CHICAGO BRIDGE AND IRON COMPANY

OSHRC Docket No. 744

Occupational Safety and Health Review Commission

January 23, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order directing review of a decision issued by Judge Sidney J. Goldstein. Judge Goldstein affirmed Complainant's citation for serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act") and 29 C.F.R. 1926. 352(d) n1.

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n1 The cited standard provides: "Suitable fire extinguishing equipment shall be immediately available in the work area and shall be maintained in a state of readiness for instant use."

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For the reasons hereinafter stated, we do not reach the merits of Complainant's citation. We adopt the decision of the Judge only to the extent it is consistent with this decision.

On February 1, 1972, an employee of Respondent engaged in welding the top of a chemical tank at least 80 feet above ground was fatally injured when his clothing caught fire. As a result of the accident [*2] Complainant's compliance officer conducted an inspection of the work site on February 7. A preliminary draft of a citation and penalty assessment were prepared on February 8 and forwarded immediately to Complainant's Area Director for action. The Area Director's work load was such that two to three weeks were required by him to act on recommendations of the kind involved here. However, in this case the citation did not issue until March 10, n2 i.e., four weeks and two days after the submission of the preliminary drafts. The additional delay of 9-16 days is unexplained on the record. n3

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n2 The citation alleged that Respondent had failed to have suitable fire extinguishing equipment immediately available in the work area.

n3 Complainant was afforded the opportunity to adduce evidence concerning the additional delay. He chose to rest his case and rely on argument.

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At an early stage in this proceeding Respondent by way of affirmative defense contended that the citation had not been issued with "reasonable [*3] promptness" as required by section 9(a) of the Act. n4 Respondent would have us vacate.

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n4 Insofar as it is pertinent herein section 9(a) provides as follows:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard promulgated pursuant to section 6 of this Act . . . the employer . . . [T]he citation shall fix a reasonable time for abatement of the violation . . . .

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Complainant agreed that a citation must be issued with "reasonable promptness." He argues that the citation in this case was timely issued and he relies on section 9(c). n5 The point of his argument is that a citation is issued with "reasonable promptness" so long as it is issued within six months of the occurrence of the violation. Judge Goldstein agreed and affirmed the citation. We reverse.

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n5 Section 9(c) provides that:

No citation may be issued under this section after the expiration of six months following the occurrence of any violation.

[*4]

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The weakness of Complainant's position is that he would have us construe the Act so as to create a redundancy. See Jarecki v. G.D. Searle & Co., 367 U.S. 303, 308 (1961). That is, were we to adopt his position, the reasonable promptness requirement of section 9(a) would be redundant to the six month requirement of section 9(c). The result would be to write the section 9(a) requirement of "reasonable promptness" out of the Act. We need not produce such result because we can construe the sections so as to give meaning and significance to each ( Jarecki v. G.D. Searle & Co., supra at 307) and so as to "produce a symetrical whole" with the Act. ( FPC v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 514 (1949)).

It is our judgment that section 9(c) is a statute of limitations. It is written in terms usually employed for such purposes, and it was characterized as such by the House and Senate Conferees. H.R. Rep. No. 91-1765, 91st Cong., 2d Sess. 38 (1970). Accordingly, its only function is to act as a bar of limitations to the issuance of a citation for an old or stale [*5] violation.

Section 9(a) on the other hand governs the issuance of citations for alleged violations which are not subject to the bar of section 9(c). Such citations must be issued with "reasonable promptness." The term "reasonable promptness" is imprecise when viewed in isolation. On the other hand, it follows the phrase "[i]f, upon investigation, the Secretary or his authorized representative believes that an employer has violated . . . this Act," and therefore the term does not have application to the decisional process of forming a belief that a violation has occurred. When the decisional process ends, only ministerial tasks remain to be performed, e.g., the tasks of typing, signing, and mailing the citation. We conclude that the term "reasonable promptness" has application to such tasks. The conclusion, however, does not make the term precise. We therefore turn to the legislative history for assistance.

The question before us was also before and answered by the House and Senate Conferees. They said:

"[I]f the Secretary 'believes' that an employer has violated [mandatory requirements under the Act], he shall issue the citation with reasonable promptness. In [*6] the absence of exceptional circumstances any delay is not expected to exceed 72 hours from the time the violation is detected by the inspector." H. Rep. No. 91-1765, 91st Cong. 2d Sess. 38 (1970).

In view of this history, we conclude that absent exceptional circumstances Complainant or his authorized representative must perform the ministerial tasks involved in issuing a citation within 72 hours from the time he has formed his belief that a violation has occurred. We assume that Congress did not intend weekends or holidays to be included within the 72 hour period so the period prescribed here is three working days.

We are also of the belief that the rule announced herein best serves the fundamental purpose of this Act. That purpose is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." n6 This purpose is best served by the prompt abatement of safety and health violations. Prompt abatement can be achieved only when an employer receives prompt notification of the conditions which are believed to be in violation of the Act's requirements. On the other hand, prompt abatement cannot be [*7] achieved when Complainant is dilatory in performing his ministerial tasks. Such delay can only result in unnecessary employee exposure to unsafe and unhealthful working conditions.

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n6 29 U.S.C. 651(b).

