“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 1420 STOKES CONSTRUCTION COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 June 7, 1974ORDER OF REMANDBefore MORAN, Chairman; VAN NAMEE and CLEARY,CommissionerVAN NAMEE, COMMISSIONER:??????????? Thismatter is before the Commission on my order directing review of an orderrendered by Judge Ernest C. Winfrey. Judge Winfrey vacated Complainant?scitation and proposed penalties on the ground the citation was not issued withreasonable promptness. We have reviewed the record. For the reasons givenbelow, we reverse and remand.??????????? Complainantinspected Respondent?s workplace on June 9, 1972. On August 15 he issued hiscitation whereby he alleged that Respondent Stokes Construction Company(hereinafter ?Stokes?) committed three non-serious violations of section5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 etseq., hereinafter ?the Act?).??????????? Stokestimely filed a notice of contest. Reasonable promptness was not raised as anissue in the notice. Complainant filed his complaint on September 18.??????????? OnNovember 16 the Commission set a hearing date in this matter and notified theparties to that effect. Certain pre-trial instructions accompanied the noticeof hearing.??????????? By aletter dated December 2, Stokes replied to the pre-trial instructions asfollows:Since the job has been substantiallycompleted since October 19, 1972 and occupied by the Owners since that date, weare unable to get our main witnesses to gather for the scheduled hearing andhave very little hope to get them to gather for a future hearing, due to theirtraveling to various construction jobs and part of them already working indifferent cities.?We feel very strongly that you are wrongin your original findings, however due to the above-stated circumstances forour inability to appear, our only remaining alternative is to request that youreconsider the case and advise us of your final determination.???????????? OnDecember 15 Stokes answered the complaint. Reasonable promptness was not raisedas an issue by the answer. On the same day and in further response to thepre-trial instructions Stokes said it would appear and participate in thehearing and present its witnesses.??????????? Thereafter,this matter was tried on its merits. Stokes appeared and participated fully inthe hearing and presented witnesses having knowledge of the facts in rebuttalto Complainant?s case. Stokes did not raise the issue of reasonable promptnessat the hearing nor was the issue raised by a post hearing brief. Indeed,Complainant makes no mention of such issue in his post hearing brief.??????????? Nevertheless,Judge Winfrey vacated because in his view the citation was not issued withreasonable promptness. In vacating the Judge apparently recognized what we havesubsequently said, i.e., the issue of reasonable promptness must be raised asan affirmative defense during the issue formulation stage of the proceedings. ChicagoBridge and Iron Company, OSHRC Docket No. 744, BNA 1 O.S.H.R. 1485, 1487 n7, CCH Employ. S. & H. Guide para. 17,187 (Rev. Comm?n., January 24, 1974).In this regard he indicated that it would have been helpful to him had Stokesraised the issue by a proper motion, and he noted that Stokes had not providedassistance. Apparently, the Judge was determined to vacate for even though theissue had not been raised he proceeded to construe the letter of December 2 insuch fashion as to make it seem the issue was raised by Stokes.[*] That is, he construed theletter to thereby rationalize his disposition of his own issue.??????????? Weagree with the Judge?s statement that the issue was not raised by Stokes. Asfor the letter of December 2 it merely states that the project ended on October19 and Stokes was therefore having difficulty locating witnesses. But Stokeshad received the citation about two months before the project ended. Thus thereis no relationship between the question of reasonable promptness and thequestion of Stokes? ability to produce witnesses. Moreover, as is evident fromthe communication of December 15 Stokes problem with respect to obtainingwitnesses was solved.??????????? JudgeWinfrey although noting that the record was sufficient to decide this matter onthe merits declined to do so because of his disposition on reasonable promptness.Since we reverse that disposition on the authority of the Chicago Bridge andIron Company decision the matter must be remanded for a decision on the merits.??????????? Accordingly,the decision to vacate is reversed, and the matter is remanded for a decisionon the merits.?CLEARY, COMMISSIONER, concurring:??????????? Iconcur in the remand of this case for a decision on the