UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 6804, 6805
GULF & WESTERN FOOD PRODUCTS CO.,
Respondent.

July 7, 1976

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO, Chairman:

This case presents the questions of whether Administrative Law Judge John J. Larkin erred in recommending vacation of a citation for violation of section 5(a)(1) of the Act on the basis that it was no issued with reasonable promptness, and whether the direction for review was timely.[1] We find that the direction for review was timely but that Judge Larkin’s recommendation was in error.

Judge Larkin issued his report recommending vacation of the citation on March 24, 1975. On April 17, 1975, Commissioner Timothy F. Cleary granted the petitions for discretionary review filed by the Complainant and the Intervenor, Florida Rural Legal Services, Inc. Commissioner Cleary noted that the petitions raised the following issues:

Whether the Administrative Law Judge erred in vacating the citations on the grounds that they were not issued with reasonable promptness as required by section 9(a) of the Act?

Thereafter, on April 30, 1975, Respondent filed a Motion to Vacate Commission’s Order for Discretionary Review. In its motion, Respondent contended that Commissioner Cleary had directed the case for review after the expiration of the 30-day period provided for in section 12(j) of the Act (29 U.S.C. 661(i)).[2] Respondent argues, therefore, that the Judge’s decision had become final by operation of law. For the reason set forth below, we reject Respondent’s contention and accordingly, will deny the motion.

In essence, Respondent’s motion is directed to the validity and implementation of Rules 90 and 91 of the Commission’s Rules of Procedure, as amended. (29 C.F.R. 2200.90 and 2200.91). Section 12(g) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et. seq. hereinafter ‘the Act’) authorizes the Commission to ‘make such rules as are necessary for the orderly transaction of its proceedings.’ Pursuant to this authority, the Commission, formulated its Rules of Procedure which became effective with publication in the Federal Register on September 28, 1972 (37 Fed. Reg. 20237). At that time, Rules 90 and 91 provided the following:

Rule 90 Decisions of Judges.

(a) The decision of the Judge shall include findings of fact, conclusions of law, and an order.

(b) The Judge shall sign and date the decision. Upon issuance of the decision, jurisdiction shall rest solely in the Commission, and all motions, petitions and other pleadings filed subsequent to such issuance shall be addressed to the Commission.’

‘Rule 91 Discretionary review; petition.

(a) A party aggrieved by the decision of a Judge may submit a petition for discretionary review.

(b) The petition must be received by the Commission at its offices in Washington, D. C. on or before the 25th day following receipt by the Commission of the Judge’s decision.

(c) A petition should contain a concise statement of each portion of the decision and order to which exception is taken and may be accompanied by a brief of points and authorities relied upon. The original and three (3) copies shall be filed with the Commission.

(d) Failure to act on such petition within the review period shall be deemed a denial thereof.’

Subsequently, proposed amendments to these rules were published in the Federal Register (39 Fed. Reg. 40249 (1974) to be effective on December 15, 1974. Following consideration of comments received, the Commission determined that the opportunity for the Commissioners to consider petitions for discretionary review for the full 30-day review period set forth in section 12(j) of the Act outweighed objections to the adoption of the amendments.

As amended, the rules provide as follows:

Ԥ 2200.90 Decisions and report of Judges.

(a) Upon completion of any proceeding, the Judge shall prepare a decision. When a hearing is held, the decision shall comply with 5 U.S.C. 557. Copies of the decision shall be mailed to all parties. Thereafter, the Judge shall file with the Executive Secretary a report consisting of his decision, the record in support thereof, and any petitions for discretionary review of his decision, or statements in opposition to such petitions, that may be filed in accordance with § 2200.91. The Judge shall file his report on the day following the close of the period for filing petitions for discretionary review, or statements in opposition to such petitions, but no later than the twenty-first day following the date of the mailing of the decision to the parties.

(b)(1) Promptly upon receipt of the Judge’s report, the Executive Secretary shall docket the case and notify all parties of that fact. The date of docketing shall be the date that the Judge’s report is made for the purposes of section 12(j) of the Act (29 U.S.C. 661).

(2) On or after the date of docketing of the case, all pleadings or other documents that may be filed in the case shall be addressed to the Executive Secretary.

(3) In the event no Commission Member directs review of a decision on or before the Thirtieth day following the date of docketing of the Judge’s report, the decision of the Judge contained therein shall become a final order of the Commission.’

