UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 5724, 5725
CHARLES COHEN, INC.,
Respondent.

April 2, 1975

ORDER OF REMAND

BEFORE MORAN, CHAIRMAN; VAN NAMEE AND CLEARY, COMMISSIONERS

VAN NAMEE, COMMISSIONER:

This matter presents the question whether Judge William J. Risteau properly vacated Complainant’s (Labor) citations on the ground that they were not issued with reasonable promptness. The Judge relied on our decision in Chicago Bridge & Iron Company, 6 OSAHRC 244, BNA 1 OSHC 1485, CCH E.S.H.G. para. 17,187 (1974), appeal docketed, No. 74–1214 (7th Cir., March 18, 1974), where we held that, absent exceptional circumstances, a citation should issue within three working days of the time that Labor’s authorized representative forms his belief that a violation exists. We have reviewed the record and conclude that the citation was timely issued within the rule of Chicago Bridge & Iron. We therefore reverse the judge’s decision.

The relevant facts are as follows. Two of Respondent’s worksites were inspected by Labor’s compliance officer on November 1, 1973. Trenching operations were being conducted at both locations. During the inspections, the compliance officer concluded that the trenches failed to comply with 29 C.F.R. 1926.652(b), which prescribes requirements for shoring or sloping the sides of trenches dug in soft or unstable soil. He took soil samples from both trenches. The samples were sent to a laboratory for analysis.

On the same day he conducted the inspections, the compliance officer reported to Labor’s area director and stated his belief that violations existed. The area director testified that he probably ‘agreed in substance,’ but that he also thought ‘there would have to be other things taken into consideration.’ Specifically he wanted to wait for the results of the soil tests and he said that the tests could influence his judgment as to whether a violation existed. The results were received on November 16, a Friday. On November 20, the following Tuesday, the area director issued two citations alleging serious violations of the trenching standards at the worksites.

The judge concluded that the area director decided to issue the citations where he discussed the matter with the compliance officer on November 1. We have noted, however, that the rule of Chicago Bridge & Iron should not be construed to involve the Commission or its judges in second guessing as to the time a person authorized to issue citations should have formed his belief that a violation existed. Julius Nasso Concrete Corp., 15 OSHRC 459, BNA 2 O.S.H.C. 1590 CCH E.S.H.G. para. 16,526. (Feb. 6, 1975). In this case it appears that the area director formed a tentative belief that violations existed on November 1. The belief was tentative as opposed to being final since the results of the soil tests could have persuaded him not to issue one or both citations. Thus even though a tentative belief had been formed the investigative process was not completed by November 1. To vacate in these circumstances is to second guess the investigative process merely because the citations did issue.

As the citations were issued within three working days of the date the area director received the soil test report, we conclude that they were issued with reasonable promptness.[1] We reverse the judge’s holding to the contrary. The judge did not reach the merits of the citation, and we cannot do so on this record. The evidence as to the dimensions of the trenches, and the nature and stability of the soil is conflicting. These issues must be resolved on credibility findings, and these are to be made by the trial judge.

Accordingly, the matter is remanded for such further proceedings as are necessary and consistent with this decision. It is so ORDERED.

CLEARY, COMMISSIONER, concurring:

I concur with Commissioner Van Namee in the disposition of this matter for the reasons set forth in my dissenting opinion in Chicago Bridge & Iron Co., No. 744 (January 23, 1974), petition for review docketed, No. 74–1214, 7th Cir., March 18, 1974.

MORAN, CHAIRMAN, dissenting:

The lead opinion makes a strained reading of the evidence in order to reverse the decision below. I believe an objective analysis of the testimony mandates affirmance.

On November 1, 1973, complainant’s authorized representative inspected the worksite herein, concluding therefrom that ‘violations had occurred.’ That conclusion was reported to the area director (his immediate superior) that afternoon and he concurred therewith at that time. The citation, however, was not issued until November 20.

Despite the 20 day lapse between inspection and the issuance of a citation, Commissioner Van Namee concludes that the area director did not formulate his belief that violations existed[2] until November 16, because prior thereto his opinion was

tentative as opposed to being final since the results of the soil tests could have persuaded him not to issue one or both citations.[3]

I submit that this conclusion results from a misreading of the testimony. The record shows that (1) the determination to issue a citation was made on November first, and (2) no exceptional circumstances existed for delaying its issuance until November twentieth.[4]

The area director gave the following testimony in regards to the 20 day lapse between inspection and issuance of the citations:

Q. Were there any particular problems why we have a lapse from November 1 to November 20 . . . ?

A. No, the circumstances were such that we didn’t give this particular inspection priority treatment and we were waiting for the soil sample to get back. Had we not gotten the soil sample, we would have sent [the citation] . . . out without the soil sample within the time frame. (emphasis added)

Q. In other words, you would have issued a citation whether you got a soil sample or not?

A. If the soil sample was different from the citation, we would amend it. (emphasis added)

He further testified as follows:

Q. Is there a possibility that the citation would not have been issued after examining the soil analysis report?

A. Possibly, yes, possibly.

Q. Did this influence your thinking at all?

A. No.[5]

This testimony clearly indicates that the area director decided to issue the citation on November 1. If the soil test results were different than expected, an amendment to the citation he issued would have been offered at a later date.

