“SECRETARY OF LABOR,Complainant,v.RUST ENGINEERING COMPANY,Respondent.OSHRC Docket No. 79-2090_DECISION_Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).A citation issued to Rust Engineering Company alleged violations of thefall protection standards contained at 29 C.F.R. ?? 1926.28(a) and1926.105(a). An administrative law judge vacated the citation based ona finding that it was not issued with \”reasonable promptness\” asrequired by section 9(a) of the Act, 29 U.S.C. ? 658(a).[[1]] In thejudge’s view, the delay of 111 days between the inspection and theissuance of the citation was both prejudicial to the employer’s abilityto prepare and present a defense and unreasonable to the point ofunconscionability. The judge entered alternative findings on the meritsof the citation and concluded that the citation should be vacatedbecause the employer established that compliance with the standardswould be impossible and would expose its employees to greater hazards.The two participating Commission members are divided on whether thejudge’s decision on the issue of reasonable promptness should beaffirmed or reversed.[[2]] Appellate and Commission, precedentestablish that a citation may be vacated on reasonable promptnessgrounds upon a showing of prejudice to the employer. _See__Stripe-A-Zone, Inc_., 82 OSAHRC 31\/E13, 10 BNA OSHC 1694, 1982 CCH OSHD? 26,069 (No. 79-2380, 1982)(citing appellate and Commission decisions);_Todd Shipyards Corp. v_. _Secretary of Labor_, 566 F.2d 1327, 1330 (9thCir. 1977). Chairman Buckley would affirm the judge’s decision becausethe reasons advanced by the Secretary for the 111 day delay were notreasonable, and because, as the judge found, the failure of theinspecting compliance officer to inform Rust Engineering Company duringthis 111 day period that a citation might issue seriously prejudicedRust’s ability to properly defend against the charge.[[3]]Commissioner Cleary would reverse the judge’s reasonable promptnessruling. Contrary to the judge’s decision, a delay in issuing a citationis not per se a ground under Commission precedent to vacate thecitation.[[4]] Instead, the Commission has required employers claimingthat a citation was issued without reasonable promptness to show thatthe delay prejudiced the employer’s ability to prepare and present adefense.[[5]] The courts or appeals have agreed with this approach. The Ninth Circuit has stated:Even if we were not bound to yield to the Secretary and the Commission arelatively broad discretion in interpreting the Act, _The_ _Budd Co. v.OSHRC_, 513 F.2d 201, 204-205 (3rd Cir. 1975), we would still becompelled to recognize the merit of this approach. It is very much inkeeping with the remedial purpose of the Act . . . . To vacate acitation because of delay that is less than prejudicial would clearlyrun counter to the concern for safe working conditions that led to theenactment of OSHA._Todd Shipyards Corp. v. Secretary of Labor_, 566 F.2d 1327, 1330 (9thCir. 1977). _See_ _also_ _Brennan v. Chicago Bridge and Iron_ _Co_.,514 F.2d 1082 (7th Cir. 1975). Commissioner Cleary also finds that Rustdid not show that the delay was prejudicial. He would observe firstthat a delay of 111 days is hardly apt to be prejudicial. Because longstatutes of limitations are common in legal jurisprudence, lawsuits arefrequently filed years after alleged wrongs occurred. Lawyers are ableto and are accustomed to then locating witnesses and documents. Reconstruction of events and conditions after several years does notnormally present a serious obstacle to litigation of cases. Viewed inthis light, a delay of 111 days is negligible. Though it is asignificant fraction of the Act’s six-month limitations period, it istoo short to pose a serious prospect of prejudice in all but the mostunusual case. Yet, this case is hardly unusual. Rust had located itswitnesses and they were prepared to testify. In other respects, thisrecord shows nothing more than the usual amount of difficulty that anydefense lawyer can expect to encounter in preparing a defense. _See__Havens Steel Co. v._ _OSHRC_, No. 82-2261 (10th Cir. July 9, 1984)(slipop. at 5-7).In view of the impasse as to the issue before the Commission for review,Chairman Buckley and Commissioner Cleary have agreed to vacate thedirection for review. _E.g_., _Texaco, Inc._, 80 OSAHRC 74\/B1, 8 BNAOSHC 1758, 1980 CCH OSHD? 24,634 (Nos. 77-3040 & 77-3542, 1980). The Commission members havediscretion under the Act and the Commission’s Rules of Procedure todirect review of a judge’s decision. Section 12(j), 29 U.S.C. ? 661(i);29 C.F.R. ? 2200.92. In the absence of a direction for review, thejudge’s decision becomes a final order of the Commission and can beappealed by an aggrieved party to a United States court of appeals. Sections 10(c), 11(a) and (b) and 12(j), 29 U.S.C. ?? 659(c), 660(a) and(b), 661(i). The judge’s decision in this case therefore becomes theappealable final order of the Commission, but is accorded theprecedential value of an unreviewed judge’s decision.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: AUG 27 1984————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Section 9(a) provides in part:If, upon inspection or investigation, the Secretary or his authorizedrepresentative believes that an employer has violated a requirement ofsection 5 of this Act, of any standard, rule or order promulgatedpursuant to section 6 of this Act, or of any regulations prescribedpursuant to this Act, he shall with reasonable promptness issue acitation to the employer.[[2]] As established by the Act, the Commission is composed of threemembers. Section 12(a), 29 U.S.C. ? 661(a). Under section 12(f) ofthe Act, 29 U.S.C. ? 661(e), official action can be taken by theCommission with the affirmative vote of at least two members. Currently, the Commission is composed of two members, due to a vacancy.[[3]] In Chairman Buckley’s view, citations issued after \”patentlyunreasonable, unnecessary and unjustified\” delays should be vacated tofully implement the statutory requirement that citations be issued withreasonable promptness. _See_ _Stripe-A-Zone_, 10 BNA OSHC at 1696, 1982CCH OSHD at p. 32,782 (concurring opinion). Vacation of citationsissued after such delays will promote the prompt issuance of citationsand ultimately advance the Act’s objectives of rapid abatement toprotect employees following prompt adjudication of contested cases. _Atlas Roofing Co. v. OSHRC_, 430 U.S. 442, 461 (1977); _Gilbert__Manufacturing Co_., 79 OSAHRC 68\/A2, 7 BNA OSHC 1611, 1613, 1979 CCHOSHD ? 23,782, p. 28,846 (No. 76-4719, 1979). Here the administrativelaw judge correctly found that the reasons offered by the Secretary forthe delay were meritless.[[4]] _See_, in addition to _Stripe-A-Zone_, _National IndustrialConstructors, Inc_., 81 OSAHRC 94\/A2, 10 BNA OSHC 1081, 1981 CCH OSHD ?25,743 (No. 76-4507, 1981), and _Stearns-Roger, Inc._, 80 OSAHRC 103\/A2,8 BNA OSHC 2180, 1980 CCH OSHD ? 24,870 (No. 76-819, 1980).[[5]] _Id_.”