“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 5724, 5725 CHARLES COHEN, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April2, 1975ORDEROF REMANDBEFOREMORAN, CHAIRMAN; VAN NAMEE AND CLEARY, COMMISSIONERSVANNAMEE, COMMISSIONER: Thismatter presents the question whether Judge William J. Risteau properly vacatedComplainant?s (Labor) citations on the ground that they were not issued withreasonable promptness. The Judge relied on our decision in Chicago Bridge& Iron Company, 6 OSAHRC 244, BNA 1 OSHC 1485, CCH E.S.H.G. para.17,187 (1974), appeal docketed, No. 74?1214 (7th Cir., March 18, 1974), wherewe held that, absent exceptional circumstances, a citation should issue withinthree working days of the time that Labor?s authorized representative forms hisbelief that a violation exists. We have reviewed the record and conclude thatthe citation was timely issued within the rule of Chicago Bridge & Iron.We therefore reverse the judge?s decision.Therelevant facts are as follows. Two of Respondent?s worksites were inspected byLabor?s compliance officer on November 1, 1973. Trenching operations were beingconducted at both locations. During the inspections, the compliance officerconcluded that the trenches failed to comply with 29 C.F.R. 1926.652(b), whichprescribes requirements for shoring or sloping the sides of trenches dug insoft or unstable soil. He took soil samples from both trenches. The sampleswere sent to a laboratory for analysis.Onthe same day he conducted the inspections, the compliance officer reported toLabor?s area director and stated his belief that violations existed. The areadirector testified that he probably ?agreed in substance,? but that he alsothought ?there would have to be other things taken into consideration.?Specifically he wanted to wait for the results of the soil tests and he saidthat the tests could influence his judgment as to whether a violation existed.The results were received on November 16, a Friday. On November 20, thefollowing Tuesday, the area director issued two citations alleging seriousviolations of the trenching standards at the worksites.Thejudge concluded that the area director decided to issue the citations where hediscussed the matter with the compliance officer on November 1. We have noted,however, that the rule of Chicago Bridge & Iron should not beconstrued to involve the Commission or its judges in second guessing as to thetime a person authorized to issue citations should have formed his belief thata violation existed. Julius Nasso Concrete Corp., 15 OSHRC 459, BNA 2O.S.H.C. 1590 CCH E.S.H.G. para. 16,526. (Feb. 6, 1975). In this case itappears that the area director formed a tentative belief that violationsexisted on November 1. The belief was tentative as opposed to being final sincethe results of the soil tests could have persuaded him not to issue one or bothcitations. Thus even though a tentative belief had been formed theinvestigative process was not completed by November 1. To vacate in thesecircumstances is to second guess the investigative process merely because thecitations did issue.Asthe citations were issued within three working days of the date the areadirector received the soil test report, we conclude that they were issued withreasonable promptness.[1]We reverse the judge?s holding to the contrary. The judge did not reach themerits of the citation, and we cannot do so on this record. The evidence as tothe dimensions of the trenches, and the nature and stability of the soil isconflicting. These issues must be resolved on credibility findings, and theseare to be made by the trial judge.Accordingly,the matter is remanded for such further proceedings as are necessary andconsistent with this decision. It is so ORDERED.CLEARY,COMMISSIONER, concurring:Iconcur with Commissioner Van Namee in the disposition of this matter for thereasons set forth in my dissenting opinion in Chicago Bridge & Iron Co.,No. 744 (January 23, 1974), petition for review docketed, No. 74?1214, 7thCir., March 18, 1974.?MORAN,CHAIRMAN, dissenting:Thelead opinion makes a strained reading of the evidence in order to reverse thedecision below. I believe an objective analysis of the testimony mandatesaffirmance.OnNovember 1, 1973, complainant?s authorized representative inspected theworksite herein, concluding therefrom that ?violations had occurred.? Thatconclusion was reported to the area director (his immediate superior) thatafternoon and he concurred therewith at that time. The citation, however, wasnot issued until November 20.Despitethe 20 day lapse between inspection and the issuance of a citation,Commissioner Van Namee concludes that the area director did not formulate his beliefthat violations existed[2]until November 16, because prior thereto his opinion wastentativeas opposed to being final since the results of the soil tests could havepersuaded him not to issue one or both citations.