“Docket No. 79-2090 SECRETARY OF LABOR,Complainant,v.RUST ENGINEERING COMPANY,Respondent.OSHRC Docket No. 79-2090DECISION Before:\u00a0 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 and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).A citation issued to Rust Engineering Company alleged violations of the fallprotection standards contained at 29 C.F.R. ?? 1926.28(a) and 1926.105(a).\u00a0 Anadministrative law judge vacated the citation based on a finding that it was not issuedwith \”reasonable promptness\” as required by section 9(a) of the Act, 29 U.S.C.? 658(a).[[1]]\u00a0 In the judge’s view, the delay of 111 days between the inspectionand the issuance of the citation was both prejudicial to the employer’s ability to prepareand present a defense and unreasonable to the point of unconscionability.\u00a0 The judgeentered alternative findings on the merits of the citation and concluded that the citationshould be vacated because 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 the judge’sdecision on the issue of reasonable promptness should be affirmed or reversed.[[2]]\u00a0Appellate and Commission, precedent establish that a citation may be vacated onreasonable promptness grounds upon a showing of prejudice to the employer.\u00a0 SeeStripe-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 (9th Cir. 1977).\u00a0 Chairman Buckleywould affirm the judge’s decision because the reasons advanced by the Secretary for the111 day delay were not reasonable, and because, as the judge found, the failure of theinspecting compliance officer to inform Rust Engineering Company during this 111 dayperiod that a citation might issue seriously prejudiced Rust’s ability to properly defendagainst the charge.[[3]]Commissioner Cleary would reverse the judge’s reasonable promptness ruling.\u00a0 Contraryto the judge’s decision, a delay in issuing a citation is not per se a ground underCommission precedent to vacate the citation.[[4]]\u00a0 Instead, the Commission hasrequired employers claiming that a citation was issued without reasonable promptness toshow that the delay prejudiced the employer’s ability to prepare and present adefense.[[5]]\u00a0 The courts or appeals have agreed with this approach.\u00a0 The NinthCircuit 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 be compelled to recognize the meritof this approach. It is very much in keeping with the remedial purpose of the Act . . . .To vacate a citation because of delay that is less than prejudicial would clearly runcounter to the concern for safe working conditions that led to the enactment of OSHA.Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327, 1330 (9thCir. 1977).\u00a0 See also Brennan v. Chicago Bridge and Iron Co.,514 F.2d 1082 (7th Cir. 1975).\u00a0 Commissioner Cleary also finds that Rust did not showthat the delay was prejudicial.\u00a0 He would observe first that a delay of 111 days ishardly apt to be prejudicial.\u00a0 Because long statutes of limitations are common inlegal jurisprudence, lawsuits are frequently filed years after alleged wrongs occurred.\u00a0 Lawyers are able to and are accustomed to then locating witnesses and documents.\u00a0Reconstruction of events and conditions after several years does not normallypresent a serious obstacle to litigation of cases.\u00a0 Viewed in this light, a delay of111 days is negligible.\u00a0 Though it is a significant fraction of the Act’s six-monthlimitations period, it is too short to pose a serious prospect of prejudice in all but themost unusual case.\u00a0 Yet, this case is hardly unusual.\u00a0 Rust had located itswitnesses and they were prepared to testify.\u00a0 In other respects, this record showsnothing more than the usual amount of difficulty that any defense lawyer can expect toencounter in preparing a defense.\u00a0 See Havens Steel Co. v. OSHRC,No. 82-2261 (10th Cir. July 9, 1984)(slip op. 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 the direction for review.\u00a0 E.g., Texaco, Inc., 80 OSAHRC 74\/B1, 8 BNA OSHC 1758, 1980 CCH OSHD? 24,634 (Nos. 77-3040 & 77-3542, 1980).\u00a0 The Commission members have discretionunder the Act and the Commission’s Rules of Procedure to direct review of a judge’sdecision.\u00a0 Section 12(j), 29 U.S.C. ? 661(i); 29 C.F.R. ? 2200.92.\u00a0 In theabsence of a direction for review, the judge’s decision becomes a final order of theCommission and can be appealed by an aggrieved party to a United States court of appeals.\u00a0 Sections 10(c), 11(a) and (b) and 12(j), 29 U.S.C. ?? 659(c), 660(a) and (b),661(i).\u00a0 The judge’s decision in this case therefore becomes the appealable finalorder of the Commission, but is accorded the precedential value of an unreviewed judge’sdecision.FOR THE COMMISSION Ray H. Darling, Jr.Executive SecretaryDATED: AUG 27 1984 The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 of section 5 of thisAct, of any standard, rule or order promulgated pursuant to section 6 of this Act, or ofany regulations prescribed pursuant to this Act, he shall with reasonable promptness issuea citation to the employer.[[2]] As established by the Act, the Commission is composed of three members.\u00a0 Section 12(a), 29 U.S.C. ? 661(a).\u00a0 Under section 12(f) of the Act, 29 U.S.C.? 661(e), official action can be taken by the Commission with the affirmative vote of atleast two members.\u00a0 Currently, the Commission is composed of two members, due to avacancy.[[3]] In Chairman Buckley’s view, citations issued after \”patentlyunreasonable, unnecessary and unjustified\” delays should be vacated to fullyimplement the statutory requirement that citations be issued with reasonablepromptness.\u00a0 See Stripe-A-Zone, 10 BNA OSHC at 1696, 1982 CCH OSHD atp. 32,782 (concurring opinion).\u00a0 Vacation of citations issued after such delays willpromote the prompt issuance of citations and ultimately advance the Act’s objectives ofrapid abatement to protect employees following prompt adjudication of contestedcases.\u00a0 Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 461 (1977); Gilbert ManufacturingCo., 79 OSAHRC 68\/A2, 7 BNA OSHC 1611, 1613, 1979 CCH OSHD ? 23,782, p. 28,846 (No.76-4719, 1979).\u00a0 Here the administrative law judge correctly found that the reasonsoffered by the Secretary for the 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, 1980CCH OSHD ? 24,870 (No. 76-819, 1980).[[5]] Id.”