LOUISIANA-PACIFIC CORP.

OSHRC Docket No. 6277

Occupational Safety and Health Review Commission

June 17, 1977

[*1]

Before BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert Friel, Assoc. Regional Solicitor

George J. Tichy, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

In this matter after a hearing wherein evidence was taken concerning alleged violations of 29 C.F.R. 1910.95 n1 Judge Henry C. Winters vacated Complainant's citation because in his opinion it had not been issued with "reasonable promptness" (29 U.S.C. 658(a)). The Judge did not make findings of fact concerning the alleged violations nor did he rule on any other issue in the case. Review was thereafter directed pursuant to 29 U.S.C. 661(i) on the issue whether the Judge erred by vacating the citation because it was not issued with reasonable promptness. n2 We conclude that the Judge erred, and we reverse and remand.

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n1 Item 1 of the citation alleges that Respondent failed to protect employees from excessive noise in that personal ear protective equipment was not worn. This allegation was withdrawn at the hearing upon motion made by Complainant. Item 2 of the citation which remains in issue alleges that Respondent failed to comply with the cited standard because it did not use feasible administrative or engineering controls to reduce noise at its Moyie Springs, Idaho facility.

n2 Review was also directed on the question whether the Judge improperly permitted Respondent to amend its answer to raise the issue of reasonable promptness. In view of our disposition we do not decide this issue.

[*2]

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The facts relative to the issuance of the citation are these. Respondent's facilities were inspected by Complainant's compliance safety and health officer (CSHO) on December 3, 1973. The CSHO conferred with the assistant area director (AAD) by phone until December 17 because he was on an extended inspection trip. He mailed his report to the AAD on the seventeenth, and thereafter he had several more phone conversations with the AAD concerning reasonable abatement dates for the alleged violations. The AAD reviewed the file on January 2, 1974, and after the papers were typed he issued the citation on January 7. During the relevant time period the area office had a heavy workload.

On these facts the Judge concluded that the CSHO "should not have taken on additional work until he had taken the few hours necessary to complete and mail his report." n3 He also found the AAD's statement concerning his workload to be an unreasonable excuse.

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n3 Decision at pg. 9.

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In this matter as in Todd Shipyards Corporation, n4 No. 8500, the Judge erred because his decision is contrary to our prior decision in Nasso Beach Concrete, 15 OSAHRC 459, 2 OSHC 1590, 1974-75 OSHD para. 19,254 (1975). He has in this case engaged in second-quessing Labor's investigatory and decisionmaking process.

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n4 Judge Winter's decision in Todd Shipyards was reversed and remanded on February 1, 1977. 5 OSHC 1012, 1976-77 OSHD para. 21,509.

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The Judge's decision in this case did, however, antedate our decisions in Coughlan Construction Co., 20 OSAHRC 641, 3 OSHC 1636, 1975-76 OSHD para. 20,106 (1975) and Kack Conie & Sons Corp., 76 OSAHRC 70/A2 4 OSHC 1378, 1976-77 OSHD para. 20,849 (1976). In Coughlan, we held that a citation may be vacated on "reasonable promptness" grounds if the delay in issuance results in prejudice to an employer. See E.C. Ernst, Inc., 14 OSAHRC 579, 2 OSHC 1468, 1974-75 OSHD para. 19,179 (1975). In Jack Conie, a citation was vacated [*4] on reasonable promptness grounds because I believed that the reasons for delay were unconscionable and therefore joined with Commissioner Moran in the disposition.

Here, Respondent seeks dismissal of the citation on purely technical, procedural grounds. It does not show prejudice. And it cannot be said that the delay was unconscionable in view of the facts. Accordingly, under our decisions, there is no basis on which to vacate the citation on "reasonable promptness" grounds.

Respondent, however, asks us to reconsider our prior decisions dealing with reasonable promptness. It contends that the proper criterion for determining whether a citation is issued with reasonable promptness is whether, in the absence of exceptional circumstances, the citation is issued within 72 hours of the time the alleged violation was detected. Respondent argues that receipt of an allegedly untimely citation is inherently prejudicial to an employer in that the employer must either bear the costs of abatement and pay the proposed penalties, or must bear the costs inherent in contesting the citation. Thus, according to Respondent, it is improper to require an explicit showing of prejudice by the employer [*5] when a citation has not been issued within the required 72 hour period. Finally, Respondent claims that in order to establish the validity of a citation, the Secretary must plead and prove all conditions essential to its validity, including that it was issued with reasonable promptness.

Respondent's argument assumes that a delay in issuance of a citation is detrimental to the employer who receives it. We pointed out in Coughlan Construction Co., supra, that the opposite is generally true, in that such a delay postpones the entry of an abatement order and may result in the Secretary's evidence becoming stale. Respondent contends, however, that if the issuance of a citation is delayed, the employer is prejudiced because it must choose between bearing either the costs of abatement and penalties, or the cost of contesting the citation. The argument lacks merit. Whatever may be the relevance of the choice to which Respondent refers, that choice must be made regardless of when a citation is issued. Furthermore, the 72 hour rule for which Respondent argues would require that citations be issued before an adequate review of the facts gathered during an inspection could be made. [*6] If anything, such a result would aggravate rather than alleviate the type of "prejudice" to which Respondent refers. n5 We reject Respondent's proposed 72 hour rule for determining whether a citation is issued with reasonable promptness.

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n5 We note, however, we have rejected the contention that an employer is prejudiced by incurring expenses necessary to abate safety hazards. Craig D. Lawrenz & Associates, Inc., No. 5540, 4 OSHC 1464, 1976-77 OSHD para. 20,910 (1976).