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We turn now to the facts of this case. As inferred above Complainant's authorized representative was his area director. Because of his work load this official required two to three weeks to act on the recommendations of his compliance officers. He took over four weeks in this case, and Complainant offered no explanation for the additional delay. We therefore find that the area director formed his belief within his usual period, and concluded that the citation herein was not issued with reasonable promptness.

Respondent raised the issue of reasonable promptness during the issue formulation stage of this proceeding, n7 and requested vacation of the citation. We will give Respondent the relief it requests. We do so knowing that we may be vacating a citation that might otherwise have been affirmed or modified. [*8] Nevertheless, as we said above, we believe our action best effectuates the fundamental purpose of this Act. Moreover, we believe that this kind of case will be a rarity. We expect Complainant will comply with the Congressional mandate to issue his citations with reasonable promptness.

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n7 This is the kind of issue that can and should be raised early in the proceedings, i.e., in the notice of contest or in the employer's answer. Because it is such an issue we will deem it waived if it is not raised during the issue formulation stage.

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Accordingly, it is ORDERED that the citation and notification of proposed penalty are vacated.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I respectfully dissent from the position taken by the majority on the sensitive and significant issue of "reasonable promptness." The Commission has adopted a position on section 9(a) "reasonable promptness" that is impractical and without adequate legal justification. The decision threatens to seriously impair the effective implementation of enforcement [*9] proceedings under the Act.

At the heart of the majority's opinion is the proposition that a citation must be issued within three working-days from the moment that the Area Director has formed a belief that a violation has occurred. In the event that a citation is not issued within that time period and a respondent has so alleged in its notice of contest or answer, then the Commission will vacate the citation and proposed penalty.

The fallacies of this result are manifest, and I am constrained to indicate its numerous deficiencies.

I.

The majority assumes that a meaningful and determinable distinction can be drawn between the components of an "investigation" and the subsequent so-called ministerial tasks of citation issuance. After a compliance officer has completed his inspection of the worksite much work remains before a citation can be issued. The compliance officer must review his notes, check the applicable standards, consult with his superiors, and compute a reasonable penalty. In appropriate cases, expert witnesses must be consulted, scientific testing performed, and photographie and other evidence reviewed. After all of this work has been completed the compliance [*10] officer submits recommendations to the Area Director who then reviews the entire case before deciding on a course of action. See Compliance Operations Manual (January 1972) Chapters XII, XIII.

The majority's opinion indicates that there is a discernible point in time at which the Area Director decides to issue a citation, but before he actually signs it. This is unsupported by the record in this case. There is no such discernible point. Furthermore, the majority's contention that the signing of the citation is purely ministerial, and contrasts sharply with substantial judicial precedent.

An official action is not ministerial, unless "the duty in a particular situation is so plainly prescribed as to be free from doubt and equivalent to a positive command." Switzerland Co. v. Udall, 225 F. Supp. 812, 820 (W.D.N.C. 1964), aff'd 337 F.2d 56 (4th Cir. 1964), cert. denied 380 U.S. 914 (1965), citing inter alia Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218 (1930). Stated another way, to be ministerial, the duty must be both peremptory and plainly defined. The law must not only authorize the act, but must require it. Huntt v. [*11] Gov't of Virgin Islands, 382 F.2d 28, 46 (3d Cir. 1967), citing United States ex rel. Int'l. Constr. Co. v. Lamont, 155 U.S. 303, 308 (1894).

Applying this precedent, I find nothing in the Act that states explicitly or implicitly that citation issuance is ministerial.

When the act to be performed involves the exercise of extensive judgment and investigation, calling for the consideration and decision of many matters, the act is discretionary rather than ministerial. Huntt v. Gov't of Virgin Islands, supra; see also Switzerland Co. v. Udall, supra. The decision as to whether or not to enforce a regulation is clearly a discretionary function. Referring to any Army regulation, the Seventh Circuit stated in Kiiskila v. United States, 466 F.2d 626, 628 (7th Cir. 1972): "It smacks of extreme naivete to suggest that enforcement of this regulation, which finds its analogy in the prosecutorial function generally is purely mechanical and devoid of a judgmental element." n8

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n8 Cf. Powell v. Katzenbach, 359 F.2d 234 (D.C. Cir. 1965), cert. denied 384 U.S. 906 (1966) (The decision to prosecute a criminal case is discretionary and not ministerial).

[*12]

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It is important to note that section 9(a) requires only that a citation be in writing. It does not expressly require that a citation be signed. The Secretary of Labor's regulation concerning the issuance of citations also does not expressly require that a citation be signed by the Area Director as the Secretary of Labor's delegate. See 29 CFR 1903.14. The requirement for a signature is found in the Compliance Operations Manual at XII-18. As used in the Compliance Manual, the provision for the Area Director's signature seems to have the common meaning of authenticating an instrument. See generally 80 C.J.S. Signatures 1 at 1284 (1953). In my view, the provision calls for more than the clerical act of signing the Area Director's name. This adds much force to the contention that the discretionary duties of the Secretary under section 9(a) are not completed until there is a signature by the Area Director authenticating his delegation of authority from the Secretary.

It must be concluded, therefore, that the signing of a citation by an Area Director is an act which is not [*13] severable from the overall investigatory process. It is a clear exercise of discretion and not a ministerial function.

II.

The majority next maintains that a citation must actually be issued within three working-days from the time the Area Director decides to issue the citation. In attempting to bolster this argument the majority cites the following passage from the legislative history:

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. [Emphasis added.]

