C & H ERECTION COMPANY, INC.

OSHRC Docket No. 3226

Occupational Safety and Health Review Commission

June 13, 1975

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Before MORAN, Chairman; and, CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge James D. Burroughs, dated November 20, 1973, has been before this Commission for review pursuant to 29 U.S.C. 661(i) for more than a year and a half. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide this case at this time.

The issue directed for review is whether the Judge properly interpreted the word "immediately" in concluding that the respondent's posting of a citation on the third workday following receipt thereof contravened the requirement in 29 C.F.R. 1903.16(a) that the citation be "immediately" posted following its receipt. Commissioner Cleary agrees with the determination and reasoning of the Judge. Chairman Moran disagrees with the Judge's interpretation because it is inconsistent with the manner in which the word "immediately" has been interpreted in construing the requirement in 29 U.S.C. 659(c) for the Secretary of Labor to "immediately advise the Commission" when he receives a notice of contest. Brennan v. OSAHRC and Bill [*2] Echols Trucking Co., 487 F.2d 230 (5th Cir. 1973); Secretary v. A D M Grain Company, 5 OSAHRC 355, 370-372 (1973); Secretary v. J. Dale Wilson, Builder, 3 OSAHRC 835, 839-841 (1973).

Accordingly, the decision of the Judge is affirmed by an equally divided Commission. This decision has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE: This proceeding arises under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1390 (hereinafter referred to as the Act). The respondent, C and H Erection Company, Inc., requests review of item 2 of a citation issued to it by the Secretary of Labor (hereinafter referred to as the complainant) pursuant to section 9(a) of the Act. Respondent also requests review of the assessment of a penalty of $250.00 n1 proposed, pursuant to section 10(a) of the Act, for the alleged violation.

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n1 The notification of proposed penalty proposed a penalty of $500.00 for item 2 of the citation. Complainant reduced its proposed penalty for item 2 to $250.00 in paragraph VI B of its complaint.

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On the basis of an inspection conducted on April 24, 1973, of the workplace under the ownership, operation, or control of the respondent located at the Marine Science Building, University of North Carolina at Wilmington, a citation was issued to respondent on May 7, 1973. The citation was not contested by respondent and became a final order of the Commission.

A reinspection of respondent's workplace at the Marine Science Building, University of North Carolina at Wilmington, was conducted on May 15, 1973. As a result of the reinspection, a second citation was issued to respondent on May 25, 1973, alleging that respondent violated section 5(a)(2) of the Act by failing to comply with two standards or regulations promulgated by the complainant. A notification of proposed penalty was issued on the same date proposing a penalty of $75.00 for item 1 of the citation and $500.00 n2 for item 2 of the citation.

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n2 Reduced to $250.00 by the complaint.

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The respondent, by letter dated June 4, 1973, timely notified the complainant that it contested item 2 of the citation issued May 25, 1973. Item 2 of the citation alleges a violation of the regulation published at 29 CFR 1903.16. The alleged violation was described in the citation as follows:

Failure to post citation of alleged violations issued May 7, 1973.

The case was assigned to this Judge on August 16, 1973, for purposes of conducting a hearing pursuant to section 10(c) of the Act. A hearing was held in Wilmington, North Carolina on September 20, 1973. No additional parties desired to intervene in the proceeding.

JURISDICTION AND ISSUES

Respondent concedes that at all times material to this proceeding it was engaged in a business affecting commerce within the meaning of the Act and that the Commission has jurisdiction of the parties and of the subject matter herein.

The following issues are pertinent to a disposition of this case:

1. Did respondent fail to comply with the regulation published at 29 CFR 1903.16 and thereby violate section 5(a)(2) of the Act?

2. If a violation occurred, what penalty, if any, should be assessed?

FINDINGS OF FACT [*5]

The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving this proceeding.

1. Respondent, C and H Erection Company, Inc., is a corporation with its primary office located in Rose Hill, North Carolina. At all times pertinent to this proceeding, it was conducting business operations at the Marine Science Building, University of North Carolina at Wilmington, North Carolina.

2. Respondent was engaged in the erection of the steel framework for the building and had approximately 11 to 13 employees at the jobsite.

3. On April 24, 1973, the complainant, through one of its duly authorized compliance officers, conducted an inspection of respondent's workplace at the above mentioned Marine Science Building.

4. As the result of the inspection of April 24, 1973, a citation was issued to respondent on May 7, 1973. Respondent received the citation on May 10, 1973. It did not contest any of the violations set forth in the citation issued May 7, 1973.

5. The foreman of respondent that accompanied the compliance officer on the inspection of April 24, 1973, made notes of the violations [*6] being proposed by the compliance officer. These notes were turned over to respondent's general manager who discussed them immediately after the inspection with respondent's employees.

