OSHRC Docket No. 76-657

Occupational Safety and Health Review Commission

September 16, 1977


Before CLEARY, Chairman; and BARNAKO, Commissioner:


Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

John E. McFall, for the employer



BY THE COMMISSION: A decision of Review Commission Judge J. Paul Brenton, dated October 21, 1976, is before the Commission for review pursuant to 29 U.S.C. 661(i). That decision held that the respondent had failed to comply with the safety standards codified at 29 C.F.R. 1910.252(b)(4)(ix)(c) and 1910.309(a). On review the respondent has raised the following issues:

(1) Whether the complainant failed to issue the citations with reasonable promptness as required by 29 U.S.C. 658(a).

(2) Whether the citations and complaint should be dismissed because of the failure of the compliance officer to conduct a closing conference.

(3) Whether the evidence supports the Judge's granting of the complainant's motion to amend the complaint so as to indicate that the inspection terminated on November 7, 1975, rather than November 5, 1975.

(4) Whether the Judge erred in finding the evidence sufficient to establish that the respondent violated 29 C.F.R. 1910.157(a)(5), 1910.252(b)(4)(ix)(c), [*2] and 1910.309(a). n1

(5) Whether the penalties assessed by the Judge were reasonable and just. n2

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n1 The respondent has apparently misconstrued the Judge's finding with respect to the alleged violation of the standard at 29 C.F.R. 1910.157(a)(5). Although the Judge characterized the respondent's noncompliance with the standard as de minimis, he ultimately vacated the item. Since the Judge's decision is not adverse to the respondent, the respondent's contentions with respect to the item will not be reached. See Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976).

n2 The respondent has also raised a Seventh Amendment argument with respect to jury trials. Recently, the Supreme Court held that there is no right to a jury trial in Commission proceedings. Atlas Roofing Co. v. OSHRC, 97 S.Ct. 1261 (1977).

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Judge Brenton concluded that the respondent was prejudiced by both the delay in the issuance of the citations and the complainant's failure to conduct a closing [*3] conference. Although his decision mentions several factors that could amount to prejudice, the record fails to establish how either occurrence specifically prejudiced the respondent's case. Nonetheless, the Judge's conclusions were harmless error since he correctly held that neither defect warranted a dismissal of the citations.

The respondent did not raise the reasonable promptness defense until its post-hearing brief. As the Judge correctly held, the pleading of the defense at that stage of the proceeding was untimely and, consequently, the defense was waived. Gannett Rochester Newspaper Corp.,    OSAHRC   , 4 BNA OSHC 1383, 1976-77 CCH OSHD para. 20,915 (No. 6352, 1976).

The requirement for a closing conference is set forth in 29 C.F.R. 1903.7(e), which provides that:

At the conclusion of an inspection, the Compliance Safety and Health Officer shall confer with the employer or his representative and informally advise him of any apparent safety or health violations disclosed by the inspection. During such conference, the employer shall be afforded an opportunity to bring to the attention of the Compliance Safety and Health Officer any pertinent information regarding [*4] conditions in the workplace.

This procedural regulation is intended to promote the orderly conduct of safety inspections. Unless prejudicial, the relaxation or modification of such a procedural regulation does not warrant an invalidation of an agency's action. See Sun Oil Company v. Federal Power Commission, 256 F.2d 233, 239 (5th Cir. 1958), cert. denied, 358 U.S. 872 (1958). Moreover, technical and harmless violations of inspection procedures should not be allowed to deter the Act's primary purpose to assure safe and healthful working conditions. Cf. Accu-Namics, Inc. v. OSAHRC, 515 F.2d 828, 833 (5th Cir. 1975). In the instant case, the respondent's failure to demonstrate how it was specifically prejudiced by the failure to hold a closing conference is fatal to the respondent's contention on this matter.

The respondent's arguments pertaining to the amendment and the underlying evidence in support of the Judge's holdings are unpersuasive. In essence, the respondent challenges only the Judge's resolution of matters of credibility. The Commission has no reason to evaluate differently the evidence supporting the Judge's credibility finding. CTM, Inc., [*5] 77 OSAHRC 136/C12, 5 BNA OSHC 1578, 1977-78 CCH OSHD para. 21,957 (No. 13008, 1977). Moreover, the amendment reflected only a change in the date of the inspection and had no effect upon the merits of the case. Under these circumstances, administrative pleadings can be readily amended. See Duane Smelser Roofing Company, 76 OSAHRC 145/E3, 4 BNA OSHC 1948, 1976-77 CCH OSHD para. 21,387 (No. 4773, 1976).

The Judge assessed a total penalty of only $175. That assessment is reasonable and appropriate under the criteria set forth in 29 U.S.C. 661(i).

The Commission therefore finds that the Judge properly decided the case. His decision is adopted to the extent that it is consistent with this opinion.

Accordingly, the Judge's decision is affirmed.