GOLDBERG, Circuit Judge:
In this case the Secretary of Labor (the Secretary) has invoked the jurisdiction of this Court under Section 11(b) of the Occupational Safety and Health Act of 1970 (the Act),
We note that the difficulty of our task has been magnified by the paucity of the written argument presented to us. Whether out of utter frustration, battle fatigue, or neglect, neither the Commissioner nor Echols saw fit to file a responsive brief, although both had been solicited and importuned to do so. Nevertheless, on the basis of the petitioner's brief and the record before us, we must endeavor to decide the issues presented. See Fed.R.App.P. 31(c); Teamsters Local 524 v. Billington, 9th Cir. 1968, 402 F.2d 510, 511.
The series of actions, inactions, and reactions that propelled this dispute into the Court of Appeals began on August 23, 1972, when the Secretary cited Echols for a serious violation of a safety regulation promulgated under the Act, and proposed a penalty of $600.00.
Section 10(a) of the Act, 29 U.S.C. § 659(a), and regulations promulgated thereunder, provide a means of appealing citations and penalties. Under 29 C.F.R. § 1903.17, Echols could have obtained Commission review by notifying the Occupational Safety and Health Administration Area Director of its intention to contest within 15 days of its receipt of the notification of proposed penalty.
The Secretary deferred forwarding this letter to the Commission until October 16, 1972, some 43 days later, at which time he filed a motion to strike Echols' letter as not constituting a notice of contest. After considerable procedural maneuvering,
The Secretary filed a petition for reconsideration with the Commission on February 27, 1973. The record before us gives no indication of any response by the Commission. This petition for review followed.
The Secretary raises two issues for decision by this Court: (1) Did Echols' letter of September 5 constitute a notice of contest of the citation or of the proposed penalty, or both ? (2) If the letter did constitute a notice of contest, did the Commission act improperly by vacating the citation and proposed penalty because of the Secretary's failure to transmit such notice in timely fashion?
Because the Commission's Supplemental Order of January 26, 1973 vacated both the citation and the proposed penalty against Echols, the question of whether Echols' September 5 letter was sufficient notice of contest actually becomes two issues: (a) whether the letter constituted a notice of contest of the citation; and (b) whether the leter constituted a notice of contest of the proposed penalty.
The first issue causes us little difficulty. Even construing the letter in the manner most favorable to Echols, we cannot conceive of any way it could be interpreted as a notice of contest of the citation. The September 5 letter, written by Echols' attorney, raised no objection whatsoever to the citation; to the contrary the letter noted that corrective action had been taken after receipt of the citation, and thus, in effect, conceded the existence of the violations at the time of issuance of the citation. Because the letter requested that the penalty be abated, and because the regulation requires that a complainant specify whether it is contesting the citation or the penalty, 29 C.F.R. § 1903.17 supra, the inescapable conclusion is that the letter could only have been a notice of contest of the penalty—if it was a notice of contest at all.
The question of whether the September 5 letter constituted a notice of contest of the proposed penalty is much more difficult to resolve. The Commission has provided only the crudest of guidelines to aid the courts, affected employers, or itself in making such a determination.
Having found that the Commission did not abuse its discretion by holding that the September 5 letter constituted
We have found that the Commission was within its discretionary power in construing the September 5 letter as a notice of contest. Moreover, given the adjudicatory function of the Commission, the Secretary should have resolved any doubts about the sufficiency of the letter in favor of transmitting it to the Commission for its determination. Nevertheless, we cannot say that the Secretary's action was entirely without justification. The September 5 letter, written by an attorney, was phrased in terms of a "request" to the Secretary for an abatement of penalty. The letter contained no language to the effect that Echols wished to "contest" the penalty or had any reason to "object" to the penalty proposed. Echols gave no direct indication of any desire to incur the burdens of a proceeding before the Commission. Under the circumstances the Secretary was not unreasonable in construing the letter as a request for leniency rather than as a notice of contest. Dismissal of the penalty is a sanction much too harsh for such a reasonable, although ultimately unprevailing, interpretation.
Moreover, viewed in light of the purpose of the Act, the requirement that the Secretary promptly transmit notices of contest is obviously designed to protect employees rather than employers. Congress' statement of purpose at the beginning of the Act makes this abundantly clear:
29 U.S.C. § 651(b). Prompt transmittal is important for hastening abatement of health or safety hazards to employees because, if the employer contests in good faith, the period for correction permitted by the Secretary "shall not begin to run until the entry of a final order by the Commission . . ." 29 U.S.C.
By filing a notice of contest Echols was doing nothing more than requesting a hearing; the Commission should have provided exactly that. Commission decisions in subsequent cases apparently have recognized that at least a finding of prejudice to the employer must precede dismissal of a proposed penalty for violation of a procedural rule. See Secretary of Labor v. J. Dale Wilson, Builder, OSHRC Docket No. 1625, Feb. 20, 1973; Secretary of Labor v. ADM Grain Co., OSHRC Docket No. 1767, Feb. 20, 1973. The Secretary contends that Echols was not prejudiced by the delay in transmittal of his notice of contest to the Commission. The Secretary should be given an opportunity to make that argument to the Commission.
We therefore vacate that part of the Commission's January 26, 1973 Supplemental Order which vacated the proposed penalty against Echols, and remand to the Commission for a hearing on the merits. We do not limit the scope of the hearing in any way. In addition to all other factors normally considered in such a hearing, the Commission is free to inquire to what extent, if any, Echols was injured by the Secretary's delay in transmitting the notice of contest, and to modify the penalty accordingly upon an appropriate finding of fact. As previously indicated, the citation issued against Echols on August 23, 1972, was not contested and is hereby reinstated as a final order of the Commission.
Vacated and remanded.
The contested issues in the case before us and in Brent Towing have also been discussed in at least five Commission decisions since July 1972. Secretary of Labor v. Stephen Adamowich d/b/a Terryville Sanitation Service, OSHRC Docket No. 2035, Feb. 23, 1973; Secretary of Labor v. J. Dale Wilson, Builder, OSHRC Docket No. 1625, Feb. 20, 1973; Secretary of Labor v. ADM Grain Co., OSHRC Docket No. 1767, Feb. 20, 1973; Secretary of Labor v. Pleasant Valley Packing Co., OSHRC Docket No. 464, Jan. 4, 1973; Secretary of Labor v. Lennox Industries, Inc., OSHRC Docket No. 1106, July 7, 1972.
29 C.F.R. § 2200.7(b)(1).
The Commission's order of January 26 stated only that the September 5 letter should be construed as a "notice of contest"; the Commission did not specify whether it meant notice of contest of the citation or of the proposed penalty, or both. We must assume that the Commission, looking at all possible interpretations of the language of that letter, did not intend that the letter constitute a notice of contest of the citation. No commission or agency, even under the formidable label of "absolute discretion," can arrogate to itself the power to say that night is day, or that black is white, or that Echols' letter was a notice of contest of a citation.
In its Supplemental Order the Commission cites two of its own prior decisions as authority for its action in this case. Secretary of Labor v. Lennox Industries, Inc., OSHRC Docket No. 1106, July 7, 1972; Secretary of Labor v. Pleasant Valley Packing Co., OSHRC Docket No. 464, Jan. 4, 1973. Both of those decisions note the Secretary's failure to transmit a notice of contest within the prescribed period of time; neither decision, however, offers any further clue to the statutory authority relied upon.