JULIUS NASSO CONCRETE CORPORATION AND BEACH CONCRETE COMPANY, INC., A JOINT VENTURE, d/b/a NASSO BEACH CONCRETE

OSHRC Docket No. 2123

Occupational Safety and Health Review Commission

February 6, 1975

[*1]

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

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter presents the question whether Complainant's (Labor) citation should be vacated for not having been issued with reasonable promptness. Judge Weil answered in the affirmative. Thereafter, we held that absent exceptional circumstances once Labor determines that a citation should issue he has three working days to perform the ministerial tasks of issuing the citation. Chicago Bridge & Iron Company, 6 OSAHRC 244, BNA 1 OSHC 1485, CCH E.S.H.G. para. 17,187 (1974), pet. for review filed No. 74-1214 (7th Cir., March 18, 1974). Having reviewed the record we conclude that this case is within the rule announced in Chicago Bridge & Iron and we therefore affirm the judge's disposition.

The facts are these: On October 26, 1972, Respondent's (Nasso Beach) employee was installing guard rail protection around the perimeter of the 16th floor of a building under construction. The employee fell to his death. On the next day Labor's compliance officer investigated the accident. He determined that the deceased employee was not protected from falls by a safety belt or other [*2] devices sich as a safety net. Nevertheless, he did not recommend the issuance of a citation predicated on the facts of the accident. Rather, he recommended either the issuance of a non-serious citation alleging that certain floor holes on the 13th through 15th floors were unguarded or the issuance of a serious citation by combining the floor hole allegations with charges that the perimeters of the 13th through 15th floors were unprotected.

The recommendations were made to Labor's area director between October 31 and November 3. Being in doubt as to whether a proper citation for the situation existed the area director referred the matter to the regional solicitor on November 3. The solicitor requested more information on November 20, and the area director referred the matter to the original compliance officer and one other officer on December 5. The officers conferred with Nasso Beach's representatives on December 20. Thereafter, they reported to the area director that the deceased employee should have been protected by a tied-off safety belt. The area director reviewed the report on December 26 whereupon he directed the issuance of a "28(a)" citation, i.e., the citation [*3] giving rise to this matter.

The citation was issued on January 10, 1973. And by then the building had been constructed. During the period December 26 to January 1 the secretary assigned to type citations was on sick leave. But hand printed citations were issued during this interval. Also during this interval the area director had to devote time to training personnel he was going to take with him to Puerto Rico for the purpose of opening an office.

In vacating the citation Judge Weil correctly concluded that a presumption of regularity attaches to Labor's actions in issuing a citation and that the burden is on the Respondent to overcome the presumption with evidence. The judge then considered the actions of Labor's representatives throughout the period October 26-January 10 and concluded that all such actions did not constitute exceptional circumstances which would warrant a delay in the issuance of a citation. He determined that Labor could have believed that a citation should issue as eary as October 26 and therefore vacated.

In Chicago Bridge & Iron we said that the period is to be measured from the time an individual having the authority to issue citations forms his [*4] belief that a violation exists. In so saying we implicitly rejected an interpretation that would involve the Commission and its judges in second guessing as to the time a person authorized to issue citations should have formed his belief. Obviously, such a person must have the facts which might constitute a violation before him and he must be given time within which to exercise his judgment in weighing the facts. Thus we fixed the termination of the decisional making process as the point from which delay in the issuance of a citation will be measured. Any general rule that fixes an earlier reference point in time or which involves a subjective judgment concerning the propriety of an investigation would only result in the issuance of ill-conceived citations which in turn would necessarily result in unwarranted litigation before us and the courts.

In this case the area director formed his belief on December 26. The citation issued some fourteen days thereafter. Clearly, it was outside the three workday period stated in Chicago Bridge & Iron. Moreover, it had no effect on abatement because the project was done so far as the record shows. Thus its primary purpose [*5] has been frustrated on these facts.

In explanation all we are offered is that a secretary was sick and that the area director had additional training duties assigned to him. The absence of the secretary is of no moment because citations were still issued during this interval. Similarly, the area director's training duties did not prevent the issuance of other citations; thus we fail to see how this explains the delay in issuance.

