UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 5989, 5990, & 6317
SECHRIST-HALL COMPANY
Respondent.

March 20, 1975

ORDER OF REMAND

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

VAN NAMEE, COMMISSIONER:

This matter is before the Commission on my order directing review of a decision made by Judge J. Paul Brenton. The Judge vacated three citations on the ground that they were not issued with reasonable promptness as required by section 9(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.; hereinafter ‘the Act’). Because in vacating the citations Judge Brenton misconstrued our decision in Chicago Bridge & Iron Co., OSHRC Docket No. 744, BNA 1 O.S.H.C. 1485, CCH Employ. S. & H. Guide para. 17,187 (Jan. 24, 1974), appeal docketed, No. 74–1214, 7th Cir., Mar. 18, 1974, we reverse and remand.

Respondent is engaged in the construction business in Corpus Christi, Texas. During the second half of 1973, Respondent conferred and corresponded with Complainant’s offices in Corpus Christi and Houston concerning the applicability of 29 C.F.R. 1926.500(d)(1). Complainant contended that the standard requires guarding on flat roofs. Respondent took the position that the standard was inapplicable to flat roofs.[1] Compliance officers from the district office in Corpus Christi inspected three of Respondent’s worksites in late November and December. Inspection reports were forwarded to the area office in Houston nine, eleven, and twelve working days after the inspections, and citations were issued by the Area Director within one to two working days thereafter.[2]

Judge Brenton vacated the citations, sustaining Respondent’s objections that Complainant had not issued the citations with reasonable promptness. The Judge acknowledged that the 72-hour rule we announced in Chicago Bridge[3] does not apply to the process involved in forming a belief that a violation has occurred. He concluded, however, that there was no need for such a process following these inspections because the parties had solidified their positions before the inspections took place. Accordingly, he concluded that the 72 hour rule was in force from the date of the inspections and consequently he deemed the citations untimely.

His holding was clearly erroneous. It does not follow that because an area director believes that a standard will apply as a matter of law that he has also formed a belief that a violation has occurred. Obviously, the question of whether a violation has occurred must depend on the facts of each case. For example, in the roofing cases we have said that the standard cited herein applies to flat roofs (S. D. Mullins Co., supra n. 1), but we have also indicated that the standard is not violated if it makes performance of the work impossible. See Universal Sheet Metal Corp., 9 OSAHRC 742, BNA 2 O.S.H.C. 1061, CCH E.S.H.G. para. 18,163 (1974); W. B. Meredith II, Inc., 9 OSAHRC 245, BNA 1 O.S.H.C. 1782, CCH E.S.H.G. para 18,003 (1974). Clearly then, an area director being the person authorized to issue a citation, cannot form a belief that a violation has occurred in a given factual situation such time as he is apprised of the facts of the situation.

In this case, the area director had no knowledge of the facts until such time as he received the reports of his compliance officers. He then issued citations within one to two working days in each case. The citations were therefore timely issued under the Chicago Bridge rule.

Having disposed of the cases as he did, the Judge did not reach the merits.

Accordingly, the Judge’s report is rejected and the matter is remanded for a report on the merits of each case. It is so ORDERED.

CLEARY, COMMISSIONER, concurring:

I concur in the order remanding this case for a decision on the merits. I would reverse the Judge’s decision for the reasons stated in Chicago Bridge & Iron Co., No. 744 (January 24, 1974) (Cleary, Commissioner, dissenting).

MORAN, CHAIRMAN, dissenting:

Whatever the lead opinion offers as possible reasons for an area director’s delay in issuing a citation is irrelevant to the instant case. The facts of record overwhelmingly show, and the Judge correctly holds, that the area director’s belief as to the existence of a violation was formulated well before the inspections ever took place.

For 5 months the parties, including the area director, had undergone an extensive series of communications concerning the question of whether or not the standard at issue was applicable to flat roofs. The area director’s superior notified respondent that he considered the standard to be applicable, and respondent in turn notified the complainant that it would not abide by that opinion. In spite of this uncontroverted evidence, the lead opinion asserts that ‘the area director had no knowledge of the facts until such time as he received the reports of his compliance officers.’

While the lead opinion suggests a few possible factors the complainant may have wanted to consider before issuing a citation, none of these factors were advanced by the complainant himself. Where a respondent has raised the issue that the citation was not issued with reasonable promptness, the burden shifts to the complainant to show when his decision that a violation existed was formulated. Resting merely on the fact that the citations were sent out within 3 days of the area director’s receipt of them is clearly insufficient under the facts of this case.

