“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 12311 FMC CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 6, 1979DECISIONBEFORE CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.COTTINE, Commissioner.??????????? Adecision of Administrative Law Judge Garl Watkins is before the Commission forreview under ? 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ? 651 et seq. (?the Act?). The issues in this case involve the judge?saffirmance of a violation of 29 C.F.R. ?\u00a01916. 51(a),[1] the characterization ofthe violation as repeated,[2] and the appropriateness ofthe $1,000 penalty.??????????? TheRespondent, FMC Corporation (?FMC?), is an employer engaged in shipbuilding. OnJanuary 10, 1975, an OSHA compliance officer inspected the Chevron Oregon, a35,000 ton oil tanker under construction at FMC?s Portland, Oregon, shipconstruction facility. FMC was subsequently cited for a repeated nonseriousviolation of 29 C.F.R. ? 1916.51(a). The citation alleged that FMC failed tomaintain good housekeeping in that hoses, welding leads, electric cords, anddebris were on deck in walkways and working areas at eight specified locationsthroughout the ship. The complaint restated this allegation. It further statedthat the violation was characterized as repeated because three prior citationshad been issued to FMC for violations of the same standard that occurred aboardthe Chevron Oregon in May, July, and August of 1974. None of these citationshad been contested and each had become a final order of the Commission prior tothe January 1975 inspection.[3] A $1600 penalty wasproposed for the violation at issue in this proceeding.??????????? Atthe hearing, FMC did not dispute the Secretary?s allegation that the conditionsdescribed in the citation existed at the time of the inspection. Instead, itsought to prove that compliance with the housekeeping standard during thebuilding of the Chevron Oregon was difficult[4] and that it had greatlyintensified its efforts to improve housekeeping after receiving the August 1974citation.[5] In its post-hearing briefto the judge, FMC argued that it was not in violation of the standard becausethe Secretary failed to prove that adequate aisles and passageways were notmaintained, that cited materials and equipment were not in use, and that theindividuals observed by the compliance officer were employees of FMC.Alternatively, FMC asserted that the violation was not repeated. Its primaryargument in support of this contention was that no ?flaunting? of the Act hadbeen shown. Finally, FMC asserted that the penalty proposed by the Secretarywas excessive.??????????? Inhis decision, Judge Watkins found that the Secretary met his burden of provingthe existence of the conditions described in the citation. He also found thatcompliance with the housekeeping standard is more difficult in shipbuildingthan in other types of construction but that compliance is not impossible andthat FMC had made good faith but still unsuccessful efforts to comply with thestandard. Nevertheless, Judge Watkins concluded that these findings wererelevant only to the determination of an appropriate penalty and did not negatethe existence of the violation. The violation was characterized as repeatedbased upon the fact that there were three previous violations of the samestandard aboard the same ship within the nine month period prior to theviolation at issue. However, he concluded that the $1600 penalty proposed bythe Secretary ?tends toward the punitive?, particularly in view of the?minimal? hazards presented to employees. The judge assessed a penalty of$1,000 based upon ?all statutory factors and the entire record.???????????? Reviewof the judge?s decision was directed by former Commissioner Moran. FMCresubmitted its post-hearing brief to the Commission, thereby raising the sameissues on review as were raised before the judge.??????????? FMCcontends that it was not in violation of 29 C.F.R. ? 1916.51(a) because thestandard?s requirement that aisles and passageways be kept clear of tools,materials, and equipment is violated only if the tools, materials, andequipment are not ?in use.? According to FMC, the Secretary failed to sustainhis burden of proof on this issue because the compliance officer admitted thathe did not determine whether the items observed were in use. In FMC Corp.,77 OSAHRC 153\/D4, 5 BNA OSHC 1707, 1977?78 CCH OSHD ? 22,060 (No. 13155, 1977),[6] the Respondent assertedthe same defense based on facts almost identical to those presented in thiscase. The Commission held that the phrase ?except that which is in use? createsan exception to the provision that must be proved as an affirmative defense.The violation in that case was affirmed because there was no reliable evidencethat particular tools, materials and equipment were in use. The Commissionfound unpersuasive general testimony that it was possible that some objects mayhave been in use. Moreover, the Commission ruled that the ?in use? exceptiondoes not apply to hose and electric conductors. The provision of the standardmost pertinent to these objects is the last sentence of 29 C.F.R. ? 