TODD SHIPYARDS CORPORATION

OSHRC Docket No. 8500

Occupational Safety and Health Review Commission

February 1, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert A. Friel, Assoc. Regional Solicitor

Dustin C. McCreary, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

The issues in this case are whether Administrative Law Judge Henry C. Winters erred in vacating a citation alleging that Respondent (Todd) committed a "repeated serious" violation of the Occupational Safety and Health Act of 1970 n1 and erred in vacating Complainant's (Labor) notification proposing a penalty of $10,000 therefor on the grounds that (1) the citation had not been issued with reasonable promptness, (2) the citation failed to describe with particularity the nature of the alleged violation, n2 and (3) the penalty notification had not been issued within a reasonable time after the termination of Labor's investigation. n3 For the reasons given below we conclude that the Judge erred; we set aside his rulings and remand.

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

n2 29 U.S.C. 658(a) requires in pertinent part as follows:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 654 of this title, of any standard, rule or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, 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 chapter, standard, rule, regulation, or order alleged to have been violated. . . .

n3 29 U.S.C. 659(a) requires in pertinent part as follows:

If, after an inspection or investigation, the Secretary issues a citation under section 658 of this title, he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under section 666 of this title and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty. . . .

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The investigation out of which these proceedings arose commenced on Thursday, April 25, 1974 n4 when one of Todd's employees was fatally injured as the result of a fall from a scaffold erected aboard the naval vessel U.S.S. Camden. The Camden was being repaired at Todd's facility in Seattle, Washington. The fatality was reported to Labor's area office, and Frank Strasheim, one of two experienced maritime inspectors in that office, was sent immediately to conduct an investigation. At this time he inspected the accident scene, and he interviewed Todd's safety engineers. He returned on the 26th and 29th of April and spent several hours of each day interviewing witnesses and Todd's supervisory personnel. He concluded that there were apparent violations of Labor's standard published at 29 C.F.R. 1915.41(i)(1). n5

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n4 All dates are 1974.

n5 This standard applies to scaffolds used in ship repair work and requires that "[s]caffolding, staging, runways, or working platforms which are supported or suspended more than 5 feet above a solid surface, or at any distance above the water, shall be provided with a railing which has a top rail whose upper surface is from 42 to 45 inches above the upper surface of the staging, platform, or runway and a midrail located halfway between the upper rail and the staging, platform, or runway."

[*3]

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However, Todd's safety engineer advised Strasheim that Todd intended to request an investigation by the Navy into the possibility that the fatality had resulted from sabotage to the scaffold. Strasheim responded that as a matter of course Labor would cooperate with an investigation by another Federal agency and would not reach any final decision until the Navy resolved the question of possible criminal involvement. Thereafter Strasheim talked with Smith, the supervisor of the Navy investigation, and on May 2, Smith informed Strasheim that in his personal opinion no criminal activity had occurred but officially the Navy file was not complete and its investigation could not be terminated.

Strasheim was on assignment in Alaska for the week of May 6 through May 10. On May 13 he first learned that Todd had been previously cited for an alleged violation of 1915.41(i)(1). He returned to the worksite on May 15 and advised Todd's safety engineer that the guarding on the scaffold was inadequate and that in his opinion the scaffold was not sabotaged. He interviewed other persons on May 15 and as a result [*4] decided to recommend to his supervisor, area director Beeston, that a citation be issued but that the violation be charged as nonserious in nature. The following day Strasheim completed his written report; until he submitted this report he had not reached a final conclusion as to whether the fatality resulted from a violation of 1915.41(i)(1). His report characterized the violation as Todd's "third repeat" violation of this standard. The next day, May 17, he left for approximately a one-month vacation in Furope.

The area director was the only individual authorized to issue citations in the states of Alaska and Washington during the period relevant to this case. He received Strasheim's report on May 20. On May 21 he spoke with Labor's attorney concerning the possible effect of the Navy investigation. He also concluded that Strasheim's report did not clearly describe the conditions existing at the time of the fatality. In particular, Strasheim's report showed an I-beam at a height of 43 inches above the scaffold platform, and Beeston was concerned that the I-beam might constitute a top rail within the meaning of the standard. He could not, however, make a final determination [*5] on this question because the report failed to show the relationship of the beam to the scaffold in any dimension other than height, and photographs were not available. n6 Beeston also considered Strasheim's report deficient with respect to other critical dimensions of the work area.

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n6 While Beeston knew Strasheim had taken photographs he did not at the time he first reviewed Strasheim's report know why these pictures were unavailable. Another compliance officer went to the film developer in an unsuccessful attempt to locate the photographs. Thereafter, on June 6, Beeston telephoned Strasheim in Czechoslovakia; Strasheim could not recall what had happened to his photographs. In fact, the pictures had been developed but were unsatisfactory because Strasheim's camera had mulfunctioned.

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Accordingly, Beeston decided to have the other maritime inspector, Queen, continue the investigation. However, Queen was on leave May 22 and the area director was in Alaska on May 23 and 24. Monday, May 27 was a holiday (Memorial [*6] Day). Beeston first discussed the case with Queen on May 28 and on May 30 instructed him to go to the shipyard. Beeston's workload precluded him from going to the shipyard himself prior to May 28, and he did not have any background in maritime matters.

Queen observed more than one I-beam in the compartment where the fatality occurred. Because the scaffold had since been removed he was unable to determine to which I-beam Strasheim's report referred. Therefore, after consultation with the area director, he attempted to obtain a set of the plans for the Camden so that he could correlate the ship's dimensions with the dimensions shown in Strasheim's report.

He asked for the plans on May 31 and on June 5 received plans for a sister ship, the U.S.S. Seattle. On June 7 he again requested plans for the Camden, and these were received on June 11. However, Queen was in San Francisco that day and the following day. The day he returned, June 13, he went back to the shipyard to take photographs of the area of the fatality and to compare the ship's plans with his observations of the area.

On either June 13 or June 14 Queen recommended to Beeston that Todd be issued a citation alleging [*7] a violation of 1915.41(i)(1). His report also noted that this was Todd's "third repeat" violation. On June 14 on the basis of the ship's plans and Queen's observations, Beeston determined that a citation should be issud for violation of this standard, and it was issued that day. Also on that day Beston issued a notification proposing a penalty in the amount of $10,000. Both the citation and notification of proposed penalty alleged the violation as "repeated serious" in nature. n7

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n7 29 U.S.C. 666(a) provides that "[a]ny employer who willfully or repeatedly violates the requirements of section 654 of this title, any standard, rule, or order promulgated pursuant to section 655 of this title, or regulations prescribed pursuant to this chapter, may be assessed a civil penalty of not more than $10,000 for each violation."

