Swift Pork Company v. Employment Appeal Board

IN THE COURT OF APPEALS OF IOWA

No. 20-0040
Filed December 16, 2020

SWIFT PORK COMPANY,
Plaintiff-Appellee,

vs.

EMPLOYMENT APPEAL BOARD,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Wapello County, Myron L. Gookin,

Judge.

Upon judicial review of the decision of the Employment Appeal Board (EAB)

to dismiss Swift Pork Company’s challenge to the issuance of a citation by the

Iowa Occupational Safety and Health Administration, the district court reversed the

EAB decision and remanded to the agency to address the challenge on its merits.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED TO THE

AGENCY.

Thomas J. Miller, Attorney General, and Benjamin J. Flickinger, Assistant

Attorney General, for appellant.

Thomas E. Ullrich and Derek J. Brostek of Wharton Aldhizer & Weaver,

PLC, Harrisonburg, Virginia, for appellee.

Considered by Bower, C.J., and May and Ahlers, JJ.
2

AHLERS, Judge.

After an inspection of Swift Pork Company’s plant, the Iowa Occupational

Safety and Health Administration (IOSHA) issued a citation to Swift Pork alleging

violations of Iowa’s occupational safety and health act (Iowa Code chapter 88) and

notifying Swift Pork of the imposition of a penalty.1 The citation was sent to Swift

Pork by certified mail, as permitted by Iowa Code section 88.8(1) (2018). Swift

Pork responded by sending a notice of contest to the Employment Appeal Board

(EAB). The labor commissioner2 challenged the notice as untimely, asserting

more than fifteen working days passed between the date Swift Pork received the

citation and the date of the notice of contest. See Iowa Code § 88.8(1) (allowing

an employer “fifteen working days from the receipt of the” citation to contest the

allegations and penalty). The EAB agreed with the commissioner and dismissed

Swift Pork’s challenge to the citation. The issue in this appeal is whether the EAB

impermissibly failed to follow its own precedents when it determined the fifteen-

business-day meter started running on the date the citation was delivered to Swift

Pork’s security agent rather than the date the citation was delivered to an

employee of Swift Pork with the authority to act on the citation.

I. Procedural History and Legal Standards.

Before answering the question at hand, some procedural history and

explanation of the applicable legal standards is in order. As mentioned, the

1 For ease of reference, the citation and notice of penalty issued by IOSHA will be
referred to as “the citation.”
2 The labor commissioner is responsible for administering Iowa’s occupational

safety and health act. See, e.g., Iowa Code §§ 88.1(3), 88.2(1), 88.5, 88.6. We
will refer to the labor commissioner as simply the “commissioner.”
3

commissioner issued a citation on August 22, 2018, and sent the citation to Swift

Pork via certified mail. The certified mail receipt shows the citation was delivered

to Swift Pork on August 27. Upon “receipt” of the citation, Swift Pork had fifteen

working days to send a notice of contest to the EAB. Id. If Swift Pork failed to

meet that deadline, the citation and penalty assessment would “be deemed a final

order of the [EAB] and not subject to review by any court or agency.” Id. Swift

Pork’s notice of contest was dated September 19 and stamped “received” on

September 20.

After Swift Pork sent the notice of contest to the EAB, the commissioner

filed a motion with the EAB seeking to dismiss the notice of contest on the basis

that it was not timely. Swift Pork resisted and provided affidavits and other

evidence showing Swift Pork contracted with a third-party security firm to pick up

its mail. Due to delays with the security firm and its own internal procedures, and

because the citation was generically addressed to the plant at a post office box,

the citation reached a Swift Pork employee with authority to respond to it no sooner

than August 31. Citing agency precedent, Swift Pork argued the date the citation

reached this employee is the date Swift Pork received the citation for purposes of

section 88.8(1), making its notice of contest timely.3 The EAB ruled:

When [Swift Pork] failed to notify the [commissioner] of its
contest by the end of the fifteenth working day, [the citation] was
deemed the final order of the [EAB] and therefore, not subject to
review by any court or agency. The [EAB] has no power to waive the
requirements of the nondiscretionary provision of the code and is
barred from acquiring jurisdiction. [Swift Pork’s] notice of contest
must be dismissed. [(citation omitted.)] Only the [commissioner’s]

3 In their arguments to us, the parties agree Swift Pork’s notice of contest was not
timely if the citation was received on August 27, but the notice was timely if the
citation was received on August 31.
4

fraud or deception may excuse late filing, and there has been no
assertion by [Swift Pork] of fraud or deception, therefore [the
commissioner’s] Motion to Dismiss is granted.