The Judge’s decision should be affirmed in all respects.

In addition, I emphasize once more that the safety standard codified in 29 C.F.R. § 1926.500(d)(1) is inapplicable to roofs. Secretary v. S. D. Mullins et al., 4 OSAHRC 1415, 1419–1422.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 5989, 5990, & 6317
SECHRIST-HALL COMPANY
Respondent.

August 13, 1974

BRENTON, JUDGE:

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting three citations, heretofore consolidated for trial, issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of that Act.

Each citation alleges that the respondent has violated section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

Each citation also alleges that the violation resulted from a failure to comply with certain standards promulgated by the Secretary by publication in the Federal Register on December 16, 1972 (37 F.R. 243), and codified in 29 CFR Part 1926.

The citation in Docket No. 5989, issued on December 14, 1973, lists the location of respondent’s workplace as 4109 Ocean Drive, Corpus Christi, Texas, and describes it as follows: ‘waterproofing the roof of the chapel.’

The citation in Docket No. 5990, issued on December 17, 1973, lists the location of respondent’s workplace as 2402 Leopard Street, Corpus Christi, Texas, and describes it as follows: ‘work on roof deck of canapy [sic].’

The citation in Docket No. 6317, issued on January 9, 1974, lists the location of respondent’s workplace as 2534 International Boulevard, Brownsville, Texas, and describes it as follows: ‘roofing the Brownsville high school.’

The description of the alleged violations contained on said citations state as follows:

Docket No. 5989 Item 1

29 CFR 1926.500(d)(1) Employees working adjacent to open-sided floor (flat roof) not guarded by a standard railing or the equivalent as specified in Paragraph (f)(1) of this section exposing employees to a fall of approximately 22 feet. The above condition located on the roof of the chapel.

Docket No. 5990

Item 1

29 CFR 1926.450(a)(9) Side rails of ladder did not extend at least 36 inches above the landing. When this is not practical, grab rails which provide a secure grip for an employee moving to or from the point of access shall be installed. No grab rails were installed, located on west side of building from ground to top of roof deck canapy [sic].

Docket No. 6317

Item 1

29 CFR 1926.500(d)(1) Employees working adjacent to open-sided floor (flat roof) not guarded by a standard railing or the equivalent as specified in Paragraph (f)(1) of this section exposing employees to a fall approximately 16 feet. The above condition located on the roof of the Brownsville high school.

The standards as promulgated by the Secretary provide as follows:

Docket 5989

Item 1

Section 1926.500 Guardrails, handrails, and covers.

(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

Docket 5990

Item 1

Section 1926.500 Guardrails, handrails, and covers.

Item 1

Section 1926.450 Ladders

(a) General requirements. (9) The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

Docket 6317

Item 1

Section 1926.500 Guardrails, handrails, and covers.

(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specific in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

Pursuant to the enforcement procedures set forth in section 10(a) of the Act, Respondent was notified by letters dated December 14, 1973, December 17, 1973, and January 9, 1973, from Thomas T. Curry, Area Director of the Houston, Texas Area, Occupational Safety and Health Administration, U.S. Department of Labor, proposed to assess a penalty for the serious violation at Item No. 1 under Docket No. 5989 in the amount of $800.00, for the serious and nonserious violations alleged at Item No. 1 under Docket No. 5990 in the amounts of $800.00 and $70.00 respectively, and for the serious violation alleged at Item No. 1 under Docket No. 6317 in the amount of $500.00.

After respondent contested these citations, and a complaint and a First Amended Answer had been filed by the parties, the consolidated cases came on for hearing at Corpus Christi, Texas, on April 25, 1974.

FINDINGS OF FACT

1. Respondent stipulated on the record that its business activities engaged it in commerce between states at the time and place its workplace in each case was inspected.

2. At the time of inspections respondent was engaged in the following activities: roofing a new structure on Ocean Drive, Corpus Christi, Texas, Docket No. 5989; placing and welding corrugated metal form sheets to a three foot structural deck on a new structure on Leopard Street, Corpus Christi, Texas, Docket No. 5990; and roofing a schoolhouse on International Boulevard, in Brownsville, Texas, Docket No. 6317. Respondent’s home office is Corpus Christi, Texas.

3. During the course of several months immediately preceding the inspections of November 29, 1973, complainant and respondent held conferences and corresponded concerning the applicability of 29 CFR 1926.500(d)(1) to roofers working on flat surfaces. At the conclusion thereof complainant advised respondent that he would enforce this standard as having application to flat roofs and respondent’s counsel advised that this standard neither contained a prohibition nor a requirement in respect to flat roof worksites.