Accordingly, we conclude that exceptional circumstances which would warrant the delay in issuance of the citation do not exist in this case and therefore conclude that the citation before us was not issued with reasonable promptness.

On the authority of our decision in Chicago Bridge & Iron Company, supra, and for the reasons stated herein we affirm the judge's disposition. It is so ORDERED.

CONCURBY: MORAN

CONCUR:

461 MORAN, CHAIRMAN, concurring: The disposition is correct because the citation was not issued within the 72-hour period which Congress contemplated by its use of the term "reasonable promptness" in 29 U.S.C. 658(a) and because complainant did not demonstrate any exceptional circumstances which would justify an exception from that requirement. See [*6] H. Rep. No. 91-1765, 91st Cong. 2d Sess. 38 (1970).

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I dissent from the majority's disposition of this case on the "reasonable promptness" issue for the reasons stated in my dissenting opinion in Chicago Bridge & Iron Co.

[The Judge's decision referred to herein follows]

WEIL, JUDGE: This case presents the question, before the Commission and its judges in a number of cases, whether in a proceeding by the Secretary under the Occupational Safety and Health Act, 29 USC Section 651 et seq., the citation should be vacated under Section 9(a) of the Act, 29 USC 658(a), on the ground that it was not served with "reasonable promptness" after the inspection which gave rise to its issuance.

Respondent, before answering the complaint herein, moved to dismiss on the ground that complainant had failed to issue the citation with reasonable promptness. Respondent pointed out that the complaint referred to an alleged violation on October 26, 1972; and it contended that the issuance of the citation on January 10, 1973, 76 days later, was not within the requirement of the statute. In opposition, complainant argued, inter alia, [*7] that due process required that complainant "have an opportunity to present evidence as to when the investigation began and ended and the reasons why there was a delay. . . ." Judge Brennan felt that the most appropriate occasion for adducing such evidence would be "at a hearing, where the right of cross-examination, for a full development of the facts, is assured. This method," he held, "should provide a sufficient factual basis on which to determine the Secretary's adherence to Section 9(a) of the Act." Accordingly Judge Brennan denied the motion as a demurrer to the complaint, without prejudice to renewal in accordance with his memorandum. At the opening of the trial respondent renewed the motion, which I will treat, also, as a motion to vacate the citation; and for two days I heard testimony from the Compliance Officer, Mr. Davenport, the Area Director, Mr. Dreeland, and from respondent's job superintendent, Mr. Canino; and exhibits were received from both sides. There is a conflict between the recollection of the witnesses about some of the details; but in the operative facts which are here controlling, and which are set forth below, there is no real dispute.

On October 26 [*8] or 27, 1972, the Area Director received word from the employer that on October 26th there had been a fatal accident to Manfred Buchwald, a workman, in the course of the construction of a high-rise apartment building at 555 North Avenue, For Lee, New Jersey. The Area Director assigned Mr. Davenport to the case because Davenport was a professional engineer and had expertise in building construction. At about 9:30 a.m. on October 27, 1972, Davenport went to the job. There he met Neman, the job superintendent of the general contractor, Manzanello, the job accountant of Nasso Beach Concrete, Canino, the job superintendent of Nasso Beach Concrete, Cuebas, a carpenter who was working with Buchwald and witnessed the accident, DiGiacomo, the foreman of Buchwald and Cuebas, and Scarfone, the carpenter foreman of Nasso Beach Concrete (Ex. 7). He questioned these men until about noon. Then with Neman, Canino and DiGiacomo, he went to the sixteenth floor where he stayed just long enough to take a look around. After that he walked down, inspecting floors fifteen through one; and finally he held a closing conference with Neman, Canino and Manzanello. In the course of these talks [*9] and this inspection Davenport took a complete statement from Cuebas, Exhibit A; and before the end of the day he made work notes from which he drew up eight documents, described below, which he submitted to the Area Director and then conferred with the Area Director about the case on or after October 31, and on or before November 2, 1972, when the Area Director sent all of the papers to the Regional Solicitor for an opinion (Exhibit 3).

These occurrences may be deemed Phase I of the investigation. Events from November 3, 1972, to January 10, 1973, when the citation was finally issued, may be deemed Phase II.

