Marshall v. B.W. Harrison Lumber Co., 76-2619

• Citation: 569 F.2d 1303
• Decision Date: 23 March 1978
• Docket Number: No. 76-2619,76-2619
• Parties: , 6 O.S.H. Cas.(BNA) 1446, 1978 O.S.H.D. (CCH) P 22,626 F. Ray MARSHALL, Secretary of Labor, Petitioner, v. B. W. HARRISON LUMBER COMPANY, and Occupational Safety and Health Review Commission, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1303

569 F.2d 1303

48 A.L.R.Fed. 458, 6 O.S.H. Cas.(BNA) 1446,

1978 O.S.H.D. (CCH) P 22,626

F. Ray MARSHALL, Secretary of Labor, Petitioner, v. B. W. HARRISON LUMBER COMPANY, and Occupational Safety and Health Review Commission, Respondents.

No. 76-2619.

United States Court of Appeals Fifth Circuit.

March 23, 1978.

Carin A. Clauss, Sol., Benjamin W. Mintz, Assoc., Michael H. Levin, Dennis K. Kade, Attys., U. S. Dept. of Labor, Washington, D. C., for petitioner.

William R. Childers, Jr., Monroe, Ga., Allen H. Sachsel, Atty., Appellate Section, Civil Div., Dept. of Justice, Washington, D. C., for respondents.

PETITION TO REVIEW AN ORDER OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.

Before GOLDBERG, GODBOLD and SIMPSON, Circuit Judges.

GODBOLD, Circuit Judge:

An employer cited for violations of the Occupational Safety and Health Act (OSHA), 29 U.S.C. §§ 651 et seq., failed to contest the citation. In a subsequent proceeding under a notification of a failure to correct the violation, the employer claimed that the citation inadequately described the particular violations. We agree that the citation's description was inadequate and that the citation did not provide a basis for a subsequent failure-to-correct action.

Congress established an administrative procedure for enforcement of OSHA involving a division of enforcement and adjudicative responsibilities between two agencies, each independent of the other. The Secretary of Labor promulgates regulations, inspects employers, and issues citations when an employer is found in violation of the statute or regulation. An employer cited for a violation has an opportunity to be heard by an administrative law judge appointed by the Occupational Safety and Health Review Commission and, if a Commission member so directs, by the Commission itself. Under the enforcement scheme a citation may lay the basis for a later failure-to-correct action. The citation establishes the nature of the violation and a date by which the employer should correct the violation. Should the employer fail to correct the violation by that date, the Secretary may notify the employer and begin a failure-to-correct action. An employer may be penalized on either a citation or a failure-to-correct notification. Although the procedures for a citation and a failure-to-correct notification are very similar, compare 29 U.S.C. § 659(a) with id. § 659(b), larger penalties may be imposed under a failure-to-correct notification. On a citation an employer "may be assessed a civil penalty of up to $1,000 for each such violation," 29 U.S.C. § 666(c), ¹ whereas on a failure-to-correct notification an employer "may be assessed a civil penalty of not more than $1,000 for each day during which such failure or violation continues." 29 U.S.C. § 666(d) (emphasis added).

When an employer receives a citation, he has 15 working days to give notice that he intends to contest the citation. If he gives notice he may contest the citation in a hearing before an administrative law judge. If he fails to give notice the citation and the proposed assessment of penalty "shall be deemed a final order of the Commission and not subject to review by any court or agency." 29 U.S.C. § 659(a). Similarly an uncontested failure-to-correct notification will be deemed a final and unreviewable order. 29 U.S.C. § 659(b).

In this case an OSHA compliance officer an industrial hygienist inspected the employer, Harrison Lumber Company, which runs a small north Georgia sawmill. During the inspection he indicated to either Mr. Harrison, the sawmill's president and owner, or his son, or both of them, work stations where the noise level was too high. Afterwards he discussed what steps the employer could take to learn how to reduce the noise to an acceptable level. The Secretary subsequently issued a citation which described two violations in a general way, basically repeating the language of particular regulations. ² the citation read:

§ 1910.95(b)(1): Employer failed to use feasible administrative or engineering controls when sound levels exceeded those stated in Table G-16 (Request a Compliance Plan be submitted as well as a progress report every 30 days).

