Safeway Stores, Inc.

Plain-English summary

The judge dismissed Safeway's notice of contest as untimely, making two citations and their penalties final. Safeway told the Commission that it had received only one citation page and had never received the separate second citation. It also offered reasons for missing the contest deadline and requested a hearing. The Commission remanded for the judge to determine whether the second citation had been received and whether the circumstances surrounding the late filing justified relief. It cautioned that an employer's own clerical error, standing alone, does not excuse an untimely contest.

Decision snapshot

• Cited standard(s): The order does not identify the standards underlying the citations.
• Outcome: The dismissal was remanded for factual findings on receipt of the citations and the reasons for the late contest.
• Key point: A late-contest ruling requires examination of whether the employer actually received the citation, but ordinary internal clerical error is not enough by itself.

Full text (OSHRC public release)

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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC
DOCKET NO. 78-2829

SAFEWAY
STORES, INC.,

���������������������������������������������
Respondent.

October 16, 1978

ORDER OF REMAND

Before CLEARY, Chairman; BARNAKO and COTTINE,
Commissioners.

BY THE COMMISSION:

����������� This
matter is before the Commission on review of an order of Administrative Law Judge
George O. Taylor, Jr. The judge had granted the Secretary of Labor�s motion to
dismiss Respondent�s notice of contest for not having been filed within the
time period prescribed by 29 U.S.C. 659(a). Thereafter, respondent wrote to the
Commission contending, among other things, that it had never received one of
the two citations involved in this proceeding. Specifically, Respondent
contends that upon being informed by the Secretary�s area director that the
citation and notification of penalty consisted of two pages, Respondent advised
the area director that it had received only one page, which was numbered �page
one of one.� Respondent also referred to its prior correspondence with the
Commission wherein it admitted it had not filed a timely notice of contest to a
citation, but alleged certain circumstances which in its view justified its
failure to timely file. It requests a hearing.

����������� The
record indicates that Complainant issued a citation for serious violation,
labeled �citation 1� and �page 1 of 1,� that alleged two violations.
Complainant also issued another citation labeled �citation 2� and �page 1 of
1,� that alleged a nonserious violation. We assume that citation 2 is the citation
assertedly not received [1] and that Respondent had
intended to contest citation 1. We hereby remand this case for consideration of
Respondent�s assertion that it had not received one of the citations and for
consideration of its representations as to why it had not filed a timely notice
of contest. Atlantic Marine, Inc., v. OSHRC 524 F.2d 476 (5th Cir.
1975); Seminole Distributors, Inc ., 77 OSAHRC 211/D9, 5 BNA OSHC 1194,
1977�78 CCH OSHD para. 22,412 (No. 15761, 1977). [2]

�

FOR THE COMMISSION:

�

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATE: OCT 16, 1978

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC
DOCKET NO. 78-2829

SAFEWAY
STORES, INC.,

���������������������������������������������
Respondent.

August 18, 1978

ORDER

Taylor, Judge:

����������� The
complainant�s motion to dismiss the respondent�s notice of contest because it
was not timely filed is granted. Accordingly, Citation Number 1 for serious
violations, Citation Number 2 for a nonserious violation, and the penalties
proposed therein are final orders of the Commission by operation of law. 29
U.S.C. � 659(a).

�

GEORGE O. TAYLOR, JR.

Judge, OSHRC

Washington, D.C.

[1] We note that
citation 2 appears to be the basis for an alleged repeated violation presently
pending before Judge Taylor in docket no. 78-3369.

[2] We emphasize,
however, that clerical error by Respondent�s employees does not justify an
employer�s failure to file a timely notice of contest. Womack Constr. Co .,
77 OSAHRC 203/E12, 6 BNA OSHC 1125, 1977�78 CCH OSHD para. 22,354 (No. 76�1445,
1977), petition for review filed , No. 78�1178 (9th Cir. Jan. 25, 1978).