On the very first day of Phase I, October 27, 1972, Mr. Davenport learned that the fatality had occurred as follows. The building under construction was a twenty-five story reinforced concrete apartment house. On October 26, 1972 the sixteenth story was under construction: there was nothing above it. The plywood deck had been put down on which the concrete slab would be poured and the spandrel beam was in place around the entire perimeter. Manfred Buchwald and Albert Cuebas formed a sort of advance guard. As they had on the lower floors, they were constructing on the spandrel [*10] beam a perimeter rail which would protect the other men who would come later to the sixteenth story in the course of the work. Buchwald was rouching at the very edge looking along the perimeter and nailing with his right hand, which was on the outside. He was wearing no safety belt. None had been issued to him and he had received no direction as to wearing one during this operation and tying it by a lanyard to a suitable anchorage. When he tried to rise, at about 1:15 a.m., he lost the purchase of his right food and fell over the edge to his death. Cuebas, who was preparing material to be used by Buchwald, was about twenty feet away and saw the accident; and on October 27th he gave Davenport a written statement with the above information about the occurrences which he had seen on the previous day. (Ex. A). DiGiacomo, Buchwald's foreman, was also on the sixteenth floor when the accident occurred. On October 27th, DiGiacomo, Canino and Neman all told Davenport that there were no safety belts on the sixteenth floor. Likewise on October 27th Cuebas, DiGiacomo and Canino told Davenport that there were no nets on the sixteenth floor; and as far as the record shows, no [*11] catch platforms were in place. As a result of this investigation which he had made on October 27th, Davenport determined that on the sixteenth floor

there was not any protective equipment used or furnished on the project.

Nevertheless Davenport said that he felt, without explaining why, that he must await further confirmation as to the non-use of safety belts from the general contractor and from the police. Also he was not sure that the violation related to safety belts. He thought that under the regulations Nasso Beach had two other options, nets and catch platforms. Safety belts in his opinion, would have been the most convenient form of protection, but he didn't rule out a citation based on nets or catch platforms until December 20th because he was busy with other matters.

Buchwald's employer was Nasso Beach Concrete, a joint venture formed to perform the concrete sub-contract on the job. This was confirmed by Manzanello, the job accountant of Nasso Beach Concrete, whom Davenport found in charge of the Nasso Beach Concrete construction office in a trailer at the construction site, and by Canino, the job superintendent of Nasso Beach Concrete, in general charge [*12] of its work on the job. They gave Davenport the names and addresses of the constituent corporations and the names of their presidents: Julius Nasso Concrete Corp., 142 East 39th Street, New York, N.Y., Julius Nasso, president, and Beach Concrete Company, Inc., 38 Route 17, Paramus, New Jersey, Rudolph Marchesi, president. Davenport testified repeatedly that at the opening conference Manzanello also gave him the Social Security identification number of the joint venture, Nasso Beach Concrete. Later he testified that since he couldn't find the number in his papers, he concluded that he must have mislaid it. As an alternative he suggested that perhaps Manzanello didn't have the ID number in the trailer office; that at the opening conference he promised to get it for Davenport and give it to him after the inspection at the closing conference; and that perhaps at the closing conference he, Davenport, forgot to follow up his request. He admitted that Canino and Manzanello had been very cooperative; that they hadn't refused any information which he requested; and he had no explanation for waiting until December 20, 1972, to ask for the number again.

After leaving the job and completing [*13] his work notes Davenport turned to his official paper work, which he submitted to the Area Director and discussed with him at their conference mentioned above. First there was the excellent statement which he had taken from Cuebas (Exhibit A), which showed by eyewitness account that Buchwald had been killed working at the perimeter without a safety belt. Next there was the "Accident Investigation Report" (Exhibit 8), which paraphrased the Cuebas statement as to the accident, with additions which indicate a difference between Davenport's concept of a violation due to failure to furnish and require the use of personal protective equipment, which he formulated as a result of his investigation on October 27th, and the position that there had been no violation on the sixteenth floor, which he put in writing in the documents he submitted to the Area Director on or before November 2nd. Thus in answer to Question 35, he said the accident occurred when Buchwald was preparing to install the guard rail. In answer to Question 36, he said that corrective action had been taken since the accident, namely installation of the guard rail. In answer to Question 37, he said that nothing [*14] remained to be done, the guard rail Buchwald and Cuebas had been working on when Buchwald met his death having been completed. And in answer to Question 38, he indicated that no standard had been violated in connection with Buchwald's fall.

