Owens-Illinois, Inc.

Plain-English summary

Two compliance officers conducted one inspection and separately issued two groups of nonserious citations and proposed penalties. Owens-Illinois received the documents several days apart and mistakenly calculated its contest deadline from the later delivery, making its challenge to the earlier noise citation appear one day late. The Commission found the circumstances unusual and read the later citation as supplementing the first. It therefore measured the filing period from receipt of the later proposed-penalty notice and held that the notice of contest was timely. The dismissal was reversed, the contest was reinstated, and the case was remanded for further proceedings.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95
• Outcome: The notice of contest was reinstated and the noise case was remanded for further proceedings.
• Key point: Closely timed citations from a single inspection were read together, so the contest period ran from receipt of the later proposed-penalty notice.

Full text (OSHRC public release)

false
false
false

EN-US
X-NONE
X-NONE

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

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

������������������������ v.

OSHRC DOCKET NO. 8859

OWENS�ILLINOIS, INC.,

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

May
19, 1976

DECISION

Before
BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY,
Commissioner:

A report of Administrative Law Judge Joseph L. Chalk, dated
October 22, 1974, is before the full Commission for review pursuant to section
12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. � 651 et
seq. [[hereinafter �the Act�]. At issue in this case is whether Judge Chalk
erred in dismissing respondent-employer�s notice of contest on the ground that
it was untimely filed.

The case has been briefed by respondent. The Secretary of
Labor by letter relies upon the Judge�s decision and his briefs below.

The case arose out of a single inspection by two compliance
officers. Each compliance officer independently prepared recommendations for
the Area Director to issue a citation for other than serious violations. Each
citation and its attendant notification of proposed penalty was mailed
separately and received by respondent three or four days apart because of an
intervening weekend. Respondent contested the earlier issued citation, but
mistakenly computed the time in which to contest from the receipt of the later
issued citation. [1]

Respondent contends that the failure to file its notice of
contest within 15 working days as required by 29 U.S.C. � 659(a) was the result
of confusion caused by complainant�s issuance of two citations for nonserious
violations contrary to complainant�s own procedures providing that:

Only one citation for nonserious violations will be given
an employer for a single inspection, even though there may be several
violations.... U.S. Dept. of Labor, Compliance Operations Manual XII�17 (1972).

�

In light of our disposition of the case, we do not rule on
respondent�s contention and other possible issues.

The facts of this case are unusual, and suggest that the two
citations and the two notifications of proposed penalties, issued as a result
of a single inspection and so close together in time, should be read together
in the interest of justice.

We hold that the later citation and notification of proposed
penalty supplements the first issued citation, and thus the time for filing the
notice of contest runs from the date of receipt of the later notification of
proposed penalty. Therefore, the notice of contest was timely filed.

We note also that the notice of contest is concerned
essentially with the problem of long-term abatement of noise by feasible
engineering controls or administrative controls. The citation prescribes, as
indeed the standard requires, that in any event personal protective equipment
be used when these controls are not feasible. Consequently, the employees are
entitled to this protection during this proceeding.

Accordingly, it is ORDERED that the order dismissing the
notice of contest is reversed, the notice of contest is reinstated, and the
case is remanded for further proceedings consistent with this order.

FOR
THE COMMISSION

William
S. McLaughlin

EXECUTIVE
SECRETARY

BY:
Gloria W. White

Acting
Executive Secretary

DATED:
MAY 19 1976

�

MORAN,
Commissioner, Concurring:

I concur in the result reached in the lead opinion. The dicta
in the penultimate paragraph concerning the contents of the notice of contest
and the requirements of the standard, however, are unnecessary to the decision
in this case. They represent Commissioner Cleary�s personal views�not mine.

�

BARNAKO,
Chairman, concurring:

I concur with my colleagues� disposition of this case.

In the past we have held that 29 U.S.C. 659(a) is a
limitation on our jurisdiction to hear cases where the notice of contest is
filed after expiration of the fifteen day period specified by the section. Mississippi
Valley Erection Co. , 5 OSAHRC 483, BNA 1 OSHC 1527, CCH OSHD para. 17,098
(1973); Atlantic Marine Inc. , 14 OSAHRC 6, BNA 2 OSHC 1373, CCH OSHD
para. 19,069 (1974), reversed and remanded, 524 F.2d 476 (5th Cir. 1975). In
the last-noted case the court said:

The ALJ and OSHRECOM apparently viewed � 659(a) as an
impenetrable barrier to further consideration of petitioner�s claims without
regard to the special circumstances claimed.

Before we undertake to decide such an important issue, we
should be certain that it is factually founded and not just a theoretical
possibility. 524 F.2d at 478

The court remanded for a hearing to take evidence on
respondent�s allegations in that case that it had been prejudiced and misled
into an untimely filing of a notice of contest by the Secretary�s deception and
violation of procedures. I believe the court�s action and its reasons therefor
would be appropriate in the instant case as well.

My colleagues, however, would decide the 659(a) issue in this
case without an evidentiary record. I concur in that disposition and with the
reasons given for it, but I feel, nonetheless, that the better course would be
the one taken by the 5th Circuit in Atlantic Marine Inc., supra.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

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

������������������������ v.

