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Buckley & Co. v. Secretary of Labor

decided: January 3, 1975.

BUCKLEY & COMPANY, INC., PETITIONER,
v.
SECRETARY OF LABOR, RESPONDENT



PETITION TO REVIEW THE DECISION OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.

Aldisert, Adams and Hunter, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

ALDISERT, Circuit Judge.

This petition for review of an order of the Occupational Safety and Health Review Commission requires us to decide if notice mailed to a superintendent of a garage and maintenance shop of a large construction company is proper notification to the corporate employer under § 10(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(a). A divided Commission held that the notification to the superintendent satisfied the requirements of the Act. We disagree and set aside the order of the Commission.

The genesis of the citations and notices of proposed penalties was a February 21, 1972, accident resulting in the death of one of Buckley's employees. Edward Glass, Buckley's Office Staff and Safety Officer, duly reported the accident to F. L. Fostyk of OSHA's Philadelphia Area Office. In his report Fostyk entered the location of the accident as 1800 S. 34th Street, Philadelphia, Pa. -- the maintenance shop -- and the address of the employer as 1317 South Juniper Street, Philadelphia, Pa.

An initial inspection of the maintenance shop by an OSHA compliance officer followed, resulting in Buckley's being cited for one serious violation and ten other violations. A de minimis notice was also issued. Although the regional office knew the address of the employer, it sent the citations and de minimis notice by certified mail to "Buckley & Company, Incorporated, 1800 South 34th Street, Philadelphia, Pennsylvania."

Each citation explained: "The issuance of a citation does not constitute a finding that a violation of the Act has occurred unless there is a failure to contest as provided for in the Act or, if contested, unless the citation is affirmed by the Occupational Safety and Health Review Commission." Included in the mailing of the citations was a "Notification of Proposed Penalty" addressed to "Mr. Albert L. Proia, Superintendent, BUCKLEY & COMPANY, INCORPORATED, 1800 South 34th Street, Philadelphia, Pennsylvania 19145." The notification stated that "the aforesaid (Citations), this Notification, and the proposed assessment shall be deemed to be the final order of the Occupational Safety and Health Review Commission and not subject to review by any court or agency, unless, within 15 working days from the date of receipt of this notice, you notify the official named below in writing that you intend to contest the Citation or this Notification of Proposed Penalty before the Review Commission."

Because Buckley neither gave notice of contest nor notified OSHA that it had abated the violations, a follow-up inspection took place. This resulted in the issuance of a new citation and notification of proposed penalty, and, because Buckley had failed to abate certain items of the original citation, a notification of proposed additional penalties. Again, these papers were sent to the South 34th Street maintenance shop and not to the corporate offices on Juniper Street. Once all the proposed penalties became final, Buckley's assessment totaled $3,135.00.

On July 5, 1972, Louis Weiner, Regional Solicitor of the Department of Labor, wrote to the corporation at its Juniper Street address, relating its past correspondence with Mr. Proia at the South 34th Street address and making what he described as a "final demand" for payment of the $3,135.00. Following receipt of this letter, representatives of Buckley called a Labor Department attorney at which time they stated that the Weiner letter was the "first notice of the proposed penalties." Buckley attempted to contest the imposition of the penalties, alleging that its notice of contest was timely because the earlier notifications to Proia were not sufficient notice to the corporation. The Secretary moved to dismiss Buckley's notice of contest because the outstanding citations and penalties had become final and unreviewable. 29 U.S.C. § 659(a) and (b). An administrative law judge denied the Secretary's motion reasoning:

that service of the Citations and Proposed penalties on Respondent's employee at the storage and maintenance shop did not constitute service on Respondent under the Act. . . .

After the Secretary was granted leave to file an interlocutory appeal to the Commission, a majority of the Commission set aside the ruling of the administrative law judge. This appeal followed.

Section 10(a), in pertinent part, provides:

If, after an inspection or investigation, the Secretary issues a citation under § 9(a), he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under § 17 and that the employer has fifteen working days within which to ...


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