PLEASANT VALLEY PACKING CO., INC.
OSHRC Docket No. 464
Occupational Safety and Health Review Commission
January 4, 1973
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
OPINIONBY: BURCH
OPINION:
BURCH, COMMISSIONER: On July 21, 1972, Judge Joseph L. Chalk issued his recommended decision and order in this case whereby he vacated the October 26, 1971 citation and notification of proposed penalty as well as the January 18, 1972 citation, as amended, and the notification of failure to correct violation and of proposed additional penalty.
Thereafter a direction that Judge Chalk's decision be reviewed by the Commission was issued and submissions were invited on various issues.
The Commission has reviewed the entire record in this case as well as the briefs submitted by the parties, and we adopt the Judge's decision in this case only to the extent that it is consistent with established Commission precedent.
In Secretary of Labor v. Lennox Industries, Inc., The facts of record herein, as developed during the course of the hearing, show that respondent wrote to the Secretary's area director two days after receipt of the October 26, 1971 citation and notification of proposed penalty asking that the "penalty for these alleged violations be waived." This letter constituted a notice of contest which apparently was never forwarded to the Commission.
While we agree with Judge Chalk's disposition of this case and his reliance upon Lennox Industries, we specifically disassociate ourselves from those gratuitous comments made by the Judge in his decision which are unnecessary to that disposition. Nor do we believe that the issues upon which submissions were requested are relevant to such determination.
Accordingly, it is ORDERED that the Judge's order is affirmed.
CONCURBY: MORAN
CONCUR:
MORAN, CHAIRMAN, concurring: Both the Judge and the Commission have reached the correct disposition of this case but, in so doing, both have failed to address themselves to the reason for invalidating the citation dated January 18, 1972.
Complainant issued two citations against this Respondent: The first one, citing 21 alleged violations of occupational safety and health standards, was dated October 26, 1971, and the second one, citing nine such alleged violations, was dated January 18, 1972.
The proposed penalties which accompanied the January citation were based on the erroneous assumption by the complainant that the October citation had become a final order of the Commission. The fact that the proposed penalties were out of order, however, does not invalidate the citation.
Neither the Judge nor this decision of the Commission assigns any reason for vacating the January citation.
This citation charged that Respondent was in violation of nine occupational safety and health standards. A full hearing has been held and, despite the fact that the Judge vacated the citation without explanation, the Commission has the authority, on the basis of that hearing, to rule on each of those alleged violations and, if found, to assess an appropriate penalty.
In my opinion, the record is sufficient to dispose of that citation on the merits. However, I believe that the citation was not issued pursuant to the requirements of section 9(a) of the Act and is, therefore, invalid.
Section 9(a) provides that:
If, upon inspection . . . the Secretary or his authorized representative believes that an employer has violated . . . any standard . . . promulgated pursuant to section 6 . . . he shall with reasonable promptness issue a citation to the employer [emphasis supplied].
Congress left no doubt as to what it meant by reasonable promptness, as demonstrated by the following:
"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 Congress, 2d Session, on the Occupational Safety and Health Act of 1970 at page 38.
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In this case the inspection took place on December 14, 1971. The Citation issued 35 days later on January 18, 1972. There is nothing in this record that indicates any exceptional circumstances which could justify a delay of this length.
This statute creates duties and responsibilities on the Secretary of Labor, as well as on employers and others. The Secretary must be held to the same standard as the employer. The Act requires that if the Secretary believes that an inspection discloses a violation, he must act with reasonable promptness to issue a citation. Where the Secretary fails to do so, the Citation is null and void, since it does not comply with the mandate of section 9(a).
Where the Citation itself is invalid, any abatement date specified therein and any penalty proposal based thereon are thereby rendered of no force and effect.
In his decision the Judge quite properly commented upon the enforcement procedures which were disclosed during the hearing on this case. His comments deserve re-emphasis and are paraphrased below.
After the Secretary's representative concluded his September 23d inspection, he stated that he set a 30-day period for abatement of what he believed were violations of the Act in a conversation with the employer's representative.
The Judge questioned him on this point during the hearing, and the following exchange took place:
Q. You made a statement -- may I see Exhibit C-1 -- you said something to the effect, I believe, that the original abatement date was 30 days from the date of your inspection; is that what I understand you to say?
A. The way we must inform the people at the time of our inspection is that the law permits them -- permits us to allow them 30 days. In other words, we state to them that they have a 30-day period from the day we make an inspection that they should have the items corrected. The law states that, the Act. That's what we're instructed at the office.
It should be clear that unless and until a valid Citation is served upon the employer the employer is not charged with any violation of the Act and is under no legal obligation to abate any condition which a Department of Labor compliance officer may believe to be a violation of the Act. The statute in section 9(a) specifies that "the Citation shall set a reasonable time for abatement of the violation" [emphasis added].
This extra-legal practice, whereby compliance officers set the abatement period on the day of the inspection, so inform the employer, and decree that it commence to run as of that date, which the Judge found to be "apparently prevalent in this regional area," may explain why the Labor Department decided it did not need to be prompt in issuing the Citation.