1916.51(a)which requires that hose and electric conductors ?be elevated over or placedunder the walkway or working surfaces or covered by adequate crossover planks.???????????? Inthis case the only evidence relevant to the ?in use? exception is a statementmade by the compliance officer that some of the ?hoses and welding leads and soforth? were in use and some were not. However, under the standard hoses must beelevated or covered regardless of whether they are in use. Moreover, becauseFMC adduced no specific evidence that any particular tools, equipment ormaterials described in the citation were in use, we conclude that it has notproved that the ?in use? exception applies to any of the cited objects.??????????? FMCalso contends that the standard requires only that ?adequate? aisles andpassageways be maintained and that it complied with this requirement. Theseveral requirements of ?\u00a01916.51(a) each create independent abatementresponsibilities, FMC Corp. (13155), supra. Thus, the provisionrequiring the maintenance of ?adequate? aisles and passageways does not limitor qualify the other provisions of the standard. In this case, FMC was citedfor violating the provision requiring that hose and electric conductors beelevated or covered and the provision requiring that passageways be kept clearof all debris and all tools, materials, and equipment, except those in use. TheSecretary has established the alleged violation of these provisions.[7]??????????? FMCalso asserts that the Secretary failed to prove that the employees observed bythe compliance officer were its employees and not those of a subcontractor. Thecompliance officer testified that Harold Vick, FMC?s safety supervisor,indicated to him that the observed employees were those of the Respondent. Thistestimony was unrebutted. The compliance officer identified other FMC employeesby observing their FMC hardhats. Therefore, the judge correctly found thatFMC?s employees were exposed to the hazardous conditions. In summary, weconclude that FMC violated 29 C.F.R. ? 1916.51(a) as alleged in the citation.II??????????? Alternatively,FMC contends that the violation was not repeated within the meaning of the Act.In Potlatch Corp., 79 OSAHRC ??, 7 BNA OSHC 1061, 1979 CCH OSHD ? 23,294(No. 16183, 1979), we recently set forth the following test for determiningwhether a violation is repeated:A violation is repeated under ? 17(a) ofthe Act if, at the time of the alleged repeated violation, there was aCommission final order against the same employer for a substantially similarviolation.???????????? Underthis analysis, proof that an employer has committed a prior violation of thesame standard constitutes a prima facie showing by the Secretary ofsubstantially similar violations. The employer may then rebut this showing byoffering evidence that the violations occurred under disparate conditions orinvolved different hazards. Factors such as the employer?s attitude, thecommonality of supervisory control over the violative conditions, thegeographical proximity of the violations, the time lapse between violations,and the number of prior violations are relevant only to determining anappropriate penalty.??????????? Inthis case, FMC was cited four times within a nine-month period for violatingthe same standard. Each of the prior citations had become a final order of theCommission prior to the issuance of the present citation. The Secretary?s primafacie case is therefore established.??????????? TheRespondent argues that a violation is not repeated ?unless [it] . . . has beenrepeated under the same circumstances as the preceding violation.? It furtherargues that this prerequisite has not been met because ?none of the conditionsspecifically identified and located in the citation of January 10, 1975 werecited in prior citations.? Specifically, it notes that the prior citationsconcerned conditions at different or unspecified locations on the ChevronOregon.??????????? Toserve as a basis for a repeated classification, prior violations need not beidentical, as FMC asserts, but only substantially similar to the presentviolation. Each of the four citations considered in this case alleged thathoses and electric conductors were in passageways and work areas. Additionally,the August 1974 citation and the citation under review here included violationsof the requirement that walkways be kept clear of all debris and all tools,materials, and equipment, except those in use. Each violation created the samehazard?a tripping hazard. The only distinction among the various violations isthe precise location of the violative conditions on the ship. As stated inPotlatch, the fact that the violations occurred at different worksites is not arelevant factor in determining whether a violation is repeated. It clearlyfollows, therefore, that a difference in the location of violations at the sameworksite is not a relevant consideration. Accordingly, we conclude that FMC hasnot shown that the violations involve disparate conditions or differenthazards.[8]??????????? FMCalso contends that a repeated violation shares common elements with a willfulviolation and that ?flaunting? of the Act must be shown for a violation to becharacterized as repeated.[9] FMC asserts that it madegood faith efforts to comply with the cited standard but that numerous factorsmade strict compliance difficult if not impossible and, therefore, itsnoncompliance does not represent a ?flaunting? of the housekeeping requirement.In Potlatch Corp., supra, we rejected the contention that an employer?sattitude is relevant to whether a violation is repeated. This is consistentwith George Hyman Construction Co. v. O.S.H.R.C., 582 F.2d 834 (4th Cir.1978), where the court reasoned that the legislative history of the Actindicates that a repeated violation ?