29 U.S.C. 666(b) requires that any employer "who has received a citation for a serious violation . . . shall be assessed a civil penalty of up to $1,000 for each such violation." A "serious" violation exists "if there is a substantial probability that death or serious physical harm could result . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." 29 U.S.C. 666(j). This statutory provision was quoted in Todd's citation. The Act does not define a "repeated" violation.

[*8]

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Todd timely contested the citation and penalty notification, and Labor duly filed its complaint. Among other things the complaint alleged that the violation was similar in fact to conditions present on at least three previous occasions for which Todd had been issued citations.

Reasonable Promptness

On these facts Todd argues, and Judge Winters concluded, that the citation must be vacated for not having been issued with reasonable promptness within the rule of the Commission's decision in Chicage Bridge & Iron Company, 6 OSAHRC 244, BNA 1 OSHC 1485, CCH OSHD para. 17,187 (1974), vacated and remanded, 514 F.2d 1082 (7th Cir. 1975). In that case the Commission held that absent exceptional circumstances once Labor acting through its authorized area director determines that a citation should issue it has three working days in which to perform the ministerial tasks of issuing the citation.

In Todd's view, Labor failed to comply with this rule because Strasheim's report contained all the facts necessary to establish a violation of the standard in question yet the citation was not issued until [*9] about 30 days later. Judge Winters concluded that while Beeston may not have had all the facts before him until June 14, he nevertheless failed to act with reasonable promptness in gathering the facts on which he based his determination to issue the citation. Specifically, the Judge found that an unnecessary delay of about 30 days resulted because Beeston permitted Strasheim to leave on his vacation before his report was reviewed. The Judge also concluded that the submission of Strasheim's report was improperly delayed by his assignment to monitor the Alaska state plan; in the Judge's view submission of the report should have been given priority.

The record plainly shows that Beeston and his compliance officers diligently pursued their investigation of this matter consistent with the discharge of their responsibilities in other matters. The Commission in Nasso Beach Concrete, n8 construed its Chicago Bridge decision and said "we . . . rejected an interpretation that would involve the Commission and its judges in second guessing as to the time a person authorized to issue citations should have formed his belief." Judge Winters' reasons given herein clearly demonstrate [*10] a "second guessing" of the investigatory process and are therefore rejected. Nasso Beach Concrete, supra. n9

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n8 15 OSAHRC 459, BNA 2 OSHC 1590, CCH OSHD para. 19,254 (1975).

n9 The Judge's decision herein issued several months after the Commission's decision in Nasso Beach Concrete.

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The Commission revised its rule on reasonable promptness subsequent to the decision of the Seventh Circuit in the Chicago Bridge case. A citation will be vacated on this technical ground only if the employer is prejudiced or the citation is issued following and unconscionable delay as demonstrated by the facts. Par Construction Company, No. 11092 (OSHRC, Oct. 15, 1976). See Concrete Construction Corporation, No. 2490, BNA 4 OSHC 1133, CCH OSHD para. 20,610 (OSHRC, April 8, 1976); E.C. Ernst, 14 OSAHRC 579, BNA 2 OSHC 1468, CCH OSHD para. 19,179 (1975).

In this case Todd has neither alleged nor shown prejudice. Nor can the delay be considered unconscionable. On the contrary, Labor was conducting [*11] a thorough and complete investigation and in the circumstances acted with due diligence. Accordingly, we reverse Judge Winters' decision to vacate on this ground, and we conclude that the citation was issued with reasonable promptness.

For the same reasons, we also reverse the Judge's ruling vacating the citation and notification of proposed penalty because the notification had not been issued within a reasonable time following termination of the investigation. In this regard, the Judge concluded and we agree that 29 U.S.C. 659(a) necessarily intends that Labor's authorized representative have already arrived at his belief to issue a citation before he issues a penalty notification. However, as we had said, we would not second-guess Labor's decisionmaking process, and in this case the citation and penalty notification issued at the same time.

Particularity of the Citation

In vacating the citation for lack of particularity Judge Winters reasoned that an allegation of a violation as both "repeated" under 29 U.S.C. 666(a) and "serious" under 666(b) is imprecise. Specifically, he concluded that such an allegation leaves the employer and affected employees in doubt as [*12] to the particular factual and legal issues involved, as to whether any penalty is mandatory, and as to the maximum penalty liability. He also determined that the citation was not sufficiently particular because it failed to specify the prior violations on which the "repeated" allegation is based. Finally, his decision would not allow Labor to amend the citation to correct these supposed deficiencies. In this regard Todd argues on review that the citation must state the date or dates of the prior citations or violations, their location, and arguably whether they have become final orders of the Commission. We reverse.

The Judge's decision confuses the penalty provisions of the Act with its duty clauses. As the Commission, speaking through Commissioner Moran, held in Toler Excavating Company n10 a citation is "sufficient" to charge a violation of section 654(a)(2), the special duty clause, when it informs an employer of his particular conduct said to violate a particular standard and section 654(a)(2). Section 666 classifies violations for penalty purposes. It was held in Toler that when Labor believes a violation is both willful and serious its pleadings should set forth [*13] both allegations. And it was held that when the pleadings do not set forth both allegations a nonserious violation may be found when the violation was alleged to be willful. See also Dye Construction Company, No. 4172, BNA 4 OSHC 1444, CCH OSHD para. 20,888 at 25,069 (OSHRC, July 12, 1976); Graven Brothers and Company, No. 2538, BNA 4 OSHC 1045, 1046, CCH OSHD para. 20,544 at 24,549 (OSHRC, Mar. 26, 1976) petition for review docketed, No. 76-1481 (10th Cir., May 27, 1976).

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n10 19 OSAHRC 492, 493-94, BNA 3 OSHC 1420, 1421, CCH OSHD para. 19,875 at 23,633 (1975).

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The situation in this matter is indistinguishable legally from that in Toler and its progeny. Accordingly, Labor has in this case followed the preferred practice.

However, in characterizing the violation as repeated, Todd argues it has not been put on notice by the citation as to what prior violative circumstances form the basis of this alleged repeated violation. n11 In circumstances where it is said that a citation is not sufficiently [*14] particular we have refused to vacate in the absence of an evidentiary record. We have said that the question of whether a citation gives fair notice so that an employer may abate or contest as he chooses depends upon factors other than the language of the citation itself; it also may include the circumstances of the compliance inspection and the employer's familiarity with his own business. Gannett Corporation, No. 6352, BNA 4 OSHC 1383, CCH OSHD para. 20,915 (OSHRC, May 3, 1976). The citation may be amended on motion in these circumstances. Gannett Corporation, supra. Accordingly, the Judge erred by vacating the citation.

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n11 Todd, by its counsel, put into evidence five prior citations for violations of 29 C.F.R. 1915.41(i)(1) at the Seattle facility, one of which alleged the violation as repeated and one as "nonserious repeated." Therefore it is apparent that Todd comprehends the basis for the repeated charge in this case.