4. Corpus Christi, Texas, is a district office of the complainant and its duties and functions are governed by complainant’s area office located in Houston, Texas, where the area director is located. Normal and unusual procedures and practice requires the area director to issue citations under his signature.

5. The Houston Area Office maintained a procedural policy which directed the Corpus Christi district office to submit its reports and citations to the area office within 10 working days following inspection.

6. In Docket No. 5989 the district office forwarded its reports and citation to the area director on the 9th working day following the inspection and the citation was issued on the 2nd succeeding working day thereafter.

7. In Docket No. 5990 the district office forwarded its reports and citations to the area director on the 11th working day following the inspection and the citation was issued on the next succeeding working day.

8. In Docket No. 6317 the district office forwarded its reports and citation to the area director on the 12th working day following the inspection and the citation was issued on the next succeeding working day.

9. In each case complainant presented his credentials to the agent in charge for the prime contractor, stated the purpose of his visit and requested this person accompany him on the walkaround, which he did. Upon reaching respondent’s work area in each case complainant was introduced to the foreman on the job for respondent and here again he explained his mission and proceeded to inspect respondent’s activities and conduct thereabouts.

10. The roof on Ocean Drive, 22 feet above the ground, where four employees were engaged in roofing activities, was constructed with a parapet completely around its edge, from this point its construction was shaped to form a curb and gutter, the latter sloping upward and inward for 5 feet from which point it flattens out, all of which forms a mansard roof. (See Exh. C–1)

a. There was no standard railing constructed and maintained around the outside edges of this roof.

b. Complainant ordered immediate abatement on the job site at the time of inspection and permitted the use of safety belts by the roofers as an equivalent means of protection in lieu of the standard railing.

c. But for the fact respondent furnished the safety belts in complainant’s presence complainant would have issued the citation on the job at the time of inspection.

11. The surface of the work area, 22 feet above the ground, on Leopard Street, where three employees were engaged in laying corrugated metal sheets, was a deck canopy 3 feet in width which consisted of steel girders perpendicular to the building upon which boards were laid for which to walk, which produced openings the size of which are unknown. One means of access to his deck canopy, which was observed to be used for descent by these three employees, at about quitting time, was a ladder which did not extend 36 inches above the canopy and there were no grab rails thereabouts. This ladder was owned by the prime contractor which had been placed, where observed, by him for his crew only minutes before.

a. This inspection occurred about three hours after the Ocean Drive inspection.

b. Complainant characterized the fact situation concerning the deck canopy as a flat roof violation of 29 CFR 1926.500(d)(1).

c. At the time of inspection complainant ordered immediate abatement by means of a standard railing or some other equivalent means. It was observed by complainant’s compliance officer to have been abated to his satisfaction prior to forwarding his reports and handwritten citation to his area director.

12. The roof on the Brownsville construction site was 16 feet above the ground, flat and no guard railing at its edges. Four employees were engaged in roofing activities at the time of inspection. Only two were required to be near its edge in the performance of their work.

a. In this case there was no order to abate at the time of inspection.

b. The conduct of the work here was administered by respondent’s Harlingen, Texas, office.

13. In each case the complainant, through his compliance officer, found that there existed in each place of employment a substantial probability that death or serious physical harm could result from the hazard of falling off the edge of a flat unguarded roof, and that respondent was aware thereof.

14. In proposing penalties to be assessed complainant gave no credit for good faith in the Ocean Drive and Leopard Street cases.

15. In each case the compliance officer prepared in his own handwriting OSHA 2A form ‘Citation for Serious Violation’ which was forwarded to the Area Director, Thomas Curry, in Houston, Texas. There in each case a typed copy was prepared and mailed to respondent.

16. Each alleged violation on the three citations carried an abatement date reading ‘immediately upon receipt of this citation.’

17. Notification of proposed penalty to be assessed accompanied each citation when issued.

ISSUE OF REASONABLE PROMPTNESS

Was there a failure by the complainant to issue the citation in each case with reasonable promptness in accordance with the command of section 9(a) of the Act.

DISCUSSION

Respondent relies upon Secretary of Labor v. Chicago Bridge & Iron Co., OSAHRC Docket No. 744, for relief in these cases. In that case the Review Commission laid down the broad proposition that a citation has not been issued with reasonable promptness if more than 72 working days’ time elapse between the time the complainant or his authorized representative has formed a belief that a violation has occurred and the time the citation is issued absent exceptional circumstances.