6. On the morning of May 15, 1973, complainant, through one of its duly authorized compliance officers, conducted a follow-up inspection at the respondent's workplace at the Marine Science Building, University of North Carolina at Wilmington.

7. As a result of the follow-up inspection conducted on May 15, 1973, another citation was issued to respondent on May 25, 1973. Item 2 of the citation of May 25, 1973, alleges a violation of the safety standard published at 29 CFR 1903.16 for failure to post the citation issued May 7, 1973 (Citation).

8. The citation issued May 7, 1973, was not posted at the jobsite at the time of reinspection on May 15, 1973. There was a bulletin board at the jobsite on which the citation could have been posted.

9. The citation of May 7, 1973, was received by respondent at its Rose Hill, N.C. address on Thursday, May 10, 1973. Respondent's general manager, Billy Hall, was not in the office on Friday, May 11, 1973. Hall and respondent's secretary discussed the citation [*7] on Saturday, May 12, 1973. The citation was photostated on Monday, May 14, 1973, and was posted for the first time on Tuesday, May 15, 1973, at the jobsite. The posting was made immediately after the follow-up inspection by the compliance officer.

10. The $500.00 penalty proposed by complainant for failure to post the citation issued May 7, 1973, was a fixed penalty required by complainant's guidelines.

LAW AND OPINION

A. Violation

The citation and complaint allege that respondent violated section 5(a)(2) of the Act by failing to comply with the regulation published at 29 CFR 1903.16. Subsection (a) of this regulation provides, in pertinent part, as follows:

Upon receipt of any citation under the Act, the employer shall immediately post such citation, or a copy thereof, unedited, at or near each place an alleged violation referred to in the citation occurred, except as provided below.

Complainant alleges that a citation was issued to respondent on May 7, 1973, received on May 10, 1973, and was not posted at the time of a follow-up inspection on May 15, 1973.

Respondent does not dispute the complainant's contention that the citation was not posted at the time [*8] of the inspection on May 15, 1973. Indeed, it admits that the citation of May 7, 1973, was posted for the first time immediately after the inspection of May 15, 1973. Respondent contends that it acted with due haste since the citation was posted on the third work day after its receipt.

Respondent's contention focuses upon the part of 29 CFR 1903.16 which states that "the employer shall immediately post such citation." Does a posting of a citation on the third work day after receipt satisfy the immediate requirement of the regulation? On the basis of the facts in this case, the question must be answered in the negative.

The word "immediately" would appear to have at least two distinct significations. In one sense it is synonymous with instantly, quickly and presently, without any interval of time. In this sense it is construed as a word of time and does not mean reasonable time. In another sense it signifies that one will act diligently and with all reasonable dispatch, having in mind all the circumstances and facts of a particular case. When used in this manner it does not designate an exact portion of time and means as soon as practical under the circumstances. Generally [*9] speaking, the latter construction has been given to the word when it occurs in contracts or statutes. See Bucy v. Nevada Construction Co. 125 F.2d 213, 217 (9th Cir. 1942).

The meaning of "immediately" must be determined by the context in which it is used and the purpose for which the regulation was promulgated. It seems obvious that the regulation was intended to give some recognition to the fact that human conduct is involved in the posting process and that significant circumstances could arise which would make an instant posting impossible. "Immediately" in the sense of an instantaneous transmission of the citation upon receipt to the location at which it should be posted would be an unfair construction when performance in such a manner is impossible.

The primary purpose of the posting is to advise employees of the findings of the compliance officer and of certain rights available to them. A brief delay in the posting, if justified under the facts, does not jeopardize the purpose of the posting requirement. Accordingly, it is concluded that the word "immediately" as used in 29 CFR 1903.16 means that the employer will act diligently and with reasonable dispatch, [*10] having in mind all the circumstances and facts of his particular case.

The facts show that respondent received the citation on Thursday, May 10, 1973, and did not post it until Tuesday, May 15, 1973. The posting was accomplished on the third workday following receipt. Respondent's secretary testified that the general manager was not in the office on Friday and that he did not have an opportunity to discuss the citation with him until Saturday. The withholding of posting until the citation can be discussed within the company is not a circumstance which justifies a delay. The regulation plainly provides that a copy of the citation can be posted. There is nothing that the secretary or general manager could have discussed which would have obviated the necessity for posting. The obligation to post was absolute.

Even if one agreed that the failure to post on Friday was justified, there is certainly no circumstances which would justify the failure to post on Monday. Respondent had employees going from Rose Hill to the worksite on every workday and could have easily transmitted the citation to the worksite without any inconvenience. Accordingly, it is concluded that respondent failed [*11] to post the citation "immediately" upon receipt and is in violation of 29 CFR 1903.16.