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Moreover, the error was compounded because he vacated the citation in its [*15] entirety whereas Todd argued only that the repeat allegations were not sufficiently particular. Certainly, the citation was sufficiently particular on its face to allege a serious violation. And, it was sufficient under Toler to encompass a nonserious violation.

Accordingly, the decision of the Judge is reversed and this matter is remanded for further proceedings consistent with this opinion.

So ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, CONCURRING:

I concur in the Chairman's disposition.

On the "reasonable promptness" issue, Par Construction Co., Inc., 4 BNA OSHC 1779, 1976-77 CCH OSHD para. 21,216 (No. 11092, 1976) and Coughlan Construction Co., Inc., 3 BNA OSHC 1636, 1975-76 CCH OSHD para. 20,106 (Nos. 5303 & 5304, 1975) are dispositive.

On the "particularity" issue I, add only that respondent did not move for a more definite statement by the Secretary. That would seem to be the appropriate remedy under Rule 12(e) of the Federal Rules of Civil Procedure as applied under Commission Rule 2(b), 29 CFR 2200.2(b).

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Judge Winters' conclusion that the citation in this case was not issued in accordance with the "reasonable promptness" [*16] requirements of 29 U.S.C. 658(a) is correct and should be affirmed. n12

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n12 His decision is attached hereto as Appendix A.

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It is clear that in adopting 29 U.S.C. 658(a) requiring the Secretary of Labor to issue citations "with reasonable promptness," Congress meant that they should be issued within 72 hours after a violation is detected by a Department of Labor inspector, unless a longer delay is justified because of exceptional circumstances. Secretary v. Jack Conie & Sons, Corp., OSAHRC Docket No. 6794, June 25, 1976. The investigation of the accident in the instant case was commenced on April 25, 1974, and the citation was issued June 14, 1974, 47 days later than Congress intended. Furthermore, though some delay was unavoidable, most of the reasons for the delay of 50 days cannot be considered "exceptional circumstances."

The lead opinion's description of the incidents that resulted in the delay is consistent with the majority's incorrect position that the defense is purely a "technical" one. By skipping [*17] over large gaps of time during which the Secretary's representatives failed to move on this case, Chairman Barnako is able to conclude that the complainant "acted with due diligence." The defense is not a "technical" one, however, and the reasons for delay should always be scrutinized carefully so that an employer is not denied his rights under the Act. n13 Furthermore, the rule enunciated by Congress says nothing about excusing dilatory issuance of citations if there is no "unconscionable delay" or if an employer fails to show that he was prejudiced thereby. n14

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n13 Chairman Barnako improperly accuses Judge Winters of "'second guessing' of the investigatory process." It is clear, however, that Judge Winters properly performed that duties expected of a Judge. The respondent raised the "reasonable promptness" issue, and Judge Winters after a detailed analysis of all the facts, rather than a perfunctory one as demonstrated by the lead opinion, concluded that the citation was not properly issued. Apparently, Chairman Barnako would have our Judges disregard the facts and rubber-stamp the actions of the Secretary despite the equities involved in such questions. Unfortunately, this is not the first time that my colleagues have clastised a Commission Judge for properly performing his duties in a conscientious manner. Secretary v. D. Frederico Co., OSAHRC Docket No. 4395, February 10, 1976, and that cases cited therein. Obviously, my colleagues have forgotten that the Commission is not another arm of the Secretary and that its sole function is to adjudicate cases. 29 U.S.C. 651(b)(3).

n14 My views on these matters are set forth in additional detail in my dissenting opinions in Secretary v. Concrete Construction Corporation, OSAHRC Docket No. 2490, April 8, 1976; Secretary v. Southern Railway Company, 20 OSAHRC 691 (1975); Secretary v. Coughlan Construction Company, 20 OSAHRC 641 (1975); and Secretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974).

[*18]

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Contrary to Chairman Barnako's conclusion that "Labor was conducting a thorough and complete investigation and in the circumstances acted with due diligence," the record supports the Judge's conclusion that much of the delay was unnecessary and unreasonable. It is replete with evidence that this case was given low priority and was handled accordingly.

The initial investigation by Strasheim was not carried out with dispatch, by any means. Although the inspection did not start until late on April 25, he spent only 2 1/2 to 3 hours on the case April 26th and 2 to 2 1/2 hours the next working day after that. Form April 30th, when Strasheim contacted the Navy, until May 2nd, when he was informed of the Navy's conclusion that no criminal action was involved, Strasheim apparently suspended his own investigation. Also, there is no evidence of any work done on the case on Friday, May 3rd. On May 6th Strasheim was sent to Alaska on work unrelated to this case. The Judge properly concluded that removing Strasheim from the case for those five days unnecessarily delayed the issuance of the citation. Furthermore, [*19] the day after he completed his report, Strasheim left for vacation in Europe. Again, the Judge correctly concluded that the area director should not have allowed Strasheim to go before determining whether his report included all necessary information. n15 The Judge soundly reasoned as follows:

"If Strasheim were available to explain his report, there would have been no need for Queen's further investigation. To one familiar with the facts at the time of the fatality, there should not be the slightest doubt that the eye-beam mentioned in Strasheim's report could and did not qualify as a standard railing. A few questions of Strasheim should have resolved the question. In any event, another trip by Strasheim to the vessel would have satisfied even a most skeptical area director. Strasheim could have conducted such further investigation in a matter of minutes. He knew where the staging was placed. He would not have needed a set of the ship's prints in order to determine where the staging had been. There was no valid reason for the area director not having all the facts necessary to a decision presented to him before Strasheim left on vacation."

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n15 The area director admitted in his testimony that the Navy investigation was irrelevant to the issuance of the citation. Therefore, except for the improper delay awaiting the results of the Navy's investigation, the area director would have had more time to review Strasheim's investigation and question him thereon before his departure on vacation.

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Moreover, even if the record could be considered as supportive of a conclusion that it was reasonable to continue the investigation by another investigator, Queen, that transfer of the work was unnecessarily delayed and the investigation by Queen was unnecessarily dilatory. On May 22nd, the area director did nothing on the case because Queen was on leave. On the 23rd and 24th nothing was done because the area director was in Alaska. The case was finally given to Queen on May 28th. Though the area director testified generally that Queen gathered information from May 28th to June 13th, there are large gaps of time that are unexplained by the testimony. Also, there is no reason to believe that Queen [*21] actually needed 17 days to investigate a case already investigated by a colleague. After he requested the first set of ship plans on May 31st, he did little until June 13th, when he returned from three days in San Francisco and drew up the report. The next day the citation was issued by the area director.

