United States v. B & L SUPPLY CO.
| Decision Date | 04 January 1980 |
| Docket Number | No. CA3-77-0118-G.,CA3-77-0118-G. |
| Parties | UNITED STATES of America v. B & L SUPPLY CO. |
| Court | U.S. District Court — Northern District of Texas |
Alfred G. Albert, Acting Sol. of Labor, Washington, D.C., Ronald M. Gaswirth, Regional Sol.
W. C. Quirl, President B and L Supply Co., pro se.
Heriberto de Leon, Dallas, Tex., Counsel for Occupational Safety & Health, Harvey M. Shapan, Atty., U. S. Dept. of Labor, Dallas, Tex., for the United States.
This is a suit by the United States through the Secretary of Labor ("the Secretary") against B & L Supply Co. ("B & L"), seeking recovery of a $345 civil penalty assessed against B & L for violations of the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq. ("the Act"), together with interest and costs. The United States has moved for summary judgment.
On March 22, 1976 the Acting Area Director of the Occupational Safety and Health Administration ("OSHA") issued a citation to B & L for 14 enumerated violations of the Act. The citation required that these violations be corrected by March 31, 1976.1 The citation was accompanied by a notification of proposed penalties totaling $345. Both the citation and the notification stated that they would become final and unreviewable unless contested by B & L within 15 working days, in accordance with 29 U.S.C. § 659(a). The citation and notification were sent to B & L by certified mail, return receipt requested, and were received on March 24, 1976. B & L responded to these documents in a letter dated March 25 stating, "Corrections have been made on alledged sic violations you listed — We are happy you called these to our attention."
Some time later, B & L was visited by an OSHA inspector for the purpose of verifying its correction of the cited violations. The inspector found B & L to be in compliance except with respect to certain fire extinguishers, which were on order. The inspector allegedly told W. C. Quirl, president of B & L, that B & L "had done a good job" and "could forget the whole thing," or that B & L "had complied with their requests and it would not be necessary to file for a contest." The Secretary denies that these representations were made.
The Secretary persisted in his efforts to collect the $345 penalty from B & L. On May 25, 1976, Quirl responded to these efforts in a letter concluding: "I consider your request for payment to be unfounded." Quirl continued to resist the penalty in letters dated June 10, June 18, June 28, and July 15, 1976. On January 26, 1977, the United States brought suit to recover the penalty.
Defendant has repeatedly argued to the Secretary, and continues to argue in this court, that it cannot be assessed a civil penalty without having been first given the opportunity to correct the cited violations. Regardless of whether this would be the more just approach, it is not the law. 29 U.S.C. § 654(a) requires that an employer "shall comply with occupational safety and health standards promulgated under this chapter," and "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards . . .." A "recognized hazard" is one which "is known to be hazardous not necessarily by each and every individual employer but is known taking into account the standard of knowledge in the industry." Brennan v. Occupational Safety and Health Review Commission, 501 F.2d 1196, 1201 (7th Cir. 1974). The standard is an objective one. Id. Hence "an activity or practice may be a `recognized hazard' even if the employer is ignorant of the existence of the activity or practice or its potential for harm." Titanium Metals Corp. of America v. Usery, 579 F.2d 536, 541 (9th Cir. 1978); National Realty & Construction Co. v. Occupational Safety and Health Review Commission, 160 U.S.App.D.C. 133, 141 n.32, 489 F.2d 1257, 1265 n.32 (D.C.Cir. 1973); 116 Cong.Rec. 38, 377 (1970) (remarks of Rep. Daniels). Thus B & L may not resist penalties under the Act by arguing that it was unaware of the violations or that it acted in good faith.2
A question arises as to whether any of B & L's notices constituted a notice of contest of the citation or notification of proposed penalties within the meaning of 29 U.S.C. § 659(a). In making this determination, we are aided by two recent decisions in this circuit.
In Dan J. Sheehan Co. v. Occupational Safety and Health Review Commission, 520 F.2d 1036 (5th Cir. 1975), cert. denied, 424 U.S. 965, 96 S.Ct. 1458, 47 L.Ed.2d 731 (1976), an employer sent this letter to the Commission:
We are not contesting your August 3, 1973 citation. We admit that the scaffold was erected too close to the energized wire. However, we would like for you to look further into the matter and possibly with this new information, lift the proposed $500.00 penalty.
