“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 6804, 6805 GULF & WESTERN FOOD PRODUCTS CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 July7, 1976DECISIONBeforeBARNAKO, Chairman; MORAN and CLEARY, Commissioners.BARNAKO,Chairman:This case presents the questions ofwhether Administrative Law Judge John J. Larkin erred in recommending vacationof a citation for violation of section 5(a)(1) of the Act on the basis that itwas no issued with reasonable promptness, and whether the direction for reviewwas timely.[1] Wefind that the direction for review was timely but that Judge Larkin?srecommendation was in error.Judge Larkin issued his reportrecommending vacation of the citation on March 24, 1975. On April 17, 1975,Commissioner Timothy F. Cleary granted the petitions for discretionary reviewfiled by the Complainant and the Intervenor, Florida Rural Legal Services, Inc.Commissioner Cleary noted that the petitions raised the following issues:Whetherthe Administrative Law Judge erred in vacating the citations on the groundsthat they were not issued with reasonable promptness as required by section9(a) of the Act?\u00a0Thereafter, on April 30, 1975,Respondent filed a Motion to Vacate Commission?s Order for DiscretionaryReview. In its motion, Respondent contended that Commissioner Cleary haddirected the case for review after the expiration of the 30-day period providedfor in section 12(j) of the Act (29 U.S.C. 661(i)).[2]Respondent argues, therefore, that the Judge?s decision had become final byoperation of law. For the reason set forth below, we reject Respondent?scontention and accordingly, will deny the motion.In essence, Respondent?s motion isdirected to the validity and implementation of Rules 90 and 91 of theCommission?s Rules of Procedure, as amended. (29 C.F.R. 2200.90 and 2200.91).Section 12(g) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651et. seq. hereinafter ?the Act?) authorizes the Commission to ?make such rulesas are necessary for the orderly transaction of its proceedings.? Pursuant tothis authority, the Commission, formulated its Rules of Procedure which becameeffective with publication in the Federal Register on September 28, 1972 (37Fed. Reg. 20237). At that time, Rules 90 and 91 provided the following:Rule90 Decisions of Judges.?(a)The decision of the Judge shall include findings of fact, conclusions of law,and an order.?(b)The Judge shall sign and date the decision. Upon issuance of the decision,jurisdiction shall rest solely in the Commission, and all motions, petitionsand other pleadings filed subsequent to such issuance shall be addressed to theCommission.?\u00a0?Rule91 Discretionary review; petition.?(a) Aparty aggrieved by the decision of a Judge may submit a petition fordiscretionary review.?(b)The petition must be received by the Commission at its offices in Washington,D. C. on or before the 25th day following receipt by the Commission of theJudge?s decision.?(c) Apetition should contain a concise statement of each portion of the decision andorder to which exception is taken and may be accompanied by a brief of pointsand authorities relied upon. The original and three (3) copies shall be filedwith the Commission.?(d)Failure to act on such petition within the review period shall be deemed adenial thereof.??Subsequently, proposed amendments tothese rules were published in the Federal Register (39 Fed. Reg. 40249 (1974)to be effective on December 15, 1974. Following consideration of commentsreceived, the Commission determined that the opportunity for the Commissionersto consider petitions for discretionary review for the full 30-day review periodset forth in section 12(j) of the Act outweighed objections to the adoption ofthe amendments.As amended, the rules provide asfollows:??? 2200.90 Decisions and report of Judges.?(a)Upon completion of any proceeding, the Judge shall prepare a decision. When ahearing is held, the decision shall comply with 5 U.S.C. 557. Copies of thedecision shall be mailed to all parties. Thereafter, the Judge shall file withthe Executive Secretary a report consisting of his decision, the record insupport thereof, and any petitions for discretionary review of his decision, orstatements in opposition to such petitions, that may be filed in accordancewith ? 2200.91. The Judge shall file his report on the day following the closeof the period for filing petitions for discretionary review, or statements inopposition to such petitions, but no later than the twenty-first day followingthe date of the mailing of the decision to the parties.?(b)(1)Promptly upon receipt of the Judge?s report, the Executive Secretary shalldocket the case and notify all parties of that fact. The date of docketingshall be the date that the Judge?s report is made for the purposes of section12(j) of the Act (29 U.S.C. 661).?(2) Onor after the date of docketing of the case, all pleadings or other documentsthat may be filed in the case shall be addressed to the Executive Secretary.?(3) Inthe event no Commission Member directs review of a decision on or before theThirtieth day following the date of docketing of the Judge?s report, thedecision of the Judge contained therein shall become a final order of theCommission.???2200.91 Discretionary review, petitions for; statements in opposition.?