The Harvester Company (Commission decision, February 1, 1979)

Plain-English summary

A small popcorn popper manufacturer in Pratt, Kansas lost its case by not answering the mail, got it back, and then lost it again when the judge on remand decided the Commission had never had the power to give it back. The Commission reversed that and sent the case down a second time.

How it got here. The worksite was inspected in August 1975. Two citations issued on September 5, 1975: one alleging fifteen nonserious violations, and one alleging a serious violation for failing to comply with six different subparts of the mechanical power press standard, with a $550 penalty proposed. Bill Hager, the general manager, filed a notice of contest on September 23 that contested the
$550 penalty and stated the conditions had been or were being abated. Nothing more was filed. Respondent did not answer the complaint. It did not answer Judge Chaplin's December 3 order to show cause why the notice of contest should not be dismissed. On January 22, 1976, Judge Chaplin dismissed the notice of contest and imposed the $550. That order became final on February 23, 1976.

On June 30, 1976, Boyd Davies, the company's president, wrote to the Commission asking for reconsideration. He had been away from the facility for roughly two years setting up about sixty wholesalers, had delegated the business to his general manager, understood from the general manager that the citations had been taken care of, and learned that hearings had been scheduled only in April 1976, when the demand for payment arrived. On July 29, 1976, the Commission by unanimous vote granted the petition, reinstated the notice of contest, and remanded for further proceedings.

The hearing that never happened. At the September 22, 1976 hearing before Judge Dixon, the Secretary moved to dismiss, arguing that the Commission had no jurisdiction to reinstate a notice of contest once Judge Chaplin's decision had become a final order, so the case was not properly before the judge at all. Judge Dixon agreed, held he lacked jurisdiction, and dismissed on February 15, 1977. He relied on the Fifth Circuit's decision in Brennan v. OSHRC and S. J. Otinger, Jr., Construction Co., which on closely similar facts held that to allow the Commission to avail itself of Rule 60(b) would be to extend the limits of statutorily conferred jurisdiction through the expediency of a procedural rule.

The Commission's answer. Its position was already settled in Monroe & Sons. Congress used the word "final" in section 661(i) to make a judge's decision ripe for judicial review when the Commission does not direct review within thirty days, not to strip the Commission of limited jurisdiction to reconsider its own order before a court of appeals takes the case. Congress also knew, in enacting 29 U.S.C. § 661(f), that Rule 60(b) of the Federal Rules of Civil Procedure would operate as a qualification on the finality provision of section 661(i). So the Commission may reinstate a notice of contest after the thirty days have run. A footnote records that the Commission expressly declined to follow Otinger in
Monroe, which is the honest description of what happened: a considered refusal to follow a circuit holding, not a distinction of it.

The Secretary made three arguments and lost all three, each for a different kind of reason.

That Monroe was wrongly decided: rejected, because the Commission had already reaffirmed Monroe against the same arguments in C & C Plumbing Co. and M & M Contractors.

That even under Monroe these facts do not warrant relief, because five months was an unreasonable time to wait and because the president's absence excuses nothing when the general manager had authority to answer: rejected on a ground worth noting. The Commission did not re-weigh the equities. It held that the reinstatement order it issued in July 1976 was itself the determination that these facts warrant Rule 60(b) relief, and that it saw nothing in the record to cause it to reconsider. The decision to reinstate was made when it was made. The Secretary's remedy was not to relitigate it at the hearing on remand.

That respondent has not shown the penalty inappropriate: this one the Secretary loses by having won too early. The whole purpose of the hearing before Judge Dixon was to determine whether the proposed penalties were appropriate, and because the case was dismissed there is no finding on that question from anyone. So it has to be remanded again.

The holding in one line. In the face of the Commission's order reinstating the case, Judge Dixon erred in dismissing for lack of jurisdiction. A judge on remand does not get to decide that the order remanding to him was void.

What this decision does not decide. Nothing about the merits. The six power press subparts in the serious citation were never adjudicated by anyone, and the notice of contest went only to the penalty in the first place, so the violation itself was never in dispute. Nor does the Commission engage the Fifth Circuit's reasoning; it notes that it declined to follow Otinger and proceeds.

On the released text. Judge Dixon's full decision of February 15, 1977 is reproduced beneath the Commission's decision in the release below, so this file contains both. Two internal inconsistencies are reproduced as released. The Commission's opinion says the Secretary filed a complaint on November 4, 1975, while Judge Dixon's recitation has the complaint dated October 28, 1975, after an extension granted October 21. Finding of fact 6 in Judge Dixon's decision is garbled by a duplication and breaks off mid-sentence: "during which time the Chaplin's order, during which time the review." Judge Dixon also describes Davies as "basically the sole owner" and the Commission describes him as "the sole proprietor of the business," neither of which sits easily with a respondent named The Harvester Company, Inc. The complaint's notice to respondent reads "within fifteen days of your receipt of this complainant."

Decision snapshot

• Outcome: Remanded. The judge's dismissal for lack of jurisdiction is
  reversed and the case goes back for a hearing on penalty. No citation is affirmed, vacated or modified by this document.
• Holding: Where the Commission has reinstated a notice of contest under Rule
  60(b) and remanded, the judge on remand cannot dismiss on the ground that the Commission lacked jurisdiction to reinstate.
• Jurisdiction to reinstate: 29 U.S.C. § 661(i) makes a judge's unreviewed
  decision final so that it is ripe for judicial review, not to preclude the Commission from reconsidering its own order before a court of appeals assumes jurisdiction. Under 29 U.S.C. § 661(f) the Federal Rules of Civil Procedure apply, and Rule 60(b) qualifies the finality provision. Monroe & Sons, reaffirmed in C & C Plumbing Co. and M & M Contractors.
• Circuit conflict: the Commission expressly declines to follow Brennan v.
  OSHRC and S. J. Otinger, Jr., Construction Co., 502 F.2d 30 (5th Cir. 1974), which held Rule 60(b) cannot extend statutorily conferred jurisdiction.
• Finality of the reinstatement order: the July 29, 1976 order granting
  reconsideration is itself the determination that the facts warrant Rule 60(b) relief. An argument that the equities do not support reinstatement attacks that order and is not an issue open at the hearing on remand.
• The underlying citation, never adjudicated: a serious violation alleging
  failure to comply with 29 C.F.R. § 1910.217(c)(1)(i), (c)(2)(i)(a), (d)(4), (e)(1)(i), (e)(1)(ii) and (f)(3), mechanical power presses, with $550 proposed. A separate citation alleging fifteen nonserious violations was not contested. The notice of contest went to the penalty only, so no standard is adjudicated in this document and none is listed in the standards field.
• Below: Judge Paul E. Dixon (February 15, 1977), dismissing for lack of
  jurisdiction. Reversed. His decision appears in full in the release text below.
• Directed for review by Chairman Cleary and former Commissioner Moran.

Full text (OSHRC public release)

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EN-US
X-NONE
X-NONE

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.

����������� 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.