UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 1420

STOKES CONSTRUCTION COMPANY,

 

                                              Respondent.

 

June 7, 1974

ORDER OF REMAND

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioner

VAN NAMEE, COMMISSIONER:

            This matter is before the Commission on my order directing review of an order rendered by Judge Ernest C. Winfrey. Judge Winfrey vacated Complainant’s citation and proposed penalties on the ground the citation was not issued with reasonable promptness. We have reviewed the record. For the reasons given below, we reverse and remand.

            Complainant inspected Respondent’s workplace on June 9, 1972. On August 15 he issued his citation whereby he alleged that Respondent Stokes Construction Company (hereinafter ‘Stokes’) committed three non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter ‘the Act’).

            Stokes timely filed a notice of contest. Reasonable promptness was not raised as an issue in the notice. Complainant filed his complaint on September 18.

            On November 16 the Commission set a hearing date in this matter and notified the parties to that effect. Certain pre-trial instructions accompanied the notice of hearing.

            By a letter dated December 2, Stokes replied to the pre-trial instructions as follows:

Since the job has been substantially completed since October 19, 1972 and occupied by the Owners since that date, we are unable to get our main witnesses to gather for the scheduled hearing and have very little hope to get them to gather for a future hearing, due to their traveling to various construction jobs and part of them already working in different cities.

 

We feel very strongly that you are wrong in your original findings, however due to the above-stated circumstances for our inability to appear, our only remaining alternative is to request that you reconsider the case and advise us of your final determination.

 

            On December 15 Stokes answered the complaint. Reasonable promptness was not raised as an issue by the answer. On the same day and in further response to the pre-trial instructions Stokes said it would appear and participate in the hearing and present its witnesses.

            Thereafter, this matter was tried on its merits. Stokes appeared and participated fully in the hearing and presented witnesses having knowledge of the facts in rebuttal to Complainant’s case. Stokes did not raise the issue of reasonable promptness at the hearing nor was the issue raised by a post hearing brief. Indeed, Complainant makes no mention of such issue in his post hearing brief.

            Nevertheless, Judge Winfrey vacated because in his view the citation was not issued with reasonable promptness. In vacating the Judge apparently recognized what we have subsequently said, i.e., the issue of reasonable promptness must be raised as an affirmative defense during the issue formulation stage of the proceedings. Chicago Bridge and Iron Company, OSHRC Docket No. 744, BNA 1 O.S.H.R. 1485, 1487 n 7, CCH Employ. S. & H. Guide para. 17,187 (Rev. Comm’n., January 24, 1974). In this regard he indicated that it would have been helpful to him had Stokes raised the issue by a proper motion, and he noted that Stokes had not provided assistance. Apparently, the Judge was determined to vacate for even though the issue had not been raised he proceeded to construe the letter of December 2 in such fashion as to make it seem the issue was raised by Stokes.[*] That is, he construed the letter to thereby rationalize his disposition of his own issue.

            We agree with the Judge’s statement that the issue was not raised by Stokes. As for the letter of December 2 it merely states that the project ended on October 19 and Stokes was therefore having difficulty locating witnesses. But Stokes had received the citation about two months before the project ended. Thus there is no relationship between the question of reasonable promptness and the question of Stokes’ ability to produce witnesses. Moreover, as is evident from the communication of December 15 Stokes problem with respect to obtaining witnesses was solved.

            Judge Winfrey although noting that the record was sufficient to decide this matter on the merits declined to do so because of his disposition on reasonable promptness. Since we reverse that disposition on the authority of the Chicago Bridge and Iron Company decision the matter must be remanded for a decision on the merits.

            Accordingly, the decision to vacate is reversed, and the matter is remanded for a decision on the merits.

 

CLEARY, COMMISSIONER, concurring:

            I concur in the remand of this case for a decision on the merits. This disposition is consistent with my position as expressed in Morrison-Knudsen Co. & Assoc., No. 692 (March 28, 1974); Advance Air Condition, No. 1036 (April 4, 1974); and Plastering Incorporated, No. 1037 (May 3, 1974).

 

MORAN, CHAIRMAN, dissenting:

            Reading the lead opinion in this case makes it difficult to decide whether the dissent from the disposition or acknowledge the law lecture addressed to me by my colleague. One practice I did learn in law school is to read the entire opinion to be relied upon, prior to citing it as authority. While not necessarily acknowledging the relevance of the footnoted citation from Corpus Juris Secundum, it is noted that it includes the following:

In order for a court to have ‘jurisdiction of the subject-matter,’ the particular issue determined must be properly brought before it in the particular proceeding for determination. (Emphasis supplied).

