Elmer Construction Corporation

Plain-English summary

OSHA cited Elmer Construction Corporation for two serious violations and proposed a $320 penalty. Elmer paid the penalty, but its newly retained attorney called OSHA and said the company wanted to contest the violations. The Commission found that the conversation was confusing and may have led the attorney to believe the contest deadline had already passed, although it had not. The company president's limited English skills and communication problems with counsel added to the confusion. The Commission set aside the dismissal of the late notice and remanded the case for a hearing on the alleged violations.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 659(a)
• Outcome: Dismissal reversed and case remanded for a hearing on the merits.
• Key point: Confusing information from OSHA, combined with communication difficulties between an employer and counsel, justified relaxing the statutory contest deadline.

Full text (OSHRC public release)

Docket No. 83-0040

SECRETARY OF LABOR,

Complainant,

v.

ELMER CONSTRUCTION CORP.,

Respondent.

OSHRC Docket No. 83-0040

DECISION

Before:  BUCKLEY, Chairman; CLEARY Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration ("OSHA").  It was established to resolve disputes
arising out of enforcement actions brought by the Secretary of Labor under the Act and has
no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

The question in this case is whether the administrative law judge properly
dismissed Elmer Construction Company's notice of contest for being untimely.  We
reverse the administrative law judge's decision and remand the case for a hearing on the
merits.

On September 21, 1982, an OSHA compliance officer inspected Elmer's New York
City workplace.  On October 6, 1982, the Secretary issued a citation alleging serious
violations of two OSHA standards and proposing a penalty of $320.  Elmer received the
citation on October 20.  On October 26, Elmer sent a check for $320 in full payment
of the penalty.

Toward the end of October, Elmer hired Richard Biaggi as its attorney.
 On November 1, Biaggi called the New York OSHA office and spoke to Lawrence Cimato,
the Safety Supervisor.  According to Cimato, the tenor of the conversation was that
Biaggi "would like to contest the violation that was issued against (Elmer) on
October 6."  Cimato told Biaggi that Elmer had paid the $320 penalty and that
the case was ready to be closed.  Biaggi expressed surprise that Elmer had paid the
penalty.  Testimony at the hearing indicated that the president of Elmer had limited
skills in English and this might have led to some of the confusion.

Biaggi and Cimato also discussed when Biaggi would have to submit a notice of
contest. [[1]]  At the time of the conversation, neither man knew when Elmer had
received the citation.  Cimato knew that the citation had been issued on October 6
and, assuming that Elmer had received the citation within a few days, speculated to Biaggi
that the time for the notice had already passed.

In fact, this assumption was not true.  Since Elmer had received the
citation on October 20, under section 10(a) of the Act Elmer had until November 10 to
notify the Secretary that it contested the citation.

In a letter dated November 12, Biaggi wrote the New York OSHA office that,

. . . it is the position of my client, Elmer Construction Corporation, that it has not
violated any act, statute or regulation concerning the above captioned matter.  I
write this letter knowing that Elmer Construction Corporation has issued a check in
payment of said violations.  I first became aware of the payments on November 1st
when I spoke with Larry Cimato of your office.  On that date I called to contest the
violations.

Please do not consider said payments as an admission of wrongful conduct by
my client.  Mr. Orellano of Elmer Construction Corporation was not fully aware of his
right to contest the violations.

Cimato did not consider the November 12 letter a notice of contest.  
Rather, he testified that he considered the letter "a disclaimer of guilt,"
which he said are fairly common.  The letter was added to the case file.

The Commission has allowed a late notice of contest if the circumstances
surrounding the late notice warrant a relaxation of the 15- day rule of section 10(a).
  See Con-lin Construction Co ., 83 OSAHRC , 11 BNA OSHC 1757, 1983 CCH
OSHD � (No. 83-371, 1983); Merritt Electric Co ., 81 OSAHRC 75/D4, 9 BNA OSHC 2088,
1981 CCH OSHD � 25,556 (No. 77-3772, 1981).  This is in keeping with the
Commission's policy in favor of allowing employers an opportunity for a full hearing on
the merits.  See Seminole Distributors, Inc ., 77 OSAHRC 211/D9, 6 BNA
OSHC 1194, 1977-78 CCH OSHD � 22,412 (No. 15671, 1977).

We find that Elmer should not be denied a hearing under the circumstances of
this case.  The conversation between Cimato and Biaggi was confusing.  Cimato
inadvertently may have given Biaggi the impression that the time for filing a notice of
contest had passed.  This, in turn, may have caused Elmer to submit the notice of
contest late.  Compounding this confusion are the limited language skills of Elmer's
president and the problems Biaggi had in communicating with his client.

Given these circumstances, we set aside the administrative law judge's
decision and remand the case for proceedings on the merits of the alleged violations.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  SEP 18 1984

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected] ),
telephone (202-606-5398), fax (202-606-5050) or TTY (202-606-5386).

FOOTNOTES:

[[1]] Pursuant to section 10(a) of the Act, 29 U.S.C. � 659(a), an employer
must notify the Secretary that it intends to contest the citation or proposed penalty
within 15 working days of its receipt of the notification of proposed penalty that
accompanies the citation.