It therefore becomes a question of whether the record indicated that ‘exceptional circumstances’ existed for this delay. I find no such evidence. In fact, testimony from the area director indicates a general disregard of the three day rule set forth in Chicago Bridge, supra. He stated that

[w]e have an administrative policy passed on to us from higher headquarters, the Regional, that we must develop these cases and mail it to the employers within fifteen working days.

This policy neither comports with issuing a citation with reasonable promptness, nor does it constitute ‘exceptional circumstances’ for not so issuing.

I therefore believe that Judge Risteau’s dismissal below was correct and should be affirmed.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 5724, 5725
CHARLES COHEN, INC.,
Respondent.

August 29, 1974

RISTEAU, JUDGE:

These are proceedings pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act), contesting citations issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of that Act. The citations allege that as the result of inspections on November 1, 1973, of workplaces under the ownership, operation or control of the respondent, located at: 1. (No. 5724) Lone Star Park, Hampton and Commerce, Dallas, Texas, and described as ‘Charles Cohen, Inc.’ and 2. (No. 5725) East of Westmoreland, south of Toll Road, Dallas, Texas, and described as ‘Charles Cohen, Inc.,’ respondent violated section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.1

The citations, which were issued November 20, 1973, allege that violations resulted from a failure to comply with the following standards promulgated by the Secretary by publication in the Federal Register, and codified in 29 CFR 1926.

SERIOUS VIOLATION (No. 5724)

Standard—Description—29 CFR 1926.652(b)—Sides of trench in unstable material at the following location were not shored, sheeted, braced, sloped, or otherwise supported to protect the employees working within it: Lone Star Park, Hampton Road, west of Commerce.

The cited Regulation reads as follows:

Standard—Description—1926.652(b)—Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. . . .

SERIOUS VIOLATION (No. 5725)

The cited Regulation is the same as for No. 7524.

Pursuant to the enforcement procedure set forth in section 10(a) of the Act, respondent was notified by letters dated November 20, 1973, from Charles J. Adams, Director of Area 1730, Occupational Safety and Health Administration (OSHA), U.S. Department of Labor, that he proposed to assess penalties in the following amounts.

SERIOUS VIOLATION (No. 5724) $ 500

SERIOUS VIOLATION (No. 5725) $ 500

Total $1000

After respondent contested these actions and complaints had been filed, the matter came on for hearing at Dallas, Texas, on April 16–17, 1974. No question concerning the respondent’s status as an employer as defined in the Act or the jurisdiction of this Commission has been raised.

DISCUSSION, FINDINGS, AND CONCLUSIONS

Respondent has timely moved to dismiss these cases on the ground that complainant did not issue the citations with ‘reasonable promptness’ as required by section 9(a) of the Act. The Commission decision in Secretary v. Chicago Bridge and Iron Company, No. 744, January 24, 1974, interprets that term in the following manner:

. . . absent exceptional circumstances Complainant or his authorized representative must perform the ministerial tasks involved in issuing a citation within 72 hours from the time he has formed his belief that a violation has occurred. We assume that Congress did not intend weekends or holidays to be included within the 72 hour period so the period prescribed here is three working days.

The inspections here were made on November 1, 1973. On the same date the complainant’s compliance officer determined that the Act had been violated and reported that fact to the OSHA Area Director, who concurred with his recommendations.

On November 20, 1973, some 11 work days after this decision, Mr. Adams issued the citation. No ‘exceptional circumstances’ were shown for the issuance of the citation after the 72 hour period. In fact the Area Director testified that his office, as a matter of policy, attempts to process and issue citations within 15 working days, as was done in the present case.

On these facts, the undersigned is constrained to find that the citations were not issued with reasonable promptness, as that term is construed in Chicago Bridge and Iron. In view of this finding, which requires dismissal of the citations, other defenses raised by respondent will not be discussed.

ORDER

For the foregoing reasons and on the entire record, it is hereby ORDERED, that the citations issued to respondent on November 20, 1973, which form the basis of Commission Docket Nos. 5724 and 5725 be DISMISSED and the proposed penalties vacated.

[1] Labor also contends that Respondent did not raise the reasonable promptness defense in a timely manner and therefore waived it. It is true that the issue was not raised in the issue formulation stage, as required by Chicago Bridge & Iron Co., supra. Labor, however, fully participated in the trial of the facts relevant to this issue, and can be considered to have tried the issue by consent. Because of our disposition, we need not consider whether the question is properly presented on this record.

[2] We held in Chicago Bridge, supra, that ‘reasonable promptness’ under 29 U.S.C. § 658(a) means that citations must be issued within three working days after the area director formulates his belief that a violation occurred unless the record indicates exceptional circumstances for the delay.

[3] The issue of ‘reasonable promptness’ was first raised at the trial. Because complainant ‘fully participated in the trial of the facts relevant [thereto],’ Commissioner Van Namee considers the issue to be tried by consent. I believe this issue to be jurisdictional, and therefore may be raised at any stage of the proceeding. See my dissenting opinion in Secretary v. E. C. Ernst, 14 OSAHRC 579 (1975), and Secretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974).

[4] I believe that due process of law requires that complainant have the burden of establishing that the delay resulted from exceptional circumstances. See Allstate Finance Corporation v. Zimmerman, 330 F.2d 740 (5th Cir. 1974); 9 Wigmore, Evidence § 2486 (3d ed. 1940).

[5] The court below sustained an objection to this testimony apparently because of its relevancy. This was error. The testimony clearly tends to indicate when the area director decided to issue these citations, the date set forth in Chicago Bridge, supra, from which the three day period begins to run.