“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15074 THE HARVESTER COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 1, 1979DECISIONBefore CLEARY, CHAIRMAN; BARNAKO and COTTINE,Commissioners.CLEARY, Chairman:??????????? Adecision of Administrative Law Judge Paul E. Dixon is before the Commissionpursuant to section 12(j) of the Occupational Safety and Health Act of 1970.[1] Review was directed byChairman Cleary and former Commissioner Moran. The pertinent facts are asfollows.??????????? Respondent?sworksite in Pratt, Kansas, was inspected in August 1975. Two citations wereissued on September 5, 1975, as a result of this inspection. One citationalleged 15 non-serious violations and the other alleged one serious violationfor failure to comply with six different subparts of 29 CFR ? 1910.217. A $550penalty was proposed for the serious violation.??????????? OnSeptember 23, 1975, Bill Hager, general manager for respondent, filed a noticeof contest contesting the proposed penalty of $550 for the serious citation.The notice of contest stated that the violative conditions had been or werebeing abated. The Secretary filed a complaint on November 4, 1975. Respondentfailed to answer the complaint and on December 3, 1975, Administrative LawJudge Chaplin ordered respondent to show cause why its notice of contest shouldnot be dismissed. Respondent failed to answer the show cause order and onJanuary 22, 1976, Judge Chaplin dismissed the notice of contest and imposed the$550 penalty. This order became final on February 23, 1976.??????????? On June30, 1976, Boyd Davies, respondent?s president, petitioned the Commission forreconsideration of the order dismissing respondent?s notice of contest andassessing the proposed penalty. On July 29, 1976, the Commission, by unanimousvote, granted respondent?s petition for reconsideration, reinstated the noticeof contest, and remanded the case for further proceedings.??????????? Ahearing was held September 22, 1976, before Judge Dixon. The Secretary movedfor dismissal on the ground that the Commission had no jurisdiction toreinstate a notice of contest once Judge Chaplin?s decision had become a finalorder, and therefore, the case was not properly before Judge Dixon.Respondent?s president argued that the alleged violation in citation two hadbeen abated. Mr. Davies further indicated that he was the sole proprietor ofthe business and in the course of his business he found it necessary to beabsent on sales work for approximately two years. It was, therefore, necessaryto appoint someone to manage the business in his absence. He also stated thathe received the impression from his general manager that the citations had beentaken care of, and he was, therefore, not aware that the hearings had beenscheduled until April 1976, when he received the demand for payment of thepenalties. Judge Dixon determined that he lacked jurisdiction and accordinglydismissed the case on February 15, 1977.??????????? Thecase of Monroe & Sons, 77 OSAHRC 14\/B7, 4 BNA OSHC 2016, 1976?77 CCHOSHD ?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?sdecision ripe for judicial review, if the Commission did not direct reviewwithin thirty days. We concluded that it was not the intent of Congress topreclude the Commission from retaining limited jurisdiction to reconsider itsorder before a Court of Appeals assumes jurisdiction. Further, the Commissiondetermined that in enacting 29 U.S.C. ?\u00a0661(f),[3]Congress was aware thatRule 60(b) of the Federal Rules of Civil Procedure[4] would operate as aqualification 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 hadexpired.??????????? TheSecretary makes three arguments on review. First, he argues that Monroe& Sons was incorrectly decided. He argues that the Commission?sjurisdiction is limited by section 661(i) and that once the thirty days haveelapsed from the entry of the judge?s decision the Commission cannot reconsiderits 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 ofthe present case do not warrant reinstatement by the Commission. The Secretarystates two reasons why reinstatement is not appropriate under Rule 60(b): (1)Five months is an unreasonable time for respondent to have waited beforepetitioning the Commission for reinstatement; (2) The absence of respondent?spresident from its home office is not good reason for excusing the failure tocomply with Commission rules, because respondent?s general manager had therequisite authority to file an answer and to respond to the show cause order.??????????? TheSecretary?s third and final argument is that respondent has not shown that thepenalty is inappropriate.??????????? TheSecretary?s first two arguments address the merits of the request to reinstate.As to the first argument, the Commission has reaffirmed its decision in Monroein the face of similar arguments advanced by the Secretary. C & CPlumbing Co. and M & M Contractors, Inc., 77 OSAHRC 204\/D14, 6 BNA OSHC1131, 1977?78 CCH OSHD ?22,361 (Nos. 5422 & 5423, 1977). Secondly, thereinstatement order issued by the Commission represents a determination thatthe facts of this case warrant Rule 60(b) relief. We see nothing in this recordto cause us to reconsider this determination. As to the third argument, thepurpose of the hearing before Judge Dixon was to determine the appropriatenessof the