Swift Pork sought judicial review of the EAB’s decision. See id. §§ 88.9,

17A.19. The district court reversed the EAB’s decision, finding the agency erred

by ignoring its prior practice or precedent and measuring the fifteen-day period

from the date the citation was received by the security firm rather than the date an

employee with authority to act on the citation received it. See id. § 17A.19(10)(h)

(permitting reversal of an agency decision “that is inconsistent with the agency’s

prior practice or precedents, unless the agency has justified that inconsistency by

stating credible reasons sufficient to indicate a fair and rational basis for the

inconsistency when the agency acts inconsistently with its prior practice or

precedent”). The EAB appeals from the district court’s ruling.

II. Standard of Review.

We turn next to the standard of review. In addressing the standard of

review, it is important to remember the issue on appeal as framed by the parties.

Although Swift Pork raised seven grounds for reversal in its petition filed to initiate

judicial review in the district court, by the time the case reached the hearing stage,

Swift Pork pared its argument down to five grounds for reversal. Specifically, Swift

Pork urged reversal pursuant to Iowa Code section 17A.19(10)(f), (h), (j), (k), and

(n). The district court found Swift Pork was entitled to reversal of the EAB decision

pursuant to Iowa Code section 17A.19(10)(h), so did not address the other

grounds. In its post-hearing motion filed pursuant to Iowa Rule of Civil Procedure

1.904(2) and its brief on appeal, the EAB limited its challenge to the district court’s

conclusions pursuant to section 17A.19(10)(h). We do the same. Based on this
5

procedural posture of the case, we express no opinion on the propriety of the

EAB’s actions on any of the other grounds originally asserted by Swift Pork.

In reviewing agency action pursuant to Iowa Code section 17A.19, the

district court acts in an appellate capacity. Lowe’s Home Centers, L.L.C. v. Iowa

Dep’t of Revenue, 921 N.W.2d 38, 45 (Iowa 2018). On appeal, since we are

reviewing the district court acting in an appellate capacity, we apply the same

standards of Iowa Code section 17.19(10) to determine if we reach the same result

as the district court. Id. Allegations that an agency’s actions should be reversed

pursuant to section 17A.19(10)(h) because the agency failed to follow its prior

practice or precedent are reviewed under the unreasonable, arbitrary, capricious,

or abuse of discretion standard. Office of Consumer Advocate v. Iowa Utils. Bd.,

770 N.W.2d 334, 341 (Iowa 2009). Our supreme court has noted that the reporter-

draftsman of the amendments who created Iowa Code section 17A.19(10)(h) has

stated subparagraph (h) provides “a specific example ‘of agency action that any

reviewing court should overturn as unreasonable, arbitrary, capricious, or an abuse

of discretion.’” Finch v. Schneider Specialized Carriers, Inc., 700 N.W.2d 328, 332

(Iowa 2005) (quoting Arthur Earl Bonfield, Amendments to Iowa Administrative

Procedure Act, Report on Selected Provisions 69 (1998)).

III. Discussion of the Merits.

Turning to the merits of this dispute, our task on appeal is to determine

whether the EAB impermissibly failed to follow its own precedent when it decided

the fifteen-business-day meter began running on the date of delivery indicated on

the certified mail receipt. While the parties disagree as to the interpretation of the

relevant precedent, they are generally in agreement that two decisions of the EAB
6

form the core body of that precedent: (1) Labor Commissioner v. Carroll County

Ambulance Service, IOSHAB Docket No. 3838 (Emp. Appeal Bd. July 24, 1991);

and (2) Labor Commissioner v. City of Sioux City, IOSHAB Docket No. 5560 (Emp.

Appeal Bd. June 20, 2017).4

A. The Precedents at Issue.

In Carroll County, the commissioner issued a citation to and imposed a

penalty upon Carroll County. IOSHAB Docket No. 3838, at 1. The citation and

notice of penalty was sent by certified mail to the ambulance garage owned by the

county and was received by an employee of the ambulance garage. Id. The

county moved to dismiss the citation and corresponding penalty on the basis that

the commissioner failed to properly serve the county under either of the methods

set forth in Iowa Code section 88.8(1) (i.e., personal service or certified mail). Id.

at 2. The EAB granted the motion to dismiss. Id. at 3. Finding that service on the

county’s employee who worked at the ambulance garage was insufficient to fulfill

the commissioner’s obligation to serve “the employer,” the EAB stated:

Unfortunately, the statute does not define the term “employer”
with enough clarity to clearly resolve the issue here, where the
employer is a large entity which carries on different activities at
different locations. The proper approach to such a situation is to
resolve the question in a manner consistent with the purposes of the
Act. The majority members will rely on [Buckley & Co. v. Secretary
of Labor, 507 F.2d 78 (3rd Cir. 1975),] in its holding that the notice of
enforcement action must be received by an official of the corporation
who has the authority to effect the abatement of the condition alleged
to constitute a violation, or to contest the action within 15 days of
receipt of it. Unless notice has been received by such a person, the
[commissioner] has not fulfilled his obligation under the Act to notify
the employer. . . .
....

