J. Dale Wilson, Builder

Plain-English summary

J. Dale Wilson sent OSHA a letter protesting a citation and proposed $35 penalty, and OSHA received it on October 11, 1972. OSHA did not transmit the notice of contest to the Commission until October 30, beyond the seven-day procedural deadline. The Commission initially reversed an automatic vacatur and remanded so OSHA could explain the delay and the employer could show prejudice. On remand, OSHA said the Area Director spent several days trying to confirm whether the strongly worded protest was intended as a notice of contest. The judge found that the letter plainly contested the citation, that OSHA could have forwarded it if uncertain, and that no good cause justified the delay. He therefore vacated the citation and proposed penalty; the release does not identify the underlying cited safety standards.

Decision snapshot

• Cited standard(s): None identified in the decision.
• Outcome: The citation and proposed $35 penalty were vacated because OSHA lacked good cause for transmitting the notice of contest 19 days after receipt.
• Key point: An Area Director could not delay forwarding an unmistakable written protest merely to confirm that the employer intended to contest.

Full text (OSHRC public release)

J Dale Wilson Builder, Docket No.1625

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 1625

J DALE WILSON, BUILDER,

Respondent.

February 20, 1973

ORDER OF REMAND

Before MORAN, Chairman, VAN NAMEE and BURCH, Commissioners

VAN NAMEE, COMMISSIONER:

On January 16, 1973, Judge David H. Harris issued an order vacating Complainant’s
citation in the above-captioned matter. He based his order on the ground that the Complainant
had failed to forward Respondent’s notice of contest to the Commission within seven days of
receipt as required by Commission Rule 32 (29 C.F.R. 2200.32).

Pursuant to the authority vested in the members of the Commission by Section 12(j) of
the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590,
hereinafter referred to as the ‘Act’), I am herewith directing that the Judge’s Order be reviewed
by the Commission. For the reasons given hereinafter we reverse and remand.

We have reviewed the record and note that the Respondent was issued a citation and
notification of proposed penalty dated September 27, 1972. Thereafter, Respondent filed a notice
of contest which was received by the Complainant’s Area Director on October 11, 1972. The
notice of contest was not received by the Commission until October 30, 1972 and thus was filed
outside the period prescribed by Rule 32.

In the past the Commission has applied the extreme sanction of vacation of a citation
where an Area Director has not forwarded a notice of contest because in his view the employer’s
writing was not a notice of contest. ( Secretary of Labor v. Pleasant Valley Packing Co., Inc .,
OSHRC Docket No. 464; Secretary of Labor v. Brent Towing Co ., Inc., OSHRC Docket No.
1003, Pet. for Jud. Rev., Docket No. 72–3511, filed November 21, 1972, 5th Cir.; Secretary of
Labor v. Lennox Industries, Inc. , OSHRC Docket No. 1106). We used the sanction in these cases
because the function of determining the legal sufficiency of a notice of contest is an adjudicatory
function, and the action of the Area Director operated to deprive an employer of his statutory
right to a hearing as provided for by section 10(c) and to usurp the responsibility of this
Commission to provide the hearing.

The question in cases of this kind is one of balancing interests. Thus in the cited cases the
action of the area director operated to prejudice the rights of the contesting employer. On the
other hand the vacation of a citation might operate to prejudice the public’s right to have
abatement of occupational safety and health hazards.

The record in this case is silent regarding the reasons for delay in transmittal of the notice
of contest. Accordingly, there is no basis for making a determination of prejudice as to
Respondent so as to justify imposition of the extreme sanction of vacation of the citation. In
cases of this kind the Secretary should be afforded the opportunity to explain the delay and
Respondent the right to show that it has been prejudiced thereby. The matter may be handled by
acting on the responses to an order to show cause issued by the judge having responsibility for
the case.

It is therefore ORDERED that the Judge’s order be and the same is hereby set aside and
the case is remanded for further proceedings consistent with this order.

MORAN, dissenting:

This case is virtually identical to Secretary v. ADM Grain Company , OSAHRC No.
1767, decided today (hereinafter ADM Grain ), from which I also dissented.

For the same reasons set forth therein and for the additional reasons which follow, I also
dissent from this decision. As in ADM Grain , the decision in this case ignores existing
Commission precedent, as well as the language of Section 10(c) of the Act and of Commission
Rule 32.

The Commission cites Secretary v. Lennox Industries, Inc ., OSAHRC No. 1106, July 7,
1972; Pleasant Valley Packing Co., Inc ., OSAHRC No. 464, January 4, 1973; and Brent Towing
Co., Inc ., OSAHRC No. 1003, September 22, 1972, as standing for the proposition that we used
the sanction of dismissing a citation only because: a) the Secretary of Labor took it upon himself
to determine the legal sufficiency of a notice of contest thereby usurping the Commission’s
function, and b) such action operated to deprive the employer of his statutory right to a hearing.

