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11/20/87 Abatron, Inc., v. the Department of Labor

November 20, 1987

ABATRON, INC., PLAINTIFF-APPELLANT

v.

THE DEPARTMENT OF LABOR, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

515 N.E.2d 1336, 162 Ill. App. 3d 697, 114 Ill. Dec. 65 1987.IL.1732

Appeal from the Circuit Court of Kane County; the Hon. Michael J. Colwell, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. INGLIS and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Plaintiff, Abatron, Inc., appeals from an order of the circuit court which, on administrative review, affirmed a decision of the Director of the Illinois Department of Labor which imposed a $750 penalty against plaintiff and ordered plaintiff to cease and desist violating the Toxic Substances Disclosure to Employees Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 1401 et seq.).

The issue presented by this appeal is whether the Director of the Department of Labor was authorized to initiate enforcement proceedings against plaintiff under section 17(a) of the Act. Ill. Rev. Stat. 1985, ch. 48, par. 1417(a).

On February 28, 1986, E. Allen Bernardi, as Director of Labor, filed in the Toxic Substances Division of the Department of Labor a "Notice of Complaint and Hearing before the Director of Labor." The document was directed to plaintiff and advised that it was filed as a complaint pursuant to section 17(a) of the Act; that an investigation had disclosed probable cause exists that a violation of certain report requirements of the Act had occurred; and that a hearing of the complaint has been set for April 4, 1986, before a representative of the Director of Labor. The notice further advised that should plaintiff not appear, a default judgment may be entered, and a fine imposed, on proof of the charges.

The hearing was held before Mary A. Mulhern, Director's representative, who on June 2, 1986, issued a report and recommendation to the Director of the Department of Labor. The report determined that plaintiff had unintentionally delayed in submitting to the Director certain safety data sheets when plaintiff lacked information necessary to achieve compliance and recommended that plaintiff be ordered to cease and desist violating the Act and pay a penalty of $750 for the violation. The report also acknowledged that plaintiff questioned the standing of the Department of Labor to bring a complaint under section 17 of the Act.

On June 16, 1986, E. Allen Bernardi, Director of the Department of Labor, entered a decision adopting and confirming the report and recommendations of his representative, ordering plaintiff to cease violating the Act and to pay a $750 penalty. Plaintiff sought administrative review in the circuit court asserting as its sole issue that the administrative action brought by the Department of Labor on its own initiative, without a proper complaining party, was void as not authorized by the Toxic Substances Disclosure to Employees Act. The trial court rejected plaintiff's argument and affirmed the decision of the administrative agency. Plaintiff appeals.

Section 17(a) of the Act provides as follows:

" An employee, employee representative or employer who alleges that he or she has been denied his or her rights under this Act may, within 180 days of the alleged denial or after first learning of the alleged denial, file a complaint alleging a violation of the Act with the Department. The Department shall investigate the complaint and shall have authority to request the issuance of a search warrant or subpoena to inspect the files or premises of an employer, manufacturer, importer or supplier, if necessary. The Department shall attempt to resolve the complaint by conference, conciliation, or persuasion. If the complaint is not so resolved and the Department finds probable cause to believe a violation has occurred, the Department shall proceed with notice and a hearing on the complaint." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 48, par. 1417(a).)

Section 17(b) requires that the hearing of a complaint must occur within 60 days and that the employee, employee representative, employer and respondent may present evidence and cross-examine witnesses. The Director is authorized to make rules to compel the attendance of witnesses, the issuance of subpoenas, and for the prehearing exchange of documents and information between the parties. Sections 17(c), (d), and (e) provide for remedies to be imposed by the Director, including the forfeiture of $1,000 to $10,000 for each violation of the Act and punitive damages up to $20,000. Section 17(f) authorizes judicial review under the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.) of a final decision of the Director of Labor and provides that the complainant may file an original action in the circuit court for the same remedies if the Director fails to issue a decision within 30 days of the hearing.

Plaintiff contends that the Director of the Department of Labor exceeded his authority by initiating the complaint in this case as only an employee, employee representative, or employer who claims denial of his ...


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