“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14822 P & Z CO., INC. and J. F. SHEA CO., INC, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0May 21, 1976?DECISIONBefore BARNAKO,Chairman; MORAN and CLEARY, Commissioners.BY THE COMMISSION:ADecember 12, 1975 report of Review Commission Judge Ben D. Worcester is beforethis Commission for review pursuant 661(i). By his report Judge Worcester wouldgrant Respondent?s motion to dismiss the Secretary?s complaint and vacate hiscitations. For the reasons given herein, we reject the report and remand thecase for a decision that comports with law.Thismatter arose out of the following facts: As the result of an extensiveinspection at a construction site in Washington, D. C., the Secretary issuedthree citations naming P & Z Co., Inc. and J. F. Shea Co., Inc. asindividual Respondents. The citations alleged two serious and 29 nonseriousviolations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 etseq., hereinafter ?the Act?). A total penalty of $2,180 was proposed. Thecitations were timely contested by a letter in which Respondents identifiedthemselves as ?P & Z Co., Inc.,?J. F. Shea Co., Inc. (A Joint Venture).?The Secretary then filed a complaint in which he sought to amend the citationsby adding the joint venture to the other two named parties. The complaint wasfiled within six months of the date of inspection.Inresponse to the complaint, Respondents moved to dismiss the complaint andvacate the citations and notice of proposed penalties. In support of theirmotion, Respondents argued that the amendment did not give fair notice toRespondents as to which party should defend. As further grounds for theirmotion, Respondents contended that the inspection was invalid due to thepresence of unauthorized personnel and that the citation was not issued withreasonable promptness. The Secretary opposed the motion on all grounds. JudgeWorcester thereafter took oral argument and granted Respondents? motion; hevacated the citations. He then rendered the following as his report to theCommission:The motion of therespondent to dismiss the complaint without leave to amend is granted. It istherefore hereby ordered that the citation and proposed penalty be vacated.?TheSecretary petitioned for discretionary review. Among other things, he exceptedto the judge?s report for failing to give any explanation for his decision inviolation of the Administrative Procedure Act and the Commission?s Rules ofProcedure.TheSecretary cites ? 557(c) of the Administrative Procedure Act (APA).[1]Commissioner Cleary directed review.Section10(c) of our Act requires the Commission to afford contesting employers theopportunity for a hearing in accordance with section 554 of the APA. Section554(c)(2) of the APA, in turn, incorporates the requirements of section 557 ofthe APA regarding the contents of decisions issued by an administrative agency.Section 557(c) provides in pertinent part:All decisions,including initial, recommended, and tentative decisions, are a part of therecord and shall include a statement of?(A) findings andconclusions, and the reasons or basis therefor, on all the material issues offact, law, or discretion presented on the record; and?(B) the appropriaterule, order, sanction, relief, or denial thereof.\u00a0Accordingly,the Commission and its administrative law judges are mandated by the Act tostate findings of fact, conclusions of law, and the reasons or basis thereforin all decisions and reports.JudgeWorcester?s report clearly does not comply with the requirements set out above.It does not state the reasons or basis for his conclusions to vacate thecitations. Accordingly, we find that his report is not in accordance withsection 557(c), and remand it for a decision that comports with the section.Wedo not decide any other issue raised by the Secretary?s petition. The remainderof the petition is predicated on the Secretary?s assumption as to the reasonsthe judge might have assigned for his disposition. Since the judge did notstate his reasons we are unwilling to assume what they might be. However, we donote that the questions presented concern whether the joint venture should beadded as a party and there is case law on the subject. Bloomfield MechanicalContracting, Inc. v. OSAHRC, 519 F.2d 1257 (3d Cir. 1975); Vincent RizzoConstruction Co., OSHRC Docket No. 4224, BNA 3 OSHC 1841, CCH OSHD para.20,236 (1975).Accordingly,this matter is remanded for further proceedings consistent with this opinion.So ORDERED.?FOR THECOMMISSION:?WILLIAM