OSHRC DOCKET NO. 8859

OWENS�ILLINOIS, INC.,

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

FINAL
ORDER DATE: November 21, 1974

DECISION AND ORDER

Chalk,
Judge

On July 10, 1974, Respondent filed a motion requesting this
Commission to docket a Notice of Contest nunc pro tunc with an �effective
filing date of June 20, 1974,� which it had previously forwarded to the
Department of Labor area director on June 21, 1974. [2]
The record clearly establishes that this Notice of Contest was forwarded to the
area director on the sixteenth working day after Respondent�s receipt of the
Notification of Proposed Penalty on May 30, 1974.

After Complainant filed a response to Respondent�s motion and
Respondent filed a supplemental written argument, a motions judge granted
Respondent�s motion on August 2, 1974. Complainant then moved the Commission
for special leave to appeal such ruling, and Respondent filed a response
thereto; but the Commission denied the motion on September 11, 1974. On
September 16, 1974, the case was assigned to me on regular assignment for final
disposition.

On October 1, 1974, I issued an Order to Respondent directing
Respondent to show cause within ten (10) days of its receipt of my Order why
its Notice of Contest should not be summarily dismissed because it was not
filed timely. In response thereto, in addition to relying upon its arguments
advanced in previous submissions which I find unpersuasive, Respondent argues
that the prior ruling by the motions judge is binding upon me under the
doctrine of res judicata. As a second argument, Respondent claims that the
Commission, by denying Complainant�s motion for leave to file a special appeal,
in effect considered the issue on its merits and upheld the ruling of the
motions judge.

The doctrine of res judicata, in accordance with the very
case cited by Respondent in support of its argument, applies only where there
has been �final judgment on the merits ... with respect to the same cause of
action� ( Rhodes v. Jones , 351 F2d 884 (8th Cir., 1965)). As there has
been no final order issued in this case, this argument must fall of its own
weight. Respondent�s second contention also falls of its own weight, for in
denying Complainant�s motion for leave to file a special appeal from the
ruling, the Commission, in accordance with its own rules, was merely denying
the motion itself, without addressing itself in any way to the merits of the
issue raised therein (29 CFR 2200.75). On the contrary, the Commission would
have granted the motion if it had desired to resolve the issue at that point in
the proceedings.

When a Notice of Contest is not filed within fifteen working
days after the employer�s receipt of the Notification of Proposed Penalty, the
citation and proposed penalty assessment become a final order of the Commission
�not subject to review by any court or agency� (29 USC 659(a)). By its
unequivocal terms, therefore, the statute specifically prohibits this
Commission from doing what Respondent�s motion of July 10, 1974 requested it to
do, regardless of the reasons, perhaps persuasive but nonetheless unredeeming,
that prompt the late filing, such as those advanced by Respondent throughout
these proceedings (Secretary v. Walter A. Podpora , Docket No. 721, May
18, 1972; see Secretary v. FMC Corporation�Fibers Division et al, Docket No.
5355, July 17, 1974 ; Peter J. Brennan, Secretary of Labor v. Occupational
Safety and Health Review Commission and S.J. Otinger Jr ., ��� F2d ����,
Docket No. 73�3068 (5th Cir., October 3, 1974). A fortiori, as the Citation and
Notification of Proposed Penalty in this case became a final order of the
Commission by operation of law when Respondent failed to file its Notice of
Contest on or before June 20, 1974, the motions judge�s Order purporting to
override the finality of that Order was of no legal effect (id).

The motions judge�s Order of August 2, 1974 is set aside,
Respondent�s motion is denied, and Respondent�s Notice of Contest filed nunc
pro tunc on June 21, 1974 is dismissed.

�

So
ORDERED.

JOSEPH
L. CHALK

Judge,
OSHRC

Dated:
October 22 1974

Washington,
D.C.

[1] The inspection took place on April 17, 1974. One of
the inspectors was an industrial hygienist. The industrial hygienist and the
other inspector filed separate reports. The industrial hygienist recommended
citing Owens�Illinois for a failure to comply with 29 CFR 1910.95, a standard
regulating excessive noise. The other inspector recommended citing
Owens�Illinois under the general duty clause in section 5(a)(1) of the Act and
for additional violations of standards under the special duty clause in section
5(a)(2) of the Act. A citation alleging a violation of the noise standard was
issued on May 29, 1974. A citation alleging a violation of the general duty
clause and the additional standards violations was issued on May 31, 1974. The
citation and notice of proposed penalty for the alleged noise violation were
apparently received on May 30, 1974, at the company�s plant. The citation and
notice of proposed penalty for the remaining alleged violations was received at
the plant on June 3, 1974. Both sets of citations and notices of proposed
penalties were forwarded together from the plant in Virginia to the company�s
legal department in Toledo, Ohio. There, the date of receipt on the later
issued citation was mistakenly taken to be the only date of receipt and the
notice of contest as to the earlier issued citation was mailed on June 21,
1974.

On July 1, 1974, the Area Director notified the
company that its notice of contest had been filed one day late since the
fifteenth working day from the May 30 receipt would expire on June 20, 1974.
The company moved that the Commission take jurisdiction of the contest. The
motion was granted by Administrative Law Judge Brennan. The Secretary requested
leave to file an interlocutory appeal to the full Commission, but the request
was denied. The case was assigned to Judge Chalk for hearing. Judge Chalk
dismissed the notice of contest on the ground that it was untimely filed.

[2]
The record indicates that the Secretary wrote Respondent�s attorney on July 1,
1974, informing him that this Notice of Contest was not timely filed.