B. Determination of Penalty

Section 17(i) of the Act states that any employer who violates posting requirements shall be assessed a civil penalty of up to $1000 for each violation. Since the words "shall be assessed" are used in section 17(i), a penalty must be assessed when the posting requirements are violated.

The complainant has issued procedures to its personnel to provide uniformity in the amount of penalty to be proposed for the failure to post a citation. Section B.9.a.(2) of Chapter XI (page XI-9) of the complainant's Compliance Operations Manual released January 4, 1972, states, in part, as follows:

. . . A proposed penalty of $500 shall be assessed for each citation not so posted. The proposed penalty shall not be adjusted nor shall abatement credit be given.

A standard penalty of $500 is to be proposed under complainant's procedures regardless of any mitigating circumstances. There is no explanation as to how the figure of $500 was determined. It would appear to be an artibrary amount aimed at trying to establish some kind of uniformity in the proposed penalty [*12] for all employers. The notification of proposed penalty issued on May 25, 1973, followed the guidelines and proposed a penalty of $500.00 for the failure to post. This amount was reduced to $250.00 in the complaint.

Sections 17(j) and 10(c) of the Act establish the Commission's authority to assess civil penalties once a citation has been contested. Where there is a contest, the Commission must perform its statutory duty to determine the amount of penalty, if any, which is appropriate in the case. In reaching its determination the Commission must take into consideration those criteria set forth in section 17(j). The Commission is prohibited by section 17(j) of artibrarily assessing penalties for specific violations. A penalty of $250.00 may be appropriate in certain instances, but the penalty must be arrived at after giving due consideration to the criteria specified in section 17(j) of the Act.

It seems clear that Congress intended that any penalty assessed for failure to post would be flexible and vary accordingly to the circumstances of each case. Section 17(i) uses the words "of up to $1,000 for each violation." If Congress has intended that the penalty be uniform [*13] for all employers, and without regard to mitigating circumstances, it seems logical that the flexibility and discretion contained in section 17(i) would have been deleted and penalties in specific amounts inserted in the Act for failure to meet the posting requirements.

An arbitrary penalty as proposed by complainant is contrary to the plain intent of the Act. While penalties should be proposed and assessed on a fair and consistent basis, they must still be arrived at through an analysis of the specific facts in each case and consideration given to the criteria specified in section 17(j) of the Act. There is no indication that the criteria of section 17(j) entered into the formulation of the amount proposed by complainant.

The Commission is required under section 17(j) of the Act to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. These criteria cannot always be given equal weight. The principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense. [*14] See, Secretary of Labor v. Nacirema Operating Company, Inc., Secretary of Labor v. National Realty and Construction Company, Inc.,

The record in this case does not adequately develop all of the criteria specified by section 17(j) of the Act. The facts that have been developed do not justify a $250.00 penalty. There was no overt attempt on the part of the respondent to keep the fact that violations had been proposed by the compliance officer from its employees. The original inspection was conducted on April 24, 1973. On the same day the respondent's foreman discussed the compliance officer's proposed findings with the employees and informed them that the violations had to be corrected. The failure to post appears to have resulted solely from the secretary's erroneous interpretation of the word "immediately." The failure to post did not affect the health and safety of respondent's employees. The violations were of a non-serious nature and had been corrected by the time the follow-up inspection was conducted.

After due consideration of the four criteria provided by section 17(j) of the Act, with particular emphasis [*15] on the gravity of the violation it is concluded that a penalty of $100.00 is fair and appropriate for the failure to post as set forth by the facts of this case.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2. The respondent was at all times hereto subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. The word "immediately" as used in 29 CFR 1903.16(a) means the employer will act diligently and with reasonable dispatch, having in mind all the circumstances and facts of his particular case.

4. The circumstances of this case did not justify a delay in posting the citation until the third workday following receipt. The respondent thereby violated section 5(a)(2) of the Act by failing to comply with 29 CFR 1903.16.

5. Penalty determinations must take into account the criteria specified in section 17(j) of the Act. A penalty of $100.00 is deemed fair and appropriate for the violation of 29 CFR 1903.16.

CONCLUSIONS OF LAW

Upon the basis of the [*16] foregoing findings of fact and conclusions of law, it is

ORDERED:

1. That item 2 of the citation issued May 25, 1973, is affirmed; and

2. That the notification of proposed penalty issued May 25, 1973, is modified to reflect a penalty of $100.00 for the violation set forth as item 2 in the citation issued on the same date.