[does] not necessarily rise to the levelof willfulness,? 582 F.2d at 840. Following Potlatch, we reject FMC?s contentionand conclude that FMC?s violation of 29 C.F.R. ? 1916.51(a) is ?repeated? asalleged in the citation.[10] FMC?s asserted good faithefforts to comply with the standard are entitled to consideration in assessingan appropriate penalty.III??????????? FMCcontends that the $1,000 penalty assessed by the judge is excessive. The judgefound that the Respondent made good faith efforts to comply with the standardunder difficult circumstances and that the cited conditions presented ?minimal(but not de minimis . . .)? hazards to employees. We accept these unchallengedfindings. On the other hand, FMC was cited four times within a nine-monthperiod for violations of the same standard at the same worksite. Many of thesame supervisory personnel who participated in the inspection that resulted inthis proceeding were involved in one or more of the prior inspections. Eightseparate instances of the violation were alleged in the citation now before theCommission. Finally, FMC is not entitled to any credit as a small employer. Itemployed over 200 employees aboard the Chevron Oregon alone. Considering all ofthese factors under ?? 17(a) and 17(j) of the Act, 29 U.S.C. ?? 666(a) and666(i), we affirm the $1,000 penalty assessed by the judge.??????????? Accordingly,the decision of Judge Watkins is affirmed.?IT IS SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JUN 6, 1979?BARNAKO, Commissioner, concurring in part anddissenting in part:??????????? Iagree with the majority that FMC violated the Secretary?s general housekeepingstandard at 29 C.F.R. ? 1916.51(a).[11] However, I disagree withmy colleagues? conclusion that the shipbuilding company?s violation of thissection was properly characterized as repeated. Under the test set forth in mydissenting opinion in Potlatch Corp., 79 OSAHRC 7 BNA OSHC 1061, 1979CCH OSHD ? 23,294 (No. 16183, 1979), I would affirm the ? 1916.51(a) citationas nonserious rather than repeated.??????????? Inorder to find a repeated violation, my colleagues apply the test announced bythe majority of this Commission in Potlatch Corp., supra. That teststates that, in order to be properly characterized as repeated under ? 17(a) ofthe Act, a violation must be substantially similar to a prior violationestablished by a final order of this Commission. Although I agree that this isa necessary element of a repeated violation, I disagree with the majority?sanalysis of what is required to establish substantial similarity in any givencase and its allocation of the burden of proof on this point. Whereas both themajority and I agree that the Secretary bears the ultimate responsibility forshowing substantial similarity between the violations involved, the majoritywould presume that the Secretary satisfies this burden by proving that both thepresent and antecedent violations involve violations of the same standard. Atthis juncture, the majority would shift the burden to a respondent to rebut theSecretary?s prima facie case by showing that the violations occurred underdisparate conditions or involved different hazards.??????????? Iwould not give the Secretary the benefit of this presumption. Instead, I wouldplace on him the responsibility of proving substantial similarity between theinitial and subsequent violations in all cases involving repeated violations.??????????? Inthis case I would agree with the majority that a substantial similarity existedbetween the three prior ? 1916.51(a) violations and the citation at issue. Asin the present case, the Secretary proved that each of the previous citationsalleged that hoses and electric conductors obstructed the deck in passagewaysand work areas. In addition, one of the prior citations similarly charged thatwalkways were not kept clear of all debris as well as tools, materials, andequipment not in use. All of the violations occurred within nine months on thesame ship and in the same port. All involved the same tripping hazard. Only theprecise location of the violations on the ship differed, and I agree with themajority that this is not a relevant consideration for determining whether ornot a violation is repeated.??????????? AlthoughI would agree that the Secretary satisfied his burden of proving substantialsimilarity in this case, I would not find FMC in repeated violation of thehousekeeping standard. In my dissenting opinion in Potlatch Corp.,supra, I stated that a ?defense should be available where the employer can showthat it took reasonable, good faith steps after receiving the initial citationto eliminate substantially similar violations from its workplaces.? 7 BNA OSHCat 1068, 1979 CCH OSHD at p. 28,176. The majority only considers these goodfaith factors relevant in determining an appropriate penalty under ? 17(j) ofthe Act.