In this report he identified the employer as "Nasso Beach Concrete . . . 555 North Avenue . . . Fort Lee . . . New Jersey . . . concrete construction." In the "Narrative" (Exhibit 7), he again identified the employer, "Nasso Beach Concrete, 555 North Avenue, Fort Lee, New Jersey, Telephone number 201-947-9065," the constituent corporations, their presidents, and the other persons mentioned above.

In the "Safety and Health Report" (Exhibit B), he gave the "Full Name of Establishment" as "Nasso Beach Concrete"; and as its "Type of Legal Entity" he gave "Joint Venture Julius Nasso Concrete Corp. Beach Concrete Company, Inc." He gave as the type of business "concrete & carpentering con." And as a "Description of the Process" he stated "Sub-contractor to general contractor Inganamort-LaSala Joint Venture." Furthermore he stated that the "employer" maintained injury and illness records as required. Perhaps anticipating his proposed citations which [*15] called for abatement of violations unconnected with the accident, he designated his October 27, 1972, inspection as "partial" rather than "complete."

Finally, Davenport integrated his rationale of the case in his proposals to the Area Director regarding citation. He recommended the issuance of a one-item citation for non-serious violation, i.e., for failure to guard floor openings on the thirteenth, fourteenth and fifteenth floors in violation of 29 CFR Section 1926.500(b)(1), to be abated either "immediately upon receipt of this citation" or "on or before 11/27/72" (Exhibit 13B); and as an alternative, he submitted a proposed citation for serious violation containing two items, a first item verbatim identical with Exhibit 13B and a Second item alleging failure to have in place perimeter rails on the thirteenth, fourteenth and fifteenth floors, in violation of 29 CFR Section 1926.500(d)(1) (Exhibit 13A).

Davenport's last document was his "Penalty Assessment Worksheet" (Exhibit 8), which seems to refer to Exhibit 13A, with a suggested penalty of $800, apparently later increased to $900 when the citation was changed to read as it was issued months later, on January [*16] 10, 1973.

Thus the case reached the Area Director between October 30th and November 3rd with the report of the death of a man working at the perimeter without a safety belt, with no recommendation for a citation based on that circumstance, and with alternative proposals as to violations on other floors. This was not altogether satisfying to Mr. Dreeland:

Now, as a result of this I felt that there was some doubt in my mind as to whether we had the proper citation for the situation involved, and this is my basis for it being submitted to the Solicitor (Ex. 3).

Up to this point there seems to have been no doubt, however, in the minds of Davenport and Dreeland that the employer of the men working at the top of the building was Nasso Beach Concrete, a joint venture constituted as aforesaid. In this posture, six days after the inspection, Phase I ended.

As Phase II opened, the Regional Solicitor received the above mentioned documents under cover of Dreeland's brief letter (Ex. 3), simply requesting an "opinion" on the enclosures. Instead of answering with a legal opinion as to violation of the standards specified and violation of any other pertinent standard, the Regional Solicitor [*17] in effect asked the Area Director to answer six questions (Ex. 4), which may be expressed and commented upon as follows. (1) What was the legal status of Nasso Beach Concrete? To this legal question Davenport, on the basis of lengthy questioning, had already given a pretty complete answer in his reports: it was joint venture for the purpose of performing the cement sub-contract on the job at 555 North Avenue, Fort Lee, New Jersey. The components were two corporations, Julius Nasso Concrete Corp., and Beach Concrete Company, Inc. (2) Who was the employer of the endangered employees? Davenport had repeatedly answered in his reports: Nasso Beach Concrete, a joint venture. (3) Who were the endangered employees? Since the report named those endangered by the condition which caused Buchwald's death -- Buchwald and Cuebas -- the Solicitor must have been referring to those endangered by the standards referred to in the proposed citations, 500(b)(1) and 500(d)(1). (4) Was any standard violated in connection with the fatality? This was the very quesition which the Area Director was asking the Solicitor. (5) If no specific standard was violated, was there evidence of a Section [*18] 5(a) violation? This question was premature in view of the Solicitor's failure to answer Question 4. (6) Can you pierce the veil of the joint venture and establish that Julius Nasso Concrete Corporation is the employer or an employer? If so perhaps you can establish that Julius Nasso Concrete Corp, is a willful violator of Section 29 CFR Sections 1926.500(b)(1) and (d)(1), in respect of which Julius Nasso Concrete Corp. has been involved in "several prior investigations," in which case perhaps a citation for willful violation may be issued. On this last point Davenport and the Regional Solicitor were obviously at cross purposes, since Davenport was seeking legal advice to determine whether persons were involved in the Fort Lee job who were employees of a legal entity which had violated "28(a)" in New York.

