Singleton Sheet Metal Works, Inc. (Commission decision, October 19, 1972)

Plain-English summary

A judge first vacated Singleton Sheet Metal's citation because the Secretary allegedly forwarded the contest too late, then reversed himself and dismissed the employer's contest as late. The Commission held that the judge lacked jurisdiction to reconsider his first dispositive order after forwarding the case for Commission review. The record showed that the Secretary forwarded the contest within three days of receipt, but it did not show when the employer received the citation or mailed its contest. The employer's reference to a 15-day period also suggested possible confusion because the statute allowed 15 working days. The Commission vacated both of the judge's orders, reinstated the case, and remanded for further proceedings after requiring employee service or workplace posting.

Decision snapshot

• Cited standard(s): No specific OSHA standard number is identified in the decision.
• Outcome: Both prior orders were vacated, and the contest was reinstated and remanded for a timeliness determination.
• Key point: A judge could not revise a dispositive order after sending the case for Commission review, and an unclear filing record could not support dismissal as untimely.

Full text (OSHRC public release)

Singleton Sheet Metal Works Inc., Docket No. 878

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 878

SINGLETON SHEET METAL WORKS INC.,

Respondent.

ORDER OF REINSTATEMENT

October 19, 1972

Before Moran, Chairman; Van Namee and Burch, Commissioners

On May 16, 1972, Judge Leon J. Moran issued a recommended order in the instant case, vacating the citation and proposed penalty for non-serious violations because of the Secretary’s alleged failure to comply with Commission rule 2200.7(c)(2) (Interim Rules of Procedure) which required the Secretary to forward notices of contest to the Commission within three days of receipt.

Subsequent to the May 16 order, the Secretary filed with the Commission a motion, addressed to Judge Moran, requesting that the Judge’s May 16 order be vacated, that respondent’s notice of contest be dismissed because it was not timely filed with the Secretary, and that the citation and notice of proposed penalty be affirmed in all respects.

By order issued May 31, 1972, Judge Moran, purportedly acting in response to the Secretary’s motion, vacated the order of May 16, dismissed the notice of contest as untimely, and affirmed the Secretary’s citation and proposed penalty.

On June 12, 1972, I directed that the proposed order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq. , 84 Stat. 1590 hereinafter referred to as “the Act”), and invited submissions as to whether the notice of contest was timely filed.

The Commission has reviewed the brief filed by the Secretary and has considered the entire record. We do not adopt either recommended order of the Judge. We will, however, for the purpose of this proceeding, construe the Secretary’s motion as a petition for discretionary review.

Section 12(j) of the Act provides:

(j) A hearing examiner appointed by the Commission shall hear, and make a determination upon, any proceeding instituted before the Commission and any motion in connection therewith, assigned to such hearing examiner by the Chairman of the Commission, and shall make a report of any such determination which constitutes his final disposition of the proceedings . The report of the administrative law judge shall become the final order of the Commission within thirty days after such report by the administrative law judge, unless within such period any Commission member has directed that such report shall be reviewed by the Commission. [Emphasis added].

Having rendered his May 16 order which was dispositive in this case, Judge Moran forwarded this case to the Commission and his decision was then subject to Commission review for a 30-day period. The Judge in reviewing his May 16 order was without jurisdiction, and, consequently, his order of May 31 reinstating the case and granting the Secretary’s motion to dismiss respondent’s notice was without legal force and effect.

Pursuant to my direction for review, we now consider whether respondent’s notice of contest was timely filed with the Secretary, and if so, whether the Secretary timely forwarded that notice to the Commission.