Legislative History of the Occupational Safety and Health Act of 1970 at 1202 (1971).

It should be noted that the quoted language concerning the Congressional expectation, as distinguished from requirement, refers to the time of the inspection by the compliance officer and not to what has been called the Area Director's investigation. This fact is overlooked by the majority. n9

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n9 Similarly, the majority opinion does not define what it considers to be "extraordinary circumstances," nor does the decision define when a citation is "issued," i.e., whether it is issued when it is signed, mailed, or received.

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The majority's opinion assumes that Congress did not intend weekends or holidays to be included within the 72-hour period, and therefore, set the "reasonable promptness" period at three working-days. There is nothing in the Act or the legislative history to suggest accuracy in this conjecture. n10

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n10 By extending the "reasonable promptness" period from 72 hours to three working days, the majority apparently is seeking to avoid the situation where the 72-hour period begins to run before a weekend or holiday. This possibility is perhaps one indication of why the 72-hour time period was not enacted. See infra.

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Finally, the probative value of this single mention in the Conference [*15] Report, upon which the majority position rests, is questionable. In statutory construction, legislative history is normally used only when a statute is unclear and ambiguous. Bondholders Protective Comm. v. I.C.C., 432 F.2d 268, 271 (3d Cir. 1970) and authorities cited therein. Also, the legislative history relied upon is not inconsistent with the fact that Congress eschewed any specific time requirement of 72 hours. The 72-hour "proposal" is clearly not a requirement. It is a mere expectation. See e.g., Secretary of Labor v. Hoffman Constr. Co.,

Even if the 72-hour "proposal" were to be viewed as a nascent requirement, the courts have recognized that it is inappropriate, and often misleading, to overlook the plain meaning of a statute and rely on unadopted legislative proposals. n11 Committee reports "are neither enacted by Congress nor signed by the President, and thus they do not have the force of legislation." In re Evans, 452 F.2d 1239, 1245 (D.C. Cir. 1971).

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n11 See e.g., Potomac Passengers Ass'n v. C & O Ry., 475 F.2d 325, 335 (D.C. Cir. 1973), wherein the court stated:

Interpretation of statutes cannot safely rest upon changes made in Congressional Committee without explanation. Trailmobile Co. v. Whirls, 331 U.S. 40, 67 S.Ct. 982, 91 L.Ed. 1328 (1947). Courts should avoid delving into "legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction." Gemsco, Inc. v. Walling, 324 U.S. 244, 260, 65 S.Ct. 605, 615, 89 L.Ed. 921 (1945).

[*16]

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From the foregoing, it should be clear that the time for citation issuance under section 9(a) cannot be construed as being three working days from the time an Area Director has completed his investigation. In fact, no specific time limitation should be read into the words "reasonable promptness." By setting a specific time limit for the issuance of citations under section 9(a), the result would be to create a new statute of limitations that is shorter than the six month statute of limitations contained in section 9(c). "Where Congress has provided a specific and relatively short statute of limitations, it can be inferred that the federally created limitation is not to be cut short." Royal Air Properties, Inc. v. Smith, 312 F.2d 210, 214 (9th Cir. 1962); accord United States v. Manufacturers Hanover Trust Co., 229 F. Supp. 543, 546 (S.D.N.Y. 1964).

III.

In addition to the legal inadequacy of the majority position, it is impractical. Area Directors may now feel forced into doing additional paperwork, as by keeping detailed records of when they first determine to issue a [*17] citation and when a citation was actually signed. n12 The Commission has not only opened the door to every respondent to allege that the Secretary failed to comply with section 9(a), without alleging any prejudice resulting from this failure, but it also may place an inordinate burden on the various Area Directors to produce evidence about the details surrounding the issuing of a citation.

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n12 By imposing such artificial restraints on the Area Directors, the Commission may have the effect of encouraging delegation of the Area Director's enforcement discretion to the compliance officers and other subordinates even though such a policy would be expressly contrary to Congressional intent. See Legislative History, supra at 1202.

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A foreseeable effect of the majority decision would be perhaps to require the Area Director to testify at the hearing when the decision to issue a citation was first made, in order to compute the "reasonable promptness" period. Courts have been reluctant to demand that administrative officers [*18] give testimony explaining their actions. The Supreme Court recently recognized the continued vitality of United States v. Morgan, 313 U.S. 409, 422 (1941) in this regard when it stated in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971): "[S]uch inquiry into the mental processes of administrative decision-makers is usually to be avoided."

An administrative agency does not have carte blanche to adopt any broad statement of policy or rule it may desire. n13 Greyhound Corp. v. United States, 221 F. Supp. 440, 444 (N.D. Ill. 1963). Baldly stated, the Commission is arbitrarily imposing on the Secretary a requirement with no statutory or logical justification. To use Judge Tamm's words, the majority approach "is nothing more than arbitrary bureaucracy masquerading as reasoned judgment." Udall v. Washington, Virginia and Maryland Coach Co., 398 F.2d 765, 770 (D.C. Cir. 1968).

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n13 The majority's broad statement of policy may be equated to rulemaking. See K. C. Davis, Administrative Law Text (3d ed. 1972) 6.04 at 145.

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IV.