merits. Thisdisposition is consistent with my position as expressed in Morrison-KnudsenCo. & Assoc., No. 692 (March 28, 1974); Advance Air Condition,No. 1036 (April 4, 1974); and Plastering Incorporated, No. 1037 (May 3,1974).?MORAN, CHAIRMAN, dissenting:??????????? Readingthe lead opinion in this case makes it difficult to decide whether the dissentfrom the disposition or acknowledge the law lecture addressed to me by mycolleague. One practice I did learn in law school is to read the entire opinionto be relied upon, prior to citing it as authority. While not necessarilyacknowledging the relevance of the footnoted citation from Corpus JurisSecundum, it is noted that it includes the following:In order for a court to have ?jurisdictionof the subject-matter,? the particular issue determined must be properlybrought before it in the particular proceeding for determination. (Emphasissupplied).???????????? Ifail to see how an issue can be properly brought forward for adjudication ifthe citation which initiates the case is improperly issued.??????????? Allthese matters have been covered before so I see no need of repeating them here.See Secretary v. Advance Air Conditioning, Inc., OSAHRC Docket No. 1036(April 4, 1974) and Secretary v. Plastering, Incorporated, OSAHRC DocketNo. 1037 (May 3, 1974).\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 1420 STOKES CONSTRUCTION COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0MARCH 15, 1973WINFREY, JUDGE, OSAHRC:??????????? Followingtimely notice, a hearing was conducted by the undersigned at Dallas, Texas, onJanuary 16, 1973. The Complainant was represented at the hearing by theHonorable Scott H. Strickler, Regional Solicitor?s Office, U.S. Department ofLabor. The Respondent was represented by its owner, John Stokes, who is not alawyer. The Complainant filed proposed findings of fact and conclusions of law,as well as a brief and proposed order.??????????? Thisis a proceeding pursuant to Section 10(c) of the Occupational Safety and HealthAct of 1970 [29 USC 651 et seq., hereinafter called the Act], contesting acitation issued by the Complainant against the Respondent under the authorityvested in Complainant by Section 9(a) of that Act.??????????? Thecitation was issued August 15, 1972, and alleges that as a result of theinspection of a workplace under the ownership, operation or control of theRespondent located at 7001 Camp Bowie, Fort Worth, Texas, and described asbeing a Levitz construction site, the Respondent violated Section 5(a)(2) ofthe Act by failing to comply with certain occupational safety and healthstandards promulgated by the Secretary of Labor pursuant to Section 6 thereof.The descriptions of the alleged violations contained in said citation are asfollows: Item No. Standard or regulation allegedly violated Description of violation Date on which alleged violation must be corrected 1 29 CFR 1926.652(b) Sides of trenching in unstable or soft material that were more than 5 feet in depth were not shored, braced, sloped or otherwise supported to protect the employees within them. \u00a0 August 22, 1972 \u00a0 2 29 CFR 1926.652(d) In one isolated location where temporary shoring had been installed, temporary shoring was not effectively installed to the bottom of the excavation August 22, 1972 3 29 CFR 1926.652(j) Cross braces were not placed in a true horizontal position on temporary shoring. Cross braces were not properly located to eliminate possibility of shoring collapsing at the bottom of installation. August 22, 1972 \u00a0 \u00a0??????????? In pertinentpart, 29 CFR 1926.652 provides as follows:General trenching requirements:(b) Sides of trenches in unstable or softmaterial, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, orotherwise supported by means of sufficient strength to protect the employeesworking within them. See Tables P?1, P?2 [following paragraph (g) of thissection].?(d) Materials used for sheeting and sheetpiling, bracing, shoring, and underpinning, shall be in good serviceablecondition, and timbers used shall be sound and free from large or loose knots,and shall be designed and installed so as to be effective to the bottom of theexcavation.?