4Because these two EAB decisions are not readily available online or elsewhere,
we will summarize them, perhaps in more detail than we otherwise would.
7

Although the citation issued in this matter was timely
contested, the [employer] must not be placed in a position where it
has to rely on its various employees at various worksites to promptly
channel the enforcement documents to the [employer’s] proper
officials who have authority to act on them. The Act allows the
[employer] a maximum of 15 days in which to contest the citation and
proposed penalty; therefore, the Labor Commissioner must ensure
that the Employer responsible for contesting such matters be notified
by certified mail.

Id. at 2–3. Finding the commissioner did not fulfill the commissioner’s obligation

to serve a proper employee of the entity against which the citation had been issued,

the EAB vacated the citation and associated penalty.

In Sioux City, the commissioner sent a citation via certified mail to the

employer’s location where the alleged violation took place. IOSHAB Docket No.

5560, at 4. Employees of the city who worked at that location received the citation,

but the mayor or city clerk did not. Id.; see also Iowa Code § 88.8(1) (requiring the

commissioner to notify an employer by “service in the same manner as an original

notice or by certified mail”); Iowa R. Civ. P. 1.305(8) (providing for personal service

of original notice on a city by serving its mayor or clerk). The commissioner sought

to dismiss the city’s notice of contest, claiming it was late when measured from the

date the citation was received by the employees working at the location where the

alleged violation took place. IOSHAB Docket No. 5560, at 4. In addressing the

timeliness of the city’s challenge to the citation, the EAB stated:

Sending the citation to the location where the inspection and violation
took place is, at a minimum, prima facie evidence of notice sufficient
to trigger the deadline. . . . Unfortunately, the [city] provides no detail
on the routing of the notice through its employees. Since the
[commissioner] makes, at least, a prima facie case of untimeliness
and since the [city] is the one with access to its own internal
processing of the Notice it is incumbent on [the city] to come up with
some information that the Notice was not received by a suitable
8

person until within 15 working days of [the date the city mailed its
notice of contest].

Id. at 4–5. Finding no evidence to overcome the prima facie case of untimeliness,

the EAB dismissed the city’s challenge to the citation. Id. at 5–6.

B. The EAB’s Actions.

With those two EAB decisions as background, we turn to the EAB’s actions

in this case. Faced with the commissioner’s motion to dismiss Swift Pork’s

challenge to the citation, Swift Pork responded within the agency proceeding with

detailed, sworn information about who received the citation and how and when it

was routed to an employee of Swift Pork with the authority to act on it. Swift Pork

also cited to the EAB’s decision in Carroll County as EAB precedent controlling the

issue at hand. The commissioner responded by bringing the EAB’s attention to

the EAB’s decision in Sioux City, arguing that Sioux City controlled the outcome.

In spite of having its attention called to both the Carroll County and Sioux

City decisions, the EAB cited neither case in its ruling. Instead, the EAB simply

stated the citation was received by Swift Pork on August 27, calculated the fifteen-

working-day-deadline measured from August 27 as September 18, and concluded

Swift Pork’s notice of contest sent on September 19 was too late, thus depriving

the EAB of jurisdiction to hear Swift Pork’s challenge. As a result, the EAB

dismissed Swift Pork’s challenge, making the citation the final order of the EAB

that is not subject to review by any court or agency.

C. The Disagreement.

The EAB asserts the EAB’s 1991 Carroll County decision, and the federal

Buckley decision cited therein, has been distinguished, if not overruled, by the
9

EAB’s 2017 Sioux City decision; thus, Sioux City requires the outcome reached by

the EAB in this case. The EAB also asserts Swift Pork and other employers should

not be allowed to frustrate the purpose of Iowa Code chapter 88 and delay

implementation of safety precautions in the workplace by establishing

cumbersome internal mail delivery processes. Finally, the EAB asserts substantial

evidence supports a finding that Swift Pork received the citation on August 27, so

its notice of contest sent on September 19 was one day late.

Swift Pork counters that Sioux City did not distinguish or overrule Carroll

County. Instead, Swift Pork argues, Sioux City essentially built off Carroll County

by establishing the standard that mail received by a person without the authority

required by Carroll County is prima facie evidence of delivery, but it can be rebutted

by evidence providing details as to the procedure followed by the employer in

routing the citation to a person with authority to act on the citation.