The Regional Solicitor's memorandum, Ex. 4, reached the Area Director about November 20th. After the 18-day delay thus occasioned by Dreeland's request for the Solicitor's opinion, the case continued to move at the same leisurely pace. Nothing more happened for another fifteen days until, on December 5, 1972, Dreeland turned Exhibit 4 over to a team consisting of Davenport [*19] and Palmieri, another compliance officer, for action; and then another fifteen day period elapsed before anything was done. Then, if indeed they obtained any pertinent information which was not contained in Davenport's October reports, they obtained it by steps which Davenport could have taken on November 2nd after he discussed the case with Dreeland. On December 20th Davenport went back to the trailer office where, this time with Palmieri, he met again with Canino and Manzanello, and from the trailer office they called Mr. Nasso and Mr; Marchesi. On the basis of those conversations, they made the following report (Exhibit 9):

(1) Legal Status of Nasso-Beach Concrete is a "joint venture" of 2 corporations to perform a specific job. 2 corporations are Julius Nasso Concrete Corp. and Beach Concrete Company, Inc. joined together to build (concrete subcontractor) the Westport apt. bldg.

* The joint venture is a separate legal entity having its own federal Identification number #13-270 3593, separate payrolls are maintained, separate stationery, separate accounting and separate equipment differentiate if from either of the 2 corporations.

(2) Names of employees exposed [*20] to serious hazard could not be obtained because these men are now on other jobs.

(3) With respect to the fatality -- (employee fell from 16th floor) he was an "edge man" -- a man who specializes putting concrete forms around the edge of the bldg.) should have been tied off with an approved safety belt and Lanyard.

(4) We can not issue a wilful violation here since it is a different legal entity from Julius Nasso Concrete Corp.

Even then the end had not been reached. It took five days more, exclusive of Christmas, until December 26, 1972, before Dreeland went over the report and directed that a "28(a)" citation issue, and then fourteen days more, exclusive of New Year's Day, before the citation was finally sent out on January 10, 1973.

Dreeland testified to various events which occurred during Phase II which may have delayed the issuance of the citation but which, for reasons stated below, have no effect on the result herein. Over the weekend which started Friday, December 8, 1972, the office, which included Davenport, invoved from the Federal Building in Newark to the office building at 1180 Raymond Boulevard, a few blocks away. During the week before, the office force was packing [*21] records and equipment and during the week after, they were unpacking. Davenport was on annual leave on November 9, 10, 16, 24, 30, December 1, 13, and 27-29. Dreeland was on assignment in California during some part of the week commencing December 4th.

On December 26, 1972, Dreeland was designated to take a working party to Puerto Rico to open an office there; and shortly after the 26th he started a program in the office to train those whom he would take with him on January 7th or 8th. And between Christmas and New Year's the secretary who normally typed citations was on sick leave and many citations had to be hand printed by the compliance officer. The citation in this case, consisting of about forty words in addition to those on the printed form was in fact typed.

The evidence as a whole, then, may be summed up as follows. From the outset the case had broken down into two areas of investigation: (1) What was the nature of the violation; and (2) what was the identity of the violator? As to the nature of the violation, all the evidence which the investigation ever produced on this subject reached the Secretary on October 27th, i.e., the Cuebas statement and the [*22] information which Davenport obtained in his investigation on that day that no safety belts were in use or available and no nets were in place.