(a) Aparty aggrieved by the decision of a Judge may submit a petition for discretionaryreview.?(b)(1)Except as provided in paragraph (b)(2) and (3) of this section, any petitionmust be received by the Judge at his office on or before the twentieth dayfollowing the mailing of a copy of the decision to the parties.?(2)When there is no objection by any party, when an expedited proceeding has beendirected pursuant to ? 2200.101, or for other good cause, the Judge isempowered to prescribe a shorter time for filing petitions for discretionaryreview following the mailing of his decision.?(3)Petitions for review of a Judge?s decision may be filed directly with theExecutive Secretary subsequent to the filing of the Judge?s report. Suchpetitions will be considered to the extent that time and resources permit.Parties filing such petitions should be aware that any action by a CommissionMember directing review must be taken within thirty (30) days following thefiling of the Judge?s report.?(4) Inthe case of proposed settlements or other proposed dispositions by consent ofall parties, petitions for discretionary review shall not be allowed, exceptfor good cause shown.?(c) ** *?(d)Failure to act on such petition within the review period shall be deemed adenial thereof.?(e)Statements in opposition to petitions for discretionary review may be filed atthe times and places specified in this section for the filing of petitions fordiscretionary review. Any statement shall contain a concise statement on eachportion of the petition to which it is addressed.???????????? In practice, the rules operate asfollows: When, as provided for in Rule 90, the Judge?s decision is mailed tothe parties, it is also mailed to the Commission?s Central Review Section,[3]an administrative section which is separate from the offices of the Commissionmembers. It is not seen by the Commission member at that time, or at any timeduring the 20-day period allowed for the filing of petitions for discretionaryreview or statements in opposition to such petitions. During this period, thecase remains under the jurisdiction of the administrative law judge who mayrecall the file upon request and modify his tentative decision if he desires todo so. At the end of the 20-day period, the decision is docketed by theCommission. Members receive copies of the judge?s report plus a reviewmemoranda prepared during this time by the Central Review Section.Respondent contends that the 30-dayperiod provided for review by section 12(j) of the Act begins to run uponreceipt of the case by the Central Review Section. A divided Commissionrecently considered and rejected this contention in Robert W. Setterlin& Sons Company, No. 7377, BNA 4 OSHC ??, CCH OSHD para. ___ (May 11,1975). In Setterlin, we stated, as we have above, that a case is notseen by any Commission member during the initial 20-day period. Furthermore, westated that to interpret section 12(j) of the Act so as to give a full 30-dayreview period to the Commission members, who alone are empowered to directreview, is fully consistent with the Congressional purpose and should begranted deference. Accordingly, we held that the implementation of Rules 90 and91 were consistent with the judicial limitations in section 12(j). In addition,we noted that ?the apparent departure from strict compliance with Rules 90 and91 does not in any significant way affect the rights of any parties, nor doesit require any additional action or inaction by them. It is merely themachinery with which the Commission sets its review process in motion.?Accordingly, we concluded that the Commission?s promulgation and implementationof Rules 90 and 91 were within its authority.The Judge?s report in the instant casewas docketed on March 24, 1975, and was directed for review on April 17, 1975.Accordingly, for the reasons given in Robert W. Setterlin & Sons, Co.,supra, we deny Respondent?s motion to vacate the direction for review.REASONABLE PROMPTNESSFollowing the investigations of twoaccidents, Respondent was issued two citations on February 6, 1974, forviolations of section 5(a)(1) of the Act. The sequence of events leading up tothe issuance of these citations is as follows:December16, 1973?First accident?January2, 1974?OSHA compliance officer began investigation?January16, 1974?OSHA compliance officer completed investigation?January8, 1974?Second accident?January10, 1974?OSHA compliance officer began investigation?January25, 1974?OSHA compliance officer re-investigated?February6, 1974?Citations for both accidents issued.