§ 2200.91 Discretionary review, petitions for; statements in opposition.

(a) A party aggrieved by the decision of a Judge may submit a petition for discretionary review.

(b)(1) Except as provided in paragraph (b)(2) and (3) of this section, any petition must be received by the Judge at his office on or before the twentieth day following the mailing of a copy of the decision to the parties.

(2) When there is no objection by any party, when an expedited proceeding has been directed pursuant to § 2200.101, or for other good cause, the Judge is empowered to prescribe a shorter time for filing petitions for discretionary review following the mailing of his decision.

(3) Petitions for review of a Judge’s decision may be filed directly with the Executive Secretary subsequent to the filing of the Judge’s report. Such petitions will be considered to the extent that time and resources permit. Parties filing such petitions should be aware that any action by a Commission Member directing review must be taken within thirty (30) days following the filing of the Judge’s report.

(4) In the case of proposed settlements or other proposed dispositions by consent of all parties, petitions for discretionary review shall not be allowed, except for good cause shown.

(c) * * *

(d) Failure to act on such petition within the review period shall be deemed a denial thereof.

(e) Statements in opposition to petitions for discretionary review may be filed at the times and places specified in this section for the filing of petitions for discretionary review. Any statement shall contain a concise statement on each portion of the petition to which it is addressed.

In practice, the rules operate as follows: When, as provided for in Rule 90, the Judge’s decision is mailed to the parties, it is also mailed to the Commission’s Central Review Section,[3] an administrative section which is separate from the offices of the Commission members. It is not seen by the Commission member at that time, or at any time during the 20-day period allowed for the filing of petitions for discretionary review or statements in opposition to such petitions. During this period, the case remains under the jurisdiction of the administrative law judge who may recall the file upon request and modify his tentative decision if he desires to do so. At the end of the 20-day period, the decision is docketed by the Commission. Members receive copies of the judge’s report plus a review memoranda prepared during this time by the Central Review Section.

Respondent contends that the 30-day period provided for review by section 12(j) of the Act begins to run upon receipt of the case by the Central Review Section. A divided Commission recently considered and rejected this contention in Robert W. Setterlin & Sons Company, No. 7377, BNA 4 OSHC ——, CCH OSHD para. ___ (May 11, 1975). In Setterlin, we stated, as we have above, that a case is not seen by any Commission member during the initial 20-day period. Furthermore, we stated that to interpret section 12(j) of the Act so as to give a full 30-day review period to the Commission members, who alone are empowered to direct review, is fully consistent with the Congressional purpose and should be granted deference. Accordingly, we held that the implementation of Rules 90 and 91 were consistent with the judicial limitations in section 12(j). In addition, we noted that ‘the apparent departure from strict compliance with Rules 90 and 91 does not in any significant way affect the rights of any parties, nor does it require any additional action or inaction by them. It is merely the machinery with which the Commission sets its review process in motion.’ Accordingly, we concluded that the Commission’s promulgation and implementation of Rules 90 and 91 were within its authority.

The Judge’s report in the instant case was docketed on March 24, 1975, and was directed for review on April 17, 1975. Accordingly, for the reasons given in Robert W. Setterlin & Sons, Co., supra, we deny Respondent’s motion to vacate the direction for review.

REASONABLE PROMPTNESS

Following the investigations of two accidents, Respondent was issued two citations on February 6, 1974, for violations of section 5(a)(1) of the Act. The sequence of events leading up to the issuance of these citations is as follows:

December 16, 1973—First accident

January 2, 1974—OSHA compliance officer began investigation

January 16, 1974—OSHA compliance officer completed investigation

January 8, 1974—Second accident

January 10, 1974—OSHA compliance officer began investigation

January 25, 1974—OSHA compliance officer re-investigated

February 6, 1974—Citations for both accidents issued.

Thus, 36 days elapsed between the initiation of the first investigation and the issuance of the citation and 26 days between the beginning of the second investigation and the issuance of that citation. At the hearing, Respondent moved for dismissal on the basis that the citations were not issued with reasonable promptness within the meaning of section 9(a) of the Act. Respondent contended that it had been prejudiced in that the second citation would not have issued if the first one had been timely issued and Respondent had contested it. At this point in the proceeding, the Complainant’s counsel stated that he was willing to consolidate the two cases and reduce the proposed penalty to half of that originally proposed for the two citations.

