Ernie's Esquire, Inc.

Plain-English summary

The judge dismissed Ernie’s Esquire’s contest of its citations because the company had not certified that it posted or served the notice of contest for affected employees. The company president sought reconsideration and explained that he had posted materials but believed an affected employee meant the unidentified person who made the accusations. The Commission found it unclear whether the company’s own notice of contest had been posted and concluded that the missing certification might result from this misunderstanding. It remanded the case to give the company another opportunity to certify proper posting or service and for further proceedings as appropriate. The penalty allegations remained pending under a separate docket, and the release does not identify the underlying standards or penalty amounts.

Decision snapshot

• Cited standard(s): None identified in the release.
• Outcome: Dismissal of the citation contest remanded for another opportunity to prove notice to affected employees.
• Key point: A pro se employer’s misunderstanding of the employee-notice rule warranted a further chance to provide the required certification.

Full text (OSHRC public release)


Document

UNITED STATES
OF
AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 85– 0 783

ERNIE’S ESQUIRE, INC.,

Respondent.

December 6, 1985

DIRECTION FOR REVIEW AND REMAND ORDER

On November 12, 1985, Administrative Law Judge Paul A.
Tenney
issued an order dismissing Respondent’s notice of contest of citations based on Respondent’s failure to certify that it had posted or served its notice of contest on affected employees as required by Commission Rule 7, 29 C.F.R. § 2200.7. Respondent’s president subsequently requested that Judge
Tenney
reconsider his order. Respondent’s letter stated as follows:

There must be some misunderstanding on my part because all the citations and notices sent to me were posted for all my employees to see. As far as notifying the affected employee; this was not possible because OSHA was not able to give me the name of the person or persons who made the accusations.

I sent several letters and returned all necessary paperwork, following the instructions in the OSHA handbook.

Respondent’s president also reiterated his objections to the citations and penalties proposed therefor.

Since Respondent’s president refers to posting “notices sent to me” it is unclear whether Respondent’s own notice of contest was posted. However, Respondent’s president plainly misunderstands what is meant by an “affected employee,” 1
and his failure to explicitly certify posting or service of the notice of contest may be attributable to this misunderstanding. In these
circumstances, we direct review of the judge’s order pursuant to 29 U.S.C. § 661( i ), and we remand this case to the judge for the purpose of affording Respondent a further opportunity to certify posting or service of its notice of contest in conformity with Rule 7 and for additional proceedings as appropriate. 2
See Car & Truck Doctor, Inc ., 80 OSAHRC 76/D9, 8 BNA OSHC 1767, 1980 CCH OSHD ¶ 24,681 (No. 79–454, 1980).

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

December 6, 1985

November 12, 1985

Judge Paul A.
Tenney

OSHRC

1825 K Street, N.W., Room 401

Washington, D.C. 20006

Dear Sir:

I am writing to ask you to reconsider your order to dismiss my case # S9351; 964 on citations issued to Ernie’s Esquire of Butler, Pa. on June 14, 1985.

There must be some misunderstanding on my part because all the citations and notices sent to me were posted for all my employees to see. As far as notifying the affected employee; this was not possible because OSHA was not able to give me the name of the person or persons who made the accusations.

I sent several letters and returned all necessary paperwork, following the instructions in the OSHA handbook.

I am having financial difficulties and would be unable to pay this fine at the present time especially when I feel the charges are not justified.

I would appreciate your considering my request for a new hearing or whatever procedure necessary to resolve this problem.

Respectfully yours,

Ernie
Pandelos

President

E rnie’s Esquire Inc.

UNITED STATES
OF
AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 85– 0 783

ERNIE’S ESQUIRE, INC.,

Respondent.

November 12, 1985

ORDER

1. No response has been filed to my order dated September 3, 1985, nor to the Executive Secretary’s order dated August 8, 1985, noting that the contesting employer has not complied with Commission Rule 7, 29 C.F.R. § 2200.7, requiring that notice of a contested case be given to affected employees or their authorized representative, if any. See paragraph number 3 of the September 3, 1985, order.

2. Accordingly, the notice of contest is hereby dismissed to the extent that the citations numbered S9351 ;964
   issued June 14, 1985, are contested. The failure to provide proof of service is found to prejudice the rights of affected employees to participate in this proceeding.
   Commission Rule 20, 29 C.F.R. § 2200.20.
   Nevertheless, the proposed penalties contested will remain in issue.

3. Pursuant to Commission Rule 10, 29 C.F.R. § 2200.10, the citations and penalty allegations are hereby severed and designated respectively as docket numbers 85–783 and 85–1112. As explained in a separate document issued this date, the employer may seek Commission review on the disposition of the citations under the prescribed procedures.

PAUL A. TENNEY

Judge, OSHRC

November 12, 1985

Washington, D.C.

"

1
An “affected employee” for purposes of the Commission rules is “an employee of a cited employer who is exposed to the alleged hazard described in the citation, as a result of his assigned duties.”
Commission Rule 1(e), 29 C.F.R. § 2200.1(e).

2
We note that Judge
Tenney
severed the citation from the penalty allegations in this case and assigned docket number 85–1112 to the penalty allegations. Docket number 85–1112 is currently pending before Judge David G.
Oringer . In the event Respondent’s contest as to the citation allegations is reinstated, we anticipate that the two docket numbers will be consolidated.