\u00a0Thus, 36 days elapsed between theinitiation of the first investigation and the issuance of the citation and 26days between the beginning of the second investigation and the issuance of thatcitation. At the hearing, Respondent moved for dismissal on the basis that thecitations were not issued with reasonable promptness within the meaning ofsection 9(a) of the Act. Respondent contended that it had been prejudiced inthat the second citation would not have issued if the first one had been timelyissued and Respondent had contested it. At this point in the proceeding, theComplainant?s counsel stated that he was willing to consolidate the two casesand reduce the proposed penalty to half of that originally proposed for the twocitations.Judge Larkin took Respondent?s motionunder advisement. In his report, the Judge recommended vacation of thecitations because of Complainant?s failure to issue them with reasonablepromptness. Judge Larkin interpreted reasonable promptness to mean that acitation must be issued within 72 hours of the time a violation is detected byan inspector.At the time Judge Larkin issued hisdecision, the Commission?s leading case on the meaning of the reasonablepromptness language in section 9(a) of the Act was Chicago Bridge and IronCo., 6 OSAHRC 244, BNA 1 OSHC 1485, CCH OSHD para. 17,187 (1974). InChicago Bridge we stated that a citation should be issued within 72 hours afterthe area director or other appropriate official has formed a belief that aviolation has occurred. It is obvious that Judge Larkin?s decision was clearlynot in accord with existing Commission precedent. Judge Larkin?s failure tofollow Commission precedent is further evidenced by his citation of severalcases for the principles expressed in the dissenting opinions in those cases.As we have previously stated, the orderly administration of this Act requiresthat the Commission?s administrative law judges follow precedents establishedby the Commission. Gindy Manufacturing Co., 10 OSAHRC 367, BNA 1 OSHC1717, CCH OSHD para. 17,790 (1974); Grossman Steel & Aluminum Corp.,No. 12775, BNA 4 OSHC ??, CCH OSHD para. ___ (May 12, 1976).Following the issuance of the Judge?sdecision, our decision in Chicago Bridge & Iron, supra, was reversed onappeal; the Court rejected the substantive rule we set forth in our decision.The Court did not, however, preclude our giving some effect to the reasonablepromptness requirement of the Act. Thereafter, we held in CoughlanConstruction Company, 20 OSAHRC 641, BNA 3 OSHC 1636, CCH OSHD para. 18,436(1975) that a citation can be vacated because of a delay in issuance if therespondent is prejudiced as a result.The record at present shows no basisfor vacating the citation on grounds of reasonable promptness. However, in viewof our recent decisions cited above, Respondent should have the opportunity topresent further evidence on the reasonable promptness issue. Moreover, at thedeposition of the area director, the Secretary refused to allow Respondent toview any portion of the Secretary?s file for purposes of cross-examination,even though the area director testified as to matters contained in the file. Webelieve that to the extent that these matters are not privileged, or do not involvean attorney?s work product, that they should have been made available toRespondent for purposes of his cross-examination. Frazee ConstructionCompany, 4 OSAHRC 188, BNA 1 OSHC 1270, CCH OSHD para. 16,409 (1973); See StephensonEnterprises, Inc., No. 5873, BNA 2 OSHC 1080, CCH OSHD 19,553 (1974).Accordingly, on remand, Respondent, if it so desires, is to be permitted accessto those materials that are properly discoverable.Therefore, this case is remanded forfurther proceedings not inconsistent with this opinion. It is so ORDERED.?FORTHE COMMISSION:?WilliamS. McLaughlinExecutiveSecretaryBY:Gloria W. WhiteActingExecutive SecretaryDATE:JUL 7, 1976?MORAN,Commissioner, Dissenting:Although I agree with the determinationthat the direction for review was timely, I disagree with the dispositionordered by the majority. Judge Larkin?s action on the ?reasonable promptness?issue was entirely correct and should be affirmed. I therefore adopt hisdecision which I incorporate by reference and attach hereto as Appendix A.My colleagues, however, persist insubstituting their views for that of Congress. Congress made it clear that, inthe absence of exceptional circumstances, each citation must be issued within72 hours after the complainant?s inspector detects a violation. It did notrelieve the complainant from complying with this rule when a cited employerdoes not establish that he has been prejudiced by a delay in excess of 72hours. My views on this matter are set forth in some detail in my dissentingopinions in Secretary v. Concrete Construction Corp., OSAHRC Docket No.2490, April 8, 1976; Secretary v. Southern Railway Company, 20 OSAHRC691 (1975); Secretary v. Coughlin Construction Company, Inc., 20 OSAHRC641 (1975).The record establishes that the delaysin issuing the two citations in this case were 12 and 9 times longer,respectively, than Congress intended. It also fails to show ?exceptionalcircumstances.? Therefore, the two citations should be vacated because ofcomplainant?s failure to comply with the reasonable promptness requirement of29 U.S.C. ? 