[12]Although I agree that these steps are also important for penalty assessmentpurposes, I would find them relevant to a consideration of whether a respondentwas reasonably attempting to comply with its abatement responsibilities underthe Act. I believe that good faith attempts at compliance justify a reductionin the characterization of the violation from repeated to serious ornonserious.??????????? Inthis case, FMC has shown that it made substantial attempts after receiving theinitial citations to comply with its responsibility for improving housekeepingconditions on its ship. Mr. Harold Vick, the company?s safety supervisor,testified at length regarding the various policies and programs FMC institutedafter its receipt of citations for violation of ? 1916.51(a). Beginning inAugust 1974, FMC embarked upon a vigorous safety program, each element of whichemphasized the importance of housekeeping. The Safety Department issued amemorandum to all employees concerning the importance of keeping passagewaysand walkways clear, and safety posters were posted at 20 locations throughoutthe vessel. New employees were instructed on safety matters during theirorientation, and each employee told that he was to be responsible forhousekeeping in his own work area. In order to achieve some control over thevessel, the ship was divided into geographic areas, and supervisory personnelwere assigned safety responsibility for each designated area. Safety manualswere issued to these supervisors, and memos on safety topics were issued fromthe Safety Department to plant supervisors to be used as the subject of weeklysafety meetings with the crews.??????????? Thenumber of inspections of the ship by the safety personnel was increased to anaverage of four per week. Specific instructions were given to the plant safetyinspectors to watch for housekeeping as they were conducting inspections forother conditions considered unsafe. Authority to instruct an employee toimmediately correct a violation which he observed during routine inspectionswas given to Mr. Vick. If the safety inspector could not determine which employeewas responsible for a violation, he was authorized to make a note of it for theappropriate management channels to handle. Emphasis was placed on handlingserious hazards immediately.??????????? AdditionallyFMC employed 20 laborers whose primary task was to perform housekeepingfunctions and to clean up after the work crews. These laborers werespecifically directed to clean up debris and straighten, hook, and disconnectcords, hoses and leads. During the eight month period from April 24 to December31, 1974 workers on board spent 20,412 hours on housekeeping. During January1975 alone, 4,135 hours were devoted to housekeeping matters.??????????? Althoughpoor housekeeping existed during the January 10, 1975 inspection, I would notfind FMC to be in repeated violation of the Act. The instances of poorhousekeeping were few and isolated in nature, and as demonstrated above FMCmade reasonable, good faith attempts to eliminate housekeeping violations fromits workplace after receiving the initial citations. That FMC did not succeedin removing all the housekeeping problems is at least partly attributable tothe very nature of the task facing it, which further illustrates why FMC shouldnot be charged with a repeated violation of the Act.??????????? Thetask of maintaining proper housekeeping on a ship under construction is aformidable one. The record establishes and the judge found that it is moredifficult to comply with housekeeping standards in shipbuilding than in anyother type of construction. The dynamic nature of the tanker constructionproject accounts for much of the difficulty. Because of the confined spaceswith narrow openings present on a ship, personnel are constantly changing. Workcrews progress in sequential order through the various parts of the ship, oftenbarely finishing work in an area in time for another crew to begin work there.Such movement of personnel and equipment create practical problems ofmaintaining proper housekeeping since there is an ongoing potential that anyone of a series of crafts will create a housekeeping condition which may existtemporarily before being rectified.??????????? FMC?shousekeeping task is further complicated because of the need to build anddismantle scaffolding, planking and walkways. Construction scaffolding iscontinually built and torn down. Even the crossover walkways used to coverhoses are sometimes dismantled and reassembled. Moreover, the shipbuildingprocess requires that a great deal of equipment be kept on board. At the timeof the January inspection, 400 electric cords, 400 air hoses and 100 weldingleads were on board. The presence of such equipment in small compartmentsnecessarily creates peculiar housekeeping problems.??????????? It istrue, of course, that FMC?s efforts were not sufficient to achieve fullcompliance, but in view of the efforts it did undertake and the difficulty ofmaintaining proper housekeeping, I would not find FMC in repeated violation ofthe Act. Accordingly, applying the test I announced in Potlatch, I would reducethe repeated citation with which FMC is now charged to a nonserious one becausethe conditions were readily visible to FMC?s supervisors who were constantly inthe area[13]and because there was not a substantial probability of death or seriousphysical harm.[14]Based upon the penalty factors listed in ? 17(j) of the Act, I would assess apenalty of $150.