The citation issued on June 14th charged respondent with one violation, its failure to comply with the requirements of 29 C.F.R. 1915.41(i)(1). Strasheim had recommended that a citation be issued making the same charge on May 16th, almost a month prior, after conducting an investigation spanning three weeks. The evidence shows that a delay of that much time was not reasonable under the circumstances of this case and unacceptable under the mandate of 29 U.S.C. 658(a). The citation should therefore be vacated.

The reason Congress inserted the requirement of prompt citation-issuance was to expedits abatement of hazardous conditions. It is clear that such objective was of no concern to the Labor Department in this case. So long as my colleagues excuse such lackadaisical behavior, prompt abatement will never be achieved. What they have done here is to subordinate the Act's [*22] worthwhile objective to the convenience of the Labor Department's "business as usual" routine. Once again, the bureaucracy triumphs.

APPENDIX A

DECISION AND ORDER

William W. Kates, for Complainant

Dustin C. McCreary, for Respondent

Jack Tinker, for International Association of Machinists, Hope Lodge No. 79.

Henry C. Winters, Judge

STATEMENT OF THE CASE

This is an action under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) to affirm a citation charging Respondent with what was described in the citation as a "Repeated Serious" violation of 29 CFR 1915.41(i)(1); and to affirm a proposed penalty of $10,000.

The citation and notification of proposed penalty were issued June 14, 1974 following an inspection made on April 25, 1974 of a worksite at Seattle, Washington where employees of Respondent were engaged in ship repair aboard the vessel U.S.S. Camden.

By notice of contest in the form of a letter dated June 18, 1974, Respondent contested the citation and penalty. The complaint filed July 5, 1974 seeks to have the citation and proposed penalty affirmed. By answer filed July 27, 1974, Respondent denies the alleged violations.

A pre-hearing [*23] conference was held before this Judge at Seattle, Washington at which the Respondent indicated it was raising the following issues by moving to dismiss the citation for the following reasons:

(a) The citation was not issued with reasonable promptness, as required by Section 9(a) of the Act (29 U.S.C. 658(a);

(b) The notification of proposed penalty was not issued within a reasonable time after the inspection or investigation leading to the issuance of the citation, as required by Section 10(a) of the Act (29 U.S.C. 659(a); and

(c) The citation failed to describe with particularity the nature of the alleged offense including the section of the Act violated in that (1) in describing the violation as both a "repeated" violation and at the same time a "serious" violation, the Respondent cannot tell whether it is subjected to the penalty provisions of 17(a) or 17(b) of the Act (29 U.S.C. 666(a) or 666(b)) on account of such alleged violation; and (2) citation fails to point out with specificity what prior violations together with the one alleged in the citation constitute conduct property described as "repeatedly" violating a standard.

Pursuant to agreement, a hearing was held solely [*24] for the purpose of resolving the preliminary motions at Seattle, Washington on November 14, 1974. A representative of International Association of Machinists, Hope Lodge No. 79 entered an appearance on behalf of some of Respondent's interested employees. The union representative did not remain throughout the hearing and did not file a brief. Briefs were filed on behalf of Complainant and Respondent.

DISCUSSION, FINDINGS AND CONCLUSIONS

The Respondent at all times herein pertinent was and is engaged in a business affecting commerce. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

Insofar as the preliminary motions are concerned, the relevant facts are as follows:

At about 1:00 p.m. on Thursday, April 25, 1974, an employee of Respondent who was doing repair work on a U.S. Navy vessel at Respondent's shipyard fell from a staging (scaffold) into an elevator shaft and was killed. In response to a telephone call at about 3:30 p.m. on April 25 by Jack Tinker, union official, to the OSHA office in Bellevue, Washington, a compliance officer, Frank Strasheim, who has had considerable maritime experience, was immediately sent by Richard [*25] L. Beeston, OSHA's area director for the States of Alaska and Washington, to Respondent's shipyard to make an investigation. Strasheim on April 25 spent some 2 1/2 hours taking measurements and otherwise conducting an investigation.

One end of a 2 X 4 guardrailing came loose at the place where the employee fell. Shortly after the fatal accident, Respondent's safety engineer, Homer C. Purcell, received information which caused him to believe that a wire holding in place the guardrail on the staging at the place of the fatal fall had been deliberately cut. Suspecting sabotage, he contacted the U.S. Navy and requested an investigation. A U.S. Navy investigator, Albert Smith, immediately commenced an investigation into the matter of possible sabotage. From the beginning, Strasheim and Smith were aware of the separate investigation of the other.

In addition to the time spent on Thursday, April 25, Strasheim spent 2 1/2 to 3 hours on Friday, April 26 and 2 1/2 to 3 hours on Monday, April 29 at Respondent's shipyard investigating possible violations of the Act.

Compliance officer Strasheim's investigative report contains the following account of his activities thereafter (Respondent's [*26] Exhibit No. 2):

4/30/74 Tuesday: The CSHO [Strasheim] contacted Mr. Albert Smith of the Naval Office of Investigations. Mr. Smith was in charge of the Navy's investigation. Mr. Smith said he would inform OSHA as to the progress of their investigation.

5/2/74 Thursday: Mr. Smith contacted the CSHO and informed him that during a routine check with the coroner's office he had learned that the coroner had the wire binding that gave way. He had acquired the binding from a Seattle policeman who took the wire off the after metal upright of the stage, where the railing had given way. Further investigation revealed that the original piece of wire was acquired by Mr. Purcell from an employee who found that wire on the deck & assumed it came off the stage. The coroner's piece of wire, according to Mr. Smith, appeared to have been hammered, stretched, worn, or chaffed to the point of breaking.

Mr. Smith said he was going to send the wire to the FBI crime lab in Washington D.C. for a metalurgists report. However, he added that based on this new evidence, he was ruling out any possibility of criminal involvement. He said he would turn the wire & his findings over to OSHA when they returned [*27] from Washington, D.C.

5/6 - 5/10/74 CSHO on assignment to Alaska.

5/13/74 Mr. Smith informed the CSHO that the sample still had not returned. At this point the CSHO returned to TODD's and reopened the investigation in an attempt to determine if the employer was negligent in not checking the safety of the stagings with such frequency as to assure employee safety. The CSHO interviewed Mr. Purcell, Jack Longenegger, Milton Anderson, and Rudy Carmine Disoldi again. Nobody could recall the staging even having been checked for safety, except Mr. Longenegger.

Mr. Longenegger said that he personally inspected all staging twice a week for safety, and that he had personally checked this particular stage and pushed on the backrail only three days before this accident. Based on Mr. Longenegger's statements, it would be extremely difficult to prove a serious allegation of employer neglect in providing safe staging.

The CSHO informed Mr. Purcell that he intended to issue a citation for the apparent violations as listed previously. These alledged violations will be classed as non-serious, despite the fatality, because the height of the railing was not the cause of the accident. Also, the [*28] lack of any guardrail could be serious, but since there was at least one, this greatly reduce the normal chance of injury. The cause of the accident was the badly damaged wire. Employer neglect cannot be proven since the wire could possibily have been hammered by employees straightening a a back stop piece.

