Paulmar Wire Products, Inc.

Plain-English summary

OSHA cited Paulmar Wire Products for seven nonserious machine, electrical, eye-protection, and fire-safety violations and proposed a total penalty of $90. A judge dismissed the company's notice of contest because the record lacked proof that it had been served by registered or certified mail. The Commission held that the governing OSHA regulation and the instructions sent to the employer required only a written notice to the Area Director, not registered or certified mail. It reinstated the case, conditioned on timely service upon the authorized employee representative, while leaving the Secretary free to argue that the contest itself was untimely. The official release also appends a January 17, 1973 ALJ order granting the company's later withdrawal after it abated the items and paid the $90 penalty, which left the citation and penalty affirmed.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(2); the release describes the seven safety items but does not identify their specific regulatory provisions.
• Outcome: The Commission reinstated the notice of contest; the appended later order granted withdrawal and affirmed the citation and $90 penalty.
• Key point: A notice of contest could not be dismissed for failure to use registered or certified mail when the governing filing rule and employer instructions imposed no such requirement.

Full text (OSHRC public release)

PAULMAR WIRE PRODUCTS, INC., Docket No.921

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 921

PAULMAR WIRE PRODUCTS, INC.,

Respondent.

ORDER OF REINSTATEMENT

July 17, 1972

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

BURCH, COMMISSIONER:

On June 15, 1972, Judge Bates issued his recommended order in this case granting the
Secretary’s motion to dismiss respondent’s notice of contest because respondent failed to furnish
proof of service on the Occupational Safety and Health Administration as required by
Commission rule 2200.7(i)(2) within the statutory 15 working day period.

By virtue of the authority vested in Members of the Commission by 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’), I am herewith directing that the Judge’s order be reviewed by the
Commission.

A review of the record by the Commission reveals that on April 3, 1972, respondent
received a citation for seven non-serious violations of the Secretary’s safety and health standards
together with notification of a proposed penalty of $90. On April 25, the Area Director requested
payment of the proposed penalties since notice of contest had not been received. On May 3,
respondent forwarded a copy of a notice of contest allegedly sent on April 7 to the Area Director.
In response to the Commission’s Executive Secretary’s request for certification of service on
affected employees or their authorized representative pursuant to Commission rule 2200.7(b)(1),
respondent replied that all notices were posted. The complaint subsequently filed by the
Secretary indicated that there was an authorized employee representative and that respondent
had not technically complied with the rule.

On May 26, the Secretary forwarded his motion to dismiss respondent’s notice of contest.
It was unopposed.

Commission rule 2200.7(i)(2) provides that unless otherwise specified herein service
shall be personally or by certified or registered mail (emphasis supplied). Commission rule
2200.7(c)(1) provides that filing of a notice of contest shall be in accordance with Secretary’s
regulation 1903.17. There is no provision in that regulation requiring registered or certified mail,
only that the notice of contest be postmarked within 15 working days of receipt of the
notification of penalty.

Moreover, the instructions to employers for filing notice of contest contained in the
penultimate paragraph of the Notification of Proposed Penalty require only that it be submitted
in writing to the Area Director.

Under the circumstances herein, we grant the respondent the opportunity for a hearing on
the merits, without prejudice to the Secretary’s renewing his motion before the Judge to dismiss
respondent’s notice of contest for untimeliness.

Accordingly, it is ordered that the Judge’s order be set aside, the case is reinstated, the
Secretary’s motion is denied, provided respondent certifies service of notice of contest upon the
authorized employee representative in accordance with Commission rule 2200.7(b)(1) within 10
days of the receipt of this letter.

NOTE: Having filed proof of service in accordance with the Commission’s Order stated above
the Respondent’s Notice of Contest was reinstated by the Executive Secretary by Order of the
Commission.

[The Judge’s decision referred to herein follows]

BATES, JUDGE, OSAHRC:

The Petitioner, through the medium of a Motion to Dismiss the Respondent’s Notice of
Contest filed on May 26, 1972, (reiterated in Paragraph VIII of his Complaint) urges that the
Secretary’s Citation and Notification of Proposed Penalty should be recognized as a final order
of the Commission pursuant to Section 10(a) of the Occupational Safety and Health Act of 1970,
and in support thereof, asserts the following:

(1) On March 29, 1972, the Secretary served on the respondent by certified mail a
citation for a serious violation and a proposed penalty.

(2) The citation and proposed penalty were received by the respondent on April 3, 1972.

(3) The respondent mailed to the Secretary a notice of contest dated May 3, 1972, and it
was received by the Secretary on May 4, 1972.

