E.C. ERNST, INC.

OSHRC Docket No. 1780

Occupational Safety and Health Review Commission

January 3, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners.

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on Chairman Moran's order directing review of a decision rendered by Judge Abraham Gold. The judge vacated Complainant's (hereinafter "Labor") citation alleging a non-serious violation of a hard hat regulation (29 C.F.R. 1926.100(a)) because Respondent (hereinafter "Ernst") was unable to find the affected employee as a result of Labor's delay in issuing the citation. Judge Gold affirmed a second allegation that Ernst had committed a housekeeping violation contrary to the requirements of 29 C.F.R. 1926.25(a) and of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ). In directing review, Chairman Moran asked whether the judge committed reversible error by not vacating the entire citation for not having been issued with reasonable promptness.

We have reviewed the record, and we affirm.

Insofar as the issue on review is concerned the relevant facts are as follows: Labor inspected Ernst's workplace on August 30 and 31, 1972. During the course of the inspection one of Ernst's employees working on the [*2] fifth floor of a building under construction was seen not wearing a hard hat. Thereafter, on November 8, 1972, Labor issued its citation alleging the two violations at issue herein. Ernst timely contested both allegations. As to the hard hat issue it averred that it had a stringent policy enforced by dismissal; it requested the identity of the affected employee. As to the housekeeping issue it indicated that the building was a multi-employer site and denied the violation. It was thereafter determined that the employee who had not worn a hard hat had left Ernst's employ in October, 1972, and that he could not be located.

Judge Gold, after noting among other things Ernst's request for information in its notice of contest, allowed Ernst to raise a reasonable promptness defense as to the hard hat issue. He found that the delay in the issuance of the citation resulted in Ernst's inability to prepare a defense to the issue. Accordingly, he concluded that as to this issue the citation had not been issued with reasonable promptness and vacated. On review, Labor seeks affirmance of Judge Gold's decision. In view of the fact that Ernst was materially prejudiced and could [*3] not therefore obtain a fair hearing on the hard hat issue, we affirm. Compare: Chicago Bridge & Iron Company, petition for review docketed, No. 74-1214, 7th Cir., March 18, 1974.

As for the housekeeping violation, Judge Gold refused to vacate on reasonable promptness grounds. His action in this regard was entirely proper. The issue was not raised as to this alleged violation formulation stage and is therefore barred. Chicago Bridge & Iron Company, supra. In any event, as to this violation Ernst did not show prejudice. Alternatively, it did not show that the 72 hour rule announced in the Chicago Bridge case had been breached. Finally, our review indicates that the judge's disposition on the merits of the housekeeping violation was proper.

Accordingly, the judge's decision is affirmed in all respects. It is so ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: This case was based upon a single citation which alleged two separate violations of the Act. That citation was not [*4] issued pursuant to the requirement contained in section 9(a) of the Act that citations be issued "with reasonable promptness." 29 U.S.C. 658(a). Since an action alleging a violation of this Act can only be commenced by the issuance of a valid citation, the requirement is a jurisdictional one. n1

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n1 See West Allis Lime and Cement Company, 14 OSAHRC 246 (1974), wherein Commissioner Cleary in his dissent states the following:

". . . The Secretary has the burden of proving the elements of his citation. The elements of a citation are set forth in section 9(a) of the Act. . . ."

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In adopting this provision regarding citations, Congress did not say anything about "prejudice" or "issue formulation stage." There were no conditions attached to the requirement. It set down a reasonable promptness period so that alleged hazards could be attended to at once. In this case there was a 69-day delay between inspection and issuance of the citation. Thus, not having observed the rule for issuance of valid citations, [*5] complainant has failed to properly commence an action under this statute. The entire case, therefore, should be dismissed.

Because lack of reasonable promptness in the issuance of a citation makes the very commencement of the action invalid and thus removes from this tribunal jurisdiction to decide the case, it is both improper and unnecessary to determine prejudice or lack of prejudice resulting from the delay as had been done by the Commission in this case. For the same reason, failure to raise the issue in the "issue formulation" stage of the proceedings n2 does not bar consideration of the question because jurisdictional matters can be raised by any party or the court at any stage of the adjudicative proceeding. Fed. R. Civ. P. 12(h)(3).

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n2 A source of confusion in the Commission decision should be pointed out to clear up the record. The Commission decision conveys the impression that Judge Gold "allowed" respondent to assert a reasonable promptness defense for the hard hat allegation because he determined that the request for the name of the employee raised the reasonable promptness issue during the "issue formulation" stage of the proceeding, but did not allow a reasonable promptness defense to be raised for housekeeping violation because promptness defense to be raised for housekeeping violation because this objection was not made during the issue formulation stage of the proceeding. In fact, Judge Gold did not address the issue of whether reasonable promptness was "timely raised" or make a determination that the timing of this objection was a prerequisite for considering the question. Rather, he held that the hard hat charge had not been issued with reasonable promptness because respondent was prejudiced by the delay in issuance, but that the citation for the housekeeping violation was issued with reasonable promptness for two reasons: (1) the illness of complainant's area director and (2) because he found that respondent had not been prejudiced by the delay with respect to this item of the citation.

