J. A. McCARTHY, INC.
OSHRC Docket Nos. 3985; 4884; 5168
Occupational Safety and Health Review Commission
June 22, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Marshall H. Harris, Regional Solicitor, USDOL
Frank C. Bender, for the employer
OPINION:
DECISION
BY THE COMMISSION:
This case arose upon Respondent's (McCarthy) contest of three citations alleging repeated violations of the longshoring "hardhat" standard, 29 C.F.R. 1918.105(a). n1 Judge Abraham Gold held that McCarthy did not violate the standard because in his opinion it had taken all measures which could be reasonably required to achieve compliance. He also held that, if there were violations, they were not shown to be "repeated" because Labor had failed to prove that a prior citation had become an enforceable order. We have reviewed the entire record. For the reasons which follow, we modify the citations to find McCarthy in nonserious violation, and assess no penalties.
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n1 The citations also alleged violations of 29 C.F.R. 1910.132(a). The Judge held that this standard was not applicable, and Complainant does not except to this ruling on review.
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The [*2] facts of this case are indistinguishable from those in Atlantic & Gulf Stevedores, Inc., 16 OSAHRC 770,3 OSHC 1003 (OSHRC, 1975), aff'd, No. 75-1584 (3rd Cir., Mar. 26, 1976). n2 McCarthy conducts longshoring operations in the port of Philadelphia. Although McCarthy supplied hardhats to its longshoremen and urged their use, many of its employees refused to wear them for reasons of comfort, convenience, and personal preference. McCarthy did not attempt to enforce the wearing of hardhats through discipline of employees who refused to wear them, fearing that a wildcat strike would result.
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n2 It was stipulated that the transcript of testimony in Atlantic & Gulf Stevedores should be part of the record in this case.
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In Atlantic & Gulf Stevedores we held on such facts that the employers of longshoremen were not in compliance, and we affirmed the citations. The Third Circuit denied the employers' petition for review and affirmed our order, specifically holding that on the facts the employers had not exhausted [*3] the measures available to them for achieving compliance. Respondent's arguments have been considered, and we are not persuaded that this precedent is distinguishable. Accordingly, the Judge's decision is reversed insofar as he held that McCarthy did not violate the standard.
The questions remain as to the classification of the violations and what penalties should be assessed. In alleging that the violations are repeated, Labor relies on a citation for violation of 29 C.F.R. 1918.105(a) issued on June 21, 1973. n3 Labor alleges that this citation was not contested and hence is a final order of the Commission pursuant to 29 U.S.C. 659(a). n4
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n3 The violations here at issue occurred on July 1, September 17, and October 17, 1973. As to the first, this occurred before the June 21 citation could have become a final order. (See f.n. 4, infra). Labor concedes that a repeat violation must be based on a prior final order, and that the July 1 violation can not be properly classified as repeated.
n4 Insofar as relevant, this section provides that a citation becomes a final unreviewable order of the Commission unless the employer, within 15 working days of the receipt of the notification of proposed penalty, notifies Complainant of his intent to contest.
[*4]
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The Judge found as fact that the record fails to establish whether a notice of contest was filed to the June 21 citation. Accordingly he held that Labor had failed in its burden of establishing the June 21 citation as a final Commission order. On review, Labor argues that the burden of proof on the issue of whether a notice of contest was filed should lie with McCarthy. We are not persuaded. Labor has the burden of proving all essential elements of its charges. n5 Proof that a citation became a final order is not beyond Labor's ability. For example, the Area Director or some other responsible official could testify (1) that the citation and notification of proposed penalty were issued, (2) that they were received by the employer on a certain date, n6 and (3) that a timely notice of contest was not received by Labor.
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n5 29 C.F.R. 2200.73(a).
n6 Pursuant to 29 U.S.C. 659(a), the notification of proposed penalty must be sent by certified mail. The return receipt can be used to establish whether and when the document was received.
[*5]
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Alternatively, Labor could request that we take notice of our own official records to determine if a notice of contest was filed. In this regard, we have examined our official records and we have not found a notice of contest for the June 21 citation. We do note, however, that McCarthy has stipulated in another case that a notice of contest was not filed as to the June 21 citation. n7
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n7 Docket Nos. 6565, 7177, and 7522.
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However, assuming the stipulation is sufficient to establish the finality of the June 21st citation and that based thereon the violations of September 17 and October 17 could technically be classified as repeated, such classification would be of no practical value in this case since we find that the circumstances do not warrant assessment of any penalty. Normally, a repeated violation may be distinguished from a nonserious violation by the potential assessment. n8 In all penalty assessments, however, we must consider [*6] the gravity of the violation, and the good faith, size, and prior history of the employer. n9 The classification of a violation as repeated will ordinarily reflect adversely on the employer's good faith and prior history and therefore justifies a penalty higher than would otherwise be appropriate. This case is unusual. McCarthy has in fact attempted to comply with the standard, and our decision should not reflect adversely on its good faith efforts. Moreover, we note that at the time these violations occurred, we had not yet determined that the steps taken by McCarthy were insufficient as a matter of law. n10 In the circumstances we will not assess a penalty, and we will consider the violations nonserious in nature.
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n8 The maximum penalty for a repeated by violation is $10,000. The maximum penalty is $1000 for a non-serious violation. 29 U.S.C. 666(a) and (c). These provisions, however, allow assessment of any amount less than the maximum.
n9 29 U.S.C. 666(1).
n10 Atlantic & Gulf Stevedores, supra.
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Accordingly, the citations are modified to allege nonserious violations of 29 C.F.R. 1918.105(a), and as so modified are affirmed. No penalties are assessed. It is so ORDERED.
CONCURBY: CLEARY
CONCUR:
CLEARY, Commissioner, CONCURRING:
I concur in the disposition of this case because I agree that section 1918.105(a) was violated and that on the penalty issue the factors in section 17(j) have been properly applied.
I also would consider the violation to be "repeated" under our precedent. Bethlehem Steel Corp., No. 8392, 20 OSAHRC 227, BNA 3 OSHC 1520, CCH OSHD para. 19,996 (1975).
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner Dissenting:
Judge Gold correctly decided this case in his well-reasoned decision, which is attached hereto as Appendix A, and that decision should be affirmed. I agree fully with Judge Gold's holding that all the citations herein should be vacated because the respondent did all that it was required to do under the Act to require compliance by its recalcitrant employees with the provisions of the standard. [*8] v. Atlantic & Gulf Stevedores, Inc., 16 OSAHRC 770 (1975).