 

            I fail to see how an issue can be properly brought forward for adjudication if the citation which initiates the case is improperly issued.

            All these matters have been covered before so I see no need of repeating them here. See Secretary v. Advance Air Conditioning, Inc., OSAHRC Docket No. 1036 (April 4, 1974) and Secretary v. Plastering, Incorporated, OSAHRC Docket No. 1037 (May 3, 1974).


 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 1420

STOKES CONSTRUCTION COMPANY,

 

                                              Respondent.

 

 

MARCH 15, 1973

WINFREY, JUDGE, OSAHRC:

            Following timely notice, a hearing was conducted by the undersigned at Dallas, Texas, on January 16, 1973. The Complainant was represented at the hearing by the Honorable Scott H. Strickler, Regional Solicitor’s Office, U.S. Department of Labor. The Respondent was represented by its owner, John Stokes, who is not a lawyer. The Complainant filed proposed findings of fact and conclusions of law, as well as a brief and proposed order.

            This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 [29 USC 651 et seq., hereinafter called the Act], contesting a citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.

            The citation was issued August 15, 1972, and alleges that as a result of the inspection of a workplace under the ownership, operation or control of the Respondent located at 7001 Camp Bowie, Fort Worth, Texas, and described as being a Levitz construction site, the Respondent violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof. The descriptions of the alleged violations contained in said citation are as follows:

Item No.

Standard or regulation allegedly violated

Description of violation

Date on which alleged violation must be corrected

1

29 CFR 1926.652(b)

Sides of trenching in unstable or soft material that were more than 5 feet in depth were not shored, braced, sloped or otherwise supported to protect the employees within them.

 

August 22, 1972

 

2

29 CFR 1926.652(d)

In one isolated location where temporary shoring had been installed, temporary shoring was not effectively installed to the bottom of the excavation

August 22, 1972

3

29 CFR 1926.652(j)

Cross braces were not placed in a true horizontal position on temporary shoring. Cross braces were not properly located to eliminate possibility of shoring collapsing at the bottom of installation.

August 22, 1972

 

 

            In pertinent part, 29 CFR 1926.652 provides as follows:

General trenching requirements:

(b) Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P–1, P–2 [following paragraph (g) of this section].

 

(d) Materials used for sheeting and sheet piling, bracing, shoring, and underpinning, shall be in good serviceable condition, and timbers used shall be sound and free from large or loose knots, and shall be designed and installed so as to be effective to the bottom of the excavation.

 

(j) Cross braces or trench jacks shall be placed in true horizontal position, be spaced vertically, and be secured to prevent sliding, falling, or kick-outs.

 

            Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated August 15, 1972, from Charles J. Adams, Area Director, Dallas Area Office of the Occupational Safety and Health Administration, U.S. Department of Labor, that it proposed to assess a penalty for the violations alleged in the amount of $360.00, which are specifically set forth as follows:

Item No. and Description

 

Proposed Penalty

1—Sides of trenches had no shoring

 

$120.00

2—Temporary shoring not effectively installed.

 

120.00

3—Cross braces on temporary shoring not properly installed

 

$120.00

            By letter dated September 5, 1972, the Respondent contested the citation and proposed penalty whereupon the Complainant filed its complaint certifying to service thereof on September 18, 1972. Such complaint did not materially vary from the citation. There was some question concerning certain notices and the service thereof, however, a notice of hearing was issued by the Occupational Safety and Health Review Commission setting a hearing for January 16, 1973, in Dallas, Texas. Such notice is undated and it appears to have been attached to a three page document labeled, ‘Instructions to Participants’ dated November 16, 1972, and signed by the Director of Judicial Administration.

            By letter dated December 2, 1972, the Respondent stated as follows:

Re: Stokes Construction Company

 

O.S.H.R.C. Docket No. 1420

Gentlemen: In reply to your letter of November 16, 1972 entitled Instructions to Participants, please be advised as follows.

 

Since the job has been substantially completed since October 19, 1972 and occupied by the Owners since that date, we are unable to get our main witnesses to gather for the scheduled hearing and have very little hope to get them to gather for a future hearing, due to their traveling to various construction jobs and part of them already working in different cities.

 

We feel very strongly that you are wrong in your original findings, however due to the above stated circumstances for our inability to appear, our only remaining alternative is to request that you consider the case and advise us of your final determination.

 

            Subsequent to such letter, the Respondent, by documents dated December 13, 1972, responded to the complaint filed and partially complied with the letter of instruction issued November 16, 1972. The Complainant complied with the letter of instruction and filed a motion to dismiss the notice of contest certifying to service thereof on December 19, 1972. Thereafter, by document dated January 4, 1973, the instant cause was duly assigned to the undersigned by the Occupational Safety and Health Review Commission.