(j) Cross braces or trench jacks shall beplaced in true horizontal position, be spaced vertically, and be secured toprevent sliding, falling, or kick-outs.???????????? Pursuantto the enforcement procedure set forth in Section 10(a) of the Act, theRespondent was notified by letter dated August 15, 1972, from Charles J. Adams,Area Director, Dallas Area Office of the Occupational Safety and HealthAdministration, U.S. Department of Labor, that it proposed to assess a penaltyfor the violations alleged in the amount of $360.00, which are specifically setforth as follows: Item No. and Description \u00a0 Proposed Penalty 1?Sides of trenches had no shoring \u00a0 $120.00 2?Temporary shoring not effectively installed. \u00a0 120.00 3?Cross braces on temporary shoring not properly installed \u00a0 $120.00 ??????????? Byletter dated September 5, 1972, the Respondent contested the citation andproposed penalty whereupon the Complainant filed its complaint certifying toservice thereof on September 18, 1972. Such complaint did not materially varyfrom the citation. There was some question concerning certain notices and theservice thereof, however, a notice of hearing was issued by the OccupationalSafety and Health Review Commission setting a hearing for January 16, 1973, inDallas, Texas. Such notice is undated and it appears to have been attached to athree page document labeled, ?Instructions to Participants? dated November 16,1972, and signed by the Director of Judicial Administration.??????????? Byletter dated December 2, 1972, the Respondent stated as follows:Re: Stokes Construction Company?O.S.H.R.C. Docket No. 1420Gentlemen: In reply to your letter ofNovember 16, 1972 entitled Instructions to Participants, please be advised asfollows.?Since the job has been substantiallycompleted since October 19, 1972 and occupied by the Owners since that date, weare unable to get our main witnesses to gather for the scheduled hearing andhave very little hope to get them to gather for a future hearing, due to theirtraveling to various construction jobs and part of them already working indifferent cities.?We feel very strongly that you are wrongin your original findings, however due to the above stated circumstances forour inability to appear, our only remaining alternative is to request that youconsider the case and advise us of your final determination.\u00a0??????????? Subsequentto such letter, the Respondent, by documents dated December 13, 1972, respondedto the complaint filed and partially complied with the letter of instructionissued November 16, 1972. The Complainant complied with the letter ofinstruction and filed a motion to dismiss the notice of contest certifying toservice thereof on December 19, 1972. Thereafter, by document dated January 4,1973, the instant cause was duly assigned to the undersigned by theOccupational Safety and Health Review Commission.??????????? Ashereinabove set forth, a hearing was conducted and ample evidence elicitedwhereby findings, conclusions and an appropriate order could be entered uponthe merits of the Complainant?s citation, proposed penalties and complaint, andthe Respondent?s contention in the premises. As the hearing commenced, theComplainant?s motion to dismiss the notice of contest was overruled.??????????? Acareful consideration of all the pleadings, documents, exhibits, testimony andthe contention of the parties convince the undersigned that a decision on themerits is not proper and in accordance with the instant Act for the reason thatthe citation and proposed penalty should be vacated, set aside, and held fornaught. A decision on the merits requires finding specifically, or byinference, that the prerequisites of the instant Act have been, at least,substantially complied with. It is concluded that such finding is not possiblein this cause. ??????????? InSection 9(a), the Act provides in substance and pertinent part that if, uponinspection or investigation, the Secretary or his authorized representativebelieve that an employer is in violation of the Act, he shall with reasonablepromptness issue a citation to the employer [emphasis added]. Section 9(c)provides that no citation may be issued after the expiration of six monthsfollowing the occurrence of any violation. It appears clear that the Secretarymust cause a citation to be issued with reasonable promptness after theoccurrence of a violation, and that such citation is prohibited after theexpiration of six months from the violation. Thus, every citation issued mustmeet the statutory requirement of issuance with reasonable promptness.??????????? Thedefinition of reasonable promptness may well mean many things to differentindividuals with responsibility in this area. The undersigned is cognizant ofthe view promulgated that the Congressional intent envisioned a 72-hour period.There is also authority for the view that any period of time up to six monthsis acceptable. It seems reasonable to conclude that a time certain isimpossible to ascertain in advance, and that each cause must be bottomed on thefacts therein elicited. It follows that for some citations to meet the test ofissuance with reasonable promptness, such citation should be issued within 72hours, and for citations