Here the facts conclusively show that complainant, his regional director, area director, district officer in charge, and the compliance officers involved together with the regional solicitor and his superiors in the national office had collectively concluded before the alleged violations were ever observed that 29 CFR 1926.500(d)(1) would be enforced against the respondent wherever respondent was found with employees working on flat roofs. The parties including their respective legal advisors and the several authorized representatives of the complainant has held conferences and corresponded for almost five months in an effort to resolve the conflict as to the applicability of this standard. In concluding the matter the regional director so notified respondent’s attorney by letter (Exh. C4); and complainant’s representatives on the firing line in Corpus Christi, Texas, importuned respondent to guard its employees working on flat roofs with a standard railing or some equivalent means such as safety belts, safety nets, life lines, etc., none of which is the equivalent as spelled out in paragraph (f)(i) of section 1926.500. The latter is not to say that their suggestion was not a practical solution.

On the other hand respondent through its attorney concluded that the standard was not applicable to roofers or sheet metal workers on flat roofs and complainant was so notified the stand respondent was adhering to.

Moreover, everyone involved in this entire situation knew that if the chance of a fall from an unguarded flat roof was 16 feet or more such would be a serious violation, because it was undisputed that in such an event there is a substantial probability that death or serious physical harm could result therefrom and of course everyone also knew that complainant intended to enforce the standard wherever and whenever the occasion demanded.

Now, therefore, it is abundantly clear that the totality of the record is replete with substantial evidence that no representative of the complainant, regardless of his position or duty, would ever have to think, as his decisional process would be automatic, that is, upon observing respondent’s roofers or sheet metal workers engaged in work on a flat roof 16 feet or more above the ground, respondent is in serious violation of 29 CFR 1926.500(d)(1). This also applies to the Area Director, Thomas Curry, who in fact did rubber stamp each citation upon receipt.

Furthermore, in the first case, Ocean Drive, the compliance officer would have issued the citation for serious violation of 29 CFR 1926.500(d)(1) on the spot if he had not seen evidence that some kind of abatement was in progress by respondent immediately after he so ordered. He had this authority by virtue of chapter V K. of the Compliance Operations Manual which is particularly geared to construction inasmuch as some such worksites are likely to move locations in a relatively few days and even hours. All of which tends to place the compliance officer in the position of being tantamount to the arresting office, the judge, and the jury, all in one package, with an on the spot verdict from whence the road to relief, if any, is long, rough, and rugged.

Complainant attempts to explain his delay in issuing the citations in each case upon the workload of the compliance officers. But this had nothing to do with the decisional process of forming a belief that the facts observed represented serious violations for failure to guard flat roofs, or in the Leopard Street case with respect to the additional nonserious violation for failure to extend the ladder 36 inches above the landing. And as has been observed above when the area director received the handwritten citations he simply rubber stamped them by having them typed, affixing his signature and mailing. There is no direct evidence as to the date and time the area director received the reports and citations from his compliance officers but there is evidence that the citations were issued on the first working day following the day it was forwarded in two of the cases and on the second working day in the other. The logical inference from these facts fortifies the conclusion that in each instance in all these cases belief that a violation had occurred was registered the moment it was observed, and that by reason of the facts and circumstances here that belief is imputed to the area director.

Because Leopard Street occurred within three hours of Ocean Drive complainant argues that part of the delay had to do with concern whether Leopard Street was a repeated violation and, further, was either willful, because of the facts and circumstances surrounding the protracted discussions and the contrary conclusions reached by each party as to the flat roof violations. But a willful or repeated violation is a type of violation the same as is a serious, nonserious, or de minimus. Type of violation doesn’t have anything to do with forming as to whether or not an employer has violated a requirement of section 5 of the Act, of any standard, rule, or order promulgated pursuant to section 6 of the Act, or of any regulations prescribed pursuant to the Act.

In Chicago Bridge & Iron Co., supra, the area director because of his workload required two to three weeks to act in forming a belief on the kind of recommendations he received from his compliance officer and the additional delay in issuing the citation was unexplained. In the instant case the belief had been formed by the area director before the violations were committed as he had been so instructed by his regional director, the latter having been, in effect, so instructed by the complainant. And of course the area director had so informed his compliance officers who came upon the respective scenes in each of these three cases. At the very least, then, the decisional process of forming a belief that a violation had occurred with respect to each case ended with the conclusion of each inspection.