Whether Davenport left the jobsite on October 27th convinced that there had been a "28(a)" violation on the sixteenth floor due to lack of personal protection but then abandoned that position when he came to write his October 31st reports, or whether this never occurred to him until December 20th when Palmieri wrote Paragraph 3 of Ex. 9, or any other detail of the process by which Davenport's opinion or Dreeland's opinion was formed is legally immaterial. Congress imposed the obligation to act with reasonable promptness not on Davenport or on Dreeland but on the Secretary of Labor. Hence what is operative is when information became available to the Secretary from which he could have issued a citation, not when Davenport or Dreeland concluded that a "28(a)" citation should be issued.

As to the identity of the employer of the men on the sixteenth floor on October 26th, Davenport established this on October 27th by the information which he obtained from Manzanello, Canino and Neman or, if it had to be supplemented by a further visit to the [*23] construction office and calls to the presidents of the constituent corporations, this could have been done on November 2nd when Davenport went over the case with the Area Director.

Thus the delay which occurred during Phase II was not only unnecessary; in general it prejudiced the People of the United States in their right to due enforcement of an important piece of remedial legislation; and in particular, it prejudiced the men working on the Fort Lee job. On January 10th the job was 100% complete. The dangerous business of constructing nine more floors above that from which a man had fallen to his death on October 26th had gone on without the benefit to the work force which is calculated to flow from the issuance of a citation. And Davenport's proposed serious citation for failure to guard the perimeters on three other floors -- never criticized by the Solicitor (Ex. 4), and criticized by Dreeland ony because it didn't deal with the condition which caused the fatality, was never issued, perhaps because the men exposed to those perils had already drifted away to other jobs by December 20th (Ex. 9).

One other point should here be noted. Respondent did not prove that [*24] the delay during Phase II resulted in prejudice to it, at least in the ordinary sense of being deprived of the opportunity to make a prompt investigation and otherwise prepare to defend litigation.

To what result, then do these facts lead with respect to the disposition of respondent's motion? Did Congress in Section 9(a) impose a mandatory requirement on complainant as to promptness? If the requirements is mandatory, was the burden of proof as to promptness on complainant or on the respondent? And when did the critical period begin to run, from the date when the Secretary learned of the condition which gave rise to the inspection, or from the date when the inspection and investigation were completed?

I

The Secretary contends that the "reasonable promptness" clause of Section 9(a) is directory, not mandatory. Where "shall" is used in reference to the performance of the functions of an official of the Federal Government, he urges, a choice must be made between a mandatory meaning and a directory meaning, and that interpretation must be chosen which is consistent with the overall statutory purpose. That overall statutory purpose, he says, in the instant case, is to improve working [*25] conditions by enforcing Section 5 of the Act, which purpose would be frustrated by interpreting the clause as mandatory, and so, as requiring that the citation here be vacated. The argument fails for the following reasons.

First. Like other rules of interpretation, the one urged by the Secretary cannot come into play because here the ordinary meaning of the words is clear and unambiguous and does not produce a result out of keeping with the overall statutory purpose. "Shall" defines, primarily, the Secretary's function in every case in which he believes that a violation obtains. Thus Congress provided that he "shall" issue a citation in every such case. And "with reasonable promptness" is merely an adverbial phrase, describing how the Secretary is to issue a citation whenever he issues one. Nothing in the statute indicates that Congress, by the form of expression used, intended an alternative: either that the Secretary issue citations in some but not all violation cases, or that he issue citations in all violation cases but only some with reasonable promptness, others, not. Rather, Congress imposed a rule of conduct to be followed by the Secretary in all cases, but [*26] sufficiently flexible so that a uniform standard of promptness could produce different time intervals depending on the facts of each case. Far from producing a strained result, this interpretation is consistent with the statutory purpose to eliminate dangerous and unhealthy conditions of work by various specified measures, including "an effective enforcement program" -- i.e., one requiring that employers receive prompt notice of violation in order that corrective measures may be promptly initiated. Act, Section 2(b)(10), 28 USC Section 651(10).

