TACOMA BOATBUILDING COMPANY, INC.

OSHRC Docket No. 6

Occupational Safety and Health Review Commission

August 31, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On March 17, 1972, Judge Robin S. Heyer issued his decision and order in this case, affirming the Secretary's citations for serious violations, descreasing the proposed penalties from $1200 to $440, and affirming the Secretary's citation of non-serious violation and increasing the penalty from $120 to $140.

On April 3, 1972, former Commissioner Burch directed that the decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act").

The Commission has reviewed the briefs filed by the parties and has considered the entire record. We adopt the Judge's decision and order insofar as it comports with this decision.

Citation no. 1, for serious violation, is concerned with the lack of top and mid railings n1 on stagings in seven separate fish tanks aboard two vessels, the Atlantic Gennis which was under repair and the Dennise Marie which was under construction, at respondent's boatyard. Inasmuch as identical standards have been promulgated for ship-building and ship repairing, citation no. 1 was considered by the Judge to be the violation of two standards, one for each vessel. We do not believe that violations of identical standards set out under two industry headings in all circumstances constitute separate violations. However, in light of the separate and distinct workplaces (two vessels) in which these conditions were discovered, we find that citation no. 1 includes two separate violations by failure to comply with the same standard. Where the same condition is found in segregated locations it is reasonable to find that, if violative of the Act, a separate violation exists at each location.

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n1 The cited standards are 29 CFR 1915.41(i)(1) and 29 CFR 1916.41(i)(1).

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Citation no. 2, for serious violation, concerns the use of single instead of double ten inch planks in three fish tanks aboard the Atlantic Gennis and in two tanks aboard the Dennise Marie. n2 With respect to determining the number of violations, the same reasoning applies as in the analogous situation discussed above. Two violations exist, not because the standard applies to two industries, but because separate locations are involved.

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n2 29 CFR 1915.41(h)(2); 29 CFR 1916.41(j)(2).

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Citation no. 3, cited as a non-serious violation, involves acetylene and oxygen hoses being left in the fish tanks of both ships without the gas supply being turned off at the cylinders. n3 Again, this constitutes two violations of the standard.

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n3 29 CFR 1915.32(g); 29 CFR 1916.32(g).

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Judge Heyer has concluded that the violations involving the absence of railings and the use of single instead of double planks on stagings, which create the hazard of workers falling seven to nine feet, are serious violations within the meaning of section 17(k) of the Act. However, he has misinterpreted that section to require both substantial probability that an accident n4 occur and substantial probability that death or serious physical injury could result if an accident occurs in order for a violation to be serious. n5 The Commission has held that only the latter circumstance is relevant to the seriousness of a violation. The probability of an accident occurring is relevant only to the gravity of the violation and is considered in the process of assessing an appropriate penalty. See, Secretary of Labor v. Baltz Brothers Packing Company Secretary of Labor v. Standard Glass and Supply Company, Secretary of Labor v. Crescent Wharf and Warehouse Company, Secretary of Labor v. Natkin and Company, Mechanical Contractors, In the instant case, there is not substantial probability that death or serious physical injury could result from an employee falling seven to nine feet to the surface of a fish tank. Injury from such a fall is probable and serious injury is certainly possible, however, this is insufficient to bring the violations described in citation nos. 1 and 2 within the ambit of section 17(k).

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n4 Accident, as used in this decision, is intended to include illness.

n5 By finding the violations serious, Judge Heyer has concluded that both asserted probabilities exist.

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Respondent is assessed a $200 penalty for each of the two violations contained in citation no. 1 and each of the two violations comprising citation no. 2. Several workers were exposed to the hazard of falling and both the probability of an accident occurring and the severity of resulting injury are considerable. n6 With respect to the mitigating factors of section 17(j) of the Act, there is sufficient evidence of record to warrant according respondent a penalty adjustment for good faith for it operates an active, and for the most part effective, safety program. There is little evidence of record with respect to respondent's compliance history under other appropriate statutes but its previous record under this Act is unblemished and it is not an employer of small size. Accordingly, a total penalty of $800 for the above four violations is appropriate.