The majority's holding in this case is based largely on two factual considerations. They are the fact that the issue of reasonable promptness was pleaded as an affirmative defense by respondent and the majority's "finding" that the Acting Area Director formed his belief that there was a violation within his usual period of decision-making. There are serious problems on both points.

It is true that the issue of reasonable promptness was pleaded as an affirmative defense by respondent. The majority is in error, however, when it states that the defense is deemed waived if it is not raised in the notice of contest or answer. n14 A notice of contest is not a pleading; section 10(a) of the Act expressly states that an employer need only notify the Secretary of an intent to contest. n15 In addition, it is well-settled that an affirmative defense not raised in the pleadings can be raised at the hearing by amendment, by a motion for judgment on the pleadings, or by a motion for summary judgment. n16

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n14 The majority has referred to this as the "issue formulation stage."

n15 Section 10(a) of the Act provides inter alia:

If within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under subsection (c) within such time, the citation and the assessment as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency. [Emphasis added.]

n16 5 Wright & Miller, Federal Practice and Procedure (1969) 1277 at 333-35. Administrative pleadings are very liberally construed and very easily amended. National Realty & Constr. Co., Inc. v. O.S.H.R.C., No. 72-1978 (D.C. Cir., December 13, 1973) (slip op. at 11); See also K. C. Davis, Administrative Law Text, supra, 8.02 at 196. In addition, the Commission's own policy is in favor of liberal amendments to pleadings; e.g., Secretary of Labor v. Brisk Waterproofing Co., No. 1046 (July 27, 1973).

[*20]

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The second factual basis for the majority's holding is its "finding" that the Acting Area Director formed his belief that there was a violation within his usual period of decision-making. n17 There is nothing in the record to support such a finding.

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n17 It was stipulated that the area office generally had a case backlog of about two to three weeks and the citation was not issued until 32 days after the inspection.

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The majority notes that the Secretary was afforded an opportunity to explain the delay and he declined. The Secretary did argue that in his opinion the 32-day delay between the compliance officer's inspection and the issuance of the inspection was not unreasonable. n18 At no time before the issuance of this decision was the Secretary apprised that the crucial date in the entire chain of events was the point in time when the Acting Area Director formed his belief. As the Court of Appeals for the District of Columbia indicated [*21] in National Realty, "It is patently unfair for an agency to decide a case on a legal theory or set of facts which was not presented at the hearing." n19 The court went on to point out that "the Commission's expertise must operate upon, not seek to replace, record evidence." n20 In the present case there is no record evidence of the date when the Acting Area Director formed his belief that there was a violation.

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n18 Although I share the Secretary's view in this case, I do not adopt his position that any citation issued within six months of an inspection is reasonable. See infra.

n19 National Realty & Constr. Co., Inc. v. O.S.H.R.C., supra, note 10 (Slip op. at 18, note 40).

n20 Id. (Slip op. at 18).

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V.

Having discussed the majority's legal and factual bases for determining that the citation was not issued with reasonable promptness, we next turn our attention to the remedy imposed by the Commission.

Upon a mere showing that the issue of reasonable promptness was raised by respondent [*22] in its answer and upon a finding that the delay was "unexplained," the Commission has vacated the citation and proposed penalty. This action constitutes a clear abuse of discretion.

Even the majority has recognized that the underlying purpose of having citations issued with dispatch is so that prompt abatement can be achieved. Prompt abatement of safety and health hazards is for the protection of employees. Consequently, the Congressional purpose of assuring "so far as possible every working man and woman in the Nation safe and healthful working conditions" n21 is undermined by the Commismission's vacating a citation on such a tenuous technicality. Referring to the Commission's vacating of a citation because the Secretary was not diligent in forwarding an employer's notice of contest, the Fifth Circuit recently stated in Brennan v. O.S.H.R.C. and Bill Echols Trucking Co.:

We can find no justification for permitting an employer . . . to go unpenalized for an admitted serious violation of a safety standard under the banner of a rule designed to protect employees. Congress could not have intended such a result, and it gave the Commission no authority to produce [*23] such a result. n22

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n21 29 U.S.C. 651(b) (1973).

n22 Brennan v. O.S.H.R.C. and Bill Echols Trucking Co., No. 73-1670 (5th Cir., November 13, 1973) (slip op. at 11).

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The remedy invoked by the Commission in the present case is all the more disturbing in light of clear precedent holding that the Commission will not and should not vacate a citation for the failure to comply with a procedural rule absent a showing of prejudice to a respondent.

In Secretary of Labor v. Chicago Bridge & Iron Co.,

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n23 This case was appealed to the United States Court of Appeals for the Seventh Circuit and dismissed on other grounds sub nom. Chicago Bridge & Iron Co. v. O.S.H.R.C., No. 73-1181 (7th Cir., May 31, 1973); accord Secretary of Labor v. Wright-Schuchart Harbor Contractors,

[*24]

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In Secretary of Labor v. J. Dale Wilson, Builder, In cases of this kind the Secretary should be afforded the opportunity to explain the delay and Respondent the right to show that it has been prejudiced thereby. n25

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n24 Accord Secretary of Labor v. ADM Grain Co.,

n25 Secretary of Labor v. J. Dale Wilson, Builder, supra at 3.