Second. Rules of intrinsic interpretation, if applicable, would support the mandatory meaning, not the directory. In Section 9(a), Congress used both "shall" and "may" in reference to the Secretary's functions. Commenting on a similar provision, and holding the meaning thereof to be mandatory, the Supreme Court said in Anderson v. Yungkau, 329 U.S. 482, 485 (1944):

The word "shall" is ordinarily "the language of command." Escoe v. Zerbst, 295 U.S. 490, 493. And when the same Rule uses both "may" and "shall," the normal inference is that each is used in its normal sense -- the one act being permissive, the other mandatory. [*27] See United States v. Thoman, 156 U.S. 353, 360.

See also Bradley v. Milliken, 433 F. 2d 897, 904 (CA 7, 1970).

Third. Extrinsic interpretation, if it were admissible here, would likewise support construction of the clause as mandatory. The statutory purpose, discussed above, would clinch the argument, were it in doubt. Escoe v. Zerbst, supra, 295 U.S. p. 493.

Nothing in the decisions of the Commission requires a different result here. To be sure, in Pleasant Valley Packing Company, Inc., No. 464, January 4, 1973, and in Silver Skillet Food Products Company. No. 497, February 23, 1973, the Commission majority refused to join with the Chairman in his opinions in which he argued that the "reasonable promptness" clause is mandatory and that in each case the record did not contain a satisfactory explanation of the delay, which amounted to 35 days in Pleasant Valley and 117 days in Silver Skillet. But in neither of those cases was an objection based on the "reasonable promptness" clause raised by respondent so that the Secretary had a fair opportunity to meet the issue by evidence and argument. In each case the majority was silent [*28] so to the effect of the delay; and it is reasonable to infer that this silence derived not from a rejection of the Chairman's reasoning but from a refusal to decide either way an important issue which the parties had not litigated below. This is a practice adhered to in many appellate tribunals and was commented on as follows by the Supreme Court in Flournoy v. Wiener, 321 U.S. 253, 261 (1944), where the Court observed with respect to an issue not litigated by the parties:

In any case we ought not to consider it here because in reliance upon this declaration neither party has briefed or argued it in this Court. Rule 27, paragraph 6 declares that error not urged in briefs will be disregarded. And, independently of "technical" rules it is not the habit of this Court to decide important constitutional questions which the parties have not presented, briefed, or argued.

It would seem that general considerations of procedural fairness and due process would require that the rule be adhered to whether or not a constitutional question is involved.

By contrast with Pleasant Valley and Silver Skillet, in Borton, Incorporated, No. 1482, where the question was raised [*29] and litigated and where the judge vacated the citation on a finding that 128 days was an undue delay, on April 2, 1973, the decision became final in the absence of Commission review. In his decision the judge mentioned an offer by respondent to prove prejudice; but he made no finding on that point. This is understandable since there, as here, the inspection was precipitated by a fatal accident. Surely such an occurrence would tend to give rise to at least as much investigation and evidence gathering as a citation, even for a serious violation; and it would be difficult, I should think, to prove prejudice based on the time lag between such an accident and the issuance of the citation.

In addition to Borton, there are four decisions by Commission judges in which the issue of "reasonable promptness" was litigated and decided: Chicago Bridge & Iron Company, No. 744, January 8, 1973; Stokes Construction Company, No. 1420, March 20, 1973; E.C. Ernst, Inc., No. 1780, June 4, 1973; and Todd Shipyards Corporation, No. 1556, July 30, 1973. All but Todd have been called for review. In every one of these cases the judge held the "reasonable promptness" [*30] clause mandatory, with the following results: In Chicago Bridge, 31 days was held reasonable; in Stokes, 67 days was held unreasonable; in Ernst, 69 days was held reasonable where no prejudice was found but unreasonable where it was; and in Todd, 32 days was held not unreasonable.

As indicated above, I hold that the "reasonable" promptness clause is mandatory.