5/16/74 The wire still is not back in Seattle.

Strasheim first learned on May 13 that prior citations had been issued to Respondent for alleged violations of the same standard here involved. Strasheim was "compiling data for his report" (TR 15) on May 14 and 15. Strasheim had taken photographs but due to a faulty camera, they did not develop properly. On May 16 he completed his written report (Respondent's Exhibit No. 2) and submitted it to his superior, Area Director Beeston on May 16, 1974. On the afternoon of Friday, May 17, Strasheim left for a vacation in Europe. He returned to work on June 20. His vacation leave had been approved some eight months prior to his departure.

During the period from April 25, 1974 through May 17, 1974, Strasheim when not working on the instant investigation was making inspections and investigations of other worksites, writing reports [*29] and otherwise performing the duties of a compliance officer.

Area Director Beeston who, among other duties in the States of Alaska and Washington, is responsible for reviewing the reorts and recommendations of compliance officers and for the issuance of citations and of notifications of proposed penalties, and who issues the citation and notification here involved, made the assignment on April 25 to Strasheim to conduct an investigation. Beeston received the report of Strasheim on Monday, May 20 and reviewed it along with other reports.

From a reading of Strasheim's report, Beeston could not get a clear idea of the factual condition existing at the time of the fatality in that he was not convinced that a beam which was part of the structure of the vessel might qualify as a guardrail and thus rule out the issuance of a citation. He was concerned whether a violation could be proved but he was not concerned that the fatality may have been caused by any such violation. He agreed with the conclusion of Strasheim that the violation did not cause the fatality.

On Tuesday, May 21, the day after he first looked at Strasheim's report, Beeston attended a regularly scheduled regional staff [*30] meeting in Seattle. He then and there discussed with an attorney of the Complainant's solicitor's office the possible effect of the Navy investigation on the OSHA case and was advised that there would be no adverse effect on the OSHA case.

On Wednesday, May 22, Beeston was back in his Bellevue office performing duties not connected with the involved citation. Compliance Officer Queen, who was the other person assigned to the Bellevue office who had maritime experience, was on annual leave on this day.

On Thursday, May 23, and Friday, May 25, Beeston was in Alaska on other matters. Monday, May 27 was the Memorial Day holiday.

On Tuesday, May 28, Beeston discussed the Strasheim report with Compliance Officer Queen because of the latter's knowledge of maritime nomenclature. After such discussion, Beeston continued to believe the report was unclear.

On Thursday, May 30, Beeston requested Queen to conduct further investigation to clear up the doubt as to whether there was in fact a guardrail. Queen was requested to take a look at the compartment where the fatality occurred and to find the relationship of some structural, longitudinal members of the ship in relation to the compartment. [*31] When he arrived at the scene, the staging had been removed. Because he observed more than one eye-beam, he could not determine which was referred to in the report of Strasheim. He attempted to get copies of the ship's plans to reconstruct the scene.

On Friday, May 31, Queen requested from the U.S. Navy prints of a sister ship of the U.S.S. Camden.

On Wednesday, June 5, he received the prints of the sister ship. These were of no help.

On Thursday, June 6, Area Director talked by long distance telephone with Strasheim who was at that time in Czechoslovakia.

On Friday, June 7, Queen requested prints of the U.S.S. Camden.

On Tuesday, June 11, prints of the U.S.S. Camden were received in Mr. Queen's office.

On Monday, June 10; Tuesday, June 11; and Wednesday, June 12, Queen was in San Francisco on matters not here involved.

On Thursday, June 13, Queen first examined the prints of the U.S.S. Camden. On that same day he returned to the U.S.S. Camden and took photographs of the area where he concluded the staging had been placed. These photographs were not developed until after the citation was issued.

When asked upon cross-examination why he needed to look at the ship's prints, [*32] Queen testified (TR 104, 105);

. . . the staging was gone, and it was very difficult to get a perspective as to where this projecting "I" beam was in relation to the staging that had been there in relation to the compartment to be able to show that there was more than one "I" beam and the sizes of them.

Although Queen was shown the very clear and descriptive photograph taken by Respondent's official (Resp. Exh. No. 5), Queen did not ask for a copy of it.

On Friday, June 14, Beeston after discussion with Queen concluded that the citation should be issued for the alleged failure to provide a standard guardrail as originally recommended by Strasheim.

On June 14, 1974, some 50 days after the violation was alleged to have occurred, the citation and notification of proposed penalty were mailed to Respondent.

The Reasonable Promptness Requirements of Section 9(a)

Section 9(a) of the Act (29 U.S.C. 658(a)) provides, as pertinent, as follows:

(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 [*33] Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer. . . .

In Chicago Bridge and Iron. 6 OSAHRC 244, CCH E.S.H.G., para. 17, 187 (1974), BNA 1 OSHC 1485, issued January 23, 1974, a majority of the Commission held that Section 9(a) requires that absent exceptional circumstances the area director (Complainant's authorized representative) must perform the ministerial tasks involved in issuing a citation within 72 hours (excluding weekends and holidays), i.e. three working days, from the time he has formed his belief that a violation has occurred.

The Commission first determined that it was clear from a reading of Section 9(a) that the term "reasonable promptness" does not have application to the decisional process of forming a belief that a violation has occurred but has application only to ministerial tasks such as typing, signing and mailing the citation. The Commission majority believed that resort to the legislative history was unnecessary to arrive at such conclusion.

However, as the how much time was intended to be allowed for the performance of such ministerial tasks by the term "reasonable promptness" [*34] the Commission majority believed the term to be imprecise and resorted to a portion of the legislative history of this provision for clarification.

The majority of the Commission looked to the Conference report of the Managers on the part of the House (H.Rep. No. 91-1765, 91st Cong. 2d Sess. 38 (1970), which in referring to the reasonable promptness requirement stated in part: ". . . 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." The majority concluded: (1) that "72 hours" meant three working days, i.e. excluding weekends and holidays observed by the Department of Labor; and (2) that "from the time the violation is detected by the inspector" meant from the time that the area director forms a belief that a violation had been detected by the inspector.

The rationale of Chicago Bridge & Iron was reiterated in the recent decision in Nasso Beach Concrete,    OSAHRC    (Docket No. 2123, February 6, 1975). The majority opinion of Commissioner Van Namee states (pp. 3 and 4):

In Chicago Bridge & Iron we said that the period is to be measured from the time an individual having [*35] the authority to issue citations forms his belief that a violation exists. In so saying we implicitly rejected an interpretation that would involve the Commission and its judges in second guessing as to the time a person authorized to issue citations should have formed his belief. Obviously, such a person must have the facts which might constitute a violation before him and he must be given time within which to exercise his judgment in weighing the facts. Thus we fixed the termination of the decisional making process as the point from which delay in the issuance of a citation will be measured. Any general rule that fixes an earlier reference point in time or which involves a subjective judgment concerning the propriety of an investigation would only result in the issuance of illconceived citations which in turn would necessarily result in unwarranted litigation before us and the courts.

