Herasco Contractors, Inc.
Abatement letter treated as timely contest
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This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
OSHA issued two citations to Herasco Contractors, and the company timely filed a document titled “Abatement Letter.” OSHA did not forward that letter to the Commission and later sought collection of penalties and late fees. The Commission held that the letter clearly disputed the citations by asserting that compliance was physically impossible for one item and infeasible for the other. Liberally construed, the letter was a timely notice of contest even though it was not labeled that way. The Commission vacated the dismissal and remanded for a hearing on the merits.
Decision snapshot
- Cited standard(s): Not identified in the decision
- Outcome: The dismissal was vacated, and the case was remanded for a hearing on the merits.
- Key point: A timely letter that clearly disputes citations can serve as a notice of contest even when the employer labels it an abatement letter.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
COM (202) 6064050
Frs (202) 606-5050
..
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. : OSHRC Docket No. 93-1412
..
HERASCO CONTRACTORS, INC.,
Respondent.
DECISION
BEFORE: FOULKE, Chairman, and MONTOYA, Commissioner.
BY THE COMMISSION:
Following a July 22, 1992 inspection, the Occupational Safety and Health
Administration (“OSHA”) issued two citations against Herasco Contractors, Inc. on August
19, 1992. On August 29, 1992, Herasco’s president, Renee Heras, filed a document
captioned “Abatement Letter” with OSHA. This document was never forwarded to the
Commission. An April 21, 1993 collection letter from OSHA demanding payment of $4,919
in penalties, interest and other late fees prompted Herasco to file a letter on May-22, 1993 -
that explicitly contested the citations. On June 15, 1993, the Secretary of Labor filed a
motion to dismiss Herasco’s notice of contest as untimely filed. In the memorandum
supporting his motion, the Secretary claimed that the Commission has no jurisdiction over
this matter because the only writing from Herasco that could be construed as a notice of
contest, the May 22, 1993 letter, is “grossly out of time.” The Chief Administrative Law -
Judge agreed, found the notice of contest to be untimely, and granted the Secretary’s
motion.
2
By letter of August 17, 1993, Herasco requested relief from the Chief Judge’s OI&I-.
The case was directed for review.
We find that the judge erred in granting the Secretary’s motion to dismiss because
the May 22, 1993 document is not the only one that may be interpreted as a notice of
contest. We construe the August 29, 1992 letter liberally in accordance with long-standing
Commission precedent and appellate court case law. See, e.g., Brennan v. OSHRC (Bill
Echok Tructi~~g Co.), 487 F.2d 230 (5th Cir. 1973). The Secretary alleges in his motion that
the letter was merely an “abatement letter” containing only information about corrective
measures. Cfr, e.g., Arena Cons@. Co. v. Secretaryof Labor, 1978 CCH OSHD II 22,987
(S.D.N.Y. 1978) (abatement letter was not construed as a notice of contest in a penalty
collection action because there was no intent to dispute citation exhibited in the letter). We
find, to the contrary, that Heras’ statements in the letter constitute objections to the two
citations on the grounds that compliance was physically impossible in one instance and
infeasible in the other. Liberally construed, Heras’ statements in the letter exhibit a clear
intent to dispute the citations and, thus, serve as a notice of contest. See, e.g., Eastern
KnittingMills, 1 BNA OSHC 1677, 1973-74 CCH OSHD ll 17,691 (No. 2019,1974) (emplo-
yer’s letter complaining of inability to devise a way to abate a violation constituted a notice
of contest). Herasco’s August 29, 1992 letter was filed within fifteen working days of the
date the citations were issued and thus constitutes a timely notice of contest.
3
Accordingly, the Commission vacates the Chief Administrative Law Judge’s order
dated August 2, 1993 dismissing Herasco’s notice of contest as untimely and remands the
case for a hearing on the merits of the citations.
Chairman
Velma Montoya
Commissioner
Dated: S-w 33, 1993
Docket No. 93-1412
NOTICE OF ORDER
The attached Order by the Occupational Safety and Health Review Commission
was issued and served on the following on September 22, 1993.
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL
200 Constitution Ave., N.W. Room S4004
Washington, D.C. 20210
Albert H. Ross, Esq.
Regional Solicitor
,
Office of the Solicitor, U.S. DOL
11th Floor
One Congress Street
Boston, MA 02114
Renee Heras, President
Herasco Contractors, Inc.
PO Box 109
Ashland, MA 01721
Irving Sommer
Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th Street, Suite 990
Washington, D.C. 20036-3419
FOR THE COMMISSION
Executive Secretary
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
COM(202) 6-5050
FTS(202) 606-5050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-1412
HERASCO CONTRACTORS, INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on August 3, 1993. The decision of the Judge
will become a final order of the Commission on September 2, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before
August 23, 1993 in order to ermit suf ?lcient time for its review. See ,
Commission Rule 91, 29 C. Ep.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-34 19
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOf
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION i
Date: August 3, 1993
DOCKET NO. 93-1412 -’
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Albert H. Ross, Esq.
Re ional Solicrtor
Of&e of the Solicitor U S DOL
One Congress Street, ‘11th Floor
P.O. Box 8396
Boston, MA 02114
Renee Heras, President
Herasco Contractors, Inc.
PO Box 109
Ashland, MA 01721
Irvin Sommer
Chie f Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00108935677:Ol
E
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
PHONE: COM (202) 606-5050
COM (202) 6065100 FTS (202) 60&5050
Frs (202) 606-5100
..
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. Docket No. 93-1412
.
HERASCO CONTRACTORS, INC. ;
..
Respondent. ..
..
..
ORDER
By motion dated June 15, 1993 the Secretary moves to dismiss the Respondent’s
notice of contest as not being timely filed under section 10 of the Act. The Respondent did
not file an answer to the allegations advanced in the motion.
Accordingly, the facts alleged in the motion are accepted as being admitted to be
true. Based on these facts I find that the notice of contest was untimely. Motion for
dismissal is granted, and the notice of contest is DISMISSED.
IT IS FURTHER ORDERED that the citation(s), penalties and abatement dates are
AFFIRMED as issued.
~~~~
IRVING SOMMER
Judge
DATED: )u16 - 2 I$<92
Washiiigion; -DC.
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