SECRETARY OF LABOR,
Complainant,

v.

RUST ENGINEERING COMPANY,
Respondent.

OSHRC Docket No. 79-2090

DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. § 659(c).

A citation issued to Rust Engineering Company alleged violations of the fall protection standards contained at 29 C.F.R. §§ 1926.28(a) and 1926.105(a).  An administrative law judge vacated the citation based on a finding that it was not issued with "reasonable promptness" as required by section 9(a) of the Act, 29 U.S.C. § 658(a).[[1]]  In the judge's view, the delay of 111 days between the inspection and the issuance of the citation was both prejudicial to the employer's ability to prepare and present a defense and unreasonable to the point of unconscionability.  The judge entered alternative findings on the merits of the citation and concluded that the citation should be vacated because the employer established that compliance with the standards would be impossible and would expose its employees to greater hazards.

The two participating Commission members are divided on whether the judge's decision on the issue of reasonable promptness should be affirmed or reversed.[[2]]  Appellate and Commission, precedent establish that a citation may be vacated on reasonable promptness grounds upon a showing of prejudice to the employer.  See Stripe-A-Zone, Inc., 82 OSAHRC 31/E13, 10 BNA OSHC 1694, 1982 CCH OSHD ¶ 26,069 (No. 79-2380, 1982)(citing appellate and Commission decisions); Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327, 1330 (9th Cir. 1977).  Chairman Buckley would affirm the judge's decision because the reasons advanced by the Secretary for the 111 day delay were not reasonable, and because, as the judge found, the failure of the inspecting compliance officer to inform Rust Engineering Company during this 111 day period that a citation might issue seriously prejudiced Rust's ability to properly defend against the charge.[[3]]

Commissioner Cleary would reverse the judge's reasonable promptness ruling.  Contrary to the judge's decision, a delay in issuing a citation is not per se a ground under Commission precedent to vacate the citation.[[4]]  Instead, the Commission has required employers claiming that a citation was issued without reasonable promptness to show that the delay prejudiced the employer's ability to prepare and present a defense.[[5]]  The courts or appeals have agreed with this approach.  The Ninth Circuit has stated:

Even if we were not bound to yield to the Secretary and the Commission a relatively broad discretion in interpreting the Act, The Budd Co. v. OSHRC, 513 F.2d 201, 204-205 (3rd Cir. 1975), we would still be compelled to recognize the merit of this approach. It is very much in keeping with the remedial purpose of the Act . . . . To vacate a citation because of delay that is less than prejudicial would clearly run counter to the concern for safe working conditions that led to the enactment of OSHA.

Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327, 1330 (9th Cir. 1977).  See also Brennan v. Chicago Bridge and Iron Co., 514 F.2d 1082 (7th Cir. 1975).  Commissioner Cleary also finds that Rust did not show that the delay was prejudicial.  He would observe first that a delay of 111 days is hardly apt to be prejudicial.  Because long statutes of limitations are common in legal jurisprudence, lawsuits are frequently filed years after alleged wrongs occurred.   Lawyers are able to and are accustomed to then locating witnesses and documents.  Reconstruction of events and conditions after several years does not normally present a serious obstacle to litigation of cases.  Viewed in this light, a delay of 111 days is negligible.  Though it is a significant fraction of the Act's six-month limitations period, it is too short to pose a serious prospect of prejudice in all but the most unusual case.  Yet, this case is hardly unusual.  Rust had located its witnesses and they were prepared to testify.  In other respects, this record shows nothing more than the usual amount of difficulty that any defense lawyer can expect to encounter in preparing a defense.  See Havens Steel Co. v. OSHRC, No. 82-2261 (10th Cir. July 9, 1984)(slip op. at 5-7).

In view of the impasse as to the issue before the Commission for review, Chairman Buckley and Commissioner Cleary have agreed to vacate the direction for review.   E.g., Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD
¶ 24,634 (Nos. 77-3040 & 77-3542, 1980).  The Commission members have discretion under the Act and the Commission's Rules of Procedure to direct review of a judge's decision.  Section 12(j), 29 U.S.C. § 661(i); 29 C.F.R. § 2200.92.  In the absence of a direction for review, the judge's decision becomes a final order of the Commission and can be appealed by an aggrieved party to a United States court of appeals.   Sections 10(c), 11(a) and (b) and 12(j), 29 U.S.C. §§ 659(c), 660(a) and (b), 661(i).  The judge's decision in this case therefore becomes the appealable final order of the Commission, but is accorded the precedential value of an unreviewed judge's decision.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: AUG 27 1984

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] Section 9(a) provides in part:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer.

[[2]] As established by the Act, the Commission is composed of three members.   Section 12(a), 29 U.S.C. § 661(a).  Under section 12(f) of the Act, 29 U.S.C. § 661(e), official action can be taken by the Commission with the affirmative vote of at least two members.  Currently, the Commission is composed of two members, due to a vacancy.

[[3]] In Chairman Buckley's view, citations issued after "patently unreasonable, unnecessary and unjustified" delays should be vacated to fully implement the statutory requirement that citations be issued with reasonable promptness.  See Stripe-A-Zone, 10 BNA OSHC at 1696, 1982 CCH OSHD at p. 32,782 (concurring opinion).  Vacation of citations issued after such delays will promote the prompt issuance of citations and ultimately advance the Act's objectives of rapid abatement to protect employees following prompt adjudication of contested cases.  Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 461 (1977); Gilbert Manufacturing Co., 79 OSAHRC 68/A2, 7 BNA OSHC 1611, 1613, 1979 CCH OSHD ¶ 23,782, p. 28,846 (No. 76-4719, 1979).  Here the administrative law judge correctly found that the reasons offered by the Secretary for the delay were meritless.

[[4]] See, in addition to Stripe-A-Zone, National Industrial Constructors, Inc., 81 OSAHRC 94/A2, 10 BNA OSHC 1081, 1981 CCH OSHD ¶ 25,743 (No. 76-4507, 1981), and Stearns-Roger, Inc., 80 OSAHRC 103/A2, 8 BNA OSHC 2180, 1980 CCH OSHD ¶ 24,870 (No. 76-819, 1980).

[[5]] Id.