BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO, Chairman:

An order of Review Commission Judge Henry K. Osterman, dated July 28, 1975, is

before this Commission for review pursuant to 29 U.S.C. § 661(i).

On review, Respondent argues 1) that the Judge’s denial of Respondent’s motion for

production of documents was prejudicial error; 2) that the Judge erred in ruling that the citations


were issued with reasonable promptness; 3) that the Judge erred in finding, on the evidence of

record, that Respondent violated the occupational safety and health standards at 29 C.F.R.

1926.652(b) and (h); and 4) that the existence of an operational Maryland state plan precluded

the issuance by Complainant of the citations.

Concerning issues 3 and 4, we adopt the decision of the Judge for the reasons he

assigned. As to issues 1 and 2, Respondent argues that the citations were not issued with

reasonable promptness and that production of the documents it requested was essential to its

presentation of this defense.

The citations were issued ten working days following the inspection of Respondent’s

worksite by Complainant’s compliance officer. Respondent’s motion sought production of the

compliance officer’s inspection notes, his reports to his supervisors, and any other documents

upon which Complainant relied in issuing the citations.

Under the circumstances of this case, however, the materials sought are not relevant to a


29 U.S.C. § 658(a) requires that a citation be issued with ‘reasonable promptness.’




determination of whether the citations were issued with reasonable promptness. A citation

issued an unreasonable length of time after alleged violations are discovered will be vacated if

the employer is prejudiced as a result of the delay. See Coughlan Construction Co., 20 OSAHRC

641, BNA 3 OSHC 1636, CCH OSHD para. 20,106 (1975). Additionally, a citation can be

vacated if the delay in its issuance is so unreasonable as to be unconscionable. Jack Conie &

Sons Corp., Docket No. 6794, BNA 4 OSHC 1378, CCH OSHD para. 20,949 (June 26, 1976)


(concurring opinion). The record, however, shows that Respondent was not prejudiced by any

delay in the issuance of the citation, and it clearly cannot be said that the lapse of ten working

days between the inspection and the issuance of the citation is unconscionable. Therefore,

assuming that the Judge erred in denying the motion for discovery, the error is harmless.

Accordingly, the Judge’s decision is affirmed


William S. McLaughlin

Executive Secretary

DATE: OCT 15, 1976

MORAN, Commissioner, Dissenting:

All charges in this case should be vacated because of the unexplained 15 day delay in


At the time this case was tried, a rule was in effect whereby a citation was deemed not issued

with reasonable promptness, and therefore subject to vacation, if issued more than 72 hours after

Complainant’s authorized representative formed the opinion that a violation existed. Chicago

Bridge & Iron Co., 6 OSAHRC 244, BNA 1 OSHC 1485, CCH OSHD para. 17,187 (1974),

rev’d 514 F.2d 1082 (7th Cir. 1975). Following the court’s decision in Chicago Bridge & Iron,

the Commission decided to reject the rule set forth in its prior decision. Coughlan Construction

co., supra. Nevertheless, at the time the motion for discovery was made,


In Jack Conie, the Commission members expressed differing views concerning the nature of

the reasonable promptness defense. Although the ‘unconscionable delay’ criterion represent only

my personal view, the net result will be that, absent prejudice to the employer, a reasonable

promptness defense will prevail if and only if a citation is issued following an unconscionable

delay. Commissioner Cleary adheres to the view he expressed in Jack Conie that prejudice to the

employer is the only reason for vacating a citation on grounds of reasonable promptness.




issuance of the citations involved. This delay is 12 days longer than was intended by Congress

when it mandated that citations be issued ‘with reasonable promptness.’ 29 U.S.C. § 658(a).

`Congressional intent in this matter is clear, as is noted in the following excerpt from the

conference committee report:

‘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.’

There has been no showing that the delay herein involved was due to unusual

circumstances that were beyond complainant’s control. There were, therefore, no ‘exceptional


circumstances,’ and the citations should be vacated. Contrary to the assertion in the majority

opinion, the statutory requirement that citations be issued with reasonable promptness is not

waived in the absence of a showing of prejudice or a delay so unreasonable as to be

unconscionable. It is a positive duty placed on the Secretary of Labor and a citation not so issued

is void. I have discussed this in more detail in Secretary v. Jack Conie & Sons Corporation,

OSAHRC Docket No. 6794, June 25, 1976, and Secretary v. Concrete Construction Corporation,

OSAHRC Docket No. 2490, April 8, 1976.

