MATTHEWS & FRITTS, INC.  

OSHRC Docket No. 3998

Occupational Safety and Health Review Commission

August 13, 1974

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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: A January 31, 1974, decision of Review Commission Judge J. Marker Dern, in a proceeding initiated under the Occupational Safety and Health Act of 1970, n1 is before this Commission for review pursuant to 29 U.S.C. §   661(i).   That decision is hereby affirmed.

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n1 29 U.S.C. §   651 et seq., 84 Stat. 1590, hereinafter referred to as the Act.

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Respondent is a corporation engaged in the construction of sanitary sewer lines.   As a result of an inspection of its worksite conducted on July 3, 1973, respondent was issued a citation for noncompliance with an occupational safety and health regulation requiring sloping or shoring of trenches more than 5 feet deep.   That citation, received by respondent on July 10, 1973, n2 stated that the noncompliant condition was to be abated "the same day as receipt of citation."

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n2 The record indicates a dispute as to whether respondent received the citation in the morning or afternoon of that day.

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On the morning of July 11, 1973, while correction procedures were being discussed at the company offices, a representative of complainant arrived at the construction site to reinspect the trench in question.   Observing that the alleged violative condition had not been abated, he caused to be issued to respondent a notification of proposed additional penalties in the amount of $1,000.00 for failure to correct the alleged   violation.   29 U.S.C. §   659(b), 666(d).

It is the propriety of this notification which is before the Commission as respondent did not contest the July 10th citation.

Respondent claims that it was not given enough time to correct the condition of the trench before reinspection took place and that it was unable to complete the task until later in the day on July 11th, despite making all efforts to bring the trench into compliance.

The Judge held that a citation must afford an employer a reasonable abatement period to allow him to attain compliance with the Act.   Reasonable, according to the Judge, requires giving the employer the opportunity to evaluate the violation, formulate [*3]   plans for correction, and have time to implement the corrective plans.   We agree.

Under the facts of the instant case, the time period allotted for corrective measures was totally inconsistent with the nature of the condition to be corrected. Regardless of what time on July 10th respondent received the original citation, reinspection on the morning of the following day could not possibly have given respondent the time necessary to institute the requisite safety procedures.   29 U.S.C. §   658(a) requires that a citation "fix a reasonable time for the abatement of the violation." That requirement was not observed in this case.

The decision of the Judge is affirmed.  

CONCURBY: CLEARY; VAN NAMEE

CONCUR:

  CLEARY, COMMISSIONER, concurring: I concur in the disposition of the case.   I construe the citation to allow the respondent 24 hours from the receipt of the citation in order to abate the hazard.

VAN NAMEE, COMMISSIONER, concurring: I concur in the disposition of this case.   As we said in Kesler & Sons   Construction Co., O.S.H.R.C. Docket No. 306, CCH Employ. S. & H. Guide para. 18,165 (July 8, 1974), an employer cannot be required to abate during the period prescribed for filing [*4]   a notice of contest. A fortiori, the period prescribed by the citation herein was unreasonable.

[The Judge's decision referred to herein follows]

DERN, JUDGE, OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., 84 Stat. 1590, contesting a notification of failure to correct violation and proposed additional penalty issued by the complainant on July 13, 1973, against respondent pursuant to section 10(b) of the Act.

The notification of failure to correct violation and of proposed additional penalty alleges that as a result of a reinspection by complainant on July 11, 1973, respondent failed to abate "same day as receipt of citation," a violation described in a citation issued July 6, 1973.   The notification proposed an additional penalty for failure to correct in the amount of $1,000.

On the basis of the inspection on July 3, 1973, of the work place under the operation or control of the respondent located at Washington Street, East, Muscle Shoals, Alabama, it was alleged in a citation issued July 6, 1973, that respondent violated section 5(a)(2) of the Act by failing to comply with an occupational safety [*5]   and health standard promulgated pursuant to section 6(a) of the Act.

On July 30, 1973, respondent filed with the complainant, notice of its intent to contest the proposed additional penalty of $1,000.   The complainant advised the Commission of the notice of contest filed by the respondent and a complaint was filed with the Commission.   The Commission assigned the case to this Judge for the purpose of conducting a hearing pursuant to section 10(c) of the Act.   A hearing was held at Florence, Alabama, on December 18, 1973.   No additional parties desired to intervene in the proceedings.

ISSUES

The primary issue for determination is whether respondent failed to correct the serious violation of 29 C.F.R. 1910.652(c) "same day as receipt of citation," issued July 6, 1973.   If respondent failed to correct the violation, a determination must be made as to the additional penalty, if any, which should be asserted for the failure to abate.

STIPULATION

The parties hereto agreed that respondent, Matthews and Fritts, Inc., is a corporation doing business at Muscle Shoals, Alabama; that its primary office and place of business is Florence, Alabama; that its business is the construction [*6]   of sanitary sewer lines; that it engages in business affecting commerce within the meaning of the Occupational Safety and Health Act of 1970, and that the Commission has jurisdiction of the proceedings.

