“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 2567 GEORGE V. HAMILTON, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0November 4, 1974Before MORAN,Chairman; VAN NAMEE and CLEARY, CommissionersCLEARY,COMMISSIONER:OnAugust 20, 1973, Judge Ben D. Worcester issued his decision in the presentcase, vacating complainant?s citation for serious violation and proposedpenalty of $550.OnSeptember 6, 1973, review was directed of the Judge?s decision, pursuant tosection 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. ?651 et seq., hereinafter ?the Act?). The Judge?s decision was rendered beforethe decision of the Commission in Chicago Bridge & Iron Co., No. 744(January 24, 1974). The Commission, upon review of the entire record, concludesthat the case must be remanded for further proceedings consistent with thatdecision.TheJudge, acting sua sponte before the hearing in the case was to have beenheld, required complainant to show cause why the case should not be dismissedbecause of a lack of ?reasonable promptness? in the issuance of the citation,as required under section 9(a) of the Act. Complainant declined to make such ashowing. The Judge then dismissed the case. His ruling was made, however, inthe absence of any evidence of record that the issuance of the citation tookplace more than three working days after complainant?s authorizedrepresentative formed his belief that a violation had occurred. Under ChicagoBridge & Iron Co., supra, a majority of the Commission requires such ashowing to support a finding of a lack of ?reasonable promptness.? Under thatsame decision, a majority of the Commission views ?reasonable promptness,? notas part of complainant?s case-in-chief, but as an affirmative defense to beproved by respondent.[1]Nohearing has been held in this case, and respondent amended its answer to thecomplaint to allege a lack of ?reasonable promptness? following the Judge?sshow-cause order. In these circumstances, respondent is entitled to show a lackof ?reasonable promptness? at a hearing on remand.ACCORDINGLY,the Judge?s decision is reversed, and the case is hereby remanded for a fullhearing on the merits, consistent with this decision and with Chicago Bridge& Iron Co., supra.?MORAN, CHAIRMAN,dissenting:JudgeWorcester correctly disposed of this case in accordance with the expressmandate of the statute under which this case arose. His decision should beaffirmed.Iwould require the respondent to show prejudice to its case as well as an unreasonabledelay in issuance of the citation. Chicago Bridge & Iron Co., supra,(dissenting opinion), but this view is not shared by my colleagues.\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 2567 GEORGE V. HAMILTON, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 20, 1973Worchester,Judge:? ??????????? On June 13, 1973, the proceeding wasassigned to the Judge for trial.? Thepleadings show that a period of 89 days elapsed between inspection of theRespondent?s premises and issuance of the citation.[2]? The Act required that a citation be issued?with reasonable promptness.?[3]? According to the legislative history it wasexpected that ?[In] the absence of exceptional circumstances? a citation wouldbe issued within 72 hours after inspection.[4]? However, no such provision appears in thestatute.??????????? In practice this objective canseldom be achieved.? In view of the factthat Section 9(a) provides that a citation may be issued as late as six monthsafter inspection it is apparent that the Congress as a whole was cognizant ofthis.? It is plain that the Congress tooknotice of the fact that there would be situations where, although a hazard toemployees would be obvious, the preparation and drafting of appropriatedocuments would require consultation with and advice from supervisory officialsand technical advisors at widely separated geographical locations.? It is reasonable to conclude that this wouldbe an example of the exceptional circumstances which would justify delay inissuing a citation.? On the other hand itwould be difficult, by hypothesis, to construct a factual situation in whichthis task would require six months, or even 89 days.? It has been said that where there was only a35 day delay between inspection and citation that the Secretary?s failure to eitheract with reasonable promptness or adduce evidence of exceptional circumstancesmakes the Citation null and void.[5]? In Secretary v. Fulton Instrument Company,Inc., OSHRC Docket No. 563, review of a decision by this Judge wasdirected.? The review order invitedsubmissions from the parties on four separate issues including the following:??????????? (1) Is the 20 day period between theinspection and citation in compliance with the reasonable promptness requiredof section 9(a) of the Act???????????? The Respondent had not raised thisissue at the hearing nor was there any basis upon which it could be concludedthat the Respondent had suffered any harm as a result of the 20 day delay.? ??????????? In the instant case the Respondenthad likewise failed to raise the issue of delay until after an order requiring theComplainant to justify the unexplained delay of almost three months.? If, as has been said in other proceedingsbefore this Commission[6]unexplained delay renders a citation and proposed penalty thereon void, thenthis Commission does not have jurisdiction of the subject matter in the instantcase and this Judge cannot hear or decide this case.[7]? For that reason, the Judge is required to,sua sponte, require that the party which brought the action show that there isjurisdiction of the subject matter.??????????? Upon consideration of the abovequoted excerpts from Section 9 of the Act, the legislative history of the Actand decisions and orders of the Occupational Safety and Health ReviewCommission construing it, it is clear that the Secretary is required to performthe enforcement provisions delegated to him expeditiously and that citations beissued with reasonable promptness.?Concurrently with the delegations of power to the Secretary toadminister the Act, the Congress granted to the Review Commission broad powerto adjudicate contested cases.? Inherentin this power is the authority to require the Secretary to justify failure toissue a citation with reasonable promptness.??????????? The Secretary was accordinglyordered on June 14, 1973, to show what exceptional circumstances accounted foran 89 day delay in issuing the citation.?The Secretary has defied this order, first by a declination to complyand secondly by filing a motion to consolidate this case with a separate proceedingbetween the Secretary and a different Respondent pending before anotherjudge.? It is reasonable to concludetherefore that failure to issue a citation promptly was due solely to theSecretary?s dilatory, inept and inadequate performance of his duties and thatthere were in fact no exceptional circumstances to explain the delay.? ??????????? It is therefore hereby ordered thatthe citation and proposed penalty thereon be vacated and that this proceedingbe dismissed.[1]I would require the respondent to show prejudice to its case as well as anunreasonable delay in issuance of the citation. Chicago Bridge & IronCo., supra, (dissenting opinion), but this view is not shared by mycolleagues.[2] Inspection December 15, 1972; Citation March 14, 1973.[3] Section 9(a) 29 U.S.C.A. Sec. 658(a).[4] Conference Report [to accompany S. 2193] No. 91-176591st congress, 2d Session, on the Occupational Safety and Health Actof 1970 at page 38.[5] Secretary v. Pleasant Valley Packing Co., Inc.,OSHRC Docket no. 464 at page 11.[6] Secretary v. Pleasant Valley, supra.[7] Kamsler v. Zaslowsky, 355 F.2d 256 (7th Cir.1966).”