Haybuster Manufacturing Company

Plain-English summary

Haybuster did not contest an initial citation, which became a final order requiring abatement. OSHA reinspected before the 15-working-day contest period expired and found four conditions uncorrected. A judge found failures to abate but reduced three of the four proposed additional penalties. The Commission originally invalidated the failure-to-abate notice because the reinspection occurred during the contest period. The Eighth Circuit held that OSHA could require abatement and reinspect before that period expired, set aside the Commission's order, and remanded the case. On remand, the Commission adopted the judge's findings and conclusions and affirmed the report in all respects.

Decision snapshot

• Cited standard(s): None identified in the official release
• Outcome: The judge's failure-to-abate findings and penalty dispositions were affirmed.
• Key point: After the court held that OSHA could reinspect during the citation-contest period, the Commission affirmed the judge's failure-to-abate decision.

Full text (OSHRC public release)

Docket No. 1599

HAYBUSTER MANUFACTURING COMPANY

OSHRC Docket No. 1599

Occupational Safety and Health Review Commission

February 19, 1976

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
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COUNSEL:

Henry C. Mahlman, Assoc. Regional Solicitor

Herman Weiss, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

This case is before the Commission upon order of remand by the United States Court of Appeals for the Eighth Circuit.
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Dunlop v. Haybuster Manufacturing Company and Occupational Safety and Health Review Commission, 524 F. 2d 222 (8th Cir. 1975).

The case arose out of an inspection of respondent's workplace on August 31, 1972, resulting in a citation issued September 19, 1972, for failure to comply with certain safety standards and ordering abatement by September 29, 1972.
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Respondent did not file a notice of contest to this citation and it became a final order by operation of law.
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On October 3, 1972, the worksite was reinspected and it was found that four of the violations in the earlier citation were uncorrected.
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As a result, on October 12, 1972, a notification of failure to abate with proposed additional penalties was issued to respondent.

Respondent timely contested the notification of failure to abate and the matter was heard before Administrative Law Judge John J. Morris.
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Judge Morris found there [*2]
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had been a failure to correct violations, but reduced three of the four proposed penalties.

Review of the Judge's decision was directed.
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Thereafter, a majority of the Commission found the notice of failure to correct the four prior violations invalid because the reinspection upon which it was based occurred within the fifteen working day period provided by section 10(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. Sec. 651 et seq.) for contesting a citation.
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In doing so the Commission relied on its earlier decision in Kesler and Sons Construction Company, 9 OSAHRC 1033, 2 OSHC 1096, OSHD para. 18,165 (1974), reversed sub nom, Brennan v. Occupational Safety and Health Review Commission, 513 F.2d 553 (10th Cir. 1975).

The Eighth Circuit Court of Appeals disagreed and held that abatement may be required and reinspection may be made prior to expiration of the fifteen working day period during which a cited employer may contest his citation.
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Dunlop v. Haybuster Manufacturing Company and Occupational Safety and Health Review Commission, supra at 225.

The Court set aside the Commission's order and remanded the case for further proceedings.
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Upon remand and after review of the whole record, we adopt the Judge's findings of fact and conclusions of law and affirm his report in all respects for the reasons given therein.
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It is so ORDERED.
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