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We also reject Respondent's argument that the Secretary must plead and prove that a citation was issued with reasonable promptness. We need only note that there is a presumption of validity of administrative action and the burden is upon the party who disputes that validity to overcome the presumption. Udall v. Washington, Virginia & Maryland Coach Co., 398 F.2d 765 (D.C. Cir. 1968), cert. denied, 393 U.S. 1017 (1969); United Black Fund v. Hampton, 352 F. Supp. 898 (D. D.C. 1972); Whetstone v. Michigan Consolidated Gas Co., 219 F. [*7] Supp. 121 (D. Mich. 1963).

Accordingly, the decision to vacate on "reasonable promptness" grounds is reversed. Since the Judge did not rule on other issues in the case and particularly because he did not make findings of fact we will remand the matter to the Chief Judge for such assignment n6 as he shall make and for further proceedings consistent with this decision and 29 U.S.C. 659(c) as may be appropriate. So ORDERED.

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n6 Judge Winters retired subsequent to issuing his decision in this case.

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CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, CONCURRING:

I concur in my colleague's action because Coughlan Construction Co., supra, is controlling here. In Coughlan, the Commission held that a citation issued without "reasonable promptness" may be vacated if an employer has been prejudiced n7 by the delay. I dissociate myself from the Chairman's discussion of the "unconscionability" theory set forth in his separate opinion in Jack Conie & Sons Corp., supra. I also point out that the 72-hour rule urged by respondent [*8] has already been rejected by a majority of the Commission. See the opinions of Chairman Barnako and myself in Jack Conie.

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n7 Contrary to respondent's argument, prejudice does not encompass the cost of abatement or the payment of civil penalties, but refers to a procedural disadvantage that unfairly prevents a party from presenting a defense. See Long Manufacturing Co. v. O.S.H.R.C., No. 76-1518 (8th Cir., May 12, 1977); Craig D. Lawrenz & Associates, Inc., 4 BNA OSHC 1464, 1976-77 CCH OSHD para. 20,910 (No. 5540, 1976).

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Although I join in Chairman Barnako's disposition of the burden of proof point, some additional discussion may be useful. A major consideration in allocating burdens of persuasion is that a party with greater access to proof should be encouraged to adduce it. See Reynolds Metals, Inc., 3 BNA OSHC 2051, 1975-76 CCH OSHD para. 20,447 (No. 1551, 1976) (dissenting opinion). An employer is in a superior position to know whether and in what respect he may have been prejudiced [*9] by any "unreasonable" delay in the issuance of a citation, and it is therefore fair that he should carry the burden of persuasion as to prejudice.

With respect to the element of "reasonable promptness", I find no merit in respondent's argument that the Secretary must shoulder the burden of proving that he issued the citation with reasonable promptness because "one of the conditions precedent to placing a respondent in violation of the [Act] is that the citation was [so] issued . . ." Resp. Brief at 9. It must be asked whether the statutory purpose would on balance be better served if the Commission were to decline to vacate what may be an otherwise valid citation where there is neither an allegation nor proof that the citation was issued with "reasonable promptness"? I answer this in affirmative.

A crucial statutory purpose is the swift abatement of occupational hazards. See generally Brennan v. Winters Battery Manufacturing Company, 531 F.2d 317, 322 (6th Cir. 1975), cert. denied, 425 U.S. 991 (1976). While the issuance of citations without undue delay is one device serving this purpose, another is expeditious and effective adjudication by the Commission [*10] of contested matters, including the issuance of abatement orders. See Keystone Roofing Co., Inc. v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976); Staff of Senate Committee on Labor & Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970, 92d Cong., 1st Sess. 463 (Comm. Print 1971) (remarks of Senator Javits). If we were to require in every contested case that the Secretary plead and prove that he issued a citation with "reasonable promptness" we would perhaps impede the chances for expeditious adjudication and necessarily disserve the congressional goal of swift abatement. By permitting an employer to raise affirmatively the reasonable promptness issue, however, we leave the door open to Commission enforcement n8 of the reasonable promptness provision of section 9(a). This allocation better serves the congressional purpose of expeditious adjudication as an aid to swift abatement of hazards, yet preserves the possibility of fashioning a remedy if a citation is proved to be tardily issued.

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n8 As noted in the text, the Commission decision in Coughlan Construction Co., represents the controlling precedent. I therefore do not examine here the question of whether the "reasonable promptness" provision of section 9(a) is mandatory or directory. Cf. Chicago Bridge & Iron Co., 1 BNA 1086, 1971-73 OSHD para. 15,416 (No. 224, 1974), aff'd, 535 F.2d 371 (7th Cir. 1976). See also Accu Namics, Inc., 1 BNA OSHC 1751, 1974-74 CCH OSHD para. 19,802 (No. 477, 1974), aff'd, 515 F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976), concerning a comparable provision in section 8(e) of the Act.

[*11]

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Moreover, our experience suggests that only in the rare case would the Secretary fail to establish that the citation was issued with reasonable promptness. A realistic estimate of the probabilities points to the conclusion that the burden of persuasion should be allocated to the employer, for it is he who is claiming that an unusual event has occurred. See generally McCormick, Law of Evidence 337 at 787-789 (2d ed. 1972). Finally, I note that my discussion is consonant with the well established presumption of regularity noted in the lead opinion that attaches to the Secretary's method of issuing citations. n9

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n9 The cases cited in the lead opinion seem to allocate the burden of persuasion, rather than the production of evidence, to the party attacking the validity of official action. See Lewis v. United States, 279 U.S. 63, 73 (1929).

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