[3]?Isubmit that this conclusion results from a misreading of the testimony. Therecord shows that (1) the determination to issue a citation was made onNovember first, and (2) no exceptional circumstances existed for delaying itsissuance until November twentieth.[4]Thearea director gave the following testimony in regards to the 20 day lapsebetween inspection and issuance of the citations:Q.Were there any particular problems why we have a lapse from November 1 toNovember 20 . . . ??A. No,the circumstances were such that we didn?t give this particular inspectionpriority treatment and we were waiting for the soil sample to get back. Had we not gotten the soil sample, we wouldhave sent [the citation] . . . out without the soil sample within the timeframe. (emphasis added)?Q. Inother words, you would have issued a citation whether you got a soil sample ornot??A. If the soil sample was different from thecitation, we would amend it. (emphasis added)?Hefurther testified as follows:\u00a0Q. Isthere a possibility that the citation would not have been issued afterexamining the soil analysis report??A. Possibly,yes, possibly.?Q. Didthis influence your thinking at all??A. No.[5]?Thistestimony clearly indicates that the area director decided to issue thecitation on November 1. If the soil test results were different than expected,an amendment to the citation he issued would have been offered at a later date.Ittherefore becomes a question of whether the record indicated that ?exceptionalcircumstances? existed for this delay. I find no such evidence. In fact,testimony from the area director indicates a general disregard of the three dayrule set forth in Chicago Bridge, supra. He stated that[w]ehave an administrative policy passed on to us from higher headquarters, theRegional, that we must develop these cases and mail it to the employers within fifteen working days.\u00a0Thispolicy neither comports with issuing a citation with reasonable promptness, nordoes it constitute ?exceptional circumstances? for not so issuing.Itherefore believe that Judge Risteau?s dismissal below was correct and shouldbe affirmed.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 5724, 5725 CHARLES COHEN, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August29, 1974RISTEAU,JUDGE:Theseare proceedings pursuant to section 10(c) of the Occupational Safety and HealthAct of 1970 (29 USC 651 et seq., hereafter called the Act), contesting citationsissued by the complainant against the respondent under the authority vested incomplainant by section 9(a) of that Act. The citations allege that as theresult of inspections on November 1, 1973, of workplaces under the ownership,operation or control of the respondent, located at: 1. (No. 5724) Lone StarPark, Hampton and Commerce, Dallas, Texas, and described as ?Charles Cohen,Inc.? and 2. (No. 5725) East of Westmoreland, south of Toll Road, Dallas,Texas, and described as ?Charles Cohen, Inc.,? respondent violated section5(a)(2) of the Act by failing to comply with certain occupational safety andhealth standards promulgated by the Secretary of Labor pursuant to section 6thereof.1Thecitations, which were issued November 20, 1973, allege that violations resultedfrom a failure to comply with the following standards promulgated by theSecretary by publication in the Federal Register, and codified in 29 CFR 1926.SERIOUSVIOLATION (No. 5724)Standard?Description?29CFR 1926.652(b)?Sides of trench in unstable material at the following locationwere not shored, sheeted, braced, sloped, or otherwise supported to protect theemployees working within it: Lone Star Park, Hampton Road, west of Commerce.\u00a0Thecited Regulation reads as follows:Standard?Description?1926.652(b)?Sidesof trenches in unstable or soft material, 5 feet or more in depth, shall beshored, sheeted, braced, sloped, or otherwise supported by means of sufficientstrength to protect the employees working within them. . . .\u00a0SERIOUSVIOLATION (No. 5725)Standard?Description?29CFR 1926.652(b)?Sides of trench in unstable material at the following locationwere not shored, sheeted, braced, sloped, or otherwise supported to protect theemployees working within it: East of Westmoreland and south of Toll Road,Dallas Exit.