Another issue before us on review, which is not addressed by my colleagues, involves the

Judge’s affirmance of the charge alleging a violation of 29 C.F.R. § 1903.2. The evidence

indicates that an OSHA poster was not located at the construction worksite. The poster was,

however, posted at the home office where, the foreman testified, he normally went.

Section 1903.2 provides in pertinent part as follows:

‘(a)(1) Each employer shall post and keep posted a notice or notices . . . informing

employees of the protections and obligations provided for in the Act . . .. Such


The inspection of respondent’s worksite was conducted on October 21, 1974. The citations

were not issued until November 5, 1974.


Staff of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative

History of the Occupational Safety and Health Act of 1970, at 1191 (Comm. Print 1971).


As my colleagues indicate in footnote 2, supra, the discovery question raised by respondent is

mooted by the Seventh Circuit’s rejection of the reasonable promptness test previously applied

by the Commission. Brennan v. Chicago Bridge and Iron, 514 F.2d 1082 (7th Cir. 1975). Under

that ruling and subsequent Commission precedent, the question of when the area director formed

an opinion regarding the existence of a violation is no longer relevant. In addition, as is noted

above, a citation must be issued within 72 hours of the detection of a violation unless exceptional

circumstances are demonstrated.



notice or notices shall be posted by the employer in each establishment in a

conspicuous place or places where notices to employees are customarily posted . .


‘(b) [W]here employers are engaged in activities which are physically dispersed . .

. the notice or notices required by this section shall be posted at the location to

which employees report each day.’ (Emphasis added.)

Complainant has failed to demonstrate that respondent’s posting at the home office did not

satisfy the requirements of these regulations. The charge should therefore be vacated.

Commission precedent indicates that posting at a main office is adequate. Secretary v.

Danco Construction Company, 17 OSAHRC 170, 179–180 (1975), Secretary v. Abdo S. Allen

Company, 14 OSAHRC 481, 487 (1974), Secretary v. Davis-McKee, Incorporated, 9 OSAHRC


59, 80–81 (1974). Judge Osterman improperly allocated to respondent the burden of proving

that employees regularly reported to the home office. The rule on this matter is to the contrary.

The burden of proving each element of a violation rests with complainant. 29 C.F.R. §

2200.73(a). See also Brennan v. OSAHRC and Hendrix, d/b/a Alsea Lumber Company, 511 F.2d

1139 (9th Cir, 1975).


In view of the majority’s reliance on the Judge’s decision, it is attached hereto as Appendix A.










Louis Weiner, Regional Solicitor

U.S. Department of Labor, Philadelphia, Pennsylvania by Howard K. Agran

for the Secretary of Labor

Charles L. Widman, Esq.

For the Respondent


This is a proceeding initiated by the Respondent pursuant to Section 10(c) of the

Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c), (hereafter the Act) in order to

challenge two Citations and a Notice of Proposed Penalty issued to Respondent on November 5,


The record shows that on November 5, 1974 subsequent to an inspection conducted on

October 21, 1974 Respondent was issued Citations charging a serious violation of 29 C.F.R. §

1926.652(b), a non-serious violation of 29 C.F.R. § 1926.652(h), and a second non-serious

violation of 29 C.F.R. § 1903.2. A penalty of $550 was proposed for the serious violation. No

penalties were proposed for the non-serious violations. The Notice of Contest filed by

Respondent challenges each item of the Citation and the penalty proposed for the one serious


A Complaint and Answer were filed by the parties. In its Answer Respondent challenges

the authority of the Secretary of Labor to issue the Citations on a variety of grounds, including

inter alia that the Citations were not issued with ‘reasonable promptness’ after the inspection;

and that the Secretary having approved a plan submitted by the State of Maryland, no longer has


jurisdiction over the subject matter of this proceeding.

A stipulation read into the record relates to the correct name of the Respondent; the state

of incorporation; the fact that no injuries resulted from the alleged violations; that there was no

history of previous violations; and that the average daily number of Respondent’s employees is

fifty (Tr. 3–4).

