Car and Truck Doctor, Inc. (Commission decision, July 30, 1980)

Plain-English summary

This case is about a procedural trap, not about a safety standard. OSHA issued two citations to Car and Truck Doctor, Inc., which contested them. Before the Secretary of Labor filed a complaint, he moved to withdraw the citations outright.

Chief Administrative Law Judge Paul A. Tenney did not rule on that motion. He deferred it and issued an order directing the company to show cause why its notice of contest should not be dismissed, because the company had never certified that it posted a copy of the notice of contest at the workplace. Commission Rule 7(g), 29 C.F.R. § 2200.7(g), requires that posting. The company did not respond, and Administrative Law Judge Irving Sommer dismissed the notice of contest. Commissioner Barnako directed the decision for review.

Posting matters because section 10(c) of the Act, 29 U.S.C. § 659(c), gives affected employees and their representatives the right to participate as parties in the hearing. Without posting, affected employees may lose notice of the contest and the chance to elect party status. The majority also recognized participation in settlement and a chance to challenge withdrawal; Commissioner Barnako disagreed with those two views. The Commission was not willing to treat that requirement as unimportant.

It was equally unwilling to let a dismissal stand on this record. The Commission observed that it was possible that the Secretary's withdrawal motion led the company to think the case was resolved, but made no finding that this explained its failure to respond. The record was silent on whether the notice of contest had ever been posted, and it also lacked a signed certified mail receipt showing the company ever received the show cause order. Dismissing the contest would have had the effect of affirming violations the Secretary himself was trying to withdraw, which the Commission held was unwarranted.

The decision was set aside and the case remanded. On remand the judge must order the company to post its notice of contest and submit proof of posting. The order must warn that if the company does not do so, its notice of contest will be dismissed and the citations and proposed penalties will be upheld. The judge also may not act on the Secretary's motion to withdraw until posting is proven, which keeps the employees' interest alive until they have had notice.

Decision snapshot

• Cited standard(s): None identified in this decision. The dispute is over Commission Rule 7(g), 29 C.F.R. § 2200.7(g), and the employee participation right in 29 U.S.C. § 659(c).
• Outcome: Remanded. The dismissal of the notice of contest was set aside and the case returned to the judge to order posting and proof of posting.
• Key point: The Commission set aside this dismissal because the withdrawal motion may have affected the employer's response; the judge must obtain proof of posting before acting on that motion.

Full text (OSHRC public release)

Docket No. 79-454

1 of 202 DOCUMENTS

TURNER COMPANY

A. SCHONBEK & CO., INC.

NORANDA ALUMINUM, INC.

GENERAL MOTORS CORP., GM ASSEMBLY DIV.

ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.

CLEMENT FOOD COMPANY

MILLCON CORPORATION

FWA DRILLING COMPANY, INC.

CCI, INC.

GENERAL ELECTRIC COMPANY

CONSOLIDATED ALUMINUM CORPORATION

THE BRONZE CRAFT CORPORATION

CARGILL, INC.

CHAPMAN CONSTRUCTION CO., INC.

GALLO MECHANICAL CONTRACTORS, INC.

SPECIAL METALS CORPORATION

WILLAMETTE IRON AND STEEL COMPANY

NASHUA CORPORATION

WESTINGHOUSE ELECTRIC CORPORATION

RESEARCH-COTTRELL, INC.

ROCKWELL INTERNATIONAL CORPORATION

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.

BUNKOFF CONSTRUCTION CO., INC.

GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION

HARRIS BROTHERS ROOFING CO.

GENERAL DIVERS COMPANY

ORMET CORPORATION

R. ZOPPO CO., INC.

COEUR D'ALENE TRIBAL FARM

L. A. DREYFUS COMPANY

CMH COMPANY, INC.

BENTON FOUNDRY, INC.

MICHAEL CONSTRUCTION CO., INC.

WHIRLPOOL CORPORATION

BROWN & ROOT, POWER PLANT DIVISION

MARION POWER SHOVEL CO., INC.

ERSKINE-FRASER CO.

MORRISON-KNUDSEN AND ASSOCIATES

THE BOAM COMPANY

DIC-UNDERHILL, a Joint Venture

C. R. BURNETT AND SONS, INC.; HARLLEE FARMS

STRIPE-A-ZONE, INC.

FORTE BROTHERS, INC.

RAYBESTOS FRICTION MATERIALS COMPANY

TEXLAND DRILLING CORPORATION

THE ANACONDA COMPANY, WIRE AND CABLE DIVISION

SAM HALL & SONS, INC.

VAMPCO METAL PRODUCTS, INC.

LEONE INDUSTRIES, INC.

ASARCO, INC.

DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY

PLUM CREEK LUMBER COMPANY

PLUM CREEK LUMBER COMPANY

STEARNS-ROGER, INC.

FERRO CORPORATION, (ELECTRO DIVISION)

AMERICAN PACKAGE COMPANY, INC.

BROWN & ROOT, INC., POWER PLANT DIVISION

FLEETWOOD HOMES OF TEXAS, INC.

DONALD HARRIS, INC.

A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.

ELECTRICAL CONSTRUCTORS OF AMERICA, INC.

DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)

ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY

NAVAJO FOREST PRODUCTS INDUSTRIES

METROPAK CONTAINERS CORPORATION

AUSTIN BUILDING COMPANY

BABCOCK AND WILCOX COMPANY

DARRAGH COMPANY

BABCOCK & WILCOX COMPANY

OTIS ELEVATOR COMPANY

R. ZOPPO COMPANY, INC.

LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS

PENNSYLVANIA POWER & LIGHT CO.

HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY

NORTHWEST AIRLINES, INC.

INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.

GENERAL MOTORS CORPORATION, INLAND DIVISION

WELDSHIP CORPORATION

S & S DIVING COMPANY

SNIDER INDUSTRIES, INC.

NATIONAL STEEL AND SHIPBUILDING COMPANY

MAXWELL WIREBOUND BOX CO., INC.

CONTINENTAL GRAIN COMPANY

MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY

CAPITAL CITY EXCAVATING CO., INC.

GAF CORPORATION

PPG INDUSTRIES (CARIBE) a Corporation

DRUTH PACKAGING CORPORATION

SOUTHWESTERN ELECTRIC POWER COMPANY

TUNNEL ELECTRIC CONSTRUCTION CO.

WEATHERBY ENGINEERING COMPANY

JOHNSON STEEL & WIRE CO., INC.

AUSTIN ROAD CO.

MAYHEW STEEL PRODUCTS, INC.

LADISH CO., TRI-CLOVER DIVISION, a Corporation

PULLMAN POWER PRODUCTS, INC.

NATIONAL ROOFING CORPORATION

OSCO INDUSTRIES, INC.

HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY

S.J. GROVES AND SONS COMPANY

CAR AND TRUCK DOCTOR, INC.

OSHRC Docket No. 79-454

Occupational Safety and Health Review Commission

July 30, 1980

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Jim Barke, President, Car and Truck Doctor, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Irving Sommer is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C.

651-678 ("the Act").

Judge Sommer dismissed the notice of contest of Respondent, Car and Truck Doctor, Inc., due to its failure to provide certification that affected employees had been apprised of the case by the posting of a copy of the notice of contest at the worksite. The judge's decision was directed for review by Commissioner Barnako.

We set aside Judge Sommer's decision and remand for further proceedings.

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n1 29 U.S.C.

661(i).

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Following the issuance of two citations to Respondent, and before his complaint was filed, the Secretary of Labor ("the Secretary")

[*2]

moved to withdraw the citations.

Chief Administrative Law Judge Paul A. Tenney issued an order deferring action on the Secretary's motion to withdraw and ordered Respondent to show cause why its notice of contest should not be dismissed for its failure to certify to the Commission that a copy of the notice of contest had been posted at the workplace to inform affected employees of the pending action. n2 There being no response to Chief Judge Tenney's show cause order, Judge Sommer dismissed Respondent's notice of contest.

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n2 Commission Rule 7(g), 29 C.F.R.

2200.7(g), requires, among other things, that a respondent post a copy of its notice of contest.

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Section 10(c) of the Act, 29 U.S.C.

659(c), provides affected employees or their representatives the right "to participate as parties to hearings." In the absence of posting of the notice of contest, affected employees are deprived of knowledge of the pending case and are thus effectively pecluded from exercising their rights under the Act. n3

[*3]

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n3 In its decisions, the Commission has held that these rights include the right to elect party status, Commission Rule 20(a), 29 C.F.R.

2200.20(a), the right to meaningful participation in the settlement process, ITT Thompson Industries, Inc., 78 OSSHRC 70/D10, 6 BNA OSHC 1944, 1978 CCH OSHD P22,944 (Nos. 77-4174 & 77-4175, 1978), and the right to question the Secretary's withdrawal of citations, IMC Chemical Group, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1978 CCH OSHD P23,149 (No. 76-4761, 1978), appeal filed, No. 79-3041 (6th Cir. January 16, 1979).

Commissioner Barnako's views differ from those of the majority as to affected employees' right of meaningful participation in the settlement process, see, e.g., Reynolds Metals Co., 79 OSAHRC 4/A2, 2 BNA OSHC 1042, 1979 CCH OSHD P23,295 (No. 78-2485, 1979) (concurring and dissenting opinion), and as to their right to challenge the Secretary's withdrawal of citations, IMC Chemical Group, Inc., supra (dissenting opinion).

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It is possible that Respondent [*4]

failed to respond to the show cause order because it had received the Secretary's motion to withdraw the citations and concluded that the case had been resolved in its favor.

Nevertheless, the record in this case is silent as to whether Respondent's notice of contest was posted at the workplace. n4

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

n4 The record also lacks a signed certified mail receipt demonstrating that Respondent received the show cause order.

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

The posting of the notice of contest at the worksite by the contesting employer is necessary to protect the rights of affected employees. In this case however, the Respondent's failure to post the notice of contest may have been prompted by the Secretary's motion to withdraw. Under these circumstances we conclude that affirming the alleged violations, which the Secretary seeks to withdraw, is unwarranted.

Accordingly, the case is remanded to the judge for the purpose of ordering Respondent to post its notice of contest, and submit proof of posting. The judge's order should note that if these actions [*5]

are not taken, Respondent's notice of contest will be dismissed and the effect of this will be to uphold the citations and proposed penalties.

The order also should note that the judge cannot act on the Secretary's motion to withdraw the citations unless Respondent posts its notice of contest and provides proof of posting.

SO ORDERED.