Karl Kehm Construction Co.

Plain-English summary

Karl Kehm Construction received two citations and submitted two notices of contest that arrived at OSHA on the same day and were nearly identical. The Area Director timely forwarded one notice but mistakenly treated the other as a duplicate, causing missed filing deadlines. The judge granted the employer's motion to dismiss the second case. The Commission found the mistake excusable because even the employer had difficulty distinguishing the two matters. It held that vacating the citation was too severe a sanction for this inadvertent error, set aside the dismissal, and remanded for further proceedings. The release does not identify the cited safety standard or proposed penalty.

Decision snapshot

• Cited standard(s): Not identified in the release
• Outcome: The dismissal was set aside, the employer's motion to dismiss was denied, and the case was remanded.
• Key point: Mistaking one of two nearly identical notices of contest for a duplicate was excusable inadvertence and did not justify vacating the citation.

Full text (OSHRC public release)

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EN-US
X-NONE
X-NONE

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC
DOCKET NO. 1333

KARL
KEHM CONSTRUCTION CO.

���������������������������������������������
Respondent.

ORDER
OF REMAND

April 27, 1973

Before VAN NAMEE
and BURCH, Commissioners

VAN NAMEE,
COMMISSIONER:

On
October 11, 1972, Judge Leon J. Moran issued an order granting respondent�s
motion for dismissal of complainant�s citation and proposed penalty. The motion
was predicated on the ground that complainant had failed to forward
respondent�s notice of contest to the Commission within three days of receipt
as required by Commission interim Rule 7(c)(2) (29 CFR 2200.7(c)(2)), and had
failed to file its complaint within 10 days, as required by interim Rule
7(d)(1) (29 CFR 2200.7(d)(1)).

Pursuant
to the authority vested in the members of the Commission by section 12(j) of
the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat.
1590, hereinafter referred to as the �Act�), I directed review of the Judge�s
order on November 10, 1972. For reasons given hereafter we reverse and remand.

We
have reviewed the record and note that by letter dated August 21, 1972,
complainant�s Area Director represented that he did not timely file a notice of
contest received by him on August 7, 1972 because he inadvertently mistook it
for a duplicate of a notice of contest contesting another citation previously
issued to the same employer. The complainant reiterated the error and reason
for same in his complaint, and he requested that the provisions of 29 CFR
2200.7(c)(2) and (d)(1) relating to time for filing be waived.

The
record discloses that Respondent was issued a citation dated July 21, 1972 and
a notification of proposed penalties dated July 25, 1972. Thereafter Respondent
was issued a second citation and notification of proposed penalties relating to
a second alleged violation and dated July 31, 1972. Respondent then filed
notices of contest as to each citation. Both notices of contest were received
by the Area Director on August 7, 1972. Said notices of contest are identical
in form and nearly identical in content. The notice relating to the citation
dated July 21 was instituted as OSHRC Docket No. 1209, and it was timely filed
with the Commission. We also note that Respondent by its motion requests that
we vacate the Secretary�s citation of July 25. We presume Respondent refers to
the first citation which is the citation with regard to which there has been
compliance with our rules.

In
view of the fact that Respondent is itself unable to distinguish between its
own notices of contest there can be no doubt that the Area Director could also
commit the same error and consider one notice of contest to be a duplicate of
the other. Error of this kind clearly constitutes an excusable mistake or
inadvertence for which the extreme sanction of vacation of the citation should
not be applied.

In
the past we have applied the extreme sanction in those instances of vacation
where an Area Director has not forwarded a notice of contest because in his
view the employer�s writing was not a notice of contest. (Secretary of Labor v.
Pleasant Valley Packing Co., Inc., OSHRC Docket No. 464; Secretary of Labor v.
Brent Towing Co., Inc., OSHRC Docket No. 1003, Pet. for Jud. Rev., Docket No.
72�3511, filed November 21, 1972, 5th Cir.; Secretary of Labor v. Lennox
Industries, Inc., OSHRC Docket No. 1106.) We used the sanction in these cases
because the function of determining the legal sufficiency of a notice of
contest is an adjudicatory function, and the action of the Area Director
operated to deprive an employer of his statutory right to a hearing as provided
for by section 10(c) and to usurp the responsibility of this Commission to
provide the hearing. The present case is clearly distinguishable.

Accordingly,
it is ORDERED that: (1) the Judge�s order be and the same is hereby set aside,
(2) the Respondent�s motion to dismiss is denied, and (3) the case is remanded
for further proceedings.

�

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC
DOCKET NO. 1333

KARL
KEHM CONSTRUCTION CO.

���������������������������������������������
Respondent.

October 11, 1972

MORAN, JUDGE,
OSAHRC:

Ruling on the Respondent�s
motion to dismiss the Secretary�s citation and proposed penalty granted.