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 12311 FMC CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 2, 1979DECISIONAppearances:CharlesG. Preston, Seattle, Washington for Complainant\u00a0RichardC. Hunt, Portland, Oregon for Respondent\u00a0GARL WATKINS, Judge:??????????? Inthis enforcement proceeding under the Occupational Safety and Health Act of1970, 29 U.S.C. 651 et seq., the question for decision is whether on January10, 1975 Respondent was in ?repeated nonserious? violation of 29 USC 654(a)(2)for failure to comply with a shipbuilding housekeeping standard on board theCHEVRON OREGON, a 35,000 ton tanker Respondent was building at the Swan Islandyard, Portland, Oregon.??????????? TheSecretary contends that all eight specifications of Citation Number Two issuedto Respondent January 29, 1975 were proved; and further that the violationshould be held ?repeated? because Respondent had not contested three previouscitations involving the same standard, the same ship and all at one stay at thesame location, commencing with an inspection April 24, 1974.??????????? Respondentasks vacation of the citation and proposed penalty of $1600 principally becauseof a failure of proof that it failed to comply with the housekeeping standard.It further contends that in any event there should be no finding that anyviolation was ?repeated? because there is no evidence that it ?…..repeatedly? violated ?….. any standard? within the meaning and intent of thestatutory language.??????????? Respondent?samended answer sets out six affirmative defenses:1. Theviolations alleged in Citation Number Two and charged in paragraph IV of theComplaint are not repeat violations in that they involve different conditions,employees, locations, crafts, functions and other circumstances.?2. TheCitation and Complaint, in violation of the requirements of 9(a) of the Act,fail to allege with particularity the circumstances in which the presentCitation constitutes a repeated nonserious violation of prior Citations.?3. TheRespondent has made a good faith, diligent and reasonable effort to adviseemployees of the housekeeping standard and obtain compliance with thatstandard.?4. Thestatutory definition of ?repeated violation? within the meaning of Section17(a) of the Act is broad, ambiguous and unclear and is subject to varying,inconsistent and discretionary interpretations by Occupation Safety and HealthAdministration personnel.?5. Thedesignation of Citation Number Two as a repeat violation failed to give dueconsideration to the size of Respondent?s facility, the magnitude andcomplexity of the project, the number of employees, the longevity of theproject, the need to relocate equipment and a variety of other factors.?6. Thedescription of the Citation as a ?Repeated Nonserious Citation? is unpreciseand confusing and does not afford the employer and his affected employees abasis for ascertaining the precise factual and legal issues that will beinvolved.???????????? Thepertinent language of the standard, the citation and the complaint follow:STANDARD:?SubpartF?General Working Conditions?1915.51 Housekeeping(a)Good housekeeping conditions shall be maintained at all times. Adequate aislesand passageways shall be maintained in all work areas. All staging platforms,ramps, stairways, walkways, aisles, and passageways on vessels or dry docksshall be kept clear of all tools, materials, and equipment except that which isin use, and all debris such as welding rod tips, bolts, nuts, and similarmaterial. Hose and electric conductors shall be elevated over or placed under thewalkway or working surfaces or covered by adequate crossover planks.?CITATIONNO. 2 (Repeated-Non-Serious)Descriptionof alleged violationEmployerfailed to maintain good housekeeping in that hose, welding leads, electriccords, and debris were on deck in walkways and working areas aboard vessel?Chevron Oregon?, in the following locations:1.Starboard side aft, weather deck.?2.Port side aft, weather deck.?3.Electric control rooms, port and starboard side.?4.Walkway leading to main turbine room.?5.Starboard side weather deck, forward.?6.Main turbine room, starboard side walkway upper level.?7.Main deck forecastle, port side.?8.Walkways on 01?02?03 levels, athwart ship.??COMPLAINT:IVOn orabout January 10, 1975, at the worksite and place of business and employmentabove described, the Respondent violated the shipbuilding regulations in thatthe employer failed to maintain good housekeeping in that hose, welding leads,electric cords, and debris were on deck in walkways and working areas aboardvessel ?Chevron Oregon?, in the following locations:\u00a01.Starboard side aft, weather deck;?2.Port side aft, weather deck;?3.Electric control rooms, port and starboard side;?4.Walkway leading to main turbine room;?5.Starboard side weather deck, forward;?6.Main turbine room, starboard side walkway upper level;?7.Main deck forecastle, port side; and?8.Walkways on 01?02?03 levels, athwart ship;\u00a0allcontrary to 29 C.F.R. 1916.51(a).?VIIITheworksite conditions and practices alleged in the aforesaid Citation Number 2and charged in paragraph IV above are of such similarity in fact, import andcharacter to the worksite conditions and practices present on (1) April 24,1974, (2) July 9 and 10, 1974, and (3) August 6, 1974 on the ?Chevron Oregon?,for which worksite conditions and practices citations were issued Respondent,as to constitute repeatedly violative behavior and conduct within the meaningof Section 17(a) of the Act.????????????? Detailsof the three previous citations and penalties on which the Secretary relies fora finding of ?repeated? here follow:(Secretary?sExhibits 1 through 6)?Dateof Inspection: April 24, 1974?Dateof Citation: May 13, 1974?Descriptionof alleged violation:Employerfailed to maintain good housekeeping in that home and electric conductors wereon weather deck and on deck in passageways and walkways throughout vessel?Oregon Chevron?. 