A perusal of those decisions reveals that the citation in each case was vacated simply
because of the failure of the Secretary of Labor to comply with Commission Rule 32 (previously
Interim Rule 7). In none of those decisions did we rely on the rationale recited at page 2 of
today’s decision. Neither did we in any of those decisions even allude to the proposition that the
Secretary was entitled to explain his reasons for noncompliance with the Commission’s Rules of
Procedure, or to a rule that a respondent must be shown to have been prejudiced by the delay in
notifying the Commission of the contest before we would apply Section 10(c) of the Act and our
Rule 32.

In a sudden about-face, the Commission has decided to depart from the precedent
followed as recently as January 1973

and ignore the provisions of Section 10(c) of the Act, as
well as the provisions of Commission Rule 32, and to create a new rule authorizing an extended
period of unspecified duration for the Secretary of Labor to forward a notice of contest to the
Commission unless it can be shown either that respondent was prejudiced by the delay or that
the delay by the Secretary was inexcusable.

In my view, this new direction taken by the Commission can only lead to confusion. For
example, Section 10(c) requires the Secretary to forward a notice of contest ‘immediately.’ In its
interim rules (Interim Rule 7), the Commission established a three-day period on the premise
that forwarding a notice of contest within three days satisfied the immediacy requirement of
Section 10(c). When permanent rules were adopted, that time period was expanded to seven days
after the Department of Labor complained that three days was too short a time period. By its
decision in this case and in ADM Grain , the Commission has now said that seven days is too
short a period. ADM Grain extended the time to 15 days. That period was apparently not long
enough, so this decision further expands immediacy to mean 19 days. Is it unreasonable to
expect a future decision which will hold that forwarding a notice of contest within six months
satisfies Section 10(c)’s immediacy requirement?

This practice of continually expanding the time within which the Secretary of Labor may
forward a respondent’s notice of contest to the Commission destroys any of the meaning which
we previously attached to the language of Section 10(c) of the Act. It totally emasculates Rule
32, and in effect, says that we meant what we said in our prior decisions, but don’t count on it.

As I said in the ADM Grain case, ‘It makes one wonder where all this is leading.’

[The Judge’s decision referred to herein follows]

HARRIS, JUDGE, OSAHRC:

On the record herein the Respondent’s notice of contest was received by the Complainant
on October 11, 1972, and filed with the Occupational Safety and Health Review Commission on
October 30, 1972, a period of 19 days. This delay is a failure to comply with 29 C.F.R. 2200.32
and in violation of Section 10(c) of the Act, 29 C.F.R. 651, et seq. and the citation herein is
hereby vacated.

July 9, 1973

GOLDSTEIN, JUDGE, OSAHRC:

On September 27, 1972, the United States Department of Labor, Occupational Safety and
Health Administration, issued a Citation to the Respondent for three alleged Non-Serious
Violations of the Occupational Safety and Health Act of 1970 and proposed a penalty of $35.00.
Under date of October 9, 1972, and received by the Department of Labor in Milwaukee,
Wisconsin, on October 11, 1972, the Respondent filed a Notice of Contest. This Notice of
Contest was received by the Commission’s Office of the Executive Secretary on October 30,
1972.

On October 31, 1972, the Secretary of Labor filed a Complaint with this Commission to
affirm the Citation and the proposed penalty; and the matter was referred to Commission Judge
David H. Harris for disposition. In his Order of disposition Judge Harris ruled that a period of 19
days elapsed from the date the Notice of Contest was received by the Department of Labor to the
date filed with the Commission. Inasmuch as the delay was considered a failure to comply with
29 CFR 2200.32 and in violation of Section 10(c) of the Occupational Safety and Health Act, 29
C.F.R. 651, et seq., the Citation was vacated.

Upon receipt of the Judge’s Order, the Secretary of Labor moved the Commission to
review the ruling since neither the Secretary nor any affected employees were given the
opportunity to be heard on the issue of whether the Commission was advised by the Secretary of
receipt of Respondent’s Notice of Contest ‘immediately’ as required by Section 10(c) of the Act.

The Commission thereupon remanded this case to the undersigned for further proceedings,
ruling that:

In cases of this kind the Secretary should be afforded the opportunity to explain
the delay and the Respondent the right to show that it has been prejudiced
thereby. The matter may be handled by acting on the responses to an order to
show cause issued by the judge having responsibility for the case.

In conformance with the directive of the Commission, the parties were offered the
opportunity to furnish whatever material they desired to be considered in the disposition of this
feature of the case. In response to the order to show cause, the Secretary produced an affidavit
from his Area Director, the material portions of which are copied below:

On October 11, 1972, a letter from Respondent, addressed to the attention of Mr.
Robert B. Hanna was received at the Milwaukee, Wisconsin, office of the
Occupational Safety and Health Administration. A copy of the aforesaid letter is
attached hereto as Attachment A.

After reading the aforesaid letter from Respondent, Carlton H. Heise concluded
that a telephone call should be made to the Respondent to get clarification as to
Respondent’s intention, so as to ascertain whether the letter was intended to be a
Notice of Contest. On October 11, 1972 (at 11:00 a. m.), Carlton H. Heise
telephoned the home of J. Dale Wilson. A child answered the telephone and said
that no one else was at home and that Respondent, J. Dale Wilson, was at work.

