ELIASON & KNUTH DRYWALL COMPANY

OSHRC Docket Nos. 14226 & 14227

Occupational Safety and Health Review Commission

August 19, 1977

[*1]

Before BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol., USDOL

Edward R. Freeberg, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

The decision of Administrative Law Judge Paul E. Dixon is on review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ["the Act"]. Judge Dixon, among other things, affirmed as "nonserious" an alleged "repeated" violation of the standard published at 29 CFR 1926.25(a). n1 I granted the petition for discretionary review filed by the Secretary of Labor raising the following issues:

(1) Whether the Judge erred in finding that the Secretary moved to amend his citation so as to allege that respondent's violation of 29 CFR 1926.25(a) was non-serious?

(2) Whether the Judge erred in modifying the Secretary's citation and in affirming a non-serious rather than a repeated violation of 29 CFR 1926.25(a)? n2

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n1 1926.25 Housekeeping

(a) During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

n2 Former Commissioner Moran issued a direction for review specifying no issues.

[*2]

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Respondent, a drywall subcontractor, was issued several citations following two separate inspections by the Occupational Safety and Health Administration [OSHA] for alleged violations of section 5(a)(2) of the Act existing at two building construction sites in Omaha, Nebraska. Respondent timely contested the citations and a hearing was held before Judge Dixon. In case number 14227, the Judge affirmed alleged serious violations of 1926.451(d)(10) n3 and 1926.451(a)(13), and vacated an alleged violation of 1926.500(d)(2). He assessed a penalty totalling $300. In Citation No. 1 of case number 14226, the Judge affirmed nonserious violations of 1926.401(j)(1) and 1926.500(b)(1) and vacated an alleged violation of 1926.500(c)(1)(i). He assessed penalties of $25 and $0, respectively, for the affirmed items.

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n3 All references to the Code of Federal Regulations infra are to Title 29.

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No party has objected to the Judge's action [*3] in case number 14227 or in Citation No. 1 of case number 14226. The Judge's action is before us solely because of former Commissioner Moran's sua sponte order. Because of this and in the absence of compelling public interest in further Commission consideration of these matters, we decline to exercise our authority to review. Weyerhaeuser Company, 77 OSAHRC 44/D6, 5 BNA OSHC 1275, 1977-78 CCH OSHD para. 21,716 (No. 11869, 1977). See also Commission Rule 91a, 41 Fed. Reg. 53016 (1976).

In Citation No. 2 of case number 14226, the Judge affirmed a violation of 1926.25(a) for respondent's failure to maintain corridors free of debris and work materials. The violation had been cited as "repeated" but the Judge concluded that the citation had been amended by the Secretary's brief to eliminate the "repeated" characterization of the violation. The Judge affirmed the violation as "nonserious" and assessed a $25 penalty.

In his petition for discretionary review, the Secretary excepts to the Judge's holding and argues that he did not seek to eliminate the "repeated" characterization of the violation. The Secretary contends that his brief only referred to amendments [*4] made at the hearing to allege a violation of the housekeeping standard on the second and third floors of the building, rather than on floors one through five, and to reduce the proposed penalty from $600 to $150. He further maintains that the facts compel a finding of a "repeated" violation under Bethlehem Steel Corp., 75 OSAHRC 83/C12, 3 BNA OSHC 1520, 1975-76 CCH OSHD para. 19,996 (No. 8392, 1975), rev'd in part 540 F.2d 157 (3d Cir. 1976). The Secretary points out that respondent had been cited about eleven months before the instant citation for violating the same standard in the same metropolitan area. The earlier citation was not contested and had by operation of law become a final order of the Commission.