III

Thus, are there any exceptional or unusual circumstances existing in any one of the cases that will extend the time for issuance of any one of the citations beyond three working days. Complainant also relies on its Houston area office’s policy of permitting the compliance officer to take up to ten days to submit his investigation and long hand citation for action as being reasonable and within the spirit and intent of the Act. In light of Chicago Bridge & Iron Co., supra, there is no justification for the existence of the policy, unless it relates solely to the decision making process in forming a belief that a violation has occurred. Consequently this thrust in complainant’s argument cannot relate to exceptional circumstances because the decisional process ended with the inspection. In such a situation the compliance officer has surely been invested with delegated executive authority and he is the area director’s instrumentality to perfect the remaining ministerial tasks which in these cases was simply to write out the citation. OSHA–2A Form, in longhand and forward to the area director for typing, signing, and mailing. It is inferred from viewing each citation together with the knowledge exhibited and convictions expressed by each compliance officer that less than an hour’s time would have been required to fill out OSHA–2A Form in each case including mailing it to Houston. It is also inferred that the area director receives them on the succeeding working day and in these cases could, without any difficulty, complete his ministerial tasks, including mailing to the employer, on that same day. The fact that other reports, notes, and memoranda of the compliance officer are required in each case is neither an excuse nor exceptional circumstances as all such may be forwarded another day, as none of it was required to form a belief that a violation had occurred.

In the Brownsville case complainant argued that his compliance officer remained there for a week making other inspections and that he was obliged to take some annual leave. It just seems that neither is an exceptional circumstance. And in each case while the respective workloads may have been formidable none was insurmountable to the extent that any one of them qualified as an exceptional circumstance excusing delays of 8 to 10 working days in the issuance of the citations.

The impact of the proposition of law pronounced in Chicago Bridge & Iron Co., supra, is made self-evident in the dissenting opinion by this significant statement: ‘At the heart of the majority’s opinion is the proposition that a citation must be issued within three working days from the moment that the area director has formed a belief that a violation has occurred.’

This tribunal is compelled to indicate that it has mixed emotions concerning this rule of law but is, nevertheless, constrained to follow it wherever and whenever the facts of a case demand its application.

In each of the three cases respondent by its first amended answer in each case raised the issue of reasonable promptness with respect to the command of section 9(a) of the Act and requested vacation of each citation.

CONCLUSION

Accordingly the citation and proposed penalty to be assessed in each case here under consideration should be vacated.

Having reached this conclusion consideration of the merits of the citations and the other affirmative defenses raised by the answer and the second amended answer is rendered unnecessary.

CONCLUSIONS OF LAW

1. Respondent admitted that its business activities and conduct effect commerce thereby reposing jurisdiction of these causes in the Review Commission.

2. Where the evidence is conclusive that the complainant and his authorized representatives have individually and collectively concluded that flat roofs must be guarded in accordance with 29 CFR 1926.500(d)(1) and have so notified the employer the decisional process in forming a belief that a violation has occurred ends when the compliance officer observes the employer’s workmen performing their job tasks on an unguarded flat roof.

3. Complainant’s failure to show exceptional circumstances for delay in the issuance of a citation exceeding three working days from the time an observation is made under the facts and circumstances related in the preceding conclusion of law and as more fully discussed elsewhere hereinabove is a violation of the reasonable promptness command of section 9(a) of the Act in accordance with the role or proposition of law as laid down in Secretary of Labor v. Chicago Bridge & Iron Co., OSAHRC Docket No. 744.

ORDER

Wherefore, it is ORDERED that:

The citations and proposed penalties to be assessed in the three cases consolidated herein be and each, all and singular, is hereby vacated.

It is so ORDERED.

[1] In several cases we have sustained Complainant’s position. See e.g., S. D. Mullins Co., OSHRC Docket No. 364, BNA 1 O.S.H.C. 1364, CCH E.S.H.G. para. 16,803, appeal docketed, No. 73–3705, (5th Cir., November 14, 1973).

[2] A November 29th inspection of Respondent’s Ocean Drive worksite resulted in a citation for serious violation of 1926.500(d)(1) issued on December 14, 1973 (Docket No. 5989). The November 29th inspection of Respondent’s Leopard Street site prompted a citation for serious violation of 1926.500(d)(1) and a non-serious citation for a 1926.450(a)(9) violation, issued December 17, 1973 (Docket No. 5990). The December 18th inspection of Respondent’s Brownsville site resulted in a January 9, 1974 citation for serious violation of 1926.500(d)(1) (Docket No. 6317). The cases were consolidated for hearing.

[3] We held that ‘absent exceptional circumstances Complainant or his authorized representative must perform the ministerial tasks in issuing a citation within 72 hours from the time he has formed his belief that a violation has occurred.’