King Arthur Inc.

Plain-English summary

This case is about the order of operations OSHA must follow before it can penalize an employer for failing to fix a hazard. King Arthur Inc. had contested an earlier citation involving a power press (in a related docket, 76-1895) by writing to the area director within the 15-day window. Instead of forwarding that contest to the Commission as the Act requires, the area director issued an amended citation and later reinspected the workplace, then issued a Notification of Failure to Correct and an additional penalty in this docket. Administrative Law Judge Chalk held that a failure-to-abate action can only be taken after there is a final order in the underlying case, and because the employer's contest in the related case had never been forwarded and no final order existed, the reinspection and failure-to-correct notice had no legal basis. He vacated the failure-to-correct notification and additional penalty with prejudice. The case came to the Commission on its own order for review, no party objected, and the Commission declined to disturb the decision and affirmed it as an unreviewed ALJ decision. Commissioner Moran concurred in affirming. The takeaway: OSHA cannot pursue a failure-to-abate penalty until the underlying citation has become a final order, and a pending, un-forwarded notice of contest blocks that.

Decision snapshot

• Cited standard(s): None named; the ruling turns on the failure-to-abate and notice-of-contest procedures in 29 U.S.C. § 659(b) and (c), not an OSHA safety standard.
• Outcome: Vacated. The Commission left in place the ALJ's order vacating the Notification of Failure to Correct and the proposed additional penalty with prejudice, affirming that decision as an unreviewed ALJ ruling.
• Key point: OSHA may bring a failure-to-abate action only after a final order exists in the underlying case; while a notice of contest is pending and un-forwarded, a reinspection-based failure-to-correct notice is void.

Full text (OSHRC public release)

Docket No. 76-2132

KING ARTHUR INCORPORATED

OSHRC Docket No. 76-2132

Occupational Safety and Health Review Commission

April 27, 1977

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, USDOL

David J. Constantine, Vice President, King Arthur, Inc., for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review.
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The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review.
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Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the
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significance of an unreviewed Judge's decision.
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Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.
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CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A.
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For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Chalk, Judge

Because of the Secretary's failure to forward Respondent's Notice of Contest in a related case to this Commission for adjudication (Docket Number 76-1895), his subsequent re-inspection of Respondent's workplace leading to the issuance of the Notification of Failure to Correct Alleged Violation and of Proposed Additional Penalty in this Docket was unauthorized and must be set aside (29 USC 659(c)). n1

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 I have decided against consolidating these two Dockets in order to effect final disposition of this Docket without unnecessary delay.

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• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

In the related Docket, with respect to item 1(b) of Citation number 2 for a serious violation consisting of two parts, the subject of this Docket, Respondent forwarded a letter within fifteen working days to the area director wherein it stated: "Same as #44." This comment referred to a previous statement in the letter regarding item number 44 of Citation number 1 for nonserious violations, involving the same power press, which reads:

"On this item, we need more time to either replace machine or repair same.
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By May 15th it should be resolved."

That the foregoing letter constituted a contest of the alleged violation and proposed penalty, as well as the abatement date, in that Docket cannot seriously be questioned, although the Secretary argues to the contrary (Secretary v. Eastern Knitting Mills, Inc., 13 OSAHRC 176 (1974); Secretary v. Philadelphia Coke Div., Eastern Assoc. Coal Corp., Docket No. 6448, September 5, 1974).
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Instead of transmitting this contest and related documents to the Commission (29 USC 659(c)), the area director issued an amended Citation extending the abatement date of the item [*4]
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in question to April 30, 1976, rather than the May 15th date requested by Respondent. n2

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n2 Although not germane to this Docket, the area director took similar action with respect to item 44 of Citation number 1 for nonserious violations.

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As the action of the area director in that Docket transcended the expressed mandate of the Act to forward Notices of Contest to this Commission for adjudication, the amendment was of no legal effect and thus void (Secretary v. FMC Corp. - Fibers Div., 11 OSAHRC 22 (1974)). n3 It, of course, had no effect on Respondent's Notice of Contest, a viable one that is now before this Commission for adjudication.

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n3 As an interesting sidelight, I note that the area director's amendment even violated the Secretary's Field Operations Manual (Chap. X, subparagraph B.2.b. and c.) because he did not extend the abatement date to that requested by Respondent.
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In my view, however, these provisions of the manual direct action not in harmony with the Act.
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For a more detailed analysis of the issue, see Order in Docket Number 76-1895, copy appended hereto.

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A failure to abate action, such as in this Docket, can be undertaken by the Secretary only where there has been a final Order in the prior case (29 USC 659(b)).
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As there has been no final Order in Docket Number 76-1895, the reinspection Respondent's workplace and the resultant issuance of this failure to abate notification were without legal sanction (Secretary v. FMC Corp. - Fibers Div., supra).

The Notification of Failure to Correct Alleged Violation and of Proposed Additional Penalty are vacated with prejudice.

So ORDERED.

JOSEPH L. CHALK, Judge, OSHRC

Dated: June 30, 1976

Washington, D.C.
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