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The [*25] Commission's holding in J. Dale Wilson was expressly endorsed by the Fifth Circuit in Bill Echols. "Commission decisions in subsequent cases apparently have recognized that at least a finding of prejudice to the employer must precede dismissal of a proposed penalty for violation of a procedural rule." n26

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n26 Brennan v. O.S.H.R.C. and Bill Echols Trucking Co., supra note 17 at 11. For a discussion of the effects of a snowing of prejudice, see infra.

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It should be noted that the statutory criteria for forwarding a notice of contest under section 10(c) is "immediately." In J. Dale Wilson, a remand to determine prejudice was ordered when a notice of contest to be forwarded "immediately" was 20 days late, but in the present case the Commission vacated a citation that was delayed in its issuance 9-16 days (according to the majority) where the statutory standard is only "reasonable promptness." The Commission's holding in the present case is thus clearly inconsistent with J. Dale Wilson.

In [*26] justifying the sanction it has imposed, the majority has stated that a furthering of the fundamental purposes of the Act and abatement of hazardous conditions will result from its action. This is Orwellian reasoning. Abatement of a hazard is never fostered by vacating a valid citation. In fact, the issuance of citations with greater dispatch is not necessarily encouraged by the Commission's de decision. What may be encouraged is a prolongation of the "decisional process" before the signing and mailing of a citation.

Finally, the majority predicts that reasonable promptness cases of this kind "will be a rarity." I have no gift of presage, but I am constrained to observe that it is a matter of public record that there are presently well over forty cases now pending before the Commission involving the issue of reasonable promptness. In many of these cases it may be necessary to remand the proceedings in order to determine the workload and "decisional" date of the Area Directors, even though signed, dated citations are matters of record. n27

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n27 Compare remands to determine prejudice with remands to discover the Area Director's workload. Where no prejudice is shown, I would give no weight to a respondent's defense under section 9(a) See infra.

[*27]

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IV.

My approach to the application of section 9(a) follows. To understand well any part of section 9(a) it is useful to look at section 9 in its entirety.

CITATIONS

SEC. 9. (a) If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health.

(b) Each citation issued under this section, or a copy or copies thereof, shall be prominently posted, as prescribed [*28] in regulations issued by the Secretary, at or near each place a violation referred to in the citation occurred.

(c) No citation may be issued under this section after the expiration of six months following the occurrence of any violation.

Section 9(a) in general, and the "reasonable promptness" phrase in particular, have two readily discernible functions. First, the reasonable promptness provision of section 9(a), in conjunction with the employee notice provision of section 9(b), is designed to encourage the prompt abatement of hazardous working conditions soon after detection. Secondly, section 9(a) is designed to satisfy the due process requirement of notice by apprising employers of the allegations of the Secretary in order that they may preserve evidence and prepare tentative defenses if a notice of contest is filed.

The Secretary has argued that any citation issued within the six month statute of limitations is valid per se. This argument is unconvincing. To hold that section 9(c) represents the only limitation on the issuance a citation is to render the critical portion of section 9(a) meaningless. Such an interpretation is, therefore, not likely to have [*29] been intended by Congress. Consistent with established canons of statutory construction, the term "reasonable promptness" should be assigned a separate meaning.

In determining whether or not a citation has been issued with reasonable promptness, we presume that any citation duly issued within the six month statute of limitations has been issued with reasonable promptness. This is a use of the presumption of regularity and validity of the official acts of administrative officers. United States v. Chemical Foundation, 272 U.S. 1, 1415 (1926); Phillips v. Fidalgo Island Packing Co., 238 F.2d 234 (9th Cir. 1956).

At any time before the close of the hearing, however, a respondent should be able to assert, as an affirmative defense, that the citation was not issued with reasonable promptness. n28 In order to substantiate this defense, respondents must demonstrate two elements that correspond to those essential to the equitable defense of laches: unreasonable delay and resulting prejudice. n29 "In order to establish the defense of laches, the evidence must show both that the delay was unreasonable and that it prejudiced the defendant." Pete v. U.M.W., [*30] 352 F. Supp. 1294, 1299 (D.C.C. 1973), citing Van Bourg v. Nitze, 388 F.2d 557 (D.C. Cir. 1967); Kosty v. Lewis, 319 F.2d 744 (D.C. Cir. 1962), cert. denied 375 U.S. 964 (1963). A similar concept of laches has been used by administrative agencies in applying section 6(a) of the Administrative Procedure Act. n30

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n28 See note 10, supra. The Commission should allow affirmative defenses to be raised for the first time at the hearing. This is in keeping with the liberal approach to pleadings in administrative law. Moreover, in about 45% of the Commission's cases, respondent's appear pro se. It has been held that pro se litigants should not be placed at a disadvantage by the strict enforcement of procedural rules. See e.g., Sanchez v. Standard Brands, 431 F.2d 455, 463 (5th Cir. 1970).

n29 The analogy to the doctrine of laches is appropriate because the two elements that constitute laches are analogous to concepts closely related to the Act. The idea of prejudice has been noted in connection with Bill Echols and J. Dale Wilson, whereas the notion of "unreasonable delay" is similar to the statutory standard of "reasonable promptness" expressed in section 9(a).

n30 "Every agency shall proceed with reasonable dispatch to conclude any matter presented to it except that due regard shall be had for the convenience and necessity of the parties or their representatives." 5 U.S.C.A. 555 (1971). [Emphasis added.] See also note 24 infra.