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n6 Both the probability of an accident's occurrence and the probable severity of resulting injuries, as well as the exposure to a hazard, constitute the gravity of a violation.

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With respect to the two violations of citation no. 3, $200 penalties are also appropriate. Between 100 and 200 employees were exposed to the violations, which would cause severe injuries in the event of an accident. There is, however, little probability of an explosion or fire occurring. Respondent's good faith, compliance history and size are considered, see, infra, in assessing this penalty of $400.

It is ORDERED that the Judge's decision and order be modified in accordance with this opinion, that the citations be affirmed, and that respondent be assessed a total penalty of $1200.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, CHAIRMAN, concurring in part and dissenting in part: I concur in the finding that the Judge ruled properly on the existence of violations of the law. I reiterate my comments set forth in Portland Stevedoring Co. n7 to the effect that the attempt to delineate a difference between serious and nonserious violations has no practical effect on the parties and is an academic exercise in which the Commission should not engage. And I dissent from the Commission's action in assessing $200 penalties for both Item 1 and Item 2 of citation No. 3.

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n7 Secretary of Labor v. Portland Stevedoring Co.,

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Complainant proposed a $60 penalty for each of these infractions, a total of only $120. By assessing a $200 penalty for each, the Commission has more than trebled the amount of complainant's proposed penalty. This action goes beyond the Commission's penalty assessment authority set forth in the Act.

The Commission has the sole authority to assess penalties whenever a proposed penalty is properly contested (section 17(j)). This authority, however, is not unlimited. In addition to the requirements contained in section 17(j), the Commission's penalty-assessment authority is limited by two provisions of section 10(c) of the Act.

First, that section states that when a penalty proposal is timely contested, the Secretary of Labor shall immediately notify the Commission thereof and

. . . the Commission shall afford an opportunity for a hearing (in accordance with section 554 of title 5, United States Code . . .).

This language incorporates by reference, and binds the Commission to, the provisions of the Administrative Procedure Act. That Act provides that when matters are submitted to a Federal adjudicatory body for resolution, the agency is authorized to adjudicate only those issues raised by the litigants.

By contesting a proposed penalty, a respondent denies that the proposed penalty is appropriate. He seeks relief from the Commission. In so doing he is not alleging that the penalty is inappropriately low. Neither is the complainant, by appearing at a hearing and introducing evidence, alleging that the penalty he proposed is too low. He maintains only that the proposed penalty is the appropriate penalty. If the complainant thought a higher penalty more appropriate, a higher penalty would have been proposed, for he alone has the unreviewable authority to determine the amount of the penalty to be proposed.

Thus, when the Secretary of Labor's proposed penalty is contested by an employer, the issue submitted by the parties for decision by the Commission is whether the proposed penalty is too high. When the Commission, or one of its judges, is confronted with that issue, it is error to raise the amount for this can only occur by ruling on a question not before the tribunal. That is what the Commission has done in this decision.

In this case, complainant contends that $120 is the appropriate penalty for the violations alleged in citation No. 3. The respondent claims that that amount is too high; that it should be assessed no penalty at all, or at least a penalty less than $120. The question of whether $120 is high enough is not in dispute. Neither litigant has submitted that issue to the Commission for resolution. Thus, the Commission has no authority under the terms of the Administrative Procedure Act to assess a penalty in excess of $120.

Section 10(c)'s second limitation on the Commission's penalty assessment authority limits the Commission to granting "relief." Section 10(c) provides that after the Secretary of Labor has notified the Commission that an employer has contested the amount of the proposed penalty and the hearing thereon has been held in accordance with the Administrative Procedure Act,

The Commission shall thereafter issue an order, based on finding of fact, affirming, modifying, or vacating the . . . proposed penalty, or directing other appropriate relief . . . (emphasis added).