penalties proposed by the Secretary. Since the case was dismissedwithout any finding by the judge on this issue, the case must once more beremanded.??????????? Inthe face of the Commission?s order reinstating the case, Judge Dixon erred indismissing 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 SECRETARYBY: Gloria W. WhiteActing Executive SecretaryDATED: FEB 01, 1979\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15074 THE HARVESTER COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 February 15, 1977APPEARING ON BEHALF OF COMPLAINANT:EUGENE F. DeSHAZO, ESQ., Office of theSolicitor, U. S. Department of Labor, 911 Walnut Street, Kansas City, Missouri\u00a0APPEARING ON BEHALF OF RESPONDENT:MR. BOYD DAVIES, pro se, for the HarvesterCompany, Inc., Pratt, Kansas\u00a0Paul E. Dixon, Judge:??????????? Thisis an action under section 10(c) of the Occupational Safety & Health Act of1970, 29 USC 651, et seq. (hereinafter referred to as the Act), resulting froman inspection made on August 21?22, 1975, of respondent?s operations located atthe airport, three and one-half miles north of Pratt on Highway 281, Pratt,Kansas, wherein respondent was engaged in operations producing popcorn poppers.??????????? Citationfor 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 theamount of $550.00.ISSUES??????????? Thesole issue is whether or not the Undersigned has jurisdiction to hear themerits of the matters contained within the citation.??????????? Inorder to resolve this issue, a chronology of events will be enumerated and arecitation of the evidence taken at the time of complainant?s motion contestingthe Review Commission?s jurisdiction in this matter.??????????? Followingthe issuance of the citation on September 5, 1975, a notice of contest underdate of September 23, 1975, and time stamped received September 25, 1975, onthe letter head of respondent and signed by Bill Hager, General Manager, refersto the various items mentioned in the citation and the abatement or stage ofabatement 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 madeby complainant which was marked received by the Occupational Safety &Health Review Commission October 17, 1975, by the Office of the ExecutiveSecretary.??????????? Therequest for extension of time to file complaint was granted October 21, 1975,by the Office of the Executive Secretary.??????????? Complaintdated October 28, 1975, was filed with Affidavit of Service by mail, in whichthe complaint stated on page 5:NOTICE TO RESPONDENT?You are hereby notified that you mustplead or otherwise answer this complaint either denying or admitting theallegations, within fifteen days of your receipt of this complainant. Failureto do so may result in dismissal of your notice of contest. See Rule 33(b),Rules of Procedure, Occupational Safety and Health Review Commission.\u00a0??????????? OnDecember 3, 1975, the Chief Judge of the Occupational Safety & HealthReview Commission entered a show cause order against the respondent wherein theorder stated:Respondent is hereby ordered to show causein writing addressed to the Commission?s Executive Secretary, within ten daysof the receipt of this order, why its notice of contest should not be dismissedfor failure to answer the complaint.???????????? Saidshow cause order was sent on December 3, 1975, by certified mail and directedto Bill Hager, General Manager of the Harvester Company, Inc., West Highway 54,Pratt, Kansas 67124.??????????? Attachedto the show cause order is the U. S. Postal Service receipt showing delivery torespondent December 6, 1975, and signed by one Bill Gilbert.??????????? OnJanuary 22, 1976, Charles K. Chaplin, Chief Judge, Occupational Safety &Health Review Commission, entered his order dismissing respondent?s notice ofcontest as to the penalty proposed for citation 2 for serious violation on thebasis of respondent?s lack of response to the show cause order and affirmed apenalty of $550.00.??????????? Byletter of June 30, 1976, directed to the Occupational Safety & HealthReview Commission, respondent, by Boyd Davies, sought reconsideration of theorder dismissing its notice of contest on the basis of his absence from thefacility for 24 months and the lack of understanding of his productionsupervisor of the proceedings.??????????? Byunanimous vote of the three Commissioners of the Occupational Safety &Health Review Commission the matter was reinstated for further proceedings onJuly 29, 1976.??????????? Thereafter,on August 31, 1976, the matter was assigned to the Undersigned for hearingscheduled for September 22, 1976.??????????? BoydDavies, in opposition to complainant?s motion to dismiss respondent?s notice ofcontest, stated that he was a small manufacturer and that he had received aletter from the Regional Solicitor on June 28, 1976, in response to a letter byBoyd Davies to the Area Director.??????????? TheSolicitor stated that it was the Solicitor?s position that the order of January22, 1976, had become final and the penalty of $550.00 assessed by Judge Chaplinwas not subject to review.??????????? TheSolicitor advised the respondent that he could petition the Review Commissionfor reconsideration of the order dismissing his notice of contest, but that theSolicitor would formally oppose the request.??????????? Respondentfurther stated that it is basically the sole owner of