[*31]

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The statutory standard as expressed in section 9(a) is reasonable promptness. The root word, "promptly," does not mean instantly, but without undue delay. Salinger v. Ling-Tempco-Vought, Inc., 324 F. Supp. 1006, 1008 (W.D. Pa. 1971). Furthermore, "promptly" means a reasonable time when all attendant facts and circumstances are considered. Patterson v. Hall, 430 S.W.2d 483, 485 (Tex. 1968). Consequently, we should consider a number of factors in viewing the reasonableness or unreasonableness of the delay. n31

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n31 In a case involving section 6(a) of the A.P.A., the United States Court of Appeals for the Fourth Circuit stated:

There are no absolute standards by which it may be determined whether a proceeding is being advanced with reasonable dispatch. What is reasonable can be decided only in the light of the nature of the proceedings and the general and specific problems of the agency in discharging its functions and duties.

Deering Millikens, Inc. v. Johnston, 295 F.2d 856, 867 (4th Cir. 1961).

[*32]

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The first factor that should be considered is the actual length of the delay. It is inadvisable to set arbitrary figures as to what period of time is unreasonable, but the delay normally must be extensive to be deemed unreasonable. A number of other factors should also be considered, including the gravity of the alleged violation, whether the cited condition is ongoing or transitory, n32 whether or not there has been abatement, n33 and whether an employer was on notice prior to the actual issuance of the citation as to those conditions for which it was likely to be cited. n34

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n32 An ongoing violation may be said to be one that continues until corrected. A transitory violation may be said to be one for which no lasting corrective measures need be taken.

n33 The health and safety of workers is not in immediate jeopardy where a violative condition has been abated. Unabated hazards, therefore, should be cited first. The purposes of the Act would be furthered by having citations for ongoing and serious violations issued with dispatch, although the Commission cannot compel such a policy.

n34 An employer can be put on notice by the nature of the inspection (such as an investigation of a single accident) or by being directly informed, such as by the compliance officer at the closing conference. In this event, employers will not normally be considered prejudiced by a delay in the issuance of a citation, because they can preserve evidence and prepare tentative defenses before the issuance of a citation.

[*33]

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In order to substantiate the second half of the affirmative defense that a citation was not issued with reasonable promptness, a respondent must demonstrate that it was prejudiced by the delay. The degree of prejudice would be expected to be similar to that required by the defense of laches. "The prejudice normally contemplated in applying laches stems from such factors as loss of evidence and unavailability of witnesses which diminish a defendant's chances of success." Pete v. U.M.W., supra at 1299 citing Powell v. Zuckert, 366 F.2d 634, 638 (D.C. Cir. 1966). The amount of prejudice that must be shown is directly related to the length of the delay. "[T]he longer the delay the less need there is to search for specific prejudice and the greater the shift to plaintiff of the task of demonstrating lack of prejudice." Cason v. United States, 471 F.2d 1225, 1229 (Ct. Cl. 1973), citing Grisham v. United States, 392 F.2d 980 (Ct. Cl. 1967), cert. denied, 393 U.S. 843 (1968).

If a respondent establishes the prima facie elements of the affirmative defense, [*34] undue delay and prejudice, the burden would then shift to the Secretary to rebut either element of the affirmative defense. In his rebuttal, the Secretary could also introduce evidence of other factors which justified the delay, such as the complexity of the case, the possibility of state or federal criminal prosecution, scientific testing, or an extremely heavy caseload.

A respondent should prevail with this affirmative defense only where the Secretary has not been diligent and, therefore, the delay has been inexcusable. It is important to keep in mind that the vacating of citations on reasonable promptness grounds does not add to the safety of workers. We should take such extraordinary action only when there is no other way of providing procedural fairness to the employer.

In the present case, I agree with Judge Goldstein that the 32-day interval between the inspection and the issuance of the citation was not unreasonable. Although respondent's failure to provide fire extinguishers constituted a serious violation of an ongoing nature, it resulted in a single accident and there was prompt abatement. In addition, due to the nature of the accident investigation, respondent [*35] had notice of the possibility of a citation before one was issued. There was no showing of a lack of diligence on the part of the Secretary or any evidence that respondent was prejudiced by the delay in any way.

I would affirm the citation and proposed penalty.

[The Judge's decision referred to herein follows]

GOLDSTEIN, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970, (29 USC 651 et seq., hereinafter sometimes called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in him by Section 9(a) of that Act. The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at the Amoco Chemical Plant on Amoco Road, South of Joliet, Illinois, and described as Number 707 Silo, the Respondent violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation which was issued on March 10, 1972, alleges that the violation resulted from a failure to comply with a standard [*36] promulgated by the Secretary by publication in the Federal Register and codified in 29 CFR 1926.352(d). The description of the alleged violation on said Citation states:

Failure to have suitable fire extinguishing equipment immediately available in the work area. Noted -- No fire extinguishers nor fire blankets available at work area where welding was taking place on scaffold at top edge of Silo No. 707.

The standard as promulgated by the Secretary provides as follows:

Suitable fire extinguishing equipment shall be immediately available in the work area and shall be maintained in a state of readiness for instant use.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by the Administration that it proposed to assess a penalty of $600 for the alleged violation. In turn, the Company contested this action and requested a dismissal because the Secretary failed to show a violation and did not conform its procedures to the requirements of the Act. It also questioned the appropriateness of the penalty. A hearing on this matter was held in Chicago, Illinois on September 6, 1972.