520 F.2d at 1037. The letter went on to request "release" of the penalty. The court rejected the contention that this letter merely admitted the facts relating to the violation and not the violation itself, and held that the letter, construed in a light most favorable to its author, "failed to contest the violation and was at most a weak attempt to contest the proposed penalty." 520 F.2d at 1038. The Commission treated the letter as constituting a notice of contest of the penalty only, and this treatment was affirmed.
In Brennan v. Occupational Safety & Health Review Commission, 487 F.2d 230 (5th Cir. 1973), the letter from the employer read as follows:
This is to inform you that the signaling device has been installed within the three day period after the citation. We request that the penalty be abated since corrective action has been taken well within the time alloted sic.
487 F.2d at 233. The court held that this letter was insufficient as a notice of contest of the citation. The court found more difficult the question of whether the letter adequately contested the penalty, but deferred to the Commission's decision that the letter was sufficient in this regard, noting that "the Commission properly gave a liberal interpretation to the letter." 487 F.2d at 234.
In the present case, the employer's letter of March 25, 1976, stated only that corrections were being made. It thus evidences no intent to contest liability or the amount of any penalty, and therefore does not constitute a notice of contest of either the citation or the notice of proposed penalty. The letter of May 25, 1976, however, stands on a different footing. That letter stated that B & L regarded OSHA's "request for payment to be unfounded." While this language in no way suggests an intent to contest the citation, it is sufficient under the liberal scheme established by the Commission and endorsed by the Fifth Circuit to put the Secretary on notice that the employer opposed assessment of a penalty, and hence to constitute a notice of contest of the penalty. Hence the question arises as to whether the May 25 letter met the timeliness requirement of 29 U.S.C. § 659(a).
The Secretary has construed this language to require that the notice of contest be postmarked within the time specified. 29 C.F.R. § 1903.17(a).
It is clear that B & L's May 25 letter does not comply with the letter of the statute, since it was dated (and presumably postmarked) more than fifteen working days from B & L's receipt of notice from the Secretary. Questions arise, however, as to whether this period is subject to equitable interruption, and whether the alleged misleading statements to B & L by an OSHA inspector provide an adequate basis for such an interruption. If so, B & L may be able to prove that its May 25 letter was timely filed when appropriate tolling periods are disregarded.3
These questions appear to be of first impression in this or any other circuit. Guidance may be obtained, however, from the treatment given to other statutory time limits. We begin with the general principle that equitable tolling "is read into every federal statute of limitation." Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946). The extent of such tolling is a matter of Congressional intent, and requires examination of "the purposes and policies underlying the limitation provision, the Act itself, and the remedial scheme developed for the enforcement of the rights given by the Act." Burnett v. New York Central Railroad, 380 U.S. 424, 427, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965). Thus, for example, equitable tolling has been found to exist in actions under Rule 10b-5, e. g., Vanderboom v. Sexton, 422 F.2d 1233, 1240 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); under the Federal Farm Loan Act, Holmberg, supra; and under the Federal Employers' Liability Act, Burnett, supra; Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959). See Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 338-39, 98 S.Ct. 2370, 2379-80, 57 L.Ed.2d 239 (1978) (Burger, C. J., concurring) (Clayton Act).4
Perhaps the most comprehensive development of the Federal equitable tolling principle has been in the area of Title VII. In Chappell v. Emco Machine Works Co., 601 F.2d 1295 (5th Cir. 1979), the Fifth Circuit noted three situations in which tolling of the 180-day filing period would be appropriate. First, tolling is appropriate where an action was filed in an incorrect state forum. Chappell, supra, at 1302; International Union of...
To continue reading
Request your trial
-
Banovetz v. King
...Petroleum Co. v. OSHRC, 593 F.2d 637 (5th Cir.1979); Getty Oil Co. v. OSHRC, 530 F.2d 1143 (5th Cir.1976); United States v. B & L Supply Co., 486 F.Supp. 26 (N.D.Tex.1980). "To establish a violation of the general duty clause, the Secretary must prove (1) that the employer failed to render ......