Docket No. 2430

STAR TEXTILE AND RESEARCH, INC.

OSHRC Docket No. 2430

Occupational Safety and Health Review Commission

March 24, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision of Judge James P. O'Connell. Judge O'Connell vacated two items of Complainant's citation charging that Respondent violated the Occupational Safety and Health Act of 1970 n1 by failing to comply with the standards published at 29 C.F.R. 1910.262(d)(4) and 1910.178(m)(9). n2 He took this action because in his view the citation was not issued with reasonable promptness. We affirm his disposition for a different reason.

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n1 29 U.S.C. 651 et seq., hereinafter "the Act."

n2 A third item of the citation and penalty proposed therefor were properly affirmed on Respondent's motion to withdraw.

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As to the two contested items Respondent filed applications for variances (29 U.S.C. 655(d)) after the citations were issued. The Secretary granted both applications while this matter was in contest. In so doing he specifically determined that Respondent [*2] provides a place of employment that is as safe as if it had complied with the standards.

On review the Secretary asks for vacation of the contested items. He states that the issues in contest are moot in view of his action on the variance applications. We treat his request as a motion to withdraw, and we grant it.

Accordingly, the judge's disposition of this matter is affirmed for the reasons stated herein.

[The Judge's decision referred to herein follows]

O'CONNELL, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act") contesting three items of a citation issued by complainant against respondent under the authority vested in the Secretary of Labor by Section 9(a) of the Act. The citation alleges that as a result of an inspection of respondent's workplace at Cohoes, New York, on January 22, 1973, the respondent violated Section 5(a)(2) of the Act by failing to comply with various occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The citation, containing various nonserious violations, and a notification [*3] of proposed penalty were issued on March 8, 1973. Respondent, by letter dated March 12, 1973, contested only items No. 2, 16 and 17 of the citation and the penalties proposed thereon totaling $90.00.

The standards, allegations, and the proposed penalties involved in the contest are as follows:

Item -- Standard Involved -- Description of Violation -- Proposed Penalty

2. -- 29 CFR 1910.242(b) -- Compressed air used for cleaning was not reduced to less than 30 p.s.i., in Plant #1. -- $60.00

16. -- 29 CFR 1910.262(d)(4) -- None of the textile opener lines on the pickers in Plant #1 were equipped with magnetic separators, tramp iron separators, or other means for the removal of foreign ferrous material. -- None

17. -- 29 CFR 1910.178(m)(9) -- No overhead guards used as protection against falling objects on powered industrial trucks #1 and #2, in the warehouse, Plant #1. -- $30.00

Respondent, at the commencement of the hearing held herein at Albany, New York, on June 20, 1973, moved to withdraw its contest to item No. 2 of the citation and the penalty proposed therefore. The secretary having no objection, the motion was granted. Therefore, only the alleged violations of the standards [*4] set forth in items No. 16 and 17 are in issue. Those standards as promulgated provided:

Item 16:

29 CFR 1910.262 Textiles. (d) Openers and pickers (4) Removal of foreign ferrous material. All textile opener lines shall be equipped with magnetic separators, tramp iron separators, or other means for the removal of foreign ferrous material.

Item 17:

29 CFR 1910.178 Powered industrial trucks. (m) Truck operations. (9) An overhead guard shall be used as protection against falling objects. It should be noted that an overhead guard in intended to offer protection from the impact of small packages, boxes, bagged material, etc., representative of the job application, but not to withstand the impact of a falling capacity load.

Complainant's case consisted of certain stipulations entered into by the parties, on documentary exhibit (C-1: Log (3 pages) of occupational injuries and illnesses), and the testimony of Joseph W. Deavers, Jr., an OSHA Compliance Officer. Respondent's case consisted of the testimony of Peter G. Casabonne, respondent's executive vice president at the time of the inspection, and four exhibits, namely, OSHA Program Directive #100-1 (Exhibit R-1) [*5] relating to item no. 2; two black-and-white photographs (Exhibits R-2 & R-3) concerning item no. 16; and one black-and-white photograph (Exhibit R-4) depicting the truck and the plant area involved in item no. 17. The filing of posthearing briefs was waived by the parties.