Evidence given at the hearing discloses that on October 21, 1974 a compliance officer

employed by the Secretary visited the Respondent’s worksite at Andrews Air Force Base in

Maryland in response to a complaint relating to an employer other than this Respondent (Tr. 8–

9). While conducting his inspection the compliance officer observed an open trench in the same

area. The compliance officer introduced himself to the employee in charge and stated that

although he was present in response to a complaint relating to another employer he intended to

include the trenching area in his inspection of the site (Tr. 12). He paced off the trench and

determined it to be approximately 30 feet long, 8 feet deep and 4 to 6 feet in width at the top with

about 5 feet of spoils from the trench piled up on either side. Three employees of the Respondent

were working in the trench at the time of the inspection (Tr. 11, 12, 16, 19). He also took three

photos of the scene which were received in evidence as C–1, C–2, and C–3.

On cross-examination the compliance officer conceded that he did not measure with a

tape the dimensions of the trench. Regarding the depth thereof he stated that his estimate of 8

feet was made visually and supported by his observation that the employees in the trench were

about 6 feet tall and that the top of the trench was approximately two feet above their heads. I

accept the implications of Respondent’s argument that an actual measurement is more persuasive

than an ‘estimate.’ However, it is also clear from Exhibits C-2 and C-3 that the trench exceeded

five feet in depth. No shoring, sheeting or other measures were used to support the sides of the

trench which had not been sloped to meet the requirements of Table P–1 referred to in 29 C.F.R.

§ 1926.652 (Tr. 16–17). The evidence shows that the sides of the trench which were vertical had

sloughed off in places and that the soil was loose and unstable and ‘mushy’ (Tr. 16–18, 43).

The compliance officer also testified without contradiction that Respondent had not

provided a ladder as an emergency means of exit from the trench and that a poster required by 29

C.F.R. § 1903.2 was not posted at the worksite (Tr. 20–21, 50).

Respondent has made a valiant effort to discredit the compliance officer’s testimony and

the manner in which the inspection was conducted (Tr. 29–65, 82–84, 103–115). With respect to



Exhibits C–1, C–2, and C–3 Respondent urges that they be excluded from the record because the

compliance officer could not say with certainty when they had been taken (Tr. 30). I find,

however, that the compliance officer’s method of conducting his inspection was basically correct

and that any deviation from the 29 U.S.C. § 657(a) which may have occurred was harmless and

did not prejudice the Respondent or materially affect the accuracy of the compliance officer’s

observations and report. It should be noted that Respondent’s field superintendent, David

Savage, conceded that the trench was at least 5 feet in depth as shown in Exhibit C–2 (Tr. 106).

On balance I find that the basic facts relating to the dimensions of the trench, the type of soil in

which it was dug, and the lack of protection required by 29 C.F.R. § 1926.652(b) and (h) have

been established by the Secretary.

As to the alleged violation of 29 C.F.R. § 1903.2 the evidence shows that the required

poster was on display at the Respondent’s home office (Tr. 110). However, there was no

evidence offered to show that all employees involved herein regularly reported to the home

office and had an opportunity to observe the said poster.

Two other issues require resolution. On the question of ‘reasonable promptness’ in the

issuance of the Citation, the record shows that the inspection was conducted on October 21,

1974, and that ten (10) working days thereafter, on November 5, 1974 the Citations were issued.

Respondent has failed to show any prejudice as a result of the elapsed time involved herein and I

take notice that in a reasonably active area office such a delay is not unreasonable, Cf: Secretary

of Labor v. Chicago Bridge and Iron Company, —— F.2d ——, Case No. 74–1214 7th Cir.


The final issue is the effect of 29 C.F.R. § 1952.210 et seq. on the Secretary’s jurisdiction

to conduct an investigation of Respondent’s worksite in Maryland and issue the Citations herein.