[The Judge's decision referred to herein follows]
CHALK, JUDGE, OSAHRC: Jurisdiction of this case ostensibly vested with this Commission on January 25, 1972, when Respondent filed with Complainant a Notice of Contest relating to the latter's proposed assessment of additional penalties in the amount of $7,675.74 against Respondent for failure to abate nine alleged violations of the Occupational Safety and Health Act of 1970, (Record Ex. 3). These nine items originally were a part of twenty-one alleged violations, all characterized as nonserious, contained in a previous Citation, accompanied by a Notification of Proposed Penalty, issued against Respondent on October 26, 1971, as a result of an inspection of respondent's meat processing and packaging plant conducted by a Department of Labor compliance officer on September 23, 1971 (Trial Ex. C-1). n1
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n1 Twelve of the items in the original Citation were timely abated. The remaining nine items were abated within three days after the reinspection of Respondent's workplace on December 14, 1971 (Tr. 96, 97, 107).
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During the hearing of the case, I ruled, over Respondent's objection, that the original Citation and the proposed penalties therefor became the final order of the Commission by operation of law, because of Respondent's failure to file a Notice of Contest (Tr 12-16, 39-43, 77-89). Upon further consideration of this ruling in light of a decision promulgated by this Commission since the date of the hearing ( Secretary of Labor v. Lennox Industries, Inc., Docket No. 1106, July 7, 1972), I am convinced that it cannot stand. As Lennox dictates that the Secretary's original Citation and proposed penalty in this case be vacated, thereby eliminating the foundation for assessment of additional penalties for failure to abate, I need not summarize or evaluate the evidence adduced at the hearing on the merits of the case.
In Lennox, the employer dispatched a letter to the Secretary's representative within the time prescribed, after receipt of the Citation and Notification of Proposed Penalty, which dealt largely with its past safety and health program and its measures to abate the violations within the time prescribed. Therein, it was briefly stated that "we believe that the financial penalties proposed are excessive," and requested that "[the Secretary] review the proposed penalties and please advise us." Because this letter was not treated by the Secretary as a Notice of Contest and forwarded to this Commission within three days after its receipt (Commission Rule 2200.7(c)(2)), the Commission vacated the Citation and proposed penalty.
The circumstances here are strikingly similar to Lennox, for Respondent dispatched a letter to the area director two days after receiving the original Citation and Notification of Proposed Penalty averring that the proposed penalties were "unjustifiable" and requesting that they be "waived" (Record Ex. R-A). I find no appreciable distinction between the circumstances in Lennox and those prevailing here.
Although my Order serves to terminate these proceedings sine die, I am constrained to make several observations arising from my study of this record. I address my comments first to Respondent's claim at the hearing that it was unable to abate the nine items because the Citation lacked specificity or clarity, a claim frequently urged before me in other cases. I am, of course, neither oblivious to nor unsympathetic toward Complainant's counterargument to this claim based primarily on the facts that a company representative was present throughout the inspection and that a closing conference was held after the inspection.
While I am not disposed to resolve this conflict, it is obvious to me that the Citation in question, in handprinted form and somewhat difficult to read, is relatively non-specific as Respondent claims. These short-comings, when considered in light of the fact that the Citation was not issued until more than thirty days after the inspection, coupled with the favorable presumptions flowing from Respondent's timely abatement of more than half of the items in the Citation, lend credence to Respondent's claim. Be that as it may, it would appear that we are fast approaching the point where the Secretary's case in this respect should stand or fall on the Citation itself, thus relieving judges and members of this Commission of the difficult burden of resolving the controversy on the tenuous claims and counterclaims of witnesses whose differing versions of the events are no doubt dimmed by the passage of time, a period extending to almost eight months in this case, and perhaps tempered by self-serving motivations. The Citation is, after all, a vital instrument under the Act serving to set the enforcement procedure in motion. Unless and until it is prepared and served, the employer is not formerly charged with any violation of the Act. It should therefore be prepared with precision.
Next, I briefly allude to a practice that came to light during this hearing, apparently prevalent in this regional area, whereby compliance officers set the abatement period on the day of the inspection, so inform the employer, and decree that it commence to run as of that date. In this particular case, the Citation, when finally issued more than thirty days after the inspection, apparently adopted the previously set date, with the result that Respondent received the Citation one day before the abatement period expired. That this practice does not accord with the mandate of the Act is clear beyond question:
. . . In addition, the Citation shall fix a reasonable time for abatement of the violation. (Sec. 9(a), Occupational Safety and Health Act of 1970). (Emphasis added)
It also violates the Department of Labor's Compliance Operations Manual (Chap. X, para. F.1.a. and b.).
Finally, five of the items charged in the original Citation, one of which is involved in the failure to abate proceedings, variously allege unsanitary conditions in toilet rooms (two separately alleged items), on floors (two separately alleged items), and on a stairway. As sanitary conditions throughout meat packaging and processing plants are, by Congressional enactment, subject to standards or regulations promulgated and enforced by the Secretary of Agriculture (Federal Meat Inspection Act, 34 Stat. 1260, as revised by the Wholesome Meat Act, 8 Stat. 584; 9 CFR Part 308; Sanitation Handbook of Consumer Protection Programs, United States Department of Agriculture, Chap. XXXII), this Commission may not have jurisdiction over these particular allegations, notwithstanding the differing objectives of the two statutes (See Section 4(b)(1), Occupational Safety and Health Act of 1970; see also Secretary of Labor v. Legore Quarries Division-Phoenix, Inc., Docket No. 58, decided June 14, 1972). However, this question will have to be resolved in a more appropriate setting.
The Citation and Notification of Proposed Penalty, both dated October 26, 1971, and the Citation, as amended, and Notification of Failure to Correct Violation and of Proposed Additional Penalty, both dated January 18, 1972, are vacated.
It is so ORDERED.