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.