UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 2567
GEORGE V. HAMILTON, INC.,
Respondent.

November 4, 1974

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

CLEARY, COMMISSIONER:

On August 20, 1973, Judge Ben D. Worcester issued his decision in the present case, vacating complainant’s citation for serious violation and proposed penalty of $550.

On September 6, 1973, review was directed of the Judge’s decision, pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter ‘the Act’). The Judge’s decision was rendered before the decision of the Commission in Chicago Bridge & Iron Co., No. 744 (January 24, 1974). The Commission, upon review of the entire record, concludes that the case must be remanded for further proceedings consistent with that decision.

The Judge, acting sua sponte before the hearing in the case was to have been held, required complainant to show cause why the case should not be dismissed because of a lack of ‘reasonable promptness’ in the issuance of the citation, as required under section 9(a) of the Act. Complainant declined to make such a showing. The Judge then dismissed the case. His ruling was made, however, in the absence of any evidence of record that the issuance of the citation took place more than three working days after complainant’s authorized representative formed his belief that a violation had occurred. Under Chicago Bridge & Iron Co., supra, a majority of the Commission requires such a showing to support a finding of a lack of ‘reasonable promptness.’ Under that same decision, a majority of the Commission views ‘reasonable promptness,’ not as part of complainant’s case-in-chief, but as an affirmative defense to be proved by respondent.[1]

No hearing has been held in this case, and respondent amended its answer to the complaint to allege a lack of ‘reasonable promptness’ following the Judge’s show-cause order. In these circumstances, respondent is entitled to show a lack of ‘reasonable promptness’ at a hearing on remand.

ACCORDINGLY, the Judge’s decision is reversed, and the case is hereby remanded for a full hearing on the merits, consistent with this decision and with Chicago Bridge & Iron Co., supra.

MORAN, CHAIRMAN, dissenting:

Judge Worcester correctly disposed of this case in accordance with the express mandate of the statute under which this case arose. His decision should be affirmed.

I would require the respondent to show prejudice to its case as well as an unreasonable delay in issuance of the citation. Chicago Bridge & Iron Co., supra, (dissenting opinion), but this view is not shared by my colleagues.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 2567
GEORGE V. HAMILTON, INC.,
Respondent.

August 20, 1973

Worchester, Judge:

On June 13, 1973, the proceeding was assigned to the Judge for trial. The pleadings show that a period of 89 days elapsed between inspection of the Respondent’s premises and issuance of the citation.[2] The Act required that a citation be issued “with reasonable promptness.”[3] According to the legislative history it was expected that “[In] the absence of exceptional circumstances” a citation would be issued within 72 hours after inspection.[4] However, no such provision appears in the statute.

In practice this objective can seldom be achieved. In view of the fact that Section 9(a) provides that a citation may be issued as late as six months after inspection it is apparent that the Congress as a whole was cognizant of this. It is plain that the Congress took notice of the fact that there would be situations where, although a hazard to employees would be obvious, the preparation and drafting of appropriate documents would require consultation with and advice from supervisory officials and technical advisors at widely separated geographical locations. It is reasonable to conclude that this would be an example of the exceptional circumstances which would justify delay in issuing a citation. On the other hand it would be difficult, by hypothesis, to construct a factual situation in which this task would require six months, or even 89 days. It has been said that where there was only a 35 day delay between inspection and citation that the Secretary’s failure to either act with reasonable promptness or adduce evidence of exceptional circumstances makes the Citation null and void.[5] In Secretary v. Fulton Instrument Company, Inc., OSHRC Docket No. 563, review of a decision by this Judge was directed. The review order invited submissions from the parties on four separate issues including the following:

(1) Is the 20 day period between the inspection and citation in compliance with the reasonable promptness required of section 9(a) of the Act?

The Respondent had not raised this issue at the hearing nor was there any basis upon which it could be concluded that the Respondent had suffered any harm as a result of the 20 day delay.

In the instant case the Respondent had likewise failed to raise the issue of delay until after an order requiring the Complainant to justify the unexplained delay of almost three months. If, as has been said in other proceedings before this Commission[6] unexplained delay renders a citation and proposed penalty thereon void, then this Commission does not have jurisdiction of the subject matter in the instant case and this Judge cannot hear or decide this case.[7] For that reason, the Judge is required to, sua sponte, require that the party which brought the action show that there is jurisdiction of the subject matter.

Upon consideration of the above quoted excerpts from Section 9 of the Act, the legislative history of the Act and decisions and orders of the Occupational Safety and Health Review Commission construing it, it is clear that the Secretary is required to perform the enforcement provisions delegated to him expeditiously and that citations be issued with reasonable promptness. Concurrently with the delegations of power to the Secretary to administer the Act, the Congress granted to the Review Commission broad power to adjudicate contested cases. Inherent in this power is the authority to require the Secretary to justify failure to issue a citation with reasonable promptness.

The Secretary was accordingly ordered on June 14, 1973, to show what exceptional circumstances accounted for an 89 day delay in issuing the citation. The Secretary has defied this order, first by a declination to comply and secondly by filing a motion to consolidate this case with a separate proceeding between the Secretary and a different Respondent pending before another judge. It is reasonable to conclude therefore that failure to issue a citation promptly was due solely to the Secretary’s dilatory, inept and inadequate performance of his duties and that there were in fact no exceptional circumstances to explain the delay.

It is therefore hereby ordered that the citation and proposed penalty thereon be vacated and that this proceeding be dismissed.

[1] I would require the respondent to show prejudice to its case as well as an unreasonable delay in issuance of the citation. Chicago Bridge & Iron Co., supra, (dissenting opinion), but this view is not shared by my colleagues.

[2] Inspection December 15, 1972; Citation March 14, 1973.

[4] Conference Report [to accompany S. 2193] No. 91-1765 91^st congress, 2d Session, on the Occupational Safety and Health Act of 1970 at page 38.

[5] Secretary v. Pleasant Valley Packing Co., Inc., OSHRC Docket no. 464 at page 11.

[7] Kamsler v. Zaslowsky, 355 F.2d 256 (7th Cir. 1966).