S.McLAUGHLINExecutiveSecretaryDATE: MAY 21,1976?MORAN,Commissioner, Concurring in Part, Dissenting in Part:OnFebruary 6, 1976, the same two members who make up the majority for thedecision in this case issued a decision in Secretary v. Francisco TowerService, Inc., OSAHRC Docket No. 4845. That decision contained no findingsof fact or conclusions of law. I dissented from that opinion and?no less thanfive times?I pointed out that the decision was wrong because it contained nofindings of fact or conclusions of law. For example, the dissent states at onepoint thatMessrs. Barnako andCleary have here declined to make any findings with respect to questions offact?nor have they adopted the findings with respect to questions of fact whichwere made by the Judge below.?Notonly did they issue that decision but they followed it up with no less thanforty subsequent decisions which cite it as authority for disposing of a casewithout making any findings of fact or conclusions of law. In none of thosecases was there any reference to the point made in the dissent whichaccompanied each of them, regarding the absence of any finding of fact orconclusion of law. See, for example, Secretary v. Mohawk Excavating,Incorporated,[2]OSAHRC Docket No. 8845,February 17, 1976; Secretary v. Desarrollos Metropolitanos, Inc.,[3]OSAHRC Docket No. 11884, February 17, 1976; and Secretary v. Texaco,Incorporated,[4] OSAHRC Docket No. 11903,February 17, 1976.Now,however, the same two members who, through some 40 decisions earlier this yearsteadfastly ignored the requirement that decisions include findings of fact andconclusions of law, tell us that the law is as follows:?. . . theCommission and its administrative law judges are mandated by theAct to state findings of fact, conclusions of law, and the reasons or basistherefor in all decisions and reports.? (Emphasis added.)\u00a0Itis not surprising to me that they do not acknowledge that they have failed toobserve this mandate even though it has been called to their attention in 40dissenting opinions issued earlier this year. It is also not surprising thatMessrs. Barnako and Cleary let those decisions stand without reversing a singleone of them?even though their decision in this case states exactly the oppositeof what they did in the above-mentioned cases. Diametrically opposite ?rules?applied?or not applied?depending on the result produced thereby, has becomepretty standard in this Commission during the past nine months.Inthe case presently before us, I concur in the disposition ordering the caseremanded. This will afford the complainant the opportunity to proceed againsteither or both respondents individually if he considers such actionappropriate. If complainant elects to proceed against respondent Shea, it willbe necessary for him to establish proper service of the citations and notice ofproposed penalty on that respondent in accordance with 29 U.S.C. ? 659(a).[5]Furthermore, in any further proceeding, I would require complainant toestablish that the more than two month delay in issuing the citations was dueto exceptional circumstances.??????????? In Bloomfield MechanicalContracting, Inc., v. OSAHRC, 519 F.2d 1257 (3d Cir. 1975), cited by themajority, the Secretary of Labor attempted to add a joint venture as a party byway of the complaint in a manner similar to the attempted amendment in theinstant case. Noting that the Secretary had ?failed to amend the citation atany time,? the court also stated that ?[i]t is the citation which servesas the statutory vehicle for notice of the violation, 29 U.S.C. ? 658(a).? 519F.2d at 2162 (emphasis added). Clearly then, the attempted amendment in thatcase, regardless of the statute of limitations problem involved,[6]was inadequate to amend the citation to name a new party. An amendedcitation must be issued. This is particularly apparent since the court notedthat the complaint procedure is only a ?creature of administrative regulation?which is not mentioned in the Act at all. 519 F.2d at 1262. Because notice byway of a citation and notice of proposed penalty is a particular statutoryrequirement, amendment under Rule 15 of the Federal Rules of Civil Procedure byway of a complaint cannot be allowed.