Judge Larkin took Respondent’s motion under advisement. In his report, the Judge recommended vacation of the citations because of Complainant’s failure to issue them with reasonable promptness. Judge Larkin interpreted reasonable promptness to mean that a citation must be issued within 72 hours of the time a violation is detected by an inspector.

At the time Judge Larkin issued his decision, the Commission’s leading case on the meaning of the reasonable promptness language in section 9(a) of the Act was Chicago Bridge and Iron Co., 6 OSAHRC 244, BNA 1 OSHC 1485, CCH OSHD para. 17,187 (1974). In Chicago Bridge we stated that a citation should be issued within 72 hours after the area director or other appropriate official has formed a belief that a violation has occurred. It is obvious that Judge Larkin’s decision was clearly not in accord with existing Commission precedent. Judge Larkin’s failure to follow Commission precedent is further evidenced by his citation of several cases for the principles expressed in the dissenting opinions in those cases. As we have previously stated, the orderly administration of this Act requires that the Commission’s administrative law judges follow precedents established by the Commission. Gindy Manufacturing Co., 10 OSAHRC 367, BNA 1 OSHC 1717, CCH OSHD para. 17,790 (1974); Grossman Steel & Aluminum Corp., No. 12775, BNA 4 OSHC ——, CCH OSHD para. ___ (May 12, 1976).

Following the issuance of the Judge’s decision, our decision in Chicago Bridge & Iron, supra, was reversed on appeal; the Court rejected the substantive rule we set forth in our decision. The Court did not, however, preclude our giving some effect to the reasonable promptness requirement of the Act. Thereafter, we held in Coughlan Construction Company, 20 OSAHRC 641, BNA 3 OSHC 1636, CCH OSHD para. 18,436 (1975) that a citation can be vacated because of a delay in issuance if the respondent is prejudiced as a result.

The record at present shows no basis for vacating the citation on grounds of reasonable promptness. However, in view of our recent decisions cited above, Respondent should have the opportunity to present further evidence on the reasonable promptness issue. Moreover, at the deposition of the area director, the Secretary refused to allow Respondent to view any portion of the Secretary’s file for purposes of cross-examination, even though the area director testified as to matters contained in the file. We believe that to the extent that these matters are not privileged, or do not involve an attorney’s work product, that they should have been made available to Respondent for purposes of his cross-examination. Frazee Construction Company, 4 OSAHRC 188, BNA 1 OSHC 1270, CCH OSHD para. 16,409 (1973); See Stephenson Enterprises, Inc., No. 5873, BNA 2 OSHC 1080, CCH OSHD 19,553 (1974). Accordingly, on remand, Respondent, if it so desires, is to be permitted access to those materials that are properly discoverable.

Therefore, this case is remanded for further proceedings not inconsistent with this opinion. It is so ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

BY: Gloria W. White

Acting Executive Secretary

DATE: JUL 7, 1976

MORAN, Commissioner, Dissenting:

Although I agree with the determination that the direction for review was timely, I disagree with the disposition ordered by the majority. Judge Larkin’s action on the ‘reasonable promptness’ issue was entirely correct and should be affirmed. I therefore adopt his decision which I incorporate by reference and attach hereto as Appendix A.

My colleagues, however, persist in substituting their views for that of Congress. Congress made it clear that, in the absence of exceptional circumstances, each citation must be issued within 72 hours after the complainant’s inspector detects a violation. It did not relieve the complainant from complying with this rule when a cited employer does not establish that he has been prejudiced by a delay in excess of 72 hours. My views on this matter are set forth in some detail in my dissenting opinions in Secretary v. Concrete Construction Corp., OSAHRC Docket No. 2490, April 8, 1976; Secretary v. Southern Railway Company, 20 OSAHRC 691 (1975); Secretary v. Coughlin Construction Company, Inc., 20 OSAHRC 641 (1975).

The record establishes that the delays in issuing the two citations in this case were 12 and 9 times longer, respectively, than Congress intended. It also fails to show ‘exceptional circumstances.’ Therefore, the two citations should be vacated because of complainant’s failure to comply with the reasonable promptness requirement of 29 U.S.C. § 658(a).