Complainant relying upon the authority of Chicago Bridge & Iron argues that Beeston did not have the facts which constitute a violation before him until June 14, the very day on which the citation was issued; and that, therefore, the citation was issued with reasonable promptness. If the [*36] above-quoted language were given literal application to all factual situations, the argument of Complainant would seem to be valid.

This Judge does not believe, however, that by the decisions in Chicago Bridge & Iron and Nasso Beach Concrete the Commission majority intended to hold that Section 9(a) does not impose any obligation upon Complainant to act with reasonable promptness in gathering facts so as to be able to form a belief. Nor did the Commission majority intend that Complainant should not be held accountable for any action or inaction on the part of the area director which causes unreasonable delay in having the facts gathered and presented to him in such form that he can begin the process of exercising judgment in weighing the facts. To hold Complainant so responsible does not amount to second guessing as to the time the area director as taken in forming a belief.

In this case, an unnecessary delay of some 30 days was caused by the area director's failure to review Strasheim's investigative report before Strasheim was permitted to depart on his month-long European trip. For this reason alone, the citation should be vacated as not having been issued with reasonable [*37] promptness as required by Section 9(a). If Strasheim were available to explain his report, there would have been no need for Queen's further investigation. To one familiar with the facts at the time of the fatality, there should not be the slightest doubt that the eye-beam mentioned in Strasheim's report could and did not qualify as a standard railing. A few questions of Strasheim should have resolved the question. In any event, another trip by Strasheim to the vessel would have satisfied even a most skeptical area director. Strasheim could have conducted such further investigation in a matter of minutes. He knew where the staging was placed. He would not have needed a set of the ship's prints in order to determine where the staging had been. There was no valid reason for the area director not having all the facts necessary to a decision presented to him before Strasheim left on vacation.

Moreover, unnecessary delay was caused in the completion of the instant investigation by the action of the area director in sending Strasheim to Alaska to work on matters which are unrelated to the inspection or investigation in this case and which cannot be presumed to be of such urgency [*38] as to require postponement of the submission of Strasheim's report. The facts obtained by Strasheim on Monday, May 13 in connection with his further interview of Respondent's employees concerning checking of the safety of the stagings could just well have been obtained on any work day during the period April 25 through May 10. The earlier such interviews were conducted, the more likely the witnesses would have remembered the facts. Strasheim's assignment in Alaska necessarily prevented him from conducting such interviews on Monday, May 6 or on any other day during that work week.

The assignment in Alaska postponed for five work days the submission of Strasheim's investigative report. Had this report been submitted a week earlier, the extensive, time-consuming investigation by Queen would have been unnecessary. Strasheim would have been available to answer questions of the area director or to conduct any further investigation himself. This is another reason, sufficient in itself, to require the vacation of the citation as not having been issued with reasonable promptness as required by Section 9(a).

In Chicago Bridge & Iron and in Nasso Beach Concrete, the Commission [*39] vacated a citation without explicitly imposing upon Respondent the obligation of showing that its ability to defend itself against the charges in the citation was in any way prejudiced by the failure to comply with the Congressional mandate.

However, in two recent decisions, E.C Ernst, Inc.,    OSAHRC    (Docket No. 1780, January 3, 1975) and Todd Shipyards Corporation,    OSAHRC    (Docket No. 1556, January 31, 1975), the Commission refused to vacate citations for the reason that each respondent had failed to show it was prejudiced in defending itself on account of delay in issuing a citation. n1 These decisions were apparantly premised upon the conclusion that Congress enacted the reasonable promptness provision solely to enable an employer to defend against charges of a citation. These decisions do not explain how this conclusion was reached. It is not apparent from a reading of Section 9(a) nor, to the knowledge of this Judge, is there anything in the legislative history of the Act upon which to base such a conclusion.

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n1 The two Commissioners making up the majority in the decisions in the E.C. Ernst, Inc. and Todd Shipyards Corporation cases do not agree as to the holdings in such cases on the reasonable promptness issue. See Commission decision issued on March 19, 1975 in Illinois Central Gulf Railroad Docket No. 3945.

[*40]

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To enable the employer to be better able to defend himself is one legical objective of the reasonable promptness mandate. Congress may well have had other equally logical objectives.

Congress may well have recognized that unreasonable delays in the issuance of a citation - for whatever reason - would tend to frustrate the basic objectives of the Act.

An employer cannot begin to correct conditions which make an unsafe workplace until he knows by the issuance of a citation exactly what OSHA believes the law requires. Employees do not know to what extent OSHA will take action to protect them until the citation is issued. Employers and employees would be ill-advised to rely upon oral representations of a compliance officer made during the course of an inspection or investigation as to whether a citation will issue and, if so, what it will allege. It is the citation which is issued by the area director and served upon the employer by certified mail and which is posted for employees to read that notifies both employee and employer how and when OSHA believes the workplace should be made safe.

Prior to [*41] an inspection or investigation, affected employees may or may not have been aware of actual or potential unsafe working conditions. They are nevertheless made aware during the course of an inspection or investigation that the workplace may be unsafe. Employees are naturally apprehensive until such time as the citation is issued.

Likewise, an employer may or may not have been aware, prior to an inspection or investigation, that the workplace he maintains was or is in violation of some provision of the Act or standard or regulation thereunder. He is nevertheless made aware by the mere fact of an inspection or investigation that he might be charged with an offense for which he may be called upon to pay a penalty. He realizes he may be called upon to make changes which may be expensive, would be disruptive to the conduct of his business and perhaps may threaten the existence of his business. He realizes he may be called upon to expend time and money to defend himself, even if the charges ultimately prove to be groundless. An employer is naturally apprehensive during the time he is waiting for a citation to issue.

It is logical to conclude that Congress realized that both employer [*42] and employees would not only to apprehensive but perhaps even be frustrated by the uncertainty which is the natural result of delay in issuing a citation. It is logical to conclude that Congress realized that the objectives of the Act could not be adequately accomplished without confidence on the part of both employee and employer in the administration of the Act and without voluntary compliance on the part of most employers. Finally, it is logical to conclude that Congress provided for the prompt issuance of a citation to promote confidence in the enforcement procedures and to encourage cooperation and voluntary compliance on the part of employers and employees n2, quite irrespective of whether an employer was prejudiced by such delay in preparing whatever defense, if any, he had to any charge made in the citation.