            As hereinabove set forth, a hearing was conducted and ample evidence elicited whereby findings, conclusions and an appropriate order could be entered upon the merits of the Complainant’s citation, proposed penalties and complaint, and the Respondent’s contention in the premises. As the hearing commenced, the Complainant’s motion to dismiss the notice of contest was overruled.

            A careful consideration of all the pleadings, documents, exhibits, testimony and the contention of the parties convince the undersigned that a decision on the merits is not proper and in accordance with the instant Act for the reason that the citation and proposed penalty should be vacated, set aside, and held for naught. A decision on the merits requires finding specifically, or by inference, that the prerequisites of the instant Act have been, at least, substantially complied with. It is concluded that such finding is not possible in this cause.

            In Section 9(a), the Act provides in substance and pertinent part that if, upon inspection or investigation, the Secretary or his authorized representative believe that an employer is in violation of the Act, he shall with reasonable promptness issue a citation to the employer [emphasis added]. Section 9(c) provides that no citation may be issued after the expiration of six months following the occurrence of any violation. It appears clear that the Secretary must cause a citation to be issued with reasonable promptness after the occurrence of a violation, and that such citation is prohibited after the expiration of six months from the violation. Thus, every citation issued must meet the statutory requirement of issuance with reasonable promptness.

            The definition of reasonable promptness may well mean many things to different individuals with responsibility in this area. The undersigned is cognizant of the view promulgated that the Congressional intent envisioned a 72-hour period. There is also authority for the view that any period of time up to six months is acceptable. It seems reasonable to conclude that a time certain is impossible to ascertain in advance, and that each cause must be bottomed on the facts therein elicited. It follows that for some citations to meet the test of issuance with reasonable promptness, such citation should be issued within 72 hours, and for citations for other violations, a delay of a period of time up to six months may be determined to be with reasonable promptness. It seems to the undersigned that a citation meets the test of reasonable promptness if it serves to effectuate the announced purpose of the Act in providing safe and healthy workplaces for employees, and is not delayed for a period of time whereby the workplace, including personnel, is materially changed in normal operations.

            The record in this cause discloses that the Respondent employer had an excavation or trench more than 500 feet in length ranging from approximately five feet to nineteen feet in depth, and from ten to twenty feet in width. On June 8, 1972, an accident occurred with a dirt slide, and two employees were injured. One of the injured employees evidently died as a result of the injuries received. On June 9, 1972, Paul Ficzeri, Jr., a compliance officer for the Complainant made an investigation. Thereafter on August 15, 1972, the complaint and notice of proposed penalty was issued as hereinabove set forth.

            The undersigned is convinced that such delay is unreasonable and thus the citation cannot be construed as having been issued with reasonable promptness. As above set forth, the violation of 29 CFR 1926.652(b) in that the sides of the trenching had no shoring. The Respondent has put in issue as to whether the trench or excavation was such as to require shoring under the terms of the quoted section. In item 2 it is alleged that 29 CFR 1926.652(d) was violated in that temporary shoring was not effectively installed to the bottom of the excavation. Item 3 alleges that 29 CFR 1926.652(j) was violated in that cross braces on temporary shoring were not properly installed in that they were not in a true horizontal position. The Respondent contends, in effect, that all shoring is temporary and that the timbers viewed by the compliance officer were emergency in nature and enabled the employer to clear the excavation of debris after the accident. The abatement date included in the citation was set as August 22, 1972.

            In view of the conclusion reached in this clause, it is not necessary to make a determination concerning the validity of the Complainant’s citation or of the Respondent’s contentions. The brief statement concerning the pertinent facts is incorporated herein only for the purpose of the discussion of reasonable promptness, as it seems apparent that a determination of reasonable promptness requires a careful consideration of the factual situation in each case.

            It seems apparent that the citation, as related to the facts, was not timely issued. Especially is this true when considered with the announced purpose of the Act and of fairness to the Respondent. The nature of the alleged offense was such as to require quick action on the part of Complainant if other employees at the worksite were to be protected. It seems reasonable to believe that the entire excavation was entirely covered long before the citation was issued thereby rendering the abatement date set ineffective. Moreover, in fairness to the Respondent, the site where the violation is alleged to have occurred was materially changed in normal operations before the citation was issued. At least two employees were shown to have left their employment within a week or two of such date [Tr. pp. 80, 81, 170].