It cannot be convincingly argued that "relief" means a penalty assessment higher than either the Secretary of Labor or the objecting employer thinks is appropriate.

It is no accident that the limits of the Commission's jurisdiction set forth in the passage quoted above are arranged in descending order from highest to lowest: "affirming, modifying, or vacating." If the word "modify" were meant to grant the Commission the power to assess any penalty amount it thought appropriate within the limits specified by section 17, the word "affirming" would be totally unnecessary and redundant.

Furthermore, there is a presumption that the author of a statute intends the same meaning for the same expression in every part of the statute. n8 The word "modify" appears in the Judicial Review section of the Act (section 11) at least six times. Its use in the first sentence of section 11(a) gives a clear indication that Congress intended it to mean "reduce" or "lower" (or words having similar meaning):

Any person . . . aggrieved by an order the Commission . . . may obtain a review of such order in any United States court of appeals . . . by filing . . . a written petition praying that the order be modified or set aside" [emphasis added].

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n8 F. McCaffrey, "Statutory Construction" 13 (1953).

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Clearly, this provision would be absurd if "modified" were interpreted as granting authority to raise proposed penalties.

Any careful reading of the text of the Act will reveal that the exclusive authority and responsibility for effecting compliance with its many requirements resides with the Secretary of Labor. In furtherance of this responsibility, he sets the upper limits of the penalty which he thinks is most appropriate to the employer's alleged failure to observe the Act's requirements. When that proposed amount is not contested within the time prescribed, it automatically becomes the assessed penalty. When it is contested, the Commission may, after hearing, affirm that amount, assess a lower amount as the penalty, or allow no penalty at all.

In short, this Commission has no compliance responsibility whatsoever. Its functions are strictly adjudicatory -- and that adjudicatory power is limited to granting relief when justified from those matters specified in the citation issued by the Secretary of Labor and from the amount of his proposed penalties, when, and to the extent that, such relief is timely sought.

Even if the Commission had authority to assess penalties in excess of the amount of the penalty proposed by the Secretary of Labor, to do so would be an inappropriate exercise of power as a policy matter. A person who exercises his constitutional right to a hearing when the government is seeking to penalize him should not thereby subject himself to the possibility of penalties greater than the law would allow had he chosen not to exercise that right.

[The Judge's decision referred to herein follows]

HEYER, JUDGE, OSAHRC: This matter was duly noticed and heard October 5, 1971, before the undersigned, assigned as hearing examiner of the Occupational Safety and Health Review commission, on filing of intent to contest by the contestant, Tacoma Boatbuilding Co., Inc., to review the appropriateness of citations and notices of proposed penalties previously issued by the United States Secretary of Labor on the ground of contestant's alleged violation of safety standards under the Occupational Safety and Health Act of 1970 (29 U.S.C. sections 651 ff., hereinafter sometimes designated "the Act" or "OSHA").

Inspection of contestant's premises on June 10, 1971, led to issuance of five citations and subsequent notices of proposed penalty relating to three of the citations. The citations as amended at the hearing allege violation of the safety regulations listed in column A below, and the proposed penalties are listed correspondingly in column B.

Citation

A

B

#1

29 C.F.R. sections 1501.41(i)(1) and

1502.41(i)(1)

$600

#2

29 C.F.R. sections 1501.41(h)(2) and

1502.41(h3(2)

$600

#3

29 C.F.R. sections 1501.32(g) and

1502.32(g)

$120

All citations were amended. Where the word "citation" is used herein, "latest amended citation" is intended. Citations #1 and #2 were alleged to be serious.

No affected employees or representatives of the same have formally appeared as parties. Pleadings beyond the (amended) citations, notices of proposed penalty, and notices of intent to contest, have been waived without objection. Evidence, oral and written argument, proposed findings, conclusions, and order, stipulations, and other matters have been presented, and the entire case has been taken under submission on all issues. The rules of the Commission do not apply to the present case, having been later adopted.

29 U.S.C. section 666 provides for civil penalties of up to $1000 for any serious or nonserious violation, and up