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n2 In Secretary v. Review Commission and Raymond Hendrix dba Alsea Lumber Company,    F2d    (February 24, 1975, No. 73-1938, 9th Cir.), the Court of Appeals, referring to the Act, stated (p 9):

The whole tone of the statute and its legislative history is directed toward increased safety of working conditions through the cooperative efforts of employers and employees.

See also Section 2(b) of the Act (29 U.S.C. 651(b)).

[*43]

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It is the conclusion of this Judge that the instant citation was not issued with reasonable promptness, to the prejudice of the rights of Respondent's employees and of Respondent under the Act.

The Reasonable Time Requirement of Section 10(a)

The Respondent's allegation that the notification of proposed penalty was not issued within a reasonable time, as required by Section 10(a) of the Act (29 U.S.C. 659(a)), is related to the reasonable promptness issue under Section 9(a).

Section 10(a), as pertinent, provides:

(a) If, after an inspection or investigation, the Secretary issues a citation under Section 9(a), he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under Section 17 and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty.

Although the Secretary has followed a general practice of issuing the citation and notification of proposed penalty simultaneously, this [*44] practice is not required nor contemplated by the Act. n3 The reasonable time requirement of Section 10(a) is obviously separate and distinct from the reasonable promptness requirement of Section 9(a).

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n3 The House version of the Act provided that the citation include in it the proposed penalty. The conference committee accepted the Senate version of separate issuance of citation and proposed penalty. See Legislative History of Occupational Safety and Health Act of 1970 prepared by Subcommittee on Labor of the Committee on Labor and Public Welfare, United States Senate, page 1191.

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The Commission has held that Section 9(a) is unclear as to what precisely is the period of reasonable promptness. Section 10(a), however, is most precise and clear as to when the period of reasonable time begins. It begins with the termination of the inspection or investigation.

Although Section 10(a) necessarily contemplates that the Secretary's authorized representative (area director) must have already arrived at the belief that [*45] a citation should issue before he issues a notification of proposed penalty, it does not leave the area director unaccountable for the time it takes him to go through the mental process of arriving at such a belief. Section 10(a) does not require that the reasonable time commences with the time he "believes" a citation should issue, nor that the reasonable time commences with the issuance of the citation. Rather, it specifically provides that the reasonable time commences with the termination of the inspection or investigation. Since the mental process of forming a belief must necessarily follow the termination of inspection or investigation, or, conversely, since the termination of the inspection or investigation must necessarily precede the mental process of finalizing a belief that a citation should issue, this section requires that this Commission hold the area director accountable, at least to some extent, for the time he takes to form a belief as to whether a citation should issue. It also requires that this Commission hold the area director accountable for the time he takes to form a belief as to what penalty, if any, to propose, as well as for the time taken to accomplish [*46] the typing and mailing of both the citation and notification of proposed penalty.

The notification of proposed penalty simply notifies a respondent of a dollar amount of proposed penalty without explaining how the proposed amount was arrived at. Therefore, delay in issuance of a notification of proposed penalty bears little or no relationship to an employer's ability to prepare his defense. He should not under any theory of law be required to allege and prove that he was prejudiced in the preparation of his defense in order that the unconditional mandate of Section 10(a) be enforced by this Commission.

What Compliance Officer Strasheim did was either an inspection or investigation or a combination of both. The citation calls it an inspection. Regardless of what it is called, his inspection or investigation was terminated at the time of the completion of the closing conference with the employer representative on May 13, 1974. The notification of proposed penalty was not issued until June 14, 1974. The elapsed time of 32 days is, under the circumstances of this case, more than a reasonable time. The Secretary has failed to comply with the mandatory requirement of Section 10(a) [*47] to the prejudice of the rights of Respondent's employees and of Respondent under the Act. The citation and notification of proposed penalty must be vacated.

The particularity of allegation required by Section 9(a).

Section 9(a) (29 U.S.C. 658(a)) provides in part:

. . . Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provisions of the Act, standard, rule, regulation, or order alleged to have been violated.

Section 17 of the Act (29 U.S.C. 666) provides, as pertinent, as follows:

(a) Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule or order promulgated pursuant to section 6 of this Act, or regulation prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation. (Emphasis supplied.)

(b) Any employer who has received a citation for a serious violation of the requirements of section 5 of this Act, or of any standard rule or order promulgated pursuant to section 6 of this Act, or of any regulation prescribed pursuant to this Act, shall be assessed a civil penalty of up to [*48] $1,000 for each such violation. (Empasis supplied.)

Additionally, as pertinent, Section 17(c) provides for a discretionary civil penalty of up to $1,000 for each "nonserious" violation; Section 17(d) provides for discretionary civil penalties for failure to correct violations within the time permitted in a prior citation; Section 17(e) provides for criminal penalties for a willful violation causing death of an employee and for a more serious penalty for a violation committed after a first conviction; Section 17(k) provides for a mandatory penalty of up to $1,000 for failure to comply with a posting requirement of the Act or a regulation; and Section 17(k) defines a "serious" violation.

The citation in this case is directed to Respondent and describes the nature of the violation in the following language:

TYPE OF ALLEGED VIOLATION(S): REPEATED SERIOUS

An inspection was made on April 25, 1974 of a place of employment located at: 1801 16th Ave. S.W. and described as follows: repair work aboard U.S.S. CAMDEN at berth F and G.

On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., in the [*49] following respects:

Standard, regulation

Date by which

Item

or section of the Act

Description of

alleged violation

No.

allegedly violated

alleged violation

must be corrected

1

29 CFR 1915.41(i)(1)

Failure to provide

Immediately

a standard

upon receipt of

backrail on the

this citation.

tubular metal

staging located

on the port side

edge of the #1

elevator shaft,

third deck of

the U.S.S. CAMDEN

(AOE-2), in that

only a single

railing was

provided at 24

inches above

the work platform,

and the work platform

was approximately

38 feet above the

bottom of the

elevator shaft.

The citation contains a section entitled "Description of Types of Violations" which, as pertinent, reads as follows:

SERIOUS violation, according to the Act, "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 deligence, know of the presence [*50] of the violation."

REPEATED violation exists where the employer has abated an earlier violation, for which a citation was issued, and, upon later inspection, is found to have commited the same violation.

It is the position of the Secretary of Labor in this case that it is entirely proper to charge a violation described as "Repeated-Serious". The Secretary here argues in his brief that it is Section 5 of the Act and not Section 17 that has been violated; and, therefore, Section 9(a) does not require that the citation set forth what particular penalty provision to be applicable. n4 In other cases before this Commission the Solicitor of Labor has concluded that a violation cannot be both "repeated" underthe proscription of Section 17(a), and at the same time, either a "serious" violation under the proscription of Section 17(b), or a "nonserious" violation under the proscription of Section 17(c).

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n4 The Secretary's brief does not explain why, if there was indeed a violation of Section 5, such section of the Act was not set forth in the citation.