for other violations, a delay of a period of time upto six months may be determined to be with reasonable promptness. It seems tothe undersigned that a citation meets the test of reasonable promptness if itserves to effectuate the announced purpose of the Act in providing safe andhealthy workplaces for employees, and is not delayed for a period of timewhereby the workplace, including personnel, is materially changed in normaloperations.??????????? Therecord in this cause discloses that the Respondent employer had an excavationor trench more than 500 feet in length ranging from approximately five feet tonineteen feet in depth, and from ten to twenty feet in width. On June 8, 1972,an accident occurred with a dirt slide, and two employees were injured. One ofthe injured employees evidently died as a result of the injuries received. OnJune 9, 1972, Paul Ficzeri, Jr., a compliance officer for the Complainant madean investigation. Thereafter on August 15, 1972, the complaint and notice ofproposed penalty was issued as hereinabove set forth.??????????? Theundersigned is convinced that such delay is unreasonable and thus the citationcannot be construed as having been issued with reasonable promptness. As aboveset forth, the violation of 29 CFR 1926.652(b) in that the sides of thetrenching had no shoring. The Respondent has put in issue as to whether thetrench or excavation was such as to require shoring under the terms of thequoted section. In item 2 it is alleged that 29 CFR 1926.652(d) was violated inthat temporary shoring was not effectively installed to the bottom of theexcavation. Item 3 alleges that 29 CFR 1926.652(j) was violated in that crossbraces on temporary shoring were not properly installed in that they were notin a true horizontal position. The Respondent contends, in effect, that allshoring is temporary and that the timbers viewed by the compliance officer wereemergency in nature and enabled the employer to clear the excavation of debrisafter the accident. The abatement date included in the citation was set asAugust 22, 1972.??????????? Inview of the conclusion reached in this clause, it is not necessary to make adetermination concerning the validity of the Complainant?s citation or of theRespondent?s contentions. The brief statement concerning the pertinent facts isincorporated herein only for the purpose of the discussion of reasonablepromptness, as it seems apparent that a determination of reasonable promptnessrequires a careful consideration of the factual situation in each case.??????????? Itseems apparent that the citation, as related to the facts, was not timelyissued. Especially is this true when considered with the announced purpose ofthe Act and of fairness to the Respondent. The nature of the alleged offensewas such as to require quick action on the part of Complainant if otheremployees at the worksite were to be protected. It seems reasonable to believethat the entire excavation was entirely covered long before the citation wasissued thereby rendering the abatement date set ineffective. Moreover, infairness to the Respondent, the site where the violation is alleged to haveoccurred was materially changed in normal operations before the citation wasissued. At least two employees were shown to have left their employment withina week or two of such date [Tr. pp. 80, 81, 170].??????????? Thedesirable way to raise the question herein decided is by the proper motiontimely filed whereby the Complainant could explain the delay and the Respondentcould show harm, if any. Such procedure, if followed, would have been indeedhelpful to the undersigned. Moreover, the Respondent?s owner, a non-attorney,represented Respondent and has not helped in the solution of rather complexlegal problems herein involved.??????????? Itmay well be that the failure to issue the citation with reasonable promptnessin this case is fundamental thereby rendering the citation void, but no suchdecision is herein made. On the other hand, if such failure renders thecitation voidable, then the question of waiver of such defense by theRespondent arises.??????????? Acareful evaluation of the entire record makes a firm determination of whetherthe citation is void or voidable unnecessary. The record reflects that theRespondent, by letter dated December 2, 1972, stated that the job had beencompleted and that they were unable to get their main witnesses together. It isstated that they would be unable to appear at the hearing. It is felt by theundersigned that the Respondent did, by such letter, pose the problem whichrequires a determination herein, and thereby did not waive the issue.Furthermore, at the hearing, testimony was elicited concerning the delay