658(a).Furthermore, the lead opinion?schastisement of Judge Larkin for not following Commission precedent is entirelyout of order. By citing the dissenting opinion in Secretary v. Advance AirConditioning, Inc., 7 OSAHRC 736 (1974), Judge Larkin demonstratednoteworthy legal acumen in recognizing that Secretary v. Chicago Bridge andIron Company, 6 OSAHRC 244 (1974), no longer represented the majority viewof the Commission. Analysis of the dissenting opinions in both cases shows thatthis conclusion is inescapable.At the outset, I indicated agreementwith the holding that the direction for review was timely. I do not believe,however, that it is necessary to devote six pages of this manuscript decisionto an issue which is fully resolved by stating that the respondent?s motion tovacate the direction for review is denied ?for the reasons given in? Secretaryv. Rob?t W. Setterlin & Sons, Company, OSAHRC Docket No. 7377, May 11,1975. A simple statement that Setterlin was dispositive of that issuewould seem to be more consistent with Chairman Barnako?s recent announcement ofa massive reorganization of this Commission.[4]The purpose of that reorganization, asstated in a Commission news release of June 14, 1976, ?is to provide moreefficient administration and to better utilize the legal and clerical supportstaff available to the Commission.? This purpose cannot be achieved, however,as long as the other two Commission members insist that lead opinions rehashexactly what has been said in prior decisions. Another example of theuneconomical use of staff attorneys is illustrated by comparing the Chairman?s13-page lead opinion in Secretary v. Grossman Steel & AluminumCorporation, OSAHRC Docket No. 12775, May 12, 1976, with CommissionerCleary?s 17-page lead opinion in Secretary v. Anning-Johnson Company,OSAHRC Docket No. 3694, May 12, 1976. These two decisions were released on thesame day and say substantially the same thing, albeit in a somewhat differentmanner. Until my colleagues are willing to abandon such archaic procedures,there is no reorganization that can achieve the purpose stated in theChairman?s news release.?APPENDIXA\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 6804, 6805 GULF & WESTERN FOOD PRODUCTS CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINALORDER DATE: April 23, 1975?DECISION AND ORDERLARKIN,JUDGE OSAHRCThis is a proceeding under section10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (referredto as the Act) to review two alleged serious citations issued to respondent bythe Secretary of Labor (referred to as the Secretary) pursuant to section 9(a)of the Act.The cases were set for trial on August15, 1974, in West Palm Beach, Florida. Prior to trial, various oral motionswere made. The motions were later reduced to writing and briefs have beensubmitted in support of the respective positions.Motion to dismiss for failure to issuethe citations with ?reasonable promptness? as specified in section 9(a) of theAct.Respondnet is a sugar cane grower andprocessor. On December 16, 1973, one of its trucks was involved in an accidentand several of its employees were injured. The respondent notified theSecretary of the injuries on the day of the accident. The accident wasinvestigated on January 2, 1974. The citation was issued on February 6, 1974,some 36 days after the inspection and 54 days after the accident. Thedescription of the alleged violation in the citation is as follows:?The employerfailed to provide employees a place of employment free from recognized hazardsthat were causing or likely to cause death or serious physical harm in that onor about December 16, 1973, employees were being transported in a vehicle withno provisions for seating and no provisions for the securing of cane kniveswhile being transported.?On January 7, 1974, a second truckaccident occurred. There were several injuries and one fatality. The Secretarywas notified on January 7, 1974, and an investigation was made on January 10,1974. This citation was issued on February 6, 1974, or some 26 days after theinspection. The description of the alleged violation in the second citation isas follows:?Theemployer failed to provide employees a place of employment free from recognizedhazards that were causing or likely to cause death or serious physical harm inthat on or about January 7, 1974, employees were being transported in a vehiclewith no provision for seating and no provision for the securing of cane kniveswhile being transported.??Section 9(a) of the Act as pertinentprovides:?If,upon inspection or investigation, the Secretary . . . believes that an employerhas violated a requirement of section 5 of this Act. . ., he shall withreasonable promptness issue a citation to the employer.??The legislative history as to thisprovision as pertinent provides:?Ifthe Secretary ?believes? that an employer has violated [mandatory requirementsunder the Act], he shall issue the citation with reasonable promptness. In theabsence of exceptional circumstances any delay is not expected to exceed 72hours from the time the violation is detected by the inspector.? H. Rep. No.91?1765, 91st Cong. 2d Sess. 38 (1970).