No affected employees or authorized employee representative appeared in this proceeding Respondent prior to the hearing appeared pro se, but was represented by counsel during the hearing on the merits.

JURISDICTION

Jurisdiction of this action and of the respondent under the Act is conceded (Pleadings; Stipulation).

ISSUES

A review of the pleadings filed herein, the Direction issued by the presiding Judge, and the record of hearing itself, all of which comprise the record, reflects that three issues were raised in this proceeding. Those issues are: (I) the request by respondent for a variance concerning the two contested items; (II) whether the citation herein was issued with reasonable promptness, as required by Section 9(a) of the Act; and (III) whether respondent violated the two contested standards, and if so, what penalty, if any, is appropriate therefore.

OPINION

Respondent, acting [*6] without legal counsel, under date of April 13, 1973, filed its answer with the Review Commission in response to the complaint served by the Solicitor. Such complaint was filed with the Review Commission on March 27, 1973. The answer contained a request that a variance be granted concerning each of the contested items. Respondent, mistakenly, was of the belief that such a request contained in the answer constituted a proper application for a variance. In open hearing, respondent was advised that it was not the function of the Review Commission in proceedings held before it to consider any application for a variance. The Commission is and was without authority to consider any such application. Respondent was informed that the proper party to whom such application should be made was the Secretary of Labor. n1

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n1 Section 6(d) of the Act.

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It is pertinent and noted that respondent did make an application for a variance concerning the two contested standards herein and that its notice of application was published in [*7] the Federal Register on October 11, 1973 (38 FR 28122). I also take official notice that respondent's application for a variance has been granted. Such variance specifically involves the two standards alleged to have been violated herein. The notice of the granting of such a variance from the two standards cited in items no. 16 and 17 was published in the Federal Register, Vol. 39, page 32670, on September 10, 1974.

I am of the firm opinion that the issue as to whether the citation herein was issued with reasonable promptness as required by Section 9(a) of the Act falls squarely within the purview of the Review Commission's lead decision on this question in Secretary v. Chicago Bridge & Iron Company, 6 OSAHRC 244 (January 23, 1974) and subsequent Commission cases pertinent thereto.

The issue of reasonable promptness of the issuance of the citation was first raised in this proceeding by an order of this Judge, dated May 24, 1973, directed to the Solicitor to present evidence on the question at the hearing. The file herein reflects that this case was assigned to this Judge under date of May 16, 1973, and was received on May 21, 1973. When the pleadings [*8] were reviewed it was patently evident that respondent was not represented by professional counsel, and that there was a noticeable lapse of time between the inspection held on January 22, 1973, and the issuance of the citation on March 8, 1973. The case still being in the issue formulation stage of the proceeding, this Judge, for such additional reasons as is contained in the record of this proceeding herein, made the direction to the Solicitor to present evidence on the above question at the hearing. The Solicitor complied with such direction and the record of hearing reflects the testimony.

The evidence is that an inspection of respondent's premises was made by the compliance officer on January 22, 1973. A closing conference was held with respondent's corporate officers on January 26, 1973. At that time, as is evident by the discussions held at the closing conference concerning possible abatement of the two contested standards, Complainant, through its compliance officer, had made a determination that these two violations had occurred. However, it was not until March 8, 1973, that the citation was issued to respondent by mail and subsequently received in the normal course [*9] of postal delivery. Assuming for the sake of argument that the dates of January 22, 1973 and March 8, 1973, are excluded, there is a period of time between those two dates of 44 days. Assuming further that the date of January 26th is used, and, again excluding that date and the date of March 8th, there was a minimum lapse of 40 days.