Furthermore, the lead opinion’s chastisement of Judge Larkin for not following Commission precedent is entirely out of order. By citing the dissenting opinion in Secretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974), Judge Larkin demonstrated noteworthy legal acumen in recognizing that Secretary v. Chicago Bridge and Iron Company, 6 OSAHRC 244 (1974), no longer represented the majority view of the Commission. Analysis of the dissenting opinions in both cases shows that this conclusion is inescapable.

At the outset, I indicated agreement with the holding that the direction for review was timely. I do not believe, however, that it is necessary to devote six pages of this manuscript decision to an issue which is fully resolved by stating that the respondent’s motion to vacate the direction for review is denied ‘for the reasons given in’ Secretary v. Rob’t W. Setterlin & Sons, Company, OSAHRC Docket No. 7377, May 11, 1975. A simple statement that Setterlin was dispositive of that issue would seem to be more consistent with Chairman Barnako’s recent announcement of a massive reorganization of this Commission.[4]

The purpose of that reorganization, as stated in a Commission news release of June 14, 1976, ‘is to provide more efficient administration and to better utilize the legal and clerical support staff available to the Commission.’ This purpose cannot be achieved, however, as long as the other two Commission members insist that lead opinions rehash exactly what has been said in prior decisions. Another example of the uneconomical use of staff attorneys is illustrated by comparing the Chairman’s 13-page lead opinion in Secretary v. Grossman Steel & Aluminum Corporation, OSAHRC Docket No. 12775, May 12, 1976, with Commissioner Cleary’s 17-page lead opinion in Secretary v. Anning-Johnson Company, OSAHRC Docket No. 3694, May 12, 1976. These two decisions were released on the same day and say substantially the same thing, albeit in a somewhat different manner. Until my colleagues are willing to abandon such archaic procedures, there is no reorganization that can achieve the purpose stated in the Chairman’s news release.

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 6804, 6805
GULF & WESTERN FOOD PRODUCTS CO.,
Respondent.

FINAL ORDER DATE: April 23, 1975

DECISION AND ORDER

LARKIN, 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. (referred to as the Act) to review two alleged serious citations issued to respondent by the Secretary of Labor (referred to as the Secretary) pursuant to section 9(a) of the Act.

The cases were set for trial on August 15, 1974, in West Palm Beach, Florida. Prior to trial, various oral motions were made. The motions were later reduced to writing and briefs have been submitted in support of the respective positions.

Motion to dismiss for failure to issue the citations with ‘reasonable promptness’ as specified in section 9(a) of the Act.

Respondnet is a sugar cane grower and processor. On December 16, 1973, one of its trucks was involved in an accident and several of its employees were injured. The respondent notified the Secretary of the injuries on the day of the accident. The accident was investigated on January 2, 1974. The citation was issued on February 6, 1974, some 36 days after the inspection and 54 days after the accident. The description of the alleged violation in the citation is as follows:

‘The employer failed to provide employees a place of employment free from recognized hazards that were causing or likely to cause death or serious physical harm in that on or about December 16, 1973, employees were being transported in a vehicle with no provisions for seating and no provisions for the securing of cane knives while being transported.’

On January 7, 1974, a second truck accident occurred. There were several injuries and one fatality. The Secretary was notified on January 7, 1974, and an investigation was made on January 10, 1974. This citation was issued on February 6, 1974, or some 26 days after the inspection. The description of the alleged violation in the second citation is as follows:

‘The employer failed to provide employees a place of employment free from recognized hazards that were causing or likely to cause death or serious physical harm in that on or about January 7, 1974, employees were being transported in a vehicle with no provision for seating and no provision for the securing of cane knives while being transported.’

Section 9(a) of the Act as pertinent provides:

‘If, upon inspection or investigation, the Secretary . . . believes that an employer has violated a requirement of section 5 of this Act. . ., he shall with reasonable promptness issue a citation to the employer.’

The legislative history as to this provision as pertinent provides:

‘If the Secretary ‘believes’ that an employer has violated [mandatory requirements under the Act], he shall issue the citation with reasonable promptness. In the absence of exceptional circumstances any delay is not expected to exceed 72 hours from the time the violation is detected by the inspector.’ H. Rep. No. 91–1765, 91st Cong. 2d Sess. 38 (1970).