Briefly stated, the Secretary is authorized by Section 18 of the Act to approve a state plan

regulating the working conditions of employees in lieu of the Occupational Safety and Health

Act of 1970 provided certain standards are maintained. During the development phase of an

approved state plan (a period of 3 years) the Secretary may exercise concurrent authority under

Sections 8, 9, 10, 13 and 17 of the Act until he determines that the criteria set forth in Section

18(c) have been met. 29 C.F.R. § 1952.212 expressly states that the authority of the Secretary to

enforce this regulation will not be diminished during the three-year developmental period of

Maryland’s program.



The Maryland plan was given approval by the Secretary on June 28, 1973 (38 F.R., No.

128, July 5, 1973, pp. 17834 et seq.) and until June 28, 1976 at the earliest, the Secretary retains

jurisdiction to conduct inspections and enforce the health and safety regulations issued pursuant

to the Act.

Respondent’s contention that the legislative history of the Act supports a finding that the

Secretary was ousted of general jurisdiction upon his approval of the Maryland plan is without

merit. Moreover, reference to legislative history is justified only when the language of a statute is

ambiguous. I find no ambiguity in either Section 18 of the Act or 29 C.F.R. § 1952.212 which

casts doubt upon the Secretary’s authority to issue the Citations herein.

With respect to the violation of 29 C.F.R. § 1926.652(b), I find that it was properly

characterized as a ‘serious’ violation since the potential for serious injury or death in the event

that one or more sides of the trench should collapse while an employee was in the trench was

ever present. The penalty of $550 proposed for this violation is reasonable and appropriate under

the circumstances herein.


1. Respondent Par Construction Company is a corporation organized and existing under

the laws of the State of Maryland.

2. Respondent is an ‘employer’ engaged in a business ‘affecting commerce’ as that term

is defined by 29 U.S.C. § 653.

3. Respondent employs a daily average of 50 persons.

4. Respondent has no history of previous violations of the Act.

5. No injuries resulted from the violations charged in the Citations issued to Respondent

on November 5, 1974.

6. On October 21, 1974 Complainant conducted an inspection of a worksite at Andrews

Air Force Base in Maryland. As a consequence, Respondent on November 5, 1974 was issued

two Citations charging Respondent with one serious and two non-serious violations of the

standards promulgated by the Complainant pursuant to the Act.

7. On the date of inspection three of Respondent’s employees were observed working in a

trench. The trench was approximately 30 feet in length, 8 feet in depth, and 4 to 6 feet in width at

the top and had been dug by Respondent’s employees in loose and unstable soil. Spoils from the



trench had been piled along the sides of the trench to a height of approximately 5 feet.

8. The said trench had been neither shored, sheeted, braced, sloped, or otherwise

supported as required by 29 C.F.R. § 1926.652(b).

9. Respondent did not on the date of inspection provide employees working in the trench

with adequate means of egress from the said trench.

10. On the date of inspection Respondent did not have posted at the worksite the notice

required by 29 C.F.R. § 1903.2 and such a notice although posted at Respondent’s home office

was not available to all employees.

11. The penalty proposed for Respondent’s violation of 29 C.F.R. § 1926.652(b) is not

inconsistent with the criteria established by Section 17(j) of the Act.


1. Respondent is an employer within the meaning of Section 3 of the Occupational Safety

and Health Act of 1970.

2. Although the State of Maryland on June 28, 1973 received approval from the Secretary

of Labor of a plan intended in the future to supersede the Act referred to above, the Secretary on

October 21, 1974 did retain, and still does retain, jurisdiction to conduct inspections in Maryland

and to enforce health and safety standards promulgated by the Secretary.

3. On October 21, 1974 Respondent was in violation of 29 C.F.R. § 1926.652(b); 29

C.F.R. § 1926.652(h); and 29 C.F.R. § 1903.2. Respondent’s violation of 29 C.F.R. §

1926.652(b) was a ‘serious’ violation within the meaning of Section 17(k) of the Act. The

penalty proposed for this violation is consistent with the provisions of Section 17(j).


Pursuant to 29 U.S.C. § 659(c) and Rule 66 of this Commission’s Rules of Procedure, it


1. Respondent’s motions to dismiss this proceeding are DENIED.

2. The Citations issued to the Respondent on November 5, 1974 and the penalty proposed

for the serious violation charged therein are AFFIRMED in all respects.



Dated: JUL 28, 1975

Hyattsville, Maryland