D. Resolving the Disagreement—Application of the Precedents.

On our review of the agency precedents, we believe the EAB has clearly

established a practice of looking beyond the date a citation is delivered and

examining when a person in authority received the citation in determining when

the citation is received for purposes of section 88.8(1). In Carroll County, the EAB

acknowledged that determining what person needs to be served with a citation is

not clearly answered by section 88.8(1). IOSHAB Docket No. 3838, at 2. To

resolve the ambiguity in the statute, the EAB established that, in order to meet its

obligation under section 88.8(1) to serve the citation on the “employer,” the

commissioner had to deliver the citation to an “official of the corporation who has

the authority to effect abatement of the condition alleged to constitute a violation,
10

or to contest the action within 15 days of receipt of it.” Id. Until the citation has

been received by “such a person,” the commissioner has not fulfilled the

commissioner’s obligation under chapter 88 to “notify the employer.” Id. at 2–3.

Contrary to the EAB’s assertion in this case, the Sioux City decision did not

abandon or step away from the Carroll County precedent. Sioux City simply

clarified the minimum the commissioner must establish to make a prima facie

showing of compliance by holding, “[s]ending the citation to the location where the

inspection and violation took place is, at a minimum, prima facie evidence of notice

sufficient to trigger the deadline.” IOSHAB Docket No. 5560, at 4. Once such a

prima facie showing has been made, it then becomes incumbent on the employer

“to come up with some information that the Notice was not received by a suitable

person.” Id. Although the Sioux City decision does not mention Carroll County by

name, something one would expect it to do if the EAB was overruling or even

distinguishing Carroll County, Sioux City does reference requiring notice to be

given to a “suitable person.” Id. We agree with the following assessment made

by the district court of the interplay between Carroll County and Sioux City:

To comply with the citation notice requirement and trigger
commencement of the “15 working days” period under Iowa Code
Sec. 88.8(1), the citation must be received [by] a person “who has
the authority to effect abatement of the condition alleged to constitute
a violation, or to contest the action within 15 days of receipt of it.”
However, if the citation is sent to the location of the inspection and
violation, irrespective of who receives it, such receipt is prima facie
evidence the “15 working days” period has been triggered for
determining timeliness of filing a notice of contest by the Employer.
The burden then falls on the Employer to detail “some information”
in support of its claim that a suitable person did not receive the notice
until a date certain making the notice of contest timely. Thus, even
if the citation of violation is delivered directly to the location of the
inspection and violation, where one would expect a “suitable person”
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to receive the notice, the Employer still has a process by which to
rebut the prima facie evidence of proper delivery.

Contrary to these EAB precedents, the EAB made no fact finding regarding

Swift Pork’s arguments as to when a “suitable person” received the citation. This

requires reversal of the EAB’s decision, unless it can be shown the exception

provided for in Iowa Code section 17A.19(10)(h) applies.

E. Resolving the Disagreement—The Statutory Exception

Iowa Code section 17A.19(10)(h) requires an agency to act consistently

with its prior precedent. However, there is an exception stated in that section that

permits an agency to act inconsistently with its precedent. That exception applies

if “the agency has justified that inconsistency by stating credible reasons sufficient

to indicate a fair and rational basis for the inconsistency.” Here, the EAB gave no

explanation for straying from its precedents, let alone an explanation that would

constitute “credible reasons sufficient to indicate a fair and rational basis for the

inconsistency.” Iowa Code § 17A.19(10)(h). Therefore, the statutory exception

does not apply based on the record at this time.

IV. Conclusion.

For the reasons explained herein, we agree with the decision of the district

court that the EAB acted unreasonably, arbitrarily, or capriciously and abused its

discretion by failing to follow its own precedent and determine when a “suitable

person” received the citation. Therefore, we affirm that part of the district court’s

decision reversing the EAB’s decision rejecting Swift Pork’s challenge as untimely.

However, we disagree with that portion of the district court’s ruling in which the

district court engaged in extensive examination of the facts. The agency, “as trier
12

of fact, has a duty to weigh the evidence.” Cedar Rapids Cmty. Sch. Dist. v. Pease,

807 N.W.2d 839, 845 (Iowa 2011). To the extent the district court performed fact

finding and determined whether Swift Pork’s notice of contest was timely as a

matter of fact, we vacate that part of the decision.

The EAB’s decision dismissing Swift Pork’s contest of the citation must be

reversed pursuant to Iowa Code section 17A.19(10)(h), as the EAB’s action was

inconsistent with its prior precedent without adequate justification being provided

for such inconsistency. The matter is remanded to the EAB for further

proceedings, which shall include application of its prior precedents (or an

explanation stating credible reasons sufficient to indicate a fair and rational basis

for any action inconsistent with its prior precedents) and fact finding necessary to

apply those precedents (e.g., when a “suitable person” received the citation).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED TO THE

AGENCY.