The question of what is meant by ‘reasonable promptness’ as used in section 9(a) of the Act has been considered in various Commission decisions. See for example Chicago Bridge and Iron Company 6 OSAHRC 244 (January 23, 1974); Advance Air Conditioning, Inc. 7 OSAHRC 736 (April 4, 1974); Silver Skillet Food Products, Co. 2 OSAHRC 662 (February 23, 1973) and Pleasant Valley Packing Company, Inc. 2 OSAHRC 185 (January 4, 1973).

The Chicago Bridge decision is the lead case. The Commission interprets the ‘reasonable promptness’ provision as restricted to ministerial tasks involved in issuing the citation. It concludes that the provision was inserted to accomplish prompt abatement and must be raised during the issue formulating stage.

The Secretary argues that the delay resulted from the decisional process as to whether a violation existed rather from a delay in performing the ministerial tasks of issuing the citation. The Secretary contends also that the matter was not raised during the issue formulating stage of the proceeding.

In support of his first contention, the Secretary offers the deposition of the Area Director of the Occupational Safety and Health Administration.

The Secretary refused to turn over his file to opposing counsel for purposes of cross examination in taking the deposition. The Secretary erred in refusing to turn over that portion of the file pertaining to the direct examination of the witness. Certainly, recent amendment to the Freedom of Information Act, conveys the message that Congress grows tired of the government playing ‘cat and mouse’ with its citizens as to information that is not vital to the national defense or security of the country. Irrespective of the Freedom of Information Act, legal precedent and fairness under the Jencks doctrine requires that the file as pertinent to the direct examination of the witness should have been made available to opposing counsel. However, it is not necessary to strike the deposition for this reason because even accepting the deposition at face value, it does not set forth sufficient grounds to show ‘exceptional circumstances.’ The Secretary contends that it took 26 to 36 days respectively to make a determination that a violation had been committed. To recognize such excuse as justifying the delay involved defeats the purpose of the ‘reasonable promptness’ requirement of section 9(a) as the Congressional Committee Report stresses ‘. . . 72 hours from the time the violation is detected by the inspector.’ The Secretary argues that the issue cannot be raised after the pleadings were filed. The issue was raised before trial and well within the issue formulating stage of the case. The Secretary ignores the liberal right to amend pleadings existing under the Federal Rules. In fact, the Secretary often uses this rule to rewrite his citation and such rule should not be considered a one way street. Moreover, any citation that fails to conform with the requirements of the Act would have to be considered an invalid citation and would not confer jurisdiction upon the Commission. It is basic that a jurisdictional question may be raised at any time. Advance Air Conditioning, Inc. 7 OSAHRC 736 April 4, 1974, (dissenting opinion).

The foregoing conclusion is dispositive of any outstanding motions as they are rendered moot in view of the granting of respondent’s motion to dismiss.

Wherefore it is ORDERED:

The respondent’s motion is granted as the Secretary has failed to comply with the provisions of section 9(a) of the Act for failure to issue the citations with reasonable promptness. The citations issued on February 6, 1974, are vacated and no penalties are assessed.

Dated this 24th day of March, 1975.

JOHN J. LARKIN,

Judge OSAHRC

1975 WL 21846 (O.S.H.R.C.)

---

[1] Section 9(a) of the Act provided in relevant part:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer. (emphasis added).

[2] Section 12(j) provides in pertinent part:

The report of the hearing examiner (administrative law judge) shall become the final order of the Commission within thirty days after such report by the hearing examiner, unless within such period any Commission member has directed that such report shall be reviewed by the Commission.

[3] This is referred to as the certification date, which was March 4, 1975, in the instant case.

[4] The reorganization calls for the reassignment of 9 of the 12 attorneys that are presently assigned to each Commission member’s staff to a Division of General Legal Services. That division will be responsible for writing lead opinions, but will not write separate concurring or dissenting opinions. Of course, as intended by the reorganization, this will seriously jeopardize the ability of the members to express their individual views. See June 14, 1976 News Release entitled ‘Barnako Announces Major Reorganization for Job Safety Commission.’ The importance and prevalence of concurring and dissenting opinions to Commission decisions is revealed empirically by the following: (1) The majority opinion of the Commission has been reversed in more than 50% of all cases which have been appealed to the courts during the past five years; and (2) During the period February 1 through June 1, 1976, 106 Commission decisions issued. In only three of those (.028%) was the decision unanimous. More than 97% of those decisions included concurring or dissenting opinions.