\u00a0Thecited Regulation is the same as for No. 7524.Pursuantto the enforcement procedure set forth in section 10(a) of the Act, respondentwas notified by letters dated November 20, 1973, from Charles J. Adams,Director of Area 1730, Occupational Safety and Health Administration (OSHA),U.S. Department of Labor, that he proposed to assess penalties in the followingamounts.\u00a0SERIOUSVIOLATION (No. 5724)????????????????????????????????????? ??????????? $ 500SERIOUSVIOLATION (No. 5725)????????????????????????????????????? ??????????? $ 500Total??????????????????????????????????????????????????????????????????????????????????????? ??????????? $1000Afterrespondent contested these actions and complaints had been filed, the mattercame on for hearing at Dallas, Texas, on April 16?17, 1974. No questionconcerning the respondent?s status as an employer as defined in the Act or thejurisdiction of this Commission has been raised.DISCUSSION,FINDINGS, AND CONCLUSIONSRespondenthas timely moved to dismiss these cases on the ground that complainant did notissue the citations with ?reasonable promptness? as required by section 9(a) ofthe Act. The Commission decision in Secretary v. Chicago Bridge and IronCompany, No. 744, January 24, 1974, interprets that term in the followingmanner:. . .absent exceptional circumstances Complainant or his authorized representativemust perform the ministerial tasks involved in issuing a citation within 72hours from the time he has formed his belief that a violation has occurred. Weassume that Congress did not intend weekends or holidays to be included withinthe 72 hour period so the period prescribed here is three working days.\u00a0Theinspections here were made on November 1, 1973. On the same date thecomplainant?s compliance officer determined that the Act had been violated andreported that fact to the OSHA Area Director, who concurred with hisrecommendations.OnNovember 20, 1973, some 11 work days after this decision, Mr. Adams issued thecitation. No ?exceptional circumstances? were shown for the issuance of thecitation after the 72 hour period. In fact the Area Director testified that hisoffice, as a matter of policy, attempts to process and issue citations within15 working days, as was done in the present case.Onthese facts, the undersigned is constrained to find that the citations were notissued with reasonable promptness, as that term is construed in Chicago Bridgeand Iron. In view of this finding, which requires dismissal of the citations,other defenses raised by respondent will not be discussed.ORDERForthe foregoing reasons and on the entire record, it is hereby ORDERED, that thecitations issued to respondent on November 20, 1973, which form the basis ofCommission Docket Nos. 5724 and 5725 be DISMISSED and the proposed penaltiesvacated.[1]Laboralso contends that Respondent did not raise the reasonable promptness defensein a timely manner and therefore waived it. It is true that the issue was notraised in the issue formulation stage, as required by Chicago Bridge &Iron Co., supra. Labor, however, fully participated in the trial of thefacts relevant to this issue, and can be considered to have tried the issue byconsent. Because of our disposition, we need not consider whether the questionis properly presented on this record.[2]Weheld in Chicago Bridge, supra, that ?reasonable promptness? under 29U.S.C. ? 658(a) means that citations must be issued within three working daysafter the area director formulates his belief that a violation occurred unlessthe record indicates exceptional circumstances for the delay.\u00a0[3]Theissue of ?reasonable promptness? was first raised at the trial. Becausecomplainant ?fully participated in the trial of the facts relevant [thereto],?Commissioner Van Namee considers the issue to be tried by consent. I believethis issue to be jurisdictional, and therefore may be raised at any stage ofthe proceeding. See my dissenting opinion in Secretary v. E. C. Ernst,14 OSAHRC 579 (1975), and Secretary v. Advance Air Conditioning, Inc., 7OSAHRC 736 (1974).\u00a0[4]Ibelieve that due process of law requires that complainant have the burden ofestablishing that the delay resulted from exceptional circumstances. SeeAllstate Finance Corporation v. Zimmerman, 330 F.2d 740 (5th Cir. 1974); 9 Wigmore,Evidence ? 2486 (3d ed. 1940).[5]Thecourt below sustained an objection to this testimony apparently because of itsrelevancy. This was error. The testimony clearly tends to indicate when thearea director decided to issue these citations, the date set forth in Chicago Bridge, supra, from which thethree day period begins to run.”