[*6]

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The reasons for this position are set forth in more detail in my dissenting opinion in Secretary v. Advanced Air Conditioning, Inc. 7 OSAHRC 736 (1974). I do not believe it necessary to repeat them here.

[The Judge's decision referred to herein follows]

GOLD, JUDGE: This action arose under Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq.; 29 USC 651 et seq. ) and came on for hearing on March 20, 1973, at Pittsburgh, Pennsylvania.

A Citation for two nonserious violations, issued by the Secretary of Labor on November 8, 1972, pursuant to Section 9(a) of the Act, charges Respondent as follows:

Item Number -- Standard or regulation allegedly violated -- Description of Alleged Violation -- Date on which alleged violation must be corrected.

29 CFR Section 1926 (Formerly 29 CFR Section 1518, as adopted by 29 CFR Section 1910.12)

1 -- 29 CFR 1926.100(a) -- Employee working without hard hats on head. Failure to wear hard hats as provided. Location: 5th floor -- Immediately upon receipt of this citation.

2 -- 29 CFR 1926.25(a) -- Failure to remove rubbish, [*7] garbage, scrap lumber, etc. Housekeeping throughout the job site is substandard. -- November 20, 1972.

A penalty of $50.00 was proposed for the first item and $80.00 for the second.

The standards allegedly violated are:

1926.100 Head protection.

(a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

1926.25 Housekeeping.

(a) During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

As to item number 1, the complaint states that an employee was observed working without a hard hat; as to item number 2, Respondent is charged with having failed to remove rubbish, scrap lumber, etc., from the workplace located at the Natural Science Building, University of Pittsburgh.

The parties stipulated (Exh. J-1) that Respondent corporation has its principal office at Washington, D.C., and is engaged in elecrical contracting; that Respondent's employees [*8] receive, handle and work with materials and supplies in many states; and that Respondent is an employer engaged in a business affecting commerce and therefore subject to the Occupational Safety and Health Act of 1970 and regulations promulgated thereunder. It was also stipulated that Respondent had gross sales of $60 million in calendar year 1972 and employed 2,200 employees throughout the country, with 21 employees engaged at the job site.

Respondent's counsel claims in his brief that Complainant's witnesses did not adequately explain the delay in the issuance of the citation; that it was not until March 1973 that Respondent was informed of the identity of the employee who allegedly was not wearing his hard hat; that the employee left his job in October 1972 and could not be found to be interviewed or to appear as a witness. This issue was not specifically raised by Respondent prior to the submission of brief. Respondent was not represented by an attorney at the hearing, but did complain at the hearing concerning the delay in his being furnished the name of the offending employee. The notice of contest contains a request for this information.

The site was inspected [*9] on August 30 and 31, 1972 (Tr. 16), but the citation was not issued until November 8, 1972, or 69 days after completion of the inspection.

The explanation offered by Complainant for the 69-day delay in issuing the citation was that Harry Lacey, the Area Director of the Pittsburgh office of the Occupational Safety and Health Administration, was ill and unable to work regularly for "quite some time" and a backlog of cases piled up (Tr. 61). George Reed testified that he substituted for Mr. Lacey and was the acting Director from about September 1, 1972 to January 5, 1973 (Tr. 89).

Section 9(a) of the Act requires the issuance of a citation with "reasonable promptness" if, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a safety or health requirement stemming from the statute. The expression "reasonable promptness" is not defined by the Act or regulations promulgated thereunder.

The word "promptly" has been interpreted as meaning with reasonable diligence, having regard to the purpose for which it was used. Bowles v. Mutual Ben. Health & Accident Assn'n., 99 F. 2d 44, 50 (4 Cir. 1938). "Prompt" can [*10] mean "at once," "expeditious," "precipitate," "punctual," "ready," "quick," and "sudden" 73 C.J.S. 131.

"Reasonable" has been interpreted at times as "adequate," "equitable," "fair," "honest," "impartial," "just," "moderate," "ordinary," "proper," "suitable," and "tolerable;" it connotes action according to the dictates of reason, such as is just, fair and suitable in the circumstances. 75 C.J.S. 635.

We come full circle in the case which holds that "promptly" means the same as "reasonable," Omaha Packing Co. v. Pittsburgh F.W. & Co. Ry. Co., 120 F. 2d 594, 602 (7 Cir. 1941).