inissuing the citation. It is considered appropriate to quote in part from suchtestimony by Jack R. Rutherford, Senior Compliance Officer, and Acting AreaDirector in the absence of the Area Director:THE COURT: I have a couple of questions,sir. As I understood the testimony, the first recommendation was for a seriousviolation, which was reduced to a non-serious.?Was there any good reason for that??THE WITNESS: Yes, sir. Like I explained,when Mr. Ficzeri gets in my office and I start questioning him about the situationand everything, if he can convince me of the fact that the gravity of it, orthe likelihood that an accident would happen, then had he convinced me itshould have been higher, or since it was a C or above, this factor would haveweighed to the non-serious violation.???????????? Inother words, we don?t place?we just don?t draw a number or a letter out of thehat. I make my compliance officers convince me what they come up with. And if Ihave any questions about it, or any doubt about it, there was a slight doubt inmy mind the likelihood of an accident happening would be C or better.THE COURT: One further question. I believethat the inspection was made June 9th. The citation wasn?t issued until August15th. What was the delay on that??THE WITNESS: Well, it?s back to the oldstory of load, and many others, many inspections I have on top of this. Manythings weigh into this.?It?s not a matter of complaining aboutbeing short of help and all that, but some of these things just take longer[Tr. pp. 137, 138].???????????? It isthus concluded that the complainant had adequate, if inexpert, notice of thedefect in the citation and had adequate opportunity to explain same.Notwithstanding the question propounded by the undersigned, no further effortwas made to explain the delay. The explanation for the delay is not persuasive.It is acknowledged that workloads, etc., are important and many problems doexist thereby, however, it is not felt that the citation in this case shouldhave been delayed for the length of time that it was. It follows that thecitation issued 67 days after the occurrence of the alleged violation was notissued with reasonable promptness. Such citation, proposed penalties, andabatement date do little, if anything, to provide a safe and healthy workplacefor employees, and the site where the violation allegedly occurred was, innormal operations, materially changed before the citation was issued.??????????? It istherefore found that the citation issued August 15, 1972, upon allegedviolations ascertained by investigation on June 9, 1972, was not issued withreasonable promptness as required by Section 9(a) of the Act.??????????? It ishereby ORDERED that the citation issued and penalty proposed on August 15,1972, be, and they each are hereby vacated, and this action is DISMISSED.[*] Obviously theissue was raised by the Judge on his own motion. According to Chairman Moransuch practice is proper since in his view the issue is one of subject matterjurisdiction. See Moran, Chairman, dissenting: Advance Air Conditioning, Inc.,OSHRC Docket No. 1036, BNA 1 O.S.H.R. 1626, 1629, CCH Employ. S. & H. Guidepara. 17,585 (Rev. Com?n., April 4, 1974); Plastering, Incorporated,OSHRC Docket No. 1037, slip opinion at 3 (Rev. Com?n., May 3, 1974). In view ofthe Chairman?s repeated assertions in this regard it appears that the obviousmust be stated. ?Jurisdiction of the subject matter is the power to hear anddetermine cases of the general class to which the proceedings in questionbelong; the power to deal with the general subject involved in the action, andmeans not simply jurisdiction of the particular case then occupying theattention of the court but jurisdiction of the class of cases to which theparticular case belongs. . . .? (21 C.J.S. Courts ? 23 (footnotes omitted)).If the issue is one of subject matter jurisdiction then we would be withoutauthority to hear the case because we would have no power over the subjectmatter. Obviously, if that was the case it would necessarily follow that wewould also be without authority to vacate Complainant?s citation. Yet theChairman would vacate, that is, he would act on the citation while saying wehave no power to dispose of the citation.Thereal question in these cases relates to the propriety of the citation in issueand not to the question of whether we have the power to hear the matter. Sincethe question is one of challenging the propriety of the charge it is theRespondent who must issue the challenge. That is the usual practice and it isthe practice adopted in Chicago Bridge and Iron Company, supra; adecision to which Chairman Moran assented about two months prior to his dissentin Advance Air Conditioning.”