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In the opinion of this Judge, the position taken by the Secretary in this case is erroneous.

The Secretary of Labor has followed the general practice, in this and other cases, of not setting forth in the citation the section of the Act he believes has been violated. The Secretary has rather followed a practice of specifically setting forth the particular standard believed to be violated and additionally of characterizing the type of violation by describing it as "serious," "nonserious," etc. If the type of violation is described as "serious," an employer and his affected employees are apparently expected to conclude from that one word, together with the definition in the citation, that a violation of Section 17(b) is being charged, that the Secretary in addition to proving the violation of the standard as set forth in the citation must also prove that death or serious physical injury could result from the violation, and that a mandatory penalty of some amount up to $1,000 may be imposed upon the employer. If the type of violation is described as "repeated," an employer and his affected employees are apparently expected to conclude from that one word, [*52] together with the definition in the citation, that in addition to proving the current violation of the standard as set forth in the citation the Secretary must also prove that some prior violation of the same standard occurred and that while there may be no dollar penalty at all, there is a possibility that a penalty of not more than $10,000 may be imposed. n5

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n5 On contest, a higher penalty may be imposed by this Commission than that proposed by the Secretary in the notification of proposed penalty.

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When a violation is described as "repeated-serious," an employer and his affected employees cannot be expected to arrive at any definite conclusion as to what precise factual and legal issues will be involved, as to whether some penalty is mandatory, and as to what maximum penalty may be imposed.

The Secretary, in issuing citations intended to charge an employer with repeatedly violating a standard in violation of Section 17(a), has in this and in other cases followed the general practice of including in the citation [*53] a description of only one violation. The employer and the affected employees are left to guess what other violations the Secretary believes the one described violation duplicates.

The description of an alleged violation as "repeated-serious," and the failure to describe with particularity each of the several violations which are contended by the Secretary to make a respondent an employer who repeatedly violates" a standard contravene the proscription of Section 9(a) that the citation set forth with particularity the nature of the alleged violation including the section of the Act or standard alleged to be violated.

It is by the issuance of the citation and by its posting at the workplace that the employees of that workplace are notified of what OSHA believes are unsafe or unhealthful working conditions, what the employer must do to correct such conditions and when it must be done. Frequently, by the express encouragement of the Congressional framers of the Act, employees or their representatives complain to OSHA of the unsafe working conditions and seek inspections. It is by the issuance of the citation and its posting that employees learn what has been done in response to such [*54] complaints. It is from reading the posted citation that an affected employee must decide whether to challenge the abatement date or participate in any hearing if the employer contests the citation. Subsequent pleadings in a contested case, whether or not the citation is amended by such pleadings, are not required to be posted. An employee should not have to spend time and money to participate either personally or through his union representative so as to receive the vital information that Section 9(a) requires to be in the posted citation.

It is to the language of the citation that this Commission ought to be able to refer, and that alone, in deciding a case where an employer is charged under Section 17(d) with failure to correct a violation within the period prescribed in the citation. The Commission should not have to search out those involved in the issuance of a prior uncontested violation to find out what was actually intended by vague or ambiguous or omitted particulars.

It is by the issuance of the citation that an employer is advised of the charge against him. The purpose is not so he can better prepare his defense n6 but rather so he can decide what action to take, [*55] either to contest or to comply. He must decide solely from what is said in the citation (and from the amount of proposed penalty) whether to file a notice of contest and thereby seek a hearing. It is from the language of the citation that an employer must know exactly what he must do to abate the violation within the prescribed time. Congress did not intend that an employer be forced to file a notice of contest in order to get enough information to make these decisions. As Judge Pell so aptly put it in Secretary v. Rev. Comm. and Republic Creosoting Co., Div. of R.T. and C. Corp. (Seventh Cir. August 16, 1974), 501 F.2d. 1196 (1201):

. . . Employers subject to safety orders carrying the possibility of substantial penalties should not have to speculate as to the scope of a citation. Imprecise orders, of course, run the risk of being set aside but resort to the expenses, delays, and uncertainties of litigation should not be necessary. (Emphasis supplied)

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n6 Congress made sure that an employer in a contested matter could prepare his defense by providing in Section 9(c) of the Act (29 U.S.C. 659(c)) that 5 U.S.C. 554 would apply, requiring OSHA to timely advise a respondent of the matters of fact and law to be asserted at the hearing.

[*56]

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As previously concluded, the involved citation is fatally defective. Without amendment the citation must fall for lack of particularity of allegation. But it is too late to amend the citation in this case. Section 9(c) of the Act (29 U.S.C. 658(c)) provides that no citation may be issued under this section after the expiration of six months following the occurrence of any violation. A citation such as that here involved which does not set forth with particularity the nature of the alleged violation does not qualify as a citation issued under Section 9. Any "amended citation" which does so qualify must be construed as a new citation. Since the same statute which authorized the issuance of a citation limited the time within which it may be issued, the limitation is jurisdictional, does not have to be pleaded as a defense by a respondent, nor can it be waived by a respondent.

When a citation is vacated for the reason that it was not issued with reasonable promptness or for the reason that it does not describe with particularity the nature of the violation, the Secretary is not precluded from instituting [*57] a new inspection or investigation. If such inspection or investigation discloses a current violation, a new citation may be issued which complies with the mandates of Section 9(a), and a new notification of proposed penalty may be issued within the reasonable time required by Section 10(a). If such subsequent inspection or investigation discloses that the conditions giving rise to the prior enforcement attempt have been corrected, then the highly remedial purpose of making a safe workplace has been accomplished.

In the opinion of this Judge, interpreting the Act so as to accomplish its expressed objectives is not tantamount to interpreting the Act so as to sustain any action proposed by the Secretary of Labor. Holding the Secretary to strict compliance with the conditions attached to the power conferred upon him in issuing citations and in collecting penalties will do more to accomplish the objectives of the Act than will the condonation of the use of vague and ambiguous language in citations and of unreasonable delay in informing interested parties of alleged violations and proposed penalties.

In consideration of the entire record and of the briefs submitted by the parties, [*58] this Judge finds that the involved citation was not issued with reasonable promptness and did not describe with particularity the nature of the alleged violation, including the section of the Act violated, as required by Section 9(a) of the Act; that the involved notification of proposed penalty was not issued within a reasonable time after the termination of the inspection or investigation, as required by Section 10(a) of the Act; and that the citation and notification of proposed penalty must be vacated and the complaint dismissed.

ORDER

Accordingly, IT IS ORDERED:

1) Citation number 1, issued June 14, 1974, and notification of proposed penalty, issued June 14, 1974, be and they are hereby vacated; and

2) The complaint be and it is hereby dismissed.

Dated at Seattle, Washington this 25th day of March 1975.

HENRY C. WINTERS, Judge