100 employees exposed to tripping hazard.?ProposedPenalty: $30.00?Dateof Inspection: July 10, 1974?Dateof Citation: July 17, 1974 \u00a0Descriptionof alleged violation:Employerfailed to maintain good housekeeping, in that hose and electric conductors wereon deck in walkways and passageways in forecastle, main deck, forward deeptanks No. 1 and No. 2, and in auxiliary turbine room, at foot of access ladderaboard vessel ?Chevron Oregon?. Approximately 40 employees exposed to trippinghazard.?ProposedPenalty: $90.00?Dateof Inspection: August 6, 1974?Dateof Citation: August 20, 1974?Descriptionof alleged violation:Employerfailed to maintain good housekeeping aboard vessel ?G.T.T. Hull No. 1? in thatwelding leads, air hose and burning hose were on deck in fuel handling room.Stairway leading into No. 1 fuel tank obstructed by staging planks. Stairwayleading to motor room obstructed by staging planks. Walkway outside compartmenton C-deck, starboard side, has debris and material on deck. Employees usestairways and walkway. Employees work in fuel handling room. Weather deck, portside forward of superstructure, hose and leads on deck in walkway.ProposedPenalty: $200.00???????????? TheAugust citation refers to ?G.T.T. Hull No. 1? rather than ?Chevron Oregon?.They are the same. Construction of the hull began in 1972. It was launched onApril 19, 1974 and towed to Swan Island. All four citations were issuedfollowing inspections at that location.??????????? Thefirst question for decision is whether there was in fact a failure to complywith the cited standard. It is sufficient to say that the Secretary has met hisburden of proof on all items alleged in the citation and complaint. Theviolations were minimal (but not de minimis as that term is limited by 29 USC658(a)).??????????? Respondent?sevidence tends to prove two things. Both are important on the question ofpenalty. Neither defeats a finding of violation of the Act.??????????? 1.In shipbuilding it is more difficult to comply with housekeeping safetystandards than in any other type of construction. There is no evidence on whicha finding of impossibility of compliance could be based.??????????? 2.Respondent made a good faith?but unsuccessful?attempt to comply with thestandard. Its safety efforts became more intensive and more concentrated onhousekeeping after the third citation in August; the reason is not shown.??????????? Thesecond question for decision is whether the violation of the Act was?repeated?; or more specifically, whether Respondent ?….. repeatedlyviolate(d) the requirements of Section 5 of this Act …..?. 29 USC 666(a).??????????? Onthe present state of decisional law I can think of no greater exercise in utterfutility than an attempt:??????????? 1.to determine the rule for a ?repeated? violation, or??????????? 2.to apply any rule thus far stated to a set of facts.??????????? Compare:Secretary v. Todd Shipyards Corp., No. 1556, 15 OSAHRC 346, CCH EmploymentSafety and Health Decisions ? 19272, 16373; Secretary v. General Electric Co.No. 2739, 17 OSAHRC 49, CCH Employment Safety and Health Decisions ? 19567,16946; Secretary v. Bethlehem Steel Corporation, No. 8392, ?? OSAHRC ??,CCH Employment Safety and Health Decisions ? 19996, 19191.??????????? Thisdecision therefore represents only my own best judgment. The sole regard forprecedent is in the preliminary ?assumption? following.??????????? Assumingfor the purpose of this decision that a violation of the Act described as ?non-serious?under 29 USC 666(c) can also be categorized as ?repeated? under subsection (a);it is my considered opinion that this case presents exactly the type ofsituation contemplated by the Act as ?Repeated?. Four violations in nine monthsis enough.??????????? Ishould add that I am not unmindful of Judge Winters? well-reasoned decision in Secretaryv. Todd Shipyards Corp., No. 8500 (March 25, 1975), CCH Employment Safetyand Health Decisions ? 19532; now under review.??????????? TheSecretary?s proposed penalty of $1600 tends toward the punitive. This isparticularly true in view of the fact that the housekeeping violations foundpresented minimal hazards to employees. We also consider the method used toarrive at the proposal for the penalty. The compliance officer simplydetermined the figure he believed proper for the violation he found, and then(although following the rules under which he was required to compute)arbitrarily multiplied that figure by ten.??????????? Consideringall statutory factors and the entire record, it is my judgment that a penaltyof $1000 should be assessed.??????????? Basedupon the foregoing, the undersigned makes the followingFINDINGS OF FACTI??????????? OnJanuary 10, 1975 Respondent was in the process of building the ?ChevronOregon?, an oil tanker, at the Swan Island ship repair yard at Portland,Oregon. On that day, the worksite of