Havens Steel Co. v. Occupational Safety and Health Review Com'n, 82-2261

• Decision Date: 09 July 1984
• Docket Number: No. 82-2261,82-2261
• Citation: 738 F.2d 397
• Parties: 11 O.S.H. Cas.(BNA) 2057, 1984-1985 O.S.H.D. ( 26,963 HAVENS STEEL COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, et al., and Raymond J. Donovan, Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 397

738 F.2d 397

11 O.S.H. Cas.(BNA) 2057, 1984-1985 O.S.H.D. ( 26,963

HAVENS STEEL COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, et al. and Raymond J. Donovan, Secretary of Labor, Respondents.

No. 82-2261.

United States Court of Appeals Tenth Circuit.

July 9, 1984.

Thomas M. Moore of Gould & Moore, Kansas City, Mo., for petitioner.

Andrea C. Casson, Washington, D.C. (T. Timothy Ryan, Jr., Sol. of Labor, Frank A. White, Associate Sol., Washington, D.C., for Occupational Safety and Health, Dennis K. Kade, Washington, D.C., Counsel for Appellate Litigation, James E. Culp, Atty., Washington, D.C., and Tedrick A. Housh, Regional Sol., Kansas City, Mo., with her on the brief), for respondents.

Before SETH, BREITENSTEIN and SEYMOUR, Circuit Judges.

BREITENSTEIN, Circuit Judge.

This case is before the court on the petition for review by Havens Steel Co. of an order of the Occupational Safety and Health Review Commission, the Commission, finding that Havens had violated safety standards. We deny the petition to review and affirm the Commission.

In February, 1981, Havens, a construction firm engaged in structural steel erection, began work at the construction site of the Sunflower Electric Plant near Holcomb, Kansas. Later that year Havens erected a decking floor, the so-called bolt-up floor, about 45-50 feet above the ground. This was used to store bolts, equipment, tools, and drinking water. The testimony showed that Havens' employees used either of two wheel well pulleys and ropes located at the edge of the bolt-up floor to raise materials from the ground. The employees occasionally leaned over the edge of the floor to shout bolt specifications to the journeyman below. Neither the pulley areas nor the edge of the bolt-up deck had guardrails to protect the employees.

Employees could reach the bolt-up deck during certain hours of the day, at lunch and at the beginning and end of each shift, by crane which lifted a "skip box" to the deck. The second access required employees to climb two access ladders to a concrete turbine generator pedestal. Employees walked across this four foot wide pedestal, the end of which stood 3 to 4 feet lower than the deck with a gap of 2 feet separating the two. Employees crossed this gap on a 32 inch wooden ramp which was not equipped with guardrails to protect employees from a fall of 25 feet on one side or 45 to 50 feet on the other.

Mike Simpson, an iron worker, and Gary Tipton, the union steward, spoke with one of Havens' foremen, and to George Wright, the job superintendent, about perimeter guarding on the bolt-up deck and the ramp. Tr. 153, 156-161, 163, 6A-9A. The foreman stated that while he recognized the problem, management had decided to wait to install permanent guardrails rather than temporary ones, Tr. 15A-16A. When their complaints remained unremedied on June 11, Simpson filed a complaint with the Secretary of Labor. The conditions remained unchanged when the compliance officers inspected the work site on June 17 and 18. The steward, Tipton, accompanied the inspectors on their tour of the pedestal, ramp, and bolt-up deck. Superintendent Wright was interviewed as well as three employees, Charles Lamore, Bill Fassnichi, and Bill Martin who were installing handrails on a stairway leading up from the bolt-up deck. Tr. 16-19.

On August 25, 1981, the Commission issued two citations. The first alleged a serious violation of Sec. 5(a)(2) of the Act and 29 C.F.R. 1926.500(d)(1) for failure to equip the turbine generator pedestal with a railing and a serious violation of 29 C.F.R. 1926.500(d)(2) relating to the guarding of the ramp. For these two infractions the Commission assessed a penalty of $720.00. The second alleged a willful violation of Sec. 5(a)(2) of the Act and 29 C.F.R. 1926.500(d)(1) for failure to provide perimeter protection for the bolt-up deck. For this violation a penalty of $5,760.00 was assessed.

Two hearings were held before an Administrative Law Judge, ALJ. He entered a decision on August 2, 1982 affirming the citations and the proposed penalties. Havens petitioned for discretionary review by the Commission, and when no Commissioner directed a review, the ALJ's decision became final. This petition for review followed. We have jurisdiction under 29 U.S.C. Sec. 660(a).

The citations in this case were issued 67 days after the inspection. Havens Steel challenges the ALJ's determination that the citations were valid on the ground that they were not issued with reasonable promptness as required by Sec. 9(a) of the Act, 29 U.S.C. Sec. 658(a). It argues that the delay was unconscionable and that its defense was prejudiced by the delay.

As Havens Steel notes in its brief, p. 18,

"The OSHRC has expressly stated that the appropriate consideration of whether to vacate or not for a citation alleged not to have been issued with 'reasonable promptness' is prejudice to the employer from the delay NOT justifiability of the delay."

See National Industrial Constructors, Inc., 1981 OSHD (CCH) p 25,743.

The company argues first that this court should overrule this standard as unconscionable since it is inconsistent with the legislative history and purposes of the Act and renders the "reasonable promptness" requirement null and void.

The Commission's interpretations of the Act are entitled to weight if they are reasonable and consistent with the Act's purpose. Dun-Par Engineered Form Co. v. Marshall, 10 Cir., 676 F.2d 1333, 1337; Clarkson Construction Co. v. OSHRC, 10 Cir., 531 F.2d 451, 457. In light of the broad remedial and preventive purposes of the Act to assure "every working man and woman in the Nation safe and healthful working conditions ..." 29 U.S.C. Sec. 651(b), we decline to adopt a rule requiring dismissal based on a procedural violation where the employer has failed to show that he was prejudiced. This view, supporting the Commission's interpretation, accords with the views of other circuits considering the question. See Bethlehem Steel Corp. v. OSHRC, 3 Cir., 607 F.2d 871, 876; Stephenson Enterprises, Inc. v. Marshall, 5 Cir., 578 F.2d 1021, 1023; and United Parcel Service of Ohio v. OSHRC, 8 Cir., 570 F.2d 806, 809-810.

Havens Steel argues that a statement from the legislative history that 72 hours was the expected period for issuance of a citation requires a different result. See Conference Report No. 91-1765, 91st Cong. 2d Sess., 1970 U.S.Code Cong. & Admin.News, pp. 5177, 5228, 5234. As explained in Brennan v. Chicago Bridge and Iron Co., 7 Cir., 514 F.2d 1082, 1085, n. 7, the legislative history considered as a whole does not support the imposition of a mechanical 72-hour rule. We agree with that decision.

The Company argues that the ALJ's determination that it was not prejudiced by the delay disregards the record evidence of prejudice. It argues it was prejudiced by the fact that the three interviewed employees, Lamore, Fassnichi, and Martin, no longer worked for the company and could not be located to testify. The ALJ held that Havens had failed to show that it possessed "insufficient knowledge of the details of the citation that would be peculiar with the knowledge of the absent witnesses" R.Vol. III, p. 93-94. He gave his reasons why this was so. They included, (1) all the violations were in plain view and could have been seen from either the ground or from atop the pedestal, (2) superintendent Wright was fully advised of the alleged violations, (3) the representations of Havens Steel as to what, if anything, the absent members of the crew could contribute to the evidence were speculative and without foundation in view of the photographed evidence and the testimony of those who participated in the inspection. Id.

The ALJ found that project superintendent Wright's testimony...