SUMMARY OF EVIDENCE

The facts in this [*37] case are not in substantial dispute and may be summarized briefly in the following manner. The Chicago Bridge & Iron Company (sometimes hereinafter referred to as the Company or the Respondent) is engaged in the fabrication and erection of steel plate structures. On February 1, 1972, it was in the final stages in the construction of a stainless steel chemical tank at the Amoco Chemical Plant in Will County, Illinois. In this operational phase, the Company employed a number of journeymen to weld the roof to the tank shell.

February 1, 1972, was a cold and windy day, especially where the welding was taking place, approximately 80 to 100 feet above ground and over steel girder substructure. While on duty, Charles Dennis, one of the welders, called out to his fellow employees that the cuffs of his pants were afire. Truman A. Cooper immediately stopped his work, went to Mr. Dennis's aid, and tried to put out the sparks or fire with his gloved hands. Suddenly flames engulfed Mr. Dennis's entire body. Mr. Cooper called for help, and his cries were heard by a foreman, Mr. Jennings, who was on the ground level. Mr. Jennings ran to the workshop, approximately 50 feet from [*38] the base of the structure, grabbed a fire extinguisher, and ran towards the steps leading to the top of the structure. Before ascending, however, he looked up to the scene of the accident and observed that carrying the fire exinguisher to the top of the steps would be a futile gesture. Mr. Cooper thereupon ran up the stairs and assisted Mr. Dennis to a waiting ambulance. By that time all of Mr. Dennis's clothes except shoes, were burned. After a short stay at a local hospital, Mr. Dennis was flown by helicopter to a Chicago Hospital where he passed away from his burns a few days later.

On February 7, 1972, a Compliance Officer for the Occupational Safety and Health Administration visited the premises where the accident occurred. He inspected the work site and facilities and noted that at the top of the structure where the welding was taking place there was no fire extinguishing equipment of any kind. The closest fire fighting equipment was located in a shack, approximately 50 feet from the foot of the structure and about 100 feet below the area where the actual welding took place. Upon the recommendation of the Compliance Officer, the Occupational Safety and Health Administration [*39] issued a Citation (dated March 10, 1972) to the Respondent for a Serious Violation with a proposed penalty of $600.00.

There was other testimony in the record to the effect that this was not the first experience the welders had with fire on the job. Previously, however, they were able to snuff out small fires and sparks with gloved hands, although sparks from welding operations had burned small holes in workers' clothing.

CONCLUSIONS OF LAW

The purpose of Congress in the enactment of the Occupational Safety and Health Act was to assure safe and healthful working conditions for working men and women, and the law authorized the Secretary of Labor to set mandatory occupational safety and health standards.

Under the foregoing direction, the Secretary issued Part 1926 of the Regulations to cover safety and health regulations for the construction industry. In Subpart J reference is made to gas and arc welding and cutting operations, and fire prevention is covered in Section 352 thereof.

In its brief the Respondent envisions a myriad of difficulties in the interpretation of Regulation 1926.352(d) and urges that since welders' clothing seldom caught fire and then only small [*40] holes were burned in the clothing, a reasonable interpretation of the standard would void the Citation. However, the record discloses that the igniting of clothing was a known hazard and that general protective clothing was available to combat this danger. Frequency of fire danger is not the criterion under the Regulation. The latter requires in welding operations that some type of fire prevention equipment be immediately available in the work area, and that such equipment be maintained in a state of readiness for instant use. The regulation is thus violated if no fire fighting equipment is located at the work site.

With respect to the circumstances involved in the instant case, a reasonable interpretation of the Regulation requires that some fire fighting equipment be available at the site of the welding for instant use. A fire extinguisher in a building located about 50 feet from the base of the substructure and approximately 80 feet below the activity is not readily available. Especially is this situation true where it would be necessary to carry the equipment up a number of flights of stairs. In an emergency, such as took place at Silo 707, it was impossible [*41] to transport fire fighting equipment of any kind in time for it to be of any value.

Inasmuch as the Regulation does not state what precise equipment is required for fire fighting purposes, the Respondent asks whether buckets of sand or water, or a fire hose would be adequate. In this connection if the Respondent had some fire fighting equipment available at the job site, there could be a reason for differences of opinion should the Secretary of Labor insist that specific fire equipment be available. However, in this case where no fire extinguishing equipment whatever was located at the immediate job site, the Respondent is in no position to take issue on this point. On this subject the American Welding Society, Inc., in its publication USAS, Z49.1-1967 UCD 621.791:614.8, entitled Safety in Welding and Cutting, Third Edition, suggests that:

6.2.3 Suitable fire extinguishing equipment shall be maintained in a state of readiness for instant use. Such equipment may consist of pails of water, buckets of sand, hose, or portable extinguishers . . . (p. 1-44).

From the foregoing I conclude that the Respondent was in violation of Regulation 1926.352(d) when it permitted welding operations [*42] to take place on the tower of the Amoco plant with no fire fighting equipment immediately available for instant use.