\u00a0The question of what is meant by?reasonable promptness? as used in section 9(a) of the Act has been consideredin various Commission decisions. See for example Chicago Bridge and IronCompany 6 OSAHRC 244 (January 23, 1974); Advance Air Conditioning, Inc.7 OSAHRC 736 (April 4, 1974); Silver Skillet Food Products, Co. 2 OSAHRC662 (February 23, 1973) and Pleasant Valley Packing Company, Inc. 2OSAHRC 185 (January 4, 1973).The Chicago Bridge decision isthe lead case. The Commission interprets the ?reasonable promptness? provisionas restricted to ministerial tasks involved in issuing the citation. Itconcludes that the provision was inserted to accomplish prompt abatement andmust be raised during the issue formulating stage.The Secretary argues that the delayresulted from the decisional process as to whether a violation existed ratherfrom a delay in performing the ministerial tasks of issuing the citation. TheSecretary contends also that the matter was not raised during the issueformulating stage of the proceeding.In support of his first contention, theSecretary offers the deposition of the Area Director of the Occupational Safetyand Health Administration.The Secretary refused to turn over hisfile to opposing counsel for purposes of cross examination in taking thedeposition. The Secretary erred in refusing to turn over that portion of thefile pertaining to the direct examination of the witness. Certainly, recentamendment to the Freedom of Information Act, conveys the message that Congressgrows tired of the government playing ?cat and mouse? with its citizens as toinformation that is not vital to the national defense or security of thecountry. Irrespective of the Freedom of Information Act, legal precedent andfairness under the Jencks doctrine requires that the file as pertinent to the directexamination of the witness should have been made available to opposing counsel.However, it is not necessary to strike the deposition for this reason becauseeven accepting the deposition at face value, it does not set forth sufficientgrounds to show ?exceptional circumstances.? The Secretary contends that ittook 26 to 36 days respectively to make a determination that a violation hadbeen committed. To recognize such excuse as justifying the delay involveddefeats the purpose of the ?reasonable promptness? requirement of section 9(a)as the Congressional Committee Report stresses ?. . . 72 hours from the timethe violation is detected by the inspector.? The Secretary argues that theissue cannot be raised after the pleadings were filed. The issue was raisedbefore trial and well within the issue formulating stage of the case. TheSecretary ignores the liberal right to amend pleadings existing under theFederal Rules. In fact, the Secretary often uses this rule to rewrite hiscitation and such rule should not be considered a one way street. Moreover, anycitation that fails to conform with the requirements of the Act would have tobe considered an invalid citation and would not confer jurisdiction upon theCommission. It is basic that a jurisdictional question may be raised at anytime. Advance Air Conditioning, Inc. 7 OSAHRC 736 April 4, 1974,(dissenting opinion).The foregoing conclusion is dispositiveof any outstanding motions as they are rendered moot in view of the granting ofrespondent?s motion to dismiss.Whereforeit is ORDERED:The respondent?s motion is granted asthe Secretary has failed to comply with the provisions of section 9(a) of theAct for failure to issue the citations with reasonable promptness. Thecitations issued on February 6, 1974, are vacated and no penalties areassessed.?Datedthis 24th day of March, 1975.?JOHNJ. LARKIN,JudgeOSAHRC1975WL 21846 (O.S.H.R.C.)[1]Section9(a) of the Act provided in relevant part:If, uponinspection or investigation, the Secretary or his authorized representativebelieves that an employer has violated a requirement of section 5 of this Act,of any standard, rule or order promulgated pursuant to section 6 of this Act,or of any regulations prescribed pursuant to this Act, he shall withreasonable promptness issue a citation to the employer. (emphasis added).[2]Section12(j) provides in pertinent part:Thereport of the hearing examiner (administrative law judge) shall become the finalorder of the Commission within thirty days after such report by the hearingexaminer, unless within such period any Commission member has directed thatsuch report shall be reviewed by the Commission.[3]Thisis referred to as the certification date, which was March 4, 1975, in theinstant case.[4]Thereorganization calls for the reassignment of 9 of the 12 attorneys that arepresently assigned to each Commission member?s staff to a Division of GeneralLegal Services. That division will be responsible for writing lead opinions,but will not write separate concurring or dissenting opinions. Of course, asintended by the reorganization, this will seriously jeopardize the ability ofthe members to express their individual views. See June 14, 1976 News Release entitled?Barnako Announces Major Reorganization for Job Safety Commission.? Theimportance and prevalence of concurring and dissenting opinions to Commissiondecisions is revealed empirically by the following: (1) The majority opinion ofthe Commission has been reversed in more than 50% of all cases which have beenappealed to the courts during the past five years; and (2) During the periodFebruary 1 through June 1, 1976, 106 Commission decisions issued. In only threeof those (.028%) was the decision unanimous. More than 97% of those decisionsincluded concurring or dissenting opinions.”