Respondent was inspected by arepresentative of the Occupational Safety and Health Administration, UnitedStates Department of Labor, as a result of which a citation was issued January 20,1975, alleging that Respondent was in violation of 29 USC 654(a)(2) for failureto comply with 29 CFR 1916.51(a). A penalty in the amount of $1600 was proposedon the same date the citation was issued.II??????????? Onthe date alleged Respondent failed to comply with the standard which it ischarged with violating in the eight particulars charged; and thus was inviolation of the Act as alleged. The violation was minimal in that the hazardspresented to Respondent?s employees thereby were small.III??????????? Whilethe ship was under construction by Respondent and while berthed at the sameplace, Respondent had three times previously been adjudicated in violation ofthe same section of the law by reason of failure to comply with the same safetystandard having to do with housekeeping in shipbuilding operations. The firstof the three violations was based on an inspection on April 27, 1974.??????????? Basedon the foregoing and on all facts admitted, stipulated or proved byuncontroverted substantial credible evidence, the undersigned hereby makes thefollowingCONCLUSIONS OF LAWI.??????????? Respondentis a corporation operating a workplace and place of employment in Portland,Oregon on navigable waters. It is an employer engaged in a business affectingcommerce within the meaning of the Act. The Review Commission has jurisdictionof the parties and the subject matter of this action.II??????????? OnJanuary 10, 1975 Respondent was in ?repeated? violation of 29 USC 654(a)(2) byreason of its failure to comply with 29 CFR 1916.51(a) on the ?Chevron Oregon?,a ship it was building at the Swan Island yard in Portland, Oregon.III??????????? Onethousand dollars is a reasonable penalty to be assessed against Respondent forthis violation.ORDER??????????? Basedupon the foregoing, it is hereby ORDERED:I??????????? Thecitation for ?Repeated? violation issued by Complainant to Respondent onJanuary 20, 1975, charging therein a violation of 29 USC 654(a)(2) for failureto comply with 29 CFR 1916.51(a) be and the same hereby is AFFIRMED.II??????????? ITIS FURTHER ORDERED that a penalty of $1000 be and the same hereby is ASSESSEDfor this violation of the Act.?Dated: February 2, 1976GARL WATKINSJudge[1] The standardapplies to shipbuilding operations and provides:?1916.51 Housekeeping.(a)Good housekeeping conditions shall be maintained at all times. Adequate aislesand passageways shall be maintained in all work areas. All staging platforms,ramps, stairways, walkways, aisles, and passageways on vessels or drydocksshall be kept clear of all tools, materials, and equipment, except that whichis in use, and all debris such as welding rod tips, bolts, nuts and similarmaterial. Hose and electric conductors shall be elevated over or placed underthe walkway or working surfaces or covered by adequate crossover planks.[2] Section 17(a), 29U.S.C. ? 666(a), provides:Anyemployer who willfully or repeatedly violates the requirements of section 5 ofthis Act, any standard, rule or order promulgated pursuant to section 6 of thisAct, or regulations prescribed pursuant to this Act, may be assessed a civilpenalty of not more than $10,000 for each violation.[3] Each of theprevious citations alleged that hoses and electric conductors were on deck inpassageways and walkways aboard the Chevron Oregon. One of the citations alsoalleged that designated stairways were obstructed by staging planks and thatdebris and materials were on deck. The penalties assessed were $30, $90, and$200, respectively.[4] FMC?s safetysupervisor, its plant manager, and its manager of marine operations testifiedthat difficult compliance problems existed because it was necessary for FMC?semployees to move continually with their equipment throughout the confinedcompartments in the ship. Employees of various crafts were required to workwith their equipment in confined areas with limited access to and from the workareas. FMC also asserted that a high employee turnover contributed to itscompliance problems.[5] FMC?s safetysupervisor testified that FMC increased employee awareness of housekeepingproblems through safety posters, safety meetings and its employee orientationprogram. It issued safety manuals to supervisors and each supervisor wasassigned to monitor a designated area of the ship. It also increased the numberof laborers? hours devoted to housekeeping and increased the number of safetyinspections to four per week.[6] FMC was againcited following an inspection on April 9, 1975, for similar violations of thesame standard aboard the Chevron Oregon and a second ship under construction atthe same worksite. That citation was the subject of Docket No. 13155, supra. Inthat case the Commission held that the violation was repeated based upon thesame three uncontested citations that are the basis of the repeated allegationin this case. A $2,000 penalty was assessed.[7] Though theSecretary did not charge that the employer failed to maintain adequate aislesand passageways, we note in passing that the record does not support FMC?scontention that adequate aisles and passageways were maintained.