The Secretary of Labor considered this infraction to be a serious violation as described in Sections 5(a)(1) and 17(k) of the Act quoted below:

Sec. 5.(a) Each employer

(1) shall furnish to each of his place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

Sec. 17.(k) For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

Although the Respondent urges that under the circumstances of this case there was no substantial probability that death or serious physical harm would result and reasonable diligence was maintained, the facts do not support [*43] this theory. Fire was not an unusual occurrence in welding operations, and the testimony was undisputed that the clothing of welders caught fire from time to time. True in almost all cases the employees were able to snuff out the sparks or small fires with gloved hands; but this danger was of course recognized, and special clothing was used in some welding operations.

When fire is involved, there is a substantial probability that serious physical harm, if not death, may result. And the Respondent and its employees knew that such could be the case; hence its precautions, although ineffective and not in keeping with the direction of the Regulation. I conclude that a serious violation took place when the Respondent did not have fire prevention equipment nearby for instant use at the scene of the welding operations.

Another point advanced by the Respondent as grounds for dismissal of the Citation is the unreasonable length of time between the date of the inspection and the date of the Citation. The inspection in this case took place on February 7, 1972, and a Citation was issued on March 10, 1972. The Respondent submits that this delay did not conform to the mandates [*44] of the Act, causing prejudice and extra costs. On the other hand the Complainant argues that the interval between inspection and Citation was reasonable and not prejudicial to the Respondent.

In this connection, the statute provides as follows:

Sec. 9. (a) If, upon inspection or investigation the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health.

(c) No citation may be issued under this section after the expiration [*45] of six months following the occurrence of any violation.

The Respondent believes that the matter should be dismissed because the Secretary did not "with reasonable promptness" issue a Citation to it. In support of its position, the Respondent reviews the legislative history of the law and quotes from a speech by Congressman Steiger of Wisconsin speaking before the House of Representatives on the day of the final passage of the Act. Therein, the Congressman stated that the period between an inspection and the issuance of a Citation should normally not exceed 72 hours.

A fundamental rule of statutory construction is that only those statutes which are ambiguous and of doubtful meaning are subject to extrinic aids to its interpretation. Thus the question is not what the legislature discussed prior to enactment of the law but what is the meaning of that which it did enact. As stated in the case of Mackenzie v. Hare, 239 U.S. 299, 308:

Whatever was said in the debates on the bill or in the reports concerning it, preceding its enactment, must give way to its language; . . .

Where the statute is ambiguous, resort may be had to reports of committees or legislative [*46] debates, but such materials cannot be considered when the language of the statute is plain and unambiguous. If one looks at the object to be accomplished, the evils and mischief sought to be remedied, and the purposes to be served, the adoption of a 72-hour limitation -- as urged by Respondent -- contrary to the wording of the statute, would defeat rather than effect the purpose of the legislation.

As heretofore shown, Section 9(a) of the Act states merely that the Secretary shall with reasonable promptness issue a Citation; and under Section 9(c) no Citation may be issued after the expiration of six months following the occurrence of any violation.

The term "reasonable promptness" in Section 9(a) of the law is not defined except that no Citation may be issued more than six months after the violation. It is especially noted that the 72-hour limitation was not placed in the statute.

In view of the statutory limitation of six months, I consider an elapsed time of slightly over one month from the date of inspection to the date of Citation as reasonable. Especially is this true when the Respondent has offered no proof of prejudice or harm.

Finally, the Respondent objects to the [*47] Secretary's proposed penalty, alleging that the element of size was arbitrarily and improperly weighed. On this point Section 17(j) of the Act provides as follows:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

The Compliance Officer took into consideration all the enumerated elements but did not recommend credit with respect to size of the employer because it had over 100 employees. The Respondent urges that the true criterion should be on the basis of "the number of employees affected by any alleged violation." Again, the Compliance Officer's recommendation was based upon the statute as enacted which states that consideration is to be given to "the size of the business of the employer." Respondent offered no testimony regarding the size of its business, its financial condition, or the number of its employees. There is nothing in the record to indicate that the Respondent's capital would [*48] be impaired or its operations would be hampered by a penalty of $600.

The Commission has frequently held that the gravity of the violation is the most critical consideration in the assessment of penalties. In view of the fatality which might have been averted had fire extinguishing equipment been available for instant use at the welding site, I do not believe that $600 is an unreasonable penalty where the statute authorizes a penalty for a serious violation of up to $1,000. The $600 penalty is therefore affirmed.

FINDINGS OF FACT

On the basis of the foregoing, I find:

(1) That the Respondent was subject to the provisions of the Occupational Safety and Health Act of 1970 during the period in question;

(2) That in connection with its welding operations located at the Amoco Chemical Plant on Amoco Road, South of Joliet, Illinois, described as Number 707 Silo, the Respondent did not have suitable fire extinguishing equipment immediately available in its work area maintained in a state of readiness for instant use;

(3) That the Respondent failed to furnish its welding employees working at the Amoco Chemical Plant on Amoco Road, South of Joliet, Illinois, described as Number [*49] 707 Silo, a place of employment which was free from recognized fire hazards that were causing or were likely to cause death or serious physical harm to its employees; and

(4) That a proposed penalty of $600 was reasonable under the circumstances.

ORDER

Upon consideration of the record and the foregoing findings and conclusions, it is hereby ordered:

(1) That the Citation for the alleged serious violation of 29 CFR 1926.352(d) is, and the same is, hereby affirmed;

(2) That the proposed penalty for the alleged violation of 29 CFR 1926.352(d) is, and the same is, hereby affirmed.