George V. Hamilton, Inc.

Plain-English summary

OSHA inspected George V. Hamilton, Inc. on December 15, 1972, and issued a serious citation 89 days later. Before holding a hearing, the judge ordered the Secretary to justify the delay under the Act's requirement that citations be issued with reasonable promptness. When the Secretary declined, the judge vacated the citation and proposed $550 penalty. The Commission reversed because the record did not show that more than three working days elapsed after OSHA's authorized representative formed a belief that a violation had occurred. It held that lack of reasonable promptness was an affirmative defense for the employer to prove and remanded the case for a full hearing on that defense and the merits.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 658(a)
• Outcome: The dismissal was reversed, and the case was remanded for a full hearing on reasonable promptness and the merits.
• Key point: An employer asserting lack of reasonable promptness must prove the defense, including when OSHA's authorized representative formed a belief that a violation occurred.

Full text (OSHRC public release)

false
false
false

EN-US
X-NONE
X-NONE

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.

[3] Section 9(a) 29 U.S.C.A. Sec. 658(a).

[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.

[6] Secretary v. Pleasant Valley , supra.

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