II

Respondent claims that Congress put a gloss on Section 9(a), whereby "with reasonable promptness" is defined, in effect, as "within 72 hours in the absence of exceptional circumstances"; that since in this case the interval between detection and citation greatly exceeded 72 hours, the burden was on the Secretary to prove exceptional circumstances; that the Secretary failed to meet the burden; and that accordingly the citation must be vacated. This argument is based on a report to both Houses of Congress in which the Conference Committee referred as follows to the bill which became the Occupational Safety and Health Act:

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 [*31] of exceptional circumstances any delay is not expected to exceed 72 hours from the time the violation is detected by the inspector (H. Rep. 91 - 1965, reproduced in "Legislative History of the Occupational Safety and Health Act of 1970," 1154, 1191).

Furthermore, in urging the House to pass the Conference Committee bill, Representative Steiger used language on the Floor to the same effect as that quoted above. Id., p. 1219. Respondent's argument must fail for several reasons.

As shown above there is no ambiguity in Section 9(a) and hence no room for extrinsic interpretation such as consideration of the legislative history; but even if there were, such history would not prove respondent's point. There is a strong presumption of regularity which furnishes prima facie support for the acts of officers of the Federal Government in the performance of their duties. United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926) and cases there collected. In passing the Occupational Safety and Health Act of 1970, Congress is presumed to have acted consistently with this well-established rule. Its attention was drawn to a possible definition of the expression [*32] "reasonable promptness," which definition it did not enact; indeed, the record does not show even a recommendation that it so legislate. The inference, if any, must be derived from what Congress did not do, rather than from what the Conference Committee and Mr. Steiger expected that the Secretary of Labor would do. And the inference must be all the stronger since the effect of the definition would have been to withdraw the Secretary's acts in issuing citations from the general rule of the presumption of regularity.

In Borton, Chicago Bridge, Stokes, Ernst, and Todd, the judge refused to read the 72-hour statement into Section 9(a). In Borton, the burden of proof as to promptness was treated as on complainant, while the opposite obtained in Ernst and Todd. Chicago Bridge and Stokes seem to be silent as to the burden of proof.

Summing up my conclusions on this point, Congress did not define reasonable promptness as action within 72 hours in the absence of proof of exceptional circumstances; Congress left the presumption of regularity of the Secretary's acts applicable here; and the burden was on respondent to overcome that presumption by evidence.

III [*33]

Complainant would have the Commission nullify the "reasonable promptness" clause by interpreting it to mean that it has no application to delays in investigation -- that no matter how unreasonable the delay in investigation, the clause is satisfied if the Secretary issues the citation promptly after the investigation is completed. Here the words, taken alone, are ambiguous, and so must be read as part of the statute as a whole in order to interpret them as Congress intended. So construed, it is clear, as indicated above, that what Congress sought to provide was a requirement for promptness in the exercise of the Secretary's entire enforcement function so that employers will be speedily apprised of violations, to the end that dangerous and unhealthy conditions in work places be eliminated with a minimum of delay.

In Borton, Chicago Bridge, and Ernst, the critical period was held to run from inspection. In Stokes, it was held to run from violation. In Todd, it was held to run from when the Secretary believed or should have believed that there was a violation.

For the reasons set forth above, I conclude that the period of time to be measured in this case [*34] runs from October 26, 1972, the date of the violation alleged in the citation.

IV

I find and conclude that the citation herein was not issued with "reasonable promptness" within the meaning of Section 9(a). Therefore, despite the circumstance that respondent was not prejudiced by the delay, I vacate the citation and dismiss the complaint.

BRENNAN, JUDGE: Ruling on the Respondent's Motion to dismiss the Secretary's Complaint.

Respondent's Motion to dismiss the Secretary's Complaint herein (R.p. 7) on the ground that the Citation herein, dated January 10, 1973, was not issued "with reasonable promptness" within the meaning of Section 9(a) of the Act, is hereby Denied, without prejudice however to renew said Motion at some later stage of these proceedings.

This ruling is based upon the Secretary's statements appearing at page 5 of his "Memorandum In Opposition to Respondent's Motions" consisting of the last three paragraphs of the section therein identified "II Argument." The last of these said statements reads in pertinent part, ". . . due process would at the very least require that the Secretary have an opportunity to present evidence as to when the investigation [*35] began and ended and the reasons why there was a delay if any in the issuance of the citation." (R.p. 14)