the company (T. 11), thatfor approximately two years Davies was away from the office establishing approximately60 wholesalers in order to make the company more viable.??????????? Daviesdelegated Bill Hager as his General Manager to run the operations in hisabsence, who accomplished abatement of the various items cited. (T. 13?14)DISCUSSION??????????? Section12(j) of the Act provides:A hearing examiner [now denominatedAdministrative Law Judge] appointed by the Commission shall hear, and make adetermination upon, any proceeding instituted before the Commission and anymotion in connection therewith, assigned to such hearing examiner by theChairman of the Commission, and shall make a report of any such determinationwhich constitutes his final disposition of the proceedings. The report ofthe hearing examiner shall become the final order of the Commission withinthirty days after such report by the hearing examiner, unless within suchperiod any Commission member has directed that such report shall be reviewed bythe Commission. (Emphasis supplied)???????????? Thefile reflects no such direction by the Commission for review of Judge Chaplin?sorder entered January 22, 1976.??????????? Complainantrelies 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 inthe case at bar, no timely answer was filed by the respondent and a motion todismiss was granted 79 days after the complaint was received, but 16 days afterthe hearing examiner?s dismissal ruling was issued, respondent first filed itsanswer.??????????? OnDecember 29 the hearing examiner?s dismissal became the final order of theCommission: No Commission member had directed review.??????????? OnJanuary 23, 1973, the Commission received a petition for reinstatement ofnotice of contest from respondent on the basis of respondent?s confusion fromattempting to handle the matter pro se.??????????? OnMarch 14, 1973, the Commission ordered the case reinstated.??????????? TheSecretary refused to participate in any further proceedings, alleging that theCommission lacked jurisdiction to reinstate the case.??????????? TheCourt stated in part:To allow the Commission to avail itself ofRule 60(b), F.R.Civ.P. in the situation here present would be to extend thelimits of statutorily conferred jurisdiction through the expediency of aprocedural rule, a result we cannot countenance. (citing cases, p. 33)?[2] Since the Commission is no more than acreature of Congress and, as such, may proceed only in conformity with itscongressional grant of authority, we look to the Act for a delineation of thepowers of the Commission.?The statutory scheme clearly does notpermit any order which purports to dispose of the entire controversy to becomethe final order of the Commission unless it has passed through a thirty daydiscretionary review period, within which no Commission member has directedfull Commission review. Once an order does achieve this finality, the solestatutory recourse for an aggrieved party is by petition to the appropriatecourt of appeals. Title 29, U.S.C., ? 660. The statute makes no provision forfurther Commission consideration of the merits of the controversy.\u00a0FINDINGS OF FACTS??????????? 1.Respondent?s duly delegated representative and General Manager received acitation and notice of proposed penalties for serious violations atrespondent?s worksite, as a result of an inspection made August 21 and 22,1975, and issued September 5, 1975.??????????? 2. OnSeptember 23, 1975, respondent?s General Manager filed notice of contest as tothe penalty proposed in citation 2, item 1.??????????? 3. OnOctober 28, 1975, complaint was filed by the Solicitor.??????????? 4. OnDecember 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 bedismissed for failure to answer the complaint.??????????? 5. OnJanuary 22, 1976, an order was entered by Chief Judge Chaplin dismissingrespondent?s notice of contest on the basis of not having responded to theSolicitor?s complaint, assessing a penalty of $550.00.??????????? 6. Aperiod 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 theCommission on February 23, 1976.??????????? 2.The respondent is bound by the acts or failure to act by its duly delegatedagent 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 thenotice of contest is vacated and the penalty in the amount of $550.00 isassessed.ORDER??????????? Citation2, item 1, for serious violation is affirmed. A penalty of $550.00 is assessed.?Paul E. Dixon,Judge, OSHRCDATE: February 15, 1977[1] 29 U.S.C. ? 651 etseq., hereafter, ?the Act?.[2] That sectionprovides, in pertinent part that:The report of the hearing examiner shallbecome the final order of the Commission within thirty days after such reportby the hearing examiner, unless within such period any Commission member hasdirected that such report shall be reviewed by the Commission.[3] That sectionprovides, in pertinent part that:Unless the Commission has adopted adifferent rule, its proceedings shall be in accordance with the Federal Rulesof 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 finaljudgment, order, or proceeding for the following reasons:(1) mistake, inadvertence, surprise, orexcusable neglect; . . . or (6) any other reason justifying relief from theoperation of the judgment.[5] The Commissionexpressly declined to follow Otinger in Monroe & Sons, 4 BNAOSHC 2016, 2017.”