CONSOLIDATED PINE, INC.

OSHRC Docket No. 5543

Occupational Safety and Health Review Commission

May 1, 1975

[*1]

Before VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before us on my direction of a report made by administrative law judge Garl Watkins pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act). It was instituted by Respondent's notice that it desired to contest a $90 penalty proposed for an alleged repeat violation n1 and contest a second and separate allegation that it was a willful-serious violation of the Act. The alleged repeat violation concerned a work platform, and the alleged willful-serious violation was with respect to unguarded trim saws.

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n1 29 U.S.C. 666(a).

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The Secretary filed his complaint and reiterated the willful-serious charge. The repeat allegation was charged as a repeat and non-serious violation. Respondent duly answered, and the matter was assigned to Judge Watkins.

After receiving the case, the judge on March 13, 1974, wrote counsel for both the Respondent and the Secretary [*2] and informed them of our decision concerning reasonable promptness in Chicago Bridge & Iron Company, 6 OSAHRC 744, 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). Respondent had not, as of the date of the judge's letter, pleaded that the citations had been untimely issued.

By the letter, the judge instructed counsel for the Secretary as follows:

This letter will serve as a direction to Mr. Preston to have available on the day of the hearing so that he may be called as a witness, the Area Director or, if someone was acting in his place, the person who made the decision regarding the issuance of the Citations and Notification of Proposed Penalty.

The Compliance Officer who made the inspection or investigation leading to the Citation will also be available and both witnesses will have with them all records concerning the inspection, notes made by either or both, correspondence between them, and all other records of every type and description having to do with this case.

On March 19, Respondent's counsel amended his answer and denied that the citations had been issued pursuant to section 9(a) of the [*3] Act.

The hearing was convened on April 18. Both parties appeared through counsel. They stated their intent to settle the case according to the following terms: the Secretary would move to amend the willful-serious allegation to allege a serious violation on the ground that he could not prove a willful violation. He would also move that the penalty proposal be reduced from $5,400 to $1,000. Respondent in turn moved to withdraw its notice of contest.

Judge Watkins accepted the stipulation. However, he went beyond the stipulation and spoke as follows with respect to the repeat, non-serious allegations:

Judge Watkins: I don't want any repeated non-serious violations, because "repeated" in the statute is in the same category as "willful." So in the process here, we are going to strike out "repeated."

Mr. Preston: Well, are you speaking now on Citation No. 2?

Judge Watkins: I'm going back to the $90 one. You have alleged that it is not serious in character and it is repeated . . .

Judge Watkins: You can't go to trial before me with that king of allegation, Mr. Preston . . . . So we will knock out the "repeated." . . .

Judge Watkins: It doesn't make any difference in the case, [*4] except, I am not going to enter an order that it was "repeated." Perhaps I should just confine my remarks to that . . . . I am not inclined to interfere with the settlement.

Thereafter, Judge Watkins issued his report. He said:

There is no question about the fact that the agreement of the parties, leading to the disposition of the case made herein were reached in good faith and it is in the public interest to approve them.

According to his order, however, he would modify the citation for repeat violation to find a non-serious violation.

The Judge noted correctly that the settlement, as proposed, was in the public interest. But we fail to see how his modification of the citation can be said to be in the public interest. It was made only on his concept of what the law should be and his concept of how the Secretary should draft his pleadings, that is, it was made on his construction of issues that were not in the case. And it was made in the face of Respondent's concession that it was in repeated violation as evidenced by the motion to withdraw. Accordingly, the Judge committed error by injecting his own views on matters removed from issue and then acting on them. [*5]

As for the letter of March 13, 1974, we believe the Judge's instructions were improper. It is one thing to advise the parties of a recent decision having bearing on issues already in a case. It is an entirely different thing to bring new issues to their attention as he did by calling attention to the defense of reasonable promptness. But serious as that may be, he went further. He instructed the Secretary to have available as witnesses those individuals who could testify on the new issue. He, therefore, on his own motion, raised an affirmative, non-jurisdictional defense for one party. By doing this he acted improperly; he interjected himself and the issue on the side of one of the parties. Such actions will not be condoned. See N.L.R.B. v. National Paper Company, 216 F.2d 859 (5th Cir., 1954); N.L.R.B. v. Bryan Mfg. Co., 196 F.2d 477 (7th Cir., 1952).

Accordingly, the Judge's report is rejected and the citations and proposed penalties as amended by the settlement agreement are affirmed. It is so ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in my colleague's disposition. The same penalty was assessed despite the Judge's modification [*6] of the allegation of a "repeated" violation. The Judge may have been properly concerned with a problem of surplusage in the allegation of a "non-serious" "repeated" violation. But his striking of the classification of "repeated" on his own and without entertaining argument from counsel goes beyond the pale of permissible judicial activism. Moreover, I see no reason why a non-serious violation that is repeated cannot be alleged as such under section 17 of the Act.

[The Judge's decision referred to herein follows]

WATKINS, JUDGE: The hearing in this case opened in Bend, Oregon as scheduled April 18, 1974. The record shows compliance with Rules of Procedure regarding service and posting and no one appeared seeking to assert a party status.

At issue were two alleged violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. The first, contained in Citation No. 2, was alleged in the citation to be "repeated" and designated in the complaint as "non-serious." A penalty of $90.00 was sought.

The second, contained in Citation No. 3, was alleged in both the citation and complaint as "willful-serious," and the penalty in the amount of $5,400.00 [*7] was asked. With the concurrence of counsel for Respondent, the Solicitor moved for several amendments to the complaint and citations; the principal effects of which were to remove the "willful" designation from the second alleged offense, redesignated "serious," and reduce the penalty to $1,000.00. Respondent moved for leave to Withdraw its Notice of Contest to both citations and penalties. The trial Judge struck from the complaint and citation the designation "repeated" to the alleged violation first named above.

Without going into details of the evidence, the Solicitor represented that his proof of such would be unlikely, or perhaps impossible, to establish a willful violation of the Act. Both parties agreed on May 18, 1974 as an abatement date for the violations in question.

There is no question about the fact that the agreement of the parties, leading to the disposition of the case made herein, were reached in good faith and it is in the public interest to approve them.

Now therefore, it is hereby ORDERED:

1. That Citations No. 2 and 3 issued to Respondent November 13, 1973, growing out of an inspection October 25, 1973 of Respondent's workplace and place of employment, [*8] 1 mile west of Prineville, Oregon on Lamonta Road, and as amended alleging a violation and a serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.; and the proposed penalties therefor in the amount of $90.00 and $1,000.00, respectively, be and the same hereby are Affirmed.

2. That Respondent's Motion to Withdraw Notice of Contest with respect to both such violations is granted.

3. That the abatement date for both such violations is May 18, 1974.