Where the language of a legislative act is explicit, whatever was said in the debates on the bill or in the reports concerning it, preceding enactment, must give way to the language of the act. MacKenzie v. Hare, 36 S. Ct. 106, 239 U.S. 299 (1915). However, the expression "reasonable promptness" is far from explicit. Where statutory wording is ambiguous, resort may be had to legislative history or legislative materials. United States v. Henning, 73 S. Ct. 114, 344 U.S. 66 (1952), reh. den. 73 S. Ct. 327, 344 U.S. 910 (1952). White v. Winchester Country Club, 62 [*11] S. Ct. 425, 315 U.S. 32 (1942). The intent of the Congress is set out thusly in a conferent report:

CITATIONS FOR VIOLATIONS

The Senate bill provided that if, upon inspection or investigation, the Secretary or his authorized representative "determines" that an employer has violated mandatory requirements under the Act, he shall "forthwith" issue a citation. The House amendment provided that if on the basis of an inspection or investigation the Secretary "believes" that an employer has violated such requirements, he shall issue a citation to the employer. The conference report provides that if the Secretary "believes" that an employer has violated such requirements he shall issue the citation with reasonable promptness. In the absence of exceptional circumstances any delay is not expected to exceed 72 hours from the time the violation is detected by the inspector. n1

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n1 Conference Report (to accompany S. 2193) No. 91-1765, 91st Cong. 2d Sess. 33 (1970).

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The federal safety and health law is new. Every new statute [*12] is individual and presents its own problem. Nicholas & Co. v. United States, 39 S. Ct. 218, 249 U.S. 34 (1919). In selecting the phrase "reasonable promptness" the legislators gave us two elastic words. The 72-hour period could have been incorporated into the statute, but the Congress chose not to do so. Section 9(c) of the Act prohibits the issuance of a citation after the expiration of six months following the occurrence of a violation. It is therefore conceivable that a finding of reasonable promptness is, permissible under some circumstances even where a citation is issued as late as on the last day prior to the expiration of the six-month limitation.

"Reasonable time," a term close enough to "reasonable promptness" to warrant our attention, has been ruled a question of law, depending upon all the circumstances of the particular case and the circumstances of the parties. Paine v. Central Vt. R. Co., 6 S. Ct. 1019, 118 U.S. 152 (1886). Morgan v. United States, 5 S. Ct. 588, 113 U.S. 476 (1885). A more satisfying measurement of "reasonable time" is that time which upholds and preserves to each of the interested parties the rights and advantages [*13] to which they are entitled and protects them from losses they ought not to suffer. Armstrong v. Federal Supply Co., Tex. Civ. App., 17 S.W. 2d 170 (1929). Meers v. Frick-Reid Supply Corp., Tex. Civ. App., 127 S.W. 2d 493, 498 (1939).

Citations and notifications of proposed penalties are ordinarily approved and signed by the Area Director. In that case at hand, that official had a protracted illness, and a back-log of cases accumulated in the office despite the designation of another officer to fill the Director's post temporarily. Respondent has not been harmed or prejudiced in any way insofar as preparing or presenting a defense to item number 2 is concerned. In these circumstances I find that the citation was issued with "reasonable promptness" as to item number 2 of the citation. However, with regard to the first item, I find that the delay to November 8, 1972, resulted in Respondent's inability to marshall and present evidence that would have been obtainable as late as October 1972. For this reason, it is found that as to the first item, the citation was not issued with reasonable promptness, and is null and void as a matter of law.

Parenthetically, the [*14] record clearly reflects that an employee of Respondent failed to wear a hard hat (Tr. 51, 78) as required by 29 CFR 1926.100(a), this was an isolated violation; the employee had the hat with him; Respondent did not have knowledge of the violation; it was the policy of Respondent to require hard hats to be worn; on a previous occasion another employee who had failed to do so was directed by Respondent's foreman to wear his hat. Were a finding on the merits necessary, I would find that the employer did not violate the standard, in keeping with Secretary of Labor v. Standard Glass Co., Inc.,

We turn now to item number 2. The testimony of Compliance Officer Moore and photographic evidence established the presence of debris here and there in the 14-story building under construction. William Boyle, a carpenter steward, who was in charge of the safety committee on the job [*15] site (Tr. 67), testified that the debris included cardboard boxes, tin, masonry material and lumber (Tr. 76); that Respondent's employees were all over the site (Tr. 70); that on one occasion all the employees of the various contractors stayed off the job for one day because of debris at the site (Tr. 82). The Compliance Officer testified that he inspected the site as the result of a complaint by the Safety Director of the building trades organization at Pittsburgh (Tr. 10); the complaint mentioned scaffolding and housekeeping problems, and a failure to wear personal protective equipment (Tr. 10).