Mr. Wayne Fritts, respondent's president, testified that the respondent was not contesting the violation of the aforementioned safety standard but was contesting the fact it did not have time to correct the violation; (Tr. 19) that the citation of July 6, 1973, was received by the company on the afternoon of July 10, 1973, at around 4:00 p.m. (Tr. 36-37); and the correction procedures were being discussed on the morning, at about 9:00 a.m., of July 11, 1973, at which time the compliance   officer was at the job site (Tr. 38-39).   The correction was made "immediately" or on July 11, 1973 (Tr. 41).

Mr. Hillard Matthews, respondent's Secretary-Treasurer, testified that he first knew of the citation "on Tuesday afternoon around a quarter of four" which was July 10, 1973, when the bookkeeper, as she opened the mail, handed him the citation (Tr. 49).   On the following morning, Bill Enlow, supervisor in charge of work site, Fritts and Matthews met and "talked for an hour and 30   [*7]   minutes or two hours" in the company's offices (Tr. 51).   Enlow then went to work site (Tr. 51).   Enlow called Matthews around 11:30 a.m., and said "Mr. Frazier is back on the job making another inspection, I do not know what he is going to find, but he was back over here before I had an opporunity to get back on the job site to make any correction" (Tr. 52).

The compliance officer testified that he investigated job site of respondent on July 3, 1973, and area director issued citation July 6, 1973 (Tr. 58).   He made a follow-up inspection July 11, 1973 (Tr. 60), that the hazard observed "would be (Tr. 61) entrapment or entombment of employee or employees" in a trench approximately ten feet in depth.   He further testified that Enlow agreed respondent was not in compliance on reinspection with original citation (Tr. 62); that hazard still existed and that no abatement had been made (Tr. 63); that he ask Enlow when he had notice of the citation and Enlow said "I received the notice yesterday morning," (Tr. 63) that his notes made the same day of the reinspection, OSHA Form 1(c) read "the employer (Enlow) said he got his citation on Tuesday, July 10, 1973" (Tr. 63).

DISCUSSION

The crux [*8]   of this case is whether the respondent had   time to correct the violation of an occupational safety hazard, which it admitted it had violated.   The Area Director, in his citation on July 6, 1973, provided for an abatement date for correction of the violation which stated as "same day as receipt of citation." Respondent's employees agreed that the citation was received on July 10, 1973, when a bookkeeper opened the mail about quarter of four, Tuesday afternoon of that date and gave Matthews the citation.   Thereafter, a meeting was arranged and held on Wednesday morning, July 11, 1973, with job site supervisor in attendance, discussing abatement procedures.   Apparently while the meeting was in progress Compliance Officer Frazier arrived at the job site, found the violation had not been abated and questioned Enlow, the job site supervisor, regarding receipt of citation of July 6, 1973.   Thereupon, a conflict arises in the record regarding receipt of the citation.   The compliance officer's notes taken at or near time of reinspection, raises some doubt with reference to this testimony regarding respondent's receipt of the citation.   Regardless of whether the citation was received [*9]   on July 10, 1973, in the a.m. or p.m., reasonableness of a time for abatement is the prime factor for consideration.   The abatement period as delineated in the citation, is easily understandable, but respondent must be given a reasonable time to comply, otherwise he was denied his fundamental right to comply with the Act.   Upon receipt of a citation containing a time for abatement, respondent should be given the opportunity to evaluate the violation, formulate plans for correction and have time to implement the corrective plans.   In this case, it is concluded that complainant did not afford the respondent a reasonable time in which to comply with his directive for abatement. One eight-hour work day would be considered reasonable and abatement was accomplished within this time.   The   violation is admitted, but because of failure to permit respondent a reasonable time in which to comply, the proposed penalty is considered inappropriate.

FINDINGS OF FACT

1.   Respondent, on reinspection July 11, 1973, admitted it had not abated violation set forth in citation issued July 6, 1973.

2.   Respondent was required to abate violation "same day as receipt of citation."

3.   Additional [*10]   penalty of $1,000 was proposed for failure to abate in accordance with Secretary's administrative procedures.

4.   Respondent did not have a reasonable period of time following receipt of citation of July 6, 1973, to comply with Secretary's directive for abatement.

5.   The abatement was accomplished on July 11, 1973.

6.   The proposed additional penalty of $1,000 is inappropriate.

CONCLUSIONS OF LAW

1.   The respondent was, at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2.   Respondent was at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder.

3.   Respondent is deemed in violation of 29 C.F.R. 1926.652(c) as set forth in the citation issued July 6, 1973, since no notice of contest was filed by respondent with respect to that citation.

4.   Respondent corrected its violation of 29 C.F.R. 1926.652(c) on July 11, 1973, and accomplished the directive for abatement within the abatement period.

  5.   The proposed penalty of $1,000 is inappropriate since respondent corrected the violation within a reasonable period of time.

ORDER

Upon the basis of the [*11]   foregoing findings of fact and conclusions of law and upon the entire record, it is

Ordered that:

The notification of failure to correct violation and of proposed additional penalty, are hereby vacated.