McCloskey & Company

Plain-English summary

The Commission dismissed McCloskey's contest because the company did not certify service of the contest on other parties as required by Commission rules. The citation and proposed penalties were affirmed in full. Commissioner Van Namee dissented because the compliance warning had been sent to the company's Philadelphia headquarters even though its Hartford project superintendent had handled the citation and contest. He also noted that 11 union representatives had already received the Secretary's complaint, so the employee-notice purpose of the rule had been substantially served.

Decision snapshot

• Cited standard(s): No specific OSHA standard number is identified in the decision.
• Outcome: The contest was dismissed, and the citation and proposed penalties were affirmed.
• Key point: The majority enforced the service-certification rule, while the dissent viewed dismissal as excessive when notice went to the wrong company office and unions already knew of the case.

Full text (OSHRC public release)

Docket No. 297

McCLOSKEY & COMPANY

OSHRC Docket No. 297

Occupational Safety and Health Review Commission

January 14, 1972

�
[*1]
�

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINION:

�
BY THE COMMISSION: The employer's notice of contest is hereby dismissed, and the Secretary's citation and proposed penalties are affirmed in all respects.
�

DISSENTBY: VAN NAMEE

DISSENT:

�
VAN NAMEE, COMMISSIONER, dissenting: The dismissal of this case results from a ruling by the majority that the employer failed to certify that it has perfected its notice of contest in accordance with rule 2200.7(b)(1) of the Commission's interim rules of procedure (29 CFR 2200.7(b)(1)), specifically that there was no certification of its having been served upon the other parties.
�
From that decision I must dissent.

The application of rule 2200.7(b)(1) (in conjunction with rules 2200.7(i) and 2200.5) serves the obviously desirable purpose of assuring that affected employees or their authorized representatives are fully and timely informed of the proceeding, and thus effects the mandate of Congress that they have an opportunity to participate therein as parties.
�
It is not the proper application of that rule which causes me to dissent in this instance.

Here the Secretary's citation and proposed penalty notification were directed by OSHA's Area [*2]
�
Director to McCloskey's Hartford, Conn., address and McCloskey's Project Superintendent at Harford filed the notice of contest with the OSHA office in Hartford.
�
The Commission's letter of December 15, by which the
�
employer was advised of the rule infraction, was mailed to McCloskey's main office in Philadelphia, Pa., and was received there on December 22.
�
By that letter, McCloskey was advised that its notice of contest might be dismissed if it had not mailed its certificate of compliance with rule 2200.7(b)(1) by December 29.

The majority rejects my suggestions that its advice regarding the necessity of compliance with the service requirements of the rules be redirected to McCloskey's Project Superintendent at Hartford.
�
In my view, this slavish adherence to the rules and overemphasis of administrative expediency do not serve the purposes of the Act and the ends of justice.
�
In fact, the employees' authorized representatives are not uninformed because the Secretary's complaint (served upon McCloskey's Project Superintendent at Hartford) was also served upon eleven collective bargaining representatives of the employees of McCloskey and its subcontractors on December 23.