Respondent's brief contends that the evidence fails to show that (1) the debris was seen for an unusual length of time, (2) it was the duty of the Respondent to remove the debris, or (3) any of his employees was seen in the vicinity of the debris.

As to the first challenge, it is recognized that a building under construction will accumulate waste material. The photographic evidence shows scattered, loose debris and piled refuse, constituting a tripping hazard. The photographs reflect an indifference to housekeeping. One does not expect the cleanliness of a hospital, but on the other [*16] hand, an employee should not have to run an obstacle course.

The second point raised is whether Respondent had the duty to clean up the building. It appears that very little of the debris was deposited by Respondent's employees, but even if Respondent did not create any part of this condition it is in violation of the standard if it allows its employees to be exposed to the violative condition. Respondent's duty to its employees is to provide safe and healthful working conditions. Under Section 5(a)(2) of the Act, it is the responsibility of the employer to comply with occupational safety and health standards promulgated under the Act. Respondent could have complied with the standard by having the debris removed, but that was but one option open to it. Another step available to Respondent was to get the offenders to remove the refuse or, in order to avoid a violation, Respondent could have ordered its employees from the site until the condition was abated.

With regard to Respondent's third point, the carpenter steward testified that Respondent's employees were all over the job site. There is no reason to doubt his veracity. Respondent stipulated that it had 21 employees [*17] doing electrical installation at the site. The debris was widespread, and so was the electrical work.

On this record, it is found that Respondent violated 29 CFR 1926.25(a) A penalty of $80.00 was proposed. Respondent had $60 million in gross sales in 1972. A minor monetary penalty assessed for a nonserious violation of how gravity, as in the instant case, would not serve to accomplish the purposes of the Act. Respondent's employees contributed so little of the debris, according to this record, that there would have been no violation had it not been for the rubbish discarded by employees of the other contractors at the site. The proposed penalty of $80.00 for item number 2 will be vacated.

FINDINGS OF FACT

1. Respondent corporation is and at all times pertinent herein has had its principal office at Washington, D.C., engaging in electrical contracting, with employees receiving, handling and working with materials and supplies in many states, and is an employer engaged in a business affecting commerce; Respondent grossed $60 million in 1972 and employed 2,200 employees throughout the country.

2. At all times relevant to this action Respondent had under its operation [*18] or control a workplace located at the Natural Science Building, University of Pittsburgh, where Respondent was engaged in electrical contracting work, with 21 employees at the job site.

3. The workplace was inspected on August 30 and 31, 1972, and a citation for two nonserious violations was issued 69 days later, on November 8, 1972; the delay in issuing the citation was due to the illness of the Area Director of the Occupational Safety and Health Administration, the official who normally approves and signs citations.

4. The citation was not issued with reasonable promptness as far as item number 1 of the citation is concerned, and is null and void as a matter of law, the 69-day delay having prejudiced Respondent in maintaining its defense upon the merits, since the employee who allegedly failed to wear his hard hat, in violation of the standard, had left the employ of Respondent in October 1972, and Respondent was unable to locate him for purposes of an interview and appearance as a witness.

5. The citation was issued with reasonable promptness insofar as item number 2 is concerned, the delay having been due to the protracted illness of the Area Director, and Respondent not [*19] having been harmed or prejudiced by the delay.

6. On August 30, 1972, Respondent permitted its employees at the job site referred to above to work, during the course of construction, in work areas from which scrap lumber and other debris had not been cleared, such debris constituting a tripping hazard; said conduct of Respondent was a failure to comply with the standard at 29 CFR 1926.25(a).

7. The Secretary proposed a penalty of $80.00 for said violation, but since a minor penalty for a violation of such low gravity would not serve to accomplish the purposes of the Act, it is appropriate that no penalty be imposed.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter within the contemplation of Sections 3 and 4(a) of the Occupational Safety and Health Act of 1970.

2. The citation, insofar as it relates to the alleged violation of Section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR 1926.100(a), was not issued with reasonable promptness after inspection or investigation, as required by Section 9(a) of the Act, but was issued with reasonable promptness as far as [*20] the alleged violation of Section 5(a)(2) for failure to comply with the standard at 29 CFR 1926.25(a).

3. On August 30, 1972 Respondent violated Section 5(a)(2) of the Act by failing to comply with the standard at 29 CFR 1926.25(a).

4. It is appropriate, in accordance with Section 17(c) and (j) of the Act, to impose no penalty for the noncompliance with 29 CFR 1926.25(a).

ORDER

It is ORDERED that item number 1 of the citation and the penalty proposed therefor be and the same are hereby VACATED; that item number 2 of the citation be and the shape is hereby AFFIRMED, and that the $80.00 penalty proposed for item number 2 be and the same is hereby VACATED.