The record shows that the citation and notification of proposed penalty were issued on April 5, 1972, at Billings, Montana. The exact date that respondent received those documents at its place of business at Nekoma, North Dakota, the situs of the alleged violation is not disclosed by the evidence of the record. Respondent contested the violation letter dated April 20 which, according to the OSHA date stamp on the back of the envelope, was received by the Secretary on May 8. The post office date stamp on the front of the envelope which would be some evidence of initial receipt by the post office is indecipherable. The record does indicate that the notice of contest was filed by the Sectary with the Commission on May 11, thus establishing his procedural compliance with Commission rule 2200.7(c)(2). The Secretary also filed with the Commission on May 24, respondent’s May 10 letter (received by the Secretary on May 15) which read, in part:

In response to our telephone conversation this day, I have made an investigation as to when our “Letter of Contest” was mailed to your office, and there is a strong possibility this letter was not mailed within the 15 day time period allotted . I am, therefore, enclosing a bank draft in the amount of $25 to cover the alleged violation.

This in no way changes my position as far as contesting the alleged violation, the reasons being stated in my previous letter.

We are unable on the basis of the available evidence to determine the validity of the Secretary’s assertions with regard to the untimeliness of the respondent’s notice of contest. There is no evidence of record to establish when respondent received the citation and notification of proposed penalty or when respondent mailed his April 20 notice of contest. The use of the phrase “15 day time period” instead of the statutory “fifteen working days” in respondent’s May 10 letter, supra , raises the possibility of a misunderstanding of the time filing requirements of section 10(a) of the Act.

Accordingly, it is ORDERED that the Judge’s orders are vacated and the case is reinstated and remanded for further proceedings consistent with the provisions of this order, provided respondent certifies within 10 days of receipt of this order that he has personally served a copy of the notice of contest on the authorized representative of the affected employees or in the event that there is not authorized employee representative, that a copy of the notice of contest has been posted at the worksite.

Note: The case was reinstated and remanded to the Judge pursuant to the Commission Order, Respondent having complied with the terms of said order.

(The judge’s decision referred to herein follows)

Moran, Judge, OSAHRC: The Secretary of Labor by motion dated May 19, 1972, which was received by the Commission on May 24, 1972, requests that the order of May 16, 1972, issued by the undersigned judge vacating the citation and proposed penalty issued on April 15, 1972, for failure of the petitioner to comply with Commission Rule 2700.7(c)(2) be vacated.

In support of the motion the Secretary states that the employer’s notice of contest although dated April 20, 1972, was not received in the Occupational Safety and Health Administration Area Office until May 8, 1972, according to the records of that office. Petitioner further enclosed a copy of the letter to the Area Office from the employer dated May 10, 1972 which states in pertinent part:

In response to our telephone conversation this day, I have made an investigation as to when our “Letter of Contest” was mailed to your office, and there is a strong possibility this letter was not mailed within the 15 day time period allotted. I am, therefore, enclosing a bank draft of $25 to cover the alleged violation.

In view of this newly adduced evidence it now is reasonable to conclude that the Secretary did not fail to comply with Commission Rule 220.7(c)(2) and the Order of the Commission issued May 16, 1972, is vacated. It is also reasonable to conclude from the admission made by the employer in the letter dated May 10, 1972, that the notice of contest was not timely filed.

It is therefore, ORDERED, That the Commission Order issued on May 16, 1972, is vacated; and it is further ordered that the notice of contest is dismissed. The Secretary’s citation and proposed penalty are affirmed in all respects.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 878

SINGLETON SHEET METAL WORKS INC.,

Respondent.

May 16, 1972

Moran, Judge, OSAHRC: The documents filed with the Commission in this proceeding disclose that the employer, Singleton Sheet Metal Works, filed a notice of contents by letter dated April 20, 1972, with the Occupational Safety and Health Administration. The letter does not bear any date of receipt by that office and it must be assumed that it was received within a reasonable time after April 20, 1972. The notice of contest was not filed with this Commission until May 11, 1972, as evidenced by the Commission’s date stamp. Rule 2200.7(c)(2) of the Commission’s Rules requires that within three (3) days after receipt of the notice of contest the Secretary shall file, or cause to be filed with the Commission the notice of contest, all citations and notifications of proposed penalty. There was therefore a failure to comply with Rule 2200.7(c)(2). It is therefore ORDERED, That the citation and proposed penalty issued on April 15, 1972, are vacated. There being nothing further before the Commission this proceeding is dismissed.