(4) By use of the method designated in section 2200.9 of the Occupational Safety and
Health Commission Rules of Procedure April 24, 1972, was the last day in which the respondent
could file his notice of contest. Section 29 C.F.R. 1903.17 states ‘Such notice of intention to
contest shall be postmarked within 15 working days of the receipt by the employer of the notice
of proposed penalty.’ By the Commission rules and section 10(a) of the Act, the respondent filed
an untimely notice of contest. The mailing of the notice of contest on May 3, 1972 was not
within the 15 working days of the receipt of the citation and proposed penalty.

(5) The Secretary’s citation and proposed penalty are a final order of the Commission.
Section 10(a) states ‘If, within fifteen working days from receipt of the notice issued by the
Secretary, the employer fails to notify the Secretary that he intends to contest the citation or
proposed assessment of penalty . . . the citation and the assessment, as proposed shall be deemed
a final order of the Commission and not subject to review by any court or agency.’

(6) Under section 10(c) of the Act, the Commission is without jurisdiction in this
proceeding. The Commission’s jurisdiction is contingent on whether or not the notice of contest
was properly filed under section 10(a) or 10(b).

The respondent did not oppose the above motion. In a letter dated May 3, 1972, the
respondent insists that he wished to contest the Citation issued on March 29, 1972, and in fact
did so by a letter purported to be dated on April 7, 1972 (See Exhibits appended to
Complainant’s Motion, Docket Item 6).

A review of the file reflects no proof of service of this letter on the Administration, as
required by section 2200.7(i)(2) of the Commission Rules, and absent such proof of a proper and
timely Notice of Contest by the respondent, I have no alternative other than to hold that the
respondent by and through its Notice of Contest dated May 3, 1972, failed to comply with
section 10(a) of the Act, and section 1903.17 of the Commission Rules, a copy of which had
been previously furnished to him.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 921

PAULMAR WIRE PRODUCTS, INC.,

Respondent.

January 17, 1973

CHODES, JUDGE, OSAHRC:

This matter is before the undersigned Judge upon the request of Respondent, made on
November 15, 1972, to withdraw its Notice of Contest. The record shows that a Citation and
Notification of Proposed Penalty of $90 was issued on March 29, 1972, and received by the
Respondent on April 3, 1972. A Notice of Contest dated April 7, 1972, was addressed by the
Respondent to the Area Director of the Department of Labor, but there is no record of its receipt
by the Area Director within 15 working days from receipt by the Respondent of the Notice of
Proposed Penalty. However, according to a letter dated May 3, 1972, from the Respondent’s
president, Paul Petras, the Notice of Contest dated April 7, 1972, referred to above was sent at
the time to the Area Director, because of a desire to contest ‘these unfair penalties.’ Accordingly,
it is concluded that jurisdiction of this case by the Occupational Safety and Health Review
Commission is established.

The Citation in the instant case was for non-serious violation of Section 5(a)(2) of the
Occupational Safety and Health Act of 1970, (29 U.S.C. 651, et seq.). The specific violations
alleged were that on March 21, 1972, the Respondent failed to provide tool rests or work rests on
a bench grinder; failed to provide foot treadle guards on ‘Lubow’ bending, forming, and welding
machines and on a ‘Lubow’ forming press; failed to post ‘No Smoking’ signs at entrance of
paint booth; failed to guard live electric parts of a ‘Sterling’ butt welder and two ‘Sterling’ spot
welders; failed to ground two ‘Lubow’ trimming machines, a bench grinder and a drill press;
failed to require employees to wear suitable eye protection at welding machines; and failed to
maintain the self-closing feature of a fire door at entrance to paint booth.

In a letter dated November 15, 1972, the Respondent stated that it had abated all of the
items (violations) charged in the Citation, that the penalty of $90 had been paid, and that a copy
of the request to withdraw had been posted.

In a letter dated November 22, 1972, the Solicitor stated that a copy of the Respondent’s
motion to withdraw was forwarded to the employees’ representative, Local #810, United Wire,
Metal and Machine. In the same letter the Solicitor also stated that the $90 penalty had been
received and that the Secretary had no objection to the granting of the Respondent’s motion to
withdraw its Notice of Contest.

While Respondent did not specifically provide assurance of continuing compliance with
the provisions of the Occupational Safety and Health Act, the Judge is of the opinion that
Respondent’s correspondence bespeaks an intention to comply.

A reasonable time has elapsed since the posting and service of the Respondent’s motion
to withdraw its Notice of Contest and no objections to the proposed action has been received
from affected employees or their representative.

The granting of the Respondent’s motion to withdraw its Notice of Contest is considered
to be consistent with the provisions of the Occupational Safety and Health Act of 1970.

Accordingly, it is ORDERED that the Respondent’s motion to withdraw its Notice of
Contest is hereby granted; and it is further

ORDERED that the Citation and the Proposed Penalty of $90 are hereby affirmed.