With respect to the first issue on review, whether the Judge erred in his treatment of the Secretary's amendment, our examination reveals that at the hearing the Secretary moved to reduce the proposed penalty from $600 to $150. He also moved to delete the allegation of a 1926.25(a) violation on the first, fourth, and fifth floors of the building. The Judge granted the latter motion but did not rule on the former. The failure to rule on the motion to [*5] reduce the penalty was apparently an oversight. In his post-trial brief, the Secretary attempted to summarize the posture of the case. He correctly noted that the citation had been amended to limit the 1926.25(a) violation to two of the five floors initially specified. He erroneously added, however, that the proposed penalty had been reduced to $150. Significantly, the brief also stated that the sole issue remaining in contest was the citation's allegation of a "repeated" violation of 1926.25(a). We conclude that the Judge misread this statement because in his Finding of Fact No. 8 he stated the following: "The complainant by his brief amended item 1 of citation 2 to allege a violation of the standard rather than a repeat violation." n4

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n4 We note that the Judge errs to the extent he assumes that the Secretary may unilaterally amend a citation by post-trial brief. The Secretary may only request such action by motion to the Judge. See Enfield's Tree Service, Inc., 77 OSAHRC 32/B3, 5 BNA OSHC 1142 n.2, 1977-78 CCH OSHD para. 21,607 (No. 9118, 1977).

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Concerning the correctness of finding a nonserious and not a "repeated" violation, the Commission's recent decision in George Hyman Construction Company, 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD para. 21,774 (No. 13559, 1977) is controlling. In that case each Commission member espoused a separate point of view concerning the elements of a repeated violation. Chairman Barnako would find a violation repeated only on objective facts sufficient to support an inference that an employer's conduct constituted a disregard of the Act. In his opinion, the inference usually arises, and the Secretary prima facie establishes a repeated violation, when the facts show (1) a prior violation that has become a final order, and (2) a subsequent and substantially similar violation occurring under the control of a supervisor who had responsibility for abating the first violation. On the other hand, I would follow the Commission's decision in Bethlehem Steel Corp., supra. In Bethlehem, the Commission held a violation to be "repeated" when a citation for violation of the ship-repairing housekeeping standard became a final [*7] order and a second similar violation occurred on a different ship in the same port.

Chairman Barnako notes that respondent was performing work at a number of building sites in Omaha in addition to that at which the housekeeping violation was alleged. Respondent's superintendents, who traveled from job to job, reported to respondent's production manager the conditions existing on each job. The production manager also maintained regular cleanup of the building sites on days designated for that purpose by the general contractor at each site, and the building in question was scheduled for cleanup every Friday. The Secretay, however, happened to conduct his inspection on a Friday and, although the production manager that morning had assigned a cleanup crew, the inspector arrived before the cleanup began.

The Chairman would not on this evidence infer that respondent acted in disregard of the Act. Rather, in his view this evidence shows that respondent intended to comply with the housekeeping standard. Since the record fails to indicate whether any other supervisors had responsibility for abating housekeeping violations, consistent with his separate opinion in George Hyman, [*8] supra the Chairman would remand for additional evidence.

I would reach a different result. I would conclude that the violation is "repeated" under Bethlehem because the record reveals that a previous citation for violation of 1926.25(a) had been issued to respondent in the Omaha area, the locus of the citation in this case. It had become a final order before issuance of the instant citation.

Consistent with my separate opinion in George Hyman, I add that in this case the "repeated" character of the violation has little practical significance. That a violation is "repeated" does not compel assessing a penalty over $1,000. It merely raises the maximum possible penalty amount from $1,000 to $10,000. A penalty of less than $1,000 for a "repeated" violation may be assessed. What is crucial is whether the penalty meets the standards of section 17(j) of the Act. Here, the Secretary does not dispute the appropriateness of the $25 penalty assessed by the Judge.

Inasmuch as the present two member Commission is unable to agree on a disposition, no official action can be taken. Section 12(f) of the Act, 29 U.S.C. 661(e). Accordingly, the Judge's decision in Citation [*9] No. 2 of case number 14226 becomes the final action of the Commission. See Vappi and Company, 77 OSAHRC 72/D7, 5 BNA OSHC 1358, 1977-78 CCH OSHD para. 21,787 (No. 8282, 1977). Additionally, because we decline to review the Judge's action in case number 14227 and Citation No. 1 of case number 14226, it is affirmed. The Judge's decision is accorded no precedential weight. See Leone Construction Company, 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2d Cir., May 17, 1976).

So ORDERED.