*2 On several subsequent days, at various times of the day, Carlton H. Heise
made telephone calls to the home of J. Dale Wilson and was unable to reach him
until approximately 9 or 10 days after his first telephone call on October 11, 1972.

On or about October 20 or October 23, 1972, Carlton H. Heise talked by
telephone with J. Dale Wilson, who then stated that he did intend (by the
aforesaid letter) contest the Notification of Proposed Penalty.

After such advice from J. Dale Wilson that his letter (Attachment A hereto) was
intended to be a Notice of Contest, Carlton H. Heise duly and promptly prepared
the necessary transmittal documents for the aforementioned letter containing the
Notice of Contest, and the Notice of Contest was filed (by mailing) on October
25, 1972.

The Respondent submitted no evidence to establish that his position was jeopardized by
the delay in transmission of the Notice of Contest to the Commission. However, his Notice of
Contest is shown below:

Your attempt to levy a fine based upon citation dated September 27, 1972, is
arbitrary and capricious in the extreme. ITEM 1—In the presence of your
inspector we removed the offending ungrounded cord and used the grounded one
which was on the job-site, just not used. ITEM 2—The 5 foot step ladder has
been repaired (new top platform) the 6 foot step ladder has been retired from
service, and the 20 base section of the extension ladder will not be used until
either cut off or the cracked rung repaired. ITEM 3–We were unaware of this
requirement, particularly when used on ground, but being concerned for our own
safety we will surely find some feet for the ladders we use even though they are
not ours but being borrowed.

William T. Smith and myself work together on a share alike basis. As we were
the only persons using the ladders and the power equipment, I fail to see how the
provisions of the OSHA Act are applicable to our situation. In addition we
removed from service immediately in the presence of your inspector the
offending electric cord. I (we) therefore feel your proposed fine is unjustified and
we do protest.

Under the foregoing circumstances, the question arises as to whether the Secretary of
Labor timely forwarded to this Commission the Notice of Contest submitted by the Respondent
as required by Section 10(c) of the Occupational Safety and Health Act of 1970, which provides
as follows:

If an employer notifies the Secretary that he intends to contest a citation . . . the
Secretary shall immediately advise the Commission of such notification. . . .

Amplification of this Section of the law may be found in Section 1903.17(a) of the Regulations
relating to the Occupational Safety and Health Administration (29 C.F.R. 1903.17(a)) stating
that:

Any employer to whom a citation or notice of proposed penalty has been issued
may, under section 10(a) of the Act, notify the Area Director in writing that he
intends to contest such citation or proposed penalty before the Review
Commission. Such notice of intention to contest shall be postmarked within 15
working days of the receipt by the employer of the notice of proposed penalty.
Every notice of intention to contest shall specify whether it is directed to the
citation or to the proposed penalty, or both. The Area Director shall immediately
transmit such notice to the Review Commission in accordance with the rules of
procedure prescribed by the Commission.

Under the Rules of Procedure adopted by the Occupational Safety and Health Review
Commission, it is provided:

The Secretary shall, within 7 days of receipt of notice of contest, transmit the
original to the Commission, together with copies of all relevant documents
(Rule 32, Notices of contest).

The record in this case establishes that the Area Director of the Occupational Safety and Health
Administration received the Notice of Contest from the Respondent on October 11, 1972, and
that the Notice did not reach the offices of this Commission until October 30, 1972. Thus, the
Secretary did not forward the Notice of Contest ‘immediately’ as required by Section 10(c) of
the Act and as defined in Regulation 1903.17(a) and Rule 32 of the Rules of Procedure of this
Commission which requires the Secretary to transmit the Notice of Contest to this Commission
within 7 days of its receipt.

The Commission, at the request of the Secretary, offered an opportunity to explain the
delay in submitting the Notice of Contest. In response the Secretary forwarded an affidavit of his
Area Director. In this document the Area Director explained that he did not immediately forward
the Notice of Contest in order to contact the Respondent to ascertain whether the letter dated
October 9, 1972, and received by him on October 11, 1972, was intended as a Notice of Contest.

An examination of the Respondent’s letter could not leave much doubt as to his
intentions with respect to the desire to contest the citation and penalty proposed. In his opening
sentence the Respondent referred to the citation and penalty as ‘. . . arbitrary and capricious in
the extreme.’ In the second paragraph of the letter the Respondent noted that he failed to see how
the provisions of the Act were applicable to his situation. Concluding, the Respondent remarked
that he felt the ‘. . . proposed fine is unjustified and we do protest.’

With this strong language of protest before him the Area Director could not reasonably
conclude that it was necessary to contact the Respondent personally to ascertain if in fact it was
his intention to file a Notice of Contest to the Citation and proposed penalty. In any event, if in
doubt, the Area Director could have forwarded the letter to the Commission for its consideration.
I therefore find that there was no good cause for the failure to transmit to the Commission the
Notice of Contest as required by its Rules of Procedure.

On the basis of the foregoing, it is concluded that the Secretary failed to comply with the
statute, Regulation and Rules of Procedure of the Commission in Connection with the transmittal
of the Notice of Contest in this matter. Accordingly, it is ORDERED that the Citation and
proposed penalty be and hereby are VACATED.