KESLER & SONS CONSTRUCTION COMPANY

OSHRC Docket No. 306

Occupational Safety and Health Review Commission

October 9, 1975

� [*1] �

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

� CLEARY, COMMISSIONER: This case is before the Commission upon order of remand by the United States Court of Appeals for the Tenth Circuit. � Brennan v. O.S.H.R.C. & Kesler & Sons Constr. Co., 513 F.2d 553 (10th Cir. 1975).

This case arose out of an inspection of respondent's workplace on November 12, 1971, resulting in a citation for failure to comply with certain safety standards and ordering immediate abatement. Respondent did not file a notice of contest to this citation and it became a final order by operation of law. � On November 30, 1971, the worksite was reinspected and it was found that four of the violations in the earlier citation were uncorrected. � On December 3, 1971, a notification of failure to abate with proposed additional penalties was issued to respondent, based upon the inspection of November 30.

The 15-working day period provided by the Occupational Safety and Health Act of 1970, 29 U.S.C. � � 651 et seq. [hereinafter "the Act"], for contesting a citation expired for respondent with regard to the original citation on December 7, 1971. � Thus the reinspection on November 30, 1971, � [*2] � upon which the notification for failure to abate was predicated, took place within the 15-working day period.

Respondent timely contested the notification of failure to abate and the matter was heard before Administrative Law Judge Donald K. Duvall. � Judge Duvall found that there had been a failure to correct violations, but reduced the penalty.

Pursuant to section 12(j) of the Act, review of the Judge's decision was directed on issues going to the merits of the case, but these issues were not considered when the Commission, by a divided vote, reversed the Judge on the grounds that the reinspection was premature. � The majority of the Commission reasoned that, because an employer has 15-working days within which to contest a citation that "no abatement may be required and no reinspection may be conducted for the purpose of enforcing such abatement during this period" for "to hold � otherwise would be to allow the Secretary of Labor to abrogate a right Congress extended to employers by statute."

The Tenth Circuit Court of Appeals disagreed and held that an order of immediate abatement and reinspection before the expiration of the 15-working day period is valid. � Brennan �� [*3] � v. O.S.H.R.C. & Kesler & Sons Constr. Co., supra at 557.

The Court set aside the Commission's order and remanded the case for further proceedings. � Upon remand and after review of the whole record, we adopt the Judge's findings of fact and conclusions of law and affirm his decision in all respects for the reasons given therein. �

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

� MORAN, COMMISSIONER, concurring in part, dissenting in part: We are confronted in this case with four separate charges that this respondent failed to correct previously-cited violations. � The Commission has affirmed all of them. � It is my opinion that since two of the initially-cited violations were subsequently abated by respondent, this decision should have dismissed those two charges.

I agree with the Commission's affirmance of the notice of failure to correct violations of the occupational safety standards codified at 29 C.F.R. � � � 1518.51(a)(1) n1 and 1910.132. � However, the Commission precedent established in Secretary v. The Murphy Company, 7 OSAHRC 453 (1974), requires vacation of the notice of failure to correct violations of 29 C.F.R. 1518.652(b) n2 and 1518.200(g)(1). n3

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n1 Subsequently redesignated as 29 C.F.R. � � 1926.51(a)(1).

n2 Subsequently redesignated as 29 C.F.R. � � 1926.652(b).

n3 Subsequently redesignated as 29 C.F.R. � � 1926.200(g)(1).

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The charge under � � 1518.652(b) alleges that the respondent failed to correct inadequate sloping of a trench in contravention of that standard's requirements. � At the original inspection, the government safety inspector indicated that the sides of a trench were not adequately sloped. Before he left the worksite, the respondent sloped those sides back to the apparent satisfaction of the inspector. Upon reinspection, the inspector found no fault with what respondent had done before but he found that the sides � of a newly cut section of the trench were not sloped in the manner specified in the standard.

Section 1518.200(g)(1) requires the use of traffic signs. � Respondent was initially cited because it had none. � Upon being cited, the firm purchased and used new road signs. � It therefore abated the violation and came into compliance with the regulation prior [*5] � to the reinspection. On the day of the reinspection, however, the signs were not in use.

It is clear that respondent failed to slope certain trench sides and failed to use road signs as these regulations require. � But both of these were new infractions since the original violations were corrected before the reinspection. Complainant improperly cited respondent for failure-to-correct. � He should have cited these matters as new violations.

In Secretary v. The Murphy Company, supra, The Commission held that vacation of the charge is required when a new violation is charged as a failure to correct. � That precedent should have been followed in this case.

[Ed. Note: See 9 OSAHRC 1033 (1974).]