The Review Commission in Chicago Bridge & Iron Company, supra, ruled that an unexplained 32-day delay between the OSHA inspection and the issuance of a citation was fatal so as to require a vacating of the citation. It was held that barring exceptional circumstances the "reasonable promptness" requirement of the Act meant a time period of three working days from the moment that OSHA had formed a belief that a violation had occurred. In this proceeding there was a lapse of at least 40 days from OSHA's moment of decision. The testimony in the record by the compliance officer seeks to excuse the failure to issue the citation prior to March 8, 1973. I am not persuaded however that such explanation constitutes "exceptional circumstances" to warrant a deviation from the application of the rule of law established in the above guideline case. [*10]

This Judge deems it his responsibility and within his discretionary authority, especially where a respondent is acting without professional counsel, to raise such an issues as this prior to a hearing to afford Complainant the opportunity of setting forth on the record any extenuating circumstances for any delay in issuing a citation in excess of 72 hours. cf. Secretary v. Advance Air Conditioning, Inc.,

I conclude therefore that complainant has failed to comply with the provisions of Section 9(a) of the Act n2 in that he did not issue the citation herein to the respondent with reasonable promptness. Accordingly, the contested items of the citation, namely items no. 16 and 17 and any penalty proposed therefore should be vacated.

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n2 29 USC 658(a)

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III

Having made the above determination on the issue of reasonable promptness the remaining issue is moot. The above opinion is also dispositive of any outstanding motions whose decision was reserved [*11] at the time of the hearing.

FINDINGS OF FACT

1. Respondent is a corporation organized under the laws of the State of New York, and maintains a principal place of business at Saratoga and Cortland Streets, Cohoes, New York (Pleadings).

2. Respondent is an employer engaged in an interstate business which affects commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act (Stipulation).

3. Respondent, at all times pertinent herein, was engaged in the business of manufacturing of fabrics and the reclaiming of textile fibers in the Albany, New York area. It is the largest company of that type within its geographical vicinity and employes approximately 400 persons daily (Stipulation and Pleadings).

4. On January 22, 1973, Joseph W. Deavers, Jr., an OSHA Compliance Officer, conducted an inspection of the above work place. He held a closing conference with certain of respondent's management personnel on January 26, 1973, at which the violations herein and abatement dates were discussed.

5. The citation and notification of proposed penalty were issued to respondent on March 8, 1973, by mail from the OSHA area office at Syracuse, New York (Pleadings). [*12] From the inspection date to the date of issuance of the citation, excluding both of such dates, was a lapse of time of forty-four (44) days. From the date of the closing conference to the date of the issuance of the citation, excluding both of such dates, was a time lapse of forty (40) days.

6. On or about January 26, 1973, complainant, in the person of his compliance officer, had formed a belief that respondent should be cited for the nonserious violation of the two standards contested herein. More than three working days elapsed between that date and the issuing of a citation. No exceptional circumstances have been shown of record for delaying the issuance of the citation beyond the three day period.

CONCLUSIONS OF LAW

1. Respondent, at all times pertinent to this proceeding, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

2. Respondent was subject to the requirements of the Act, including Section 5(a)(2), and the occupational safety and health standards promulgated thereunder.

3. The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein.

4. Respondent on January [*13] 22, 1973, was in violation of the standard codified as 29 CFR 1910.242(b) as alleged in Item No. 2 of the citation.

5. The assessment of a penalty of $60.00 for the nonserious violation set forth in Item No. 2 of the citation should be affirmed.

6. The citation herein issued to respondent on March 8, 1973, was not issued with reasonable promptness as provided by Section 9(a) of the Act. Items no. 16 and 17 of said citation and any penalty proposed therefore should be vacated.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, and upon the entire record of this proceeding, it is ORDERED that:

1. Respondent's motion to withdraw its notice of contest to Item No. 2 of the citation is granted.

2. Item No. 2 of the citation charging a nonserious violation of 29 CFR 1910.242(b) and the proposed penalty assessed in the sum of $60.00 is affirmed.

3. Item No. 16 of the citation herein charging a nonserious violation of 29 CFR 1910.262(d)(4), for which no penalty was assessed therefore, is vacated.

4. Item No. 17 of the citation herein charging a nonserious violation of 29 CFR 1910.178(m)(9) and the proposed penalty of $30.00 assessed therefore, is [*14] vacated.