§ 1910.95(b)(3): Employer failed to provide a continuing and effective hearing conservation program.

The employer did not contest this citation.

About five months later the OSHA compliance officer returned to reinspect the employer. He found the violations uncorrected. The Secretary issued a failure-to-correct notification, which the employer contested in a hearing before an administrative law judge. The ALJ held that the citation had inadequately described the violations. The Secretary urged that the employer could no longer complain of that defect because the citation had become an unreviewable final order, but the ALJ held that because of the defect the citation was void and without legal effect. The Commission affirmed the ALJ's decision in a split decision. One Commission member affirmed on the basis of the ALJ's opinion. Another was unwilling to label the citation as void but agreed that it was unenforceable in a failure-to-correct action. The third Commission member dissented. He would have held that the citation was adequate and even if it was inadequate, the employer's actual knowledge of the nature of the violations in the circumstances of the inspection cured any defect.

The first question we must answer is whether in a failure-to-correct action an employer can object to the particularity of an uncontested citation. This question turns on the statute's provisions, but the answer can be reached only by inference. The statutory provisions that have some bearing on this question are: first, the treatment of an uncontested citation as a final order; second, the explicit mention of issues that the employer can raise in a failure-to-correct action; and, third, the requirement that citations be in writing.

The statute provides that an uncontested citation or failure-to-correct notification will be considered a final and unreviewable order. 29 U.S.C. §§ 659(a), (b). The effect of this provision is directed at the Secretary's enforcement proceedings under 29 U.S.C. § 660(b). The Senate Report on OSHA said that an uncontested citation or failure-to-correct notification will be considered a final order "for the purposes of enforcement" under that subsection. 1970 U.S.Code Cong. & Admin.News, pp. 5209-10. Section 660(b) authorizes the Secretary to petition a federal court of appeals for enforcement of an order, and enforcement, in the context of an uncontested citation, comprehends simply the clerk of the court of appeals entering a decree enforcing the order, 29 U.S.C. § 660(b), which lays a basis for the collection of any assessed penalties in a subsequent contempt proceeding. Id. Thus, the primary effect of an uncontested citation's being deemed a final order is that the proposed penalty can be collected. It is clear, however, that the statute intends that in the ordinary case failure to contest a citation will also foreclose in a failure-to-correct action objections that could have been raised to the citation, most specifically, the fact of violation. Some evidence that the statute intends such a result can be gathered by examining the objections which the statute allows to be raised in a failure-to-correct action.

The statute contemplates that in a failure-to-correct action an employer may challenge either the factual conclusion that he has failed to correct a violation for which a citation has been issued within the period permitted for its correction or the proposed assessment of penalty. See 29 U.S.C. § 659(b). The statute expressly mentions another issue that an employer may raise in a failure-to-correct action. The employer may show "a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control." 29 U.S.C. § 659(c). The statute makes such a provision even though the issue of the feasibility of correction and the time permitted for correction could have been raised by contesting the citation. The order resulting from a citation, whether contested or uncontested, is at least not dispositive of this issue. ³ The Senate Report noted that, when an employer shows good faith efforts to comply, the citation's correction requirements may be reviewed and modified "even though the citation has otherwise become final." 1970 U.S.Code Cong. & Admin.News, p. 5192. The express allowance of one specific objection suggests a statutory intent to foreclose at least some other objections.

The final order resulting from a citation sets forth principally two things: the finding of a violation and the time for correction of the violation. The presumed statutory intent to foreclose objection thus basically means that the employer may not protest that there was no violation at the time of the citation the order is dispositive of that issue. Congress may have expected, however, that the statutory procedure would be followed, and thus the presumed statutory...