[8] This case wastried and decided prior to our decision in Potlatch. Usually when there hasbeen a significant intervening change in law between the hearing and ourdecision on review in a case, we will offer the affected party an opportunityto present additional evidence relevant to the newly established legal test ordefense. See, e.g., Truland-Elliott, 77 OSAHRC 163\/A7, 4 BNA OSHC 1455,1976?77 CCH OSHD ?20,908 (No. 11259, 1976) However, in its answer FMC assertedan affirmative defense that the violation at issue was not repeated because theprior violations ?involve[d] different conditions, employees, locations,crafts, functions and other circumstances.? It also argued dissimilarity in theviolations in its brief to the judge and to the Commission. Under thesecircumstances, we conclude that the defense in this case would not have beentried and differently had Potlatch been issued before the hearing. Therefore,we need not offer Respondent an opportunity for a remand. Cf. Belger CartageService, Inc., 79 OSAHRC ??, 7 BNA OSHC 1233, 1979 CCH OSHD ? 23,440 (No.76?1480, 1979).[9] The cases reliedupon by the Respondent have no precedential value in determining whether aviolation is repeated. The Respondent cites General Electric Corp., 75OSAHRC 50\/A2, 3 BNA OSHC 1031, 1974?75 CCH OSHD ? 19, 597 (No. 2739, 1975), rev?din part on other grounds, 540 F.2d 67 (2d Cir. 1976) in support of itscontention that ?flaunting? must be shown. It cites the judge?s decision in BethlehemSteel Corporation, OSHRC Docket No. 8392, for the proposition that arepeated violation occurs only if there has been a prior citation forsubstantially identical conditions. However, both of these tests were rejectedby the Commission in reversing the judge?s decision relied upon by FMC. BethlehemSteel Corp., 75 OSAHRC 83\/C12, 3 BNA OSHC 1520, 1975?76 CCH OSHD ? 19,996(No. 8392, 1975), rev?s, 540 F.2d 157 (3d Cir. 1976). See also, George HymanConstruction Co., 77 OSAHRC 67\/C7, 5 BNA OSHC 1318, 1977?78 CCH OSHD ?21,774 (No. 13559, 1977), aff?d, 582 F.2d 834 (4th Cir. 1978). The otherjudges? decisions referred to in FMC?s brief have all been reviewed by theCommission and affirmed in decisions having no precedential value on therepeated issue. See National Steel & Shipbuilding Co., 78 OSAHRC48\/A2, 6 BNA OSHC 1680, 1978 CCH OSHD ?22, 808 (Nos. 11011 & 11769, 1978),appeal docketed, No. 78?2695 (9th Cir. Aug. 3, 1978); Todd Shipyards Corp.,75 OSAHRC 21\/D4, 3 BNA OSHC 1813, 1975?76 CCH OSHD ?20,237 (No. 12510, 1975), aff?d,586 F.2d 683 (9th Cir. 1978); Donald Harris, Inc., 78 OSAHRC 1\/C2, 6 BNAOSHC 1267, 1977?78 CCH OSHD ?22,472 (No. 10434, 1978).[10] FMC raisesseveral other contentions. It argues that the standard is vague because it doesnot indicate the procedure an employer must follow to eliminate the hazard;that the citation lacks particularity because it characterizes the violation asboth repeated and nonserious; and that the citation is invalid because OSHAfailed to follow its own procedures in that the Area Director failed to consultthe Assistant Regional Director prior to issuing a repeated citation, asrequired by the Field Operations Manual. These contentions were raised by FMCand rejected by the Commission in FMC Corp. (13155), supra. We reject themhere for the reasons set forth in that decision.[11] See footnote 1 ofthe majority opinion for the provisions of this standard.[12] Section 17(j), 29U.S.C. ? 666(a), provides:(j)The Commission shall have authority to assess all civil penalties provided inthis section, giving due respect to the size of the business of the employerbeing charged, the gravity of the violation, the good faith of the employer,and history of previous violations.[13] See GreenConstruction Co. & Massman Construction Co., 76 OSAHRC 134\/D9, 4 BNAOSHC 1808, 1976?77 CCH OSHD ?21,235 (No. 5356, 1976).[14] Approximatelyeight months ago this Commission found the same shipbuilding company inrepeated violation of ? 1916.51(a). See FMC Corp., 77 OSAHRC 153\/D4, 5BNA OSHC 1707, 1977?78 CCH OSHD ?22,060 (No. 13155, 1977). As the majoritypoints out, the facts surrounding this housekeeping violation were almostidentical to those in the instant case, and the Commission based its finding ofa repeated violation in the former FMC case upon the same three prioruncontested citations that are involved here. Although I agreed with the resultin the earlier FMC case, I did so on the basis of a test to which I no longeradhere for determining repeated violations. That test required the Secretary toshow that both the initial and subsequent violations occurred under the controlof the same supervisors in order to sustain his burden of proving a prima faciecase of a repeated violation. See George Hyman Construction Co., 77OSAHRC 67\/D7, 5 BNA OSHC 1318, 1977?78 CCH OSHD ?21, 774 (No. 13559, 1977),aff?d, 582 F.2d 834 (4th Cir. 1978). After reexamining my position in light ofthe Fourth Circuit?s opinion in George Hyman Construction Co., supra, Ispecifically stated that the level of supervision under which the violationoccurred would no longer workplace. See Potlatch Corp., supra violation.As indicated above, I would now allow a respondent to defend against therepeated characterization of a violation by demonstrating it made a good faitheffort to eliminate a reoccurrence of the initial violation at its workplace.See Potlatch Corp., Supra (dissenting opinion). FMC has established sucha defense.”