[7]An amendment which adds a new party creates a new cause of action which must becommenced by the issuance and proper service of a citation and notice ofproposed penalty upon the named party.Furthermorethe record in this case tends to indicate that respondent Shea, was neverserved with the original citation. Although the citation named ?P & Z Co.,Inc. and J. F. Shea Co., Inc.,? it was only served on P & Z. The two namedrespondents are separate corporate entities with different mailing addresses.As indicated in the Bloom-field decision, service on one member of a jointventure may be adequate service on the joint venture itself if the jointventure is named in the citation. 519 F.2d at 1261. It was not in the instantcase. It matters not whether Shea did or did not have actual notice if properservice rules were not followed. Secretary v. Donald K. Nelson Construction,Inc., OSAHRC Docket No. 4309, January 13, 1976. Accordingly, Shea may neverhave been a party respondent in this case. If so, allowing an amendment underRule 15 to add the joint venture as a party respondent would not merely changethe status of parties already before us, but would add a new party.IfShea was never properly served, the only possible legitimate respondentremaining is P & Z. This Commission, however, has never determined whetheran individual participant in a joint venture is an employer for purposes ofliability under 29 U.S.C. ? 654(a)(2) for alleged safety violations committedby the joint venture. We have never decided this question because in priorcases where a joint venture was involved the Secretary has cited both the jointventure and its members[8]8or the joint venture alone.[9]9Furthermore, the court in Bloomfield Mechanical Contracting, Inc. v. OSAHRC,supra, specifically declined to answer the question. 519 F.2d at 1261 n.1.TheNational Labor Relations Board (NLRB) has considered the above question inadministering the National Labor Relations Act (NLRA) and has determined thatindividual participants in a venture are not employers and any violations ofthe NLRA are attributable solely to the joint venture, Grove Shepherd Wilson& Kruge, Inc., 109 NLRB No. 21, 34 LRRM 1338 (1954), WillametteNational Lumber Co., 107 NLRB No. 237, 33 LRRM 1328 (1954). Similarly, in WilcoxConstruction Co., Inc., 87 NLRB No. 56, 25 LRRM 1110 (1949), a companyparticipating in a joint venture was found not to be the employer of guards atthe project since the joint venture exercised control of hiring and firing ofpersonnel and established their working hours. Unfortunately, the record beforeus does not contain sufficient evidence to permit a determination such as thosemade by the NLRB.Theinspection of the worksite in the instant case took place between May 30, 1975and June 6, 1975, but the citations were not issued until August 7, 1975. Sincethe delay between the inspection and the issuance of the citation far exceededthe 72 hours allowed by Congress under normal operating conditions, thecitation must be vacated for failure to comply with the reasonable promptnessrequirements of 29 U.S.C. ? 658(a) unless complainant establishes that thedelay was justified by exceptional circumstances. Secretary v. ConcreteConstruction Corporation, OSAHRC Docket No. 2490, April 8, 1976 (dissentingopinion).\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14822 P & Z CO., INC. and J. F. SHEA CO., INC, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 December 12, 1975\u00a0ORDER?The motion ofthe respondent to dismiss the complaint without leave to amend is granted. Itis therefore hereby ordered that the citation and proposed penalty be vacated.?BEN D. WORCESTERJudge, OSAHRCDated: December 12, 1975?Hyattsville, MD[1]1 5 U.S.C. ?? 500, et seq.[2]Presently on appeal in the U.S. Court of Appeals for the 2d Circuit (No.76?4068, filed March 3, 1976).\u00a0[3]Presently on appeal in the U.S. Court of Appeals for the 1st Circuit (No.76?1084, filed April 12, 1976).\u00a0[4]Presently on appeal in the U.S. Court of Appeals for the 10th Circuit (No. 76?1318,filed April 19, 1976).\u00a0[5]This section requires that a cited employer be notified by certified mail ofthe penalty, if any, proposed by the Secretary to be assessed against theemployer for alleged violations.[6]A citation may not be issued after the expiration of six months following theoccurrence of any violation. 29 U.S.C. ? 658(c).\u00a0[7]I have discussed the reasons why the amendment rules in Rule 15, Federal Rulesof Civil Procedure, do not apply to citations in greater detail in Secretaryv. Warnel Corporation, OSAHRC Docket No. 4587, March 31, 1976.[8]See e.g., Secretary v. Underhill Construction Corp., Individually and DicConcrete Corp., Individually and trading as Dic-Underhill, a Joint Venture,20 OSAHRC 534 (1975).\u00a0[9]Secretary v. Straight Creek Constructors, 7 OSAHRC 1158, 1166 (1974).”