            The desirable way to raise the question herein decided is by the proper motion timely filed whereby the Complainant could explain the delay and the Respondent could show harm, if any. Such procedure, if followed, would have been indeed helpful to the undersigned. Moreover, the Respondent’s owner, a non-attorney, represented Respondent and has not helped in the solution of rather complex legal problems herein involved.

            It may well be that the failure to issue the citation with reasonable promptness in this case is fundamental thereby rendering the citation void, but no such decision is herein made. On the other hand, if such failure renders the citation voidable, then the question of waiver of such defense by the Respondent arises.

            A careful evaluation of the entire record makes a firm determination of whether the citation is void or voidable unnecessary. The record reflects that the Respondent, by letter dated December 2, 1972, stated that the job had been completed and that they were unable to get their main witnesses together. It is stated that they would be unable to appear at the hearing. It is felt by the undersigned that the Respondent did, by such letter, pose the problem which requires a determination herein, and thereby did not waive the issue. Furthermore, at the hearing, testimony was elicited concerning the delay in issuing the citation. It is considered appropriate to quote in part from such testimony by Jack R. Rutherford, Senior Compliance Officer, and Acting Area Director in the absence of the Area Director:

THE COURT: I have a couple of questions, sir. As I understood the testimony, the first recommendation was for a serious violation, which was reduced to a non-serious.

 

Was there any good reason for that?

 

THE WITNESS: Yes, sir. Like I explained, when Mr. Ficzeri gets in my office and I start questioning him about the situation and everything, if he can convince me of the fact that the gravity of it, or the likelihood that an accident would happen, then had he convinced me it should have been higher, or since it was a C or above, this factor would have weighed to the non-serious violation.

 

            In other words, we don’t place—we just don’t draw a number or a letter out of the hat. I make my compliance officers convince me what they come up with. And if I have any questions about it, or any doubt about it, there was a slight doubt in my mind the likelihood of an accident happening would be C or better.

THE COURT: One further question. I believe that the inspection was made June 9th. The citation wasn’t issued until August 15th. What was the delay on that?

 

THE WITNESS: Well, it’s back to the old story of load, and many others, many inspections I have on top of this. Many things weigh into this.

 

It’s not a matter of complaining about being short of help and all that, but some of these things just take longer [Tr. pp. 137, 138].

 

            It is thus concluded that the complainant had adequate, if inexpert, notice of the defect in the citation and had adequate opportunity to explain same. Notwithstanding the question propounded by the undersigned, no further effort was made to explain the delay. The explanation for the delay is not persuasive. It is acknowledged that workloads, etc., are important and many problems do exist thereby, however, it is not felt that the citation in this case should have been delayed for the length of time that it was. It follows that the citation issued 67 days after the occurrence of the alleged violation was not issued with reasonable promptness. Such citation, proposed penalties, and abatement date do little, if anything, to provide a safe and healthy workplace for employees, and the site where the violation allegedly occurred was, in normal operations, materially changed before the citation was issued.

            It is therefore found that the citation issued August 15, 1972, upon alleged violations ascertained by investigation on June 9, 1972, was not issued with reasonable promptness as required by Section 9(a) of the Act.

            It is hereby ORDERED that the citation issued and penalty proposed on August 15, 1972, be, and they each are hereby vacated, and this action is DISMISSED.



[*] Obviously the issue was raised by the Judge on his own motion. According to Chairman Moran such practice is proper since in his view the issue is one of subject matter jurisdiction. See Moran, Chairman, dissenting: Advance Air Conditioning, Inc., OSHRC Docket No. 1036, BNA 1 O.S.H.R. 1626, 1629, CCH Employ. S. & H. Guide para. 17,585 (Rev. Com’n., April 4, 1974); Plastering, Incorporated, OSHRC Docket No. 1037, slip opinion at 3 (Rev. Com’n., May 3, 1974). In view of the Chairman’s repeated assertions in this regard it appears that the obvious must be stated. ‘Jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceedings in question belong; the power to deal with the general subject involved in the action, and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs. . . .’ (21 C.J.S. Courts § 23 (footnotes omitted)). If the issue is one of subject matter jurisdiction then we would be without authority to hear the case because we would have no power over the subject matter. Obviously, if that was the case it would necessarily follow that we would also be without authority to vacate Complainant’s citation. Yet the Chairman would vacate, that is, he would act on the citation while saying we have no power to dispose of the citation.

The real question in these cases relates to the propriety of the citation in issue and not to the question of whether we have the power to hear the matter. Since the question is one of challenging the propriety of the charge it is the Respondent who must issue the challenge. That is the usual practice and it is the practice adopted in Chicago Bridge and Iron Company, supra; a decision to which Chairman Moran assented about two months prior to his dissent in Advance Air Conditioning.