶ (No. 83-371, 1983); Merit Electric Co., 81 OSAHRC 75/D4, 9 BNA OSHC 2088, 1981 CCH OSHD ¶ 25,556 No. 77-3772, 1981). This is in keeping with the Commission's policy in favor of allowing employers an opportunity for a full hearing on the merits. See Seminal Distributors, Inc., 77 OSAHRC 211/D9, 6 BNA OSHC 1194, 1977-78 CCH OSHD ¶ 22,412 (No. 15671, 1977). We find that Elmer should not be denied a hearing under the circumstances of this case. The conversation between Climate and Biaggi was confusing. Climate inadvertently may have given Biaggi the impression that the time for filing a notice of contest had passed. This, in turn, may have caused Elmer to submit the notice of contest late. Compounding this confusion are the limited language skills of Elder's president and the problems Biaggi had in communicating with his client. Given these circumstances, we set aside the administrative law judge's decision and remand the case for proceedings on the merits of the alleged violations. FOR THE COMMISSION RAY H. DARLING, JR. EXECUTIVE SECRETARY DATED: September 18, 1984 ------------------------------------------------------------------------ SECRETARY OF LABOR, Complainant, v. ELMER CONSTRUCTION CORPORATION, Respondent. OSHRC DOCKET NO. 83-0040 Appearances: Patricia M. Rodenhausen Acting Regional Solicitor U. S. Department of Labor New York, New York by William G. Staten, Esq., of Counsel Biaggi & Ehrlich New York, New York Attorney for Respondent by Richard M. Biaggi, Esq., of Counsel _DECISION AND ORDER _ Dieter, J.: Complainant by motion dated February 7, 1983, moved to dismiss Respondent's notice of contest as untimely filed. On March 4, 1983, Richard M. Biaggi, Esq., counsel for Respondent, filed a response in opposition to the motion. A hearing on the motion was scheduled for and heard on April 4, 1983. _Background _ As a result of an inspection of Respondent's workplace on September 21, 1982, located at 684 Broadway, New York, New York, Respondent was issued on October 6, 1982, a citation for serious violations of 29 CFR § 1926.28(a) and 1926.451(g)(2), and a notification of a total proposed penalty of $320.00 (Citation). Respondent received the citation and notification on October 20, 1982 (Exh. C-4). Respondent had fifteen (15) working days from October 20, 1982, to file a written notice of contest to the citation and notification of proposed penalty. The last day to file a timely notice of contest was November 10, 1982. No notice of contest was filed on or before November 10, 1982, but one was formally filed by Respondent's counsel on January 18, 1983 (Exh. C-3). In his written opposition to the motion (J-3 of file), Respondent's counsel stated that he telephoned the Manhattan office of OSHA, on November 1. 1982, and spoke with a Mr. Larry Climate. He told Mr. Climate that he wished to contest the citation and penalty on Respondent's behalf. He also inquired about the fifteen working days time limitation and its relationship to the October 6, 1982, issuing date of the citation. He claimed that Mr. Climate told him that Respondent had fifteen working days from October 6, 1982, to contest the citation, and that Respondent's time had elapsed. He told Mr. Climate that if the citation was received by Respondent on October 8th or 11th, the last day to file would be November 1, 1982. He further stated to Mr. Climate that Respondent's president, a Mr. Arleen, could not speak or understand the English language, and never received any instruction booklet from OSHA relating to an employer's rights and responsibilities. Mr. Biaggi also stated that Mr. Climate informed him that Respondent had paid the $320.00 penalty. Mr. Biaggi was not aware of this payment. On November 12, 1982, Mr. Biaggi sent a letter to OSHA, to establish Respondent's position as to the citation and penalty. He received no response to this letter and on January 18, 1983, he sent another letter to OSHA, formally contesting the citation. Mr. Biaggi concluded that he was unintentionally misled by Mr. Climate's misrepresentation that Respondent's time to file a notice of contest had expired on November 1, 1982, and therefore, did not file a notice of contest on or before November 10, 1982, the last day to file. Based on the motion and Respondent's counsel response, a hearing was held on the motion on April 4. 1983, at New York, New York. _The Hearing_ At the hearing, Lawrence Climate, safety supervisor for OSHA's Manhattan Area Office, testified that he did receive a telephone call from Mr. Biaggi on November 1, 1982, in which Mr. Biaggi stated he wanted to contest the citation for Respondent. Mr. Climate informed Mr. Biaggi that the contest had to be in writing, and further informed him that Respondent had paid the $320.00 penalty (T. 3, 6, 17). Mr. Climate also stated that there was some conversation with Mr. Biaggi about the October 6th date and the fifteen working days time limitation. He did not recall any conversation with Mr. Biaggi, in which he told Mr. Biaggi that Respondent's time to file a notice of contest had expired on November 1, 1982. Mr. Climate further stated that he could not have given Mr. Biaggi an expiration date because at the time of the conversation (November 1, 1982), he did not know when Respondent received the citation and therefore, could not calculate when the fifteen working days period began to run (T. 9, 10, 16). He testified that a citation is sent to an employer by certified mail. When the return receipt is returned to OSHA by the postal service, the receipt indicates the day the citation was received by the employer and permits OSHA to calculate the time in which a notice of contest must be filed by the employer. Mr. Climate stated that Mr. Biaggi did tell him that Respondent's president spoke Spanish and understood very little English (T. 10, 11, 12, 18; Exh. C-4). The November 1, 1982, telephone call ended with Mr. Biaggi stating he would call Mr. Climate back (T. 6). Mr. Climate further testified that he received a letter from Mr. Biaggi on November 11, 1982, in which Mr. Biaggi stated that the payment of the penalty by Respondent was not to be deemed an admission by Respondent, of the violations involved in the citation. Mr. Climate considered the letter to be a disclaimer by Respondent (T. 7. Exh. C-2). Mr. Climate had no further communication on this case until January 19, 1983, when he received another letter from Mr. Biaggi, formally contesting the citation (T. 7-8; Exh. C-3). Upon receipt of the January 19th letter, Mr. Climate assembled the case file and forwarded it to the Regional Solicitor's office of the Department of Labor. He had no other communications from Respondent or his counsel since that time (T. 8). At the hearing Mr. Climate testified that it was the normal course of business of his office, and customary practice, to send with the citation, a booklet describing the rights and responsibilities of an employer. This booklet was sent to Respondent along with the citation (T. 12, 17). At the conclusion of Mr. Climate's testimony, Complainant rested his case. Counsel for Respondent also rested and produced no witnesses or other evidence on Respondent's behalf. Counsel stated that he believed the hearing was solely for the purposes of oral argument, and that his client's president could not understand or speak English too well (T. 14, 20, 23-24, 26). Counsel for Respondent did represent to the Court that he was retained by Respondent a few days before November 1, 1982, either during the third or fourth week of October; that he read the citation and understood it and the information relating to the fifteen working days time limitation; and that he could have sent out a notice of contest on November 1, 1982, but was unintentionally misled by Mr. Climate's statement that Respondent's time to file had expired on November 1, 1982 (T. 20-24, 25). _OPINION _ The issue involved is whether Respondent's counsel, Richard M. Biaggi, Esq., was unintentionally misled by Mr. Climate's alleged statement to him on November 1. 1982, that Respondent's time to file a notice of contest had expired on November 1, 1982. The credible evidence establishes that Mr. Climate did have a telephone conversation with Mr. Biaggi on November 1, 1982; that there was some conversation between them concerning the October 6, 1982 issuing date of the citation, and its relationship to the fifteen working days time period for filing a written notice of contest; and that Mr. Climate did not inform or represent to Mr. Biaggi that Respondent's time to file a notice of contest had expired on November 1, 1982. Mr. Climate could not have given Mr. Biaggi an expiration date of November 1, 1982, since he did not know on November 1, 1982, when Respondents received the citation and therefore, could not calculate the date when Respondent's time to file a notice of contest, would expire. Respondent's counsel represented that he received the citation from Respondent either during the third or fourth week of October 1982; and that he read the citation and understood it and the fifteen working days time limitation. There was ample time prior to the call of November 1, 1982, for counsel to have sent by mail or personal service, a notice of contest on Respondent's behalf. No reason was given by Mr. Biaggi as to why this was not done, or why he waited until November 1, 1982, to call OSHA, or why after the call, even believing that the time to file had expired, he did not send out a notice of contest on November 1, 1982. The evidence also establishes that Respondent received the citation on October 20, 1982, and paid the penalty to OSHA, on October 26, 1982. There is no evidence, other than Mr. Biaggis' representation, that Respondent did not receive OSHA's booklet describing an employer's rights and responsibilities. Based on the evidence of record, Respondent's counsel, Mr. Biaggi, was not misled by any statement of Mr. Climate, which caused Mr. Biaggi to file an untimely notice of contest. Respondent has not sought relief pursuant to Rule 60(b)(1) and (6) of the Federal RuIes of Civil Procedure, nor is there any ground for this Court to grant such relief based on the record herein. Complainant's motion to dismiss Respondent's notice of contest as untimely filed, is GRANTED. The citation and penalties are affirmed. SO ORDERED. JEROME C. DIETER JUDGE, OSHRC Dated: June 10, 1983 New York, New York FOOTNOTES: [[1]] The Act requires that an employer notify the Secretary of its intent to contest within 15 working days of receipt of the Secretary's penalty notification. [[1]] Pursuant to section 10(a) of the Act, 29 U.S.C. § 659(a), an employer must notify the Secretary that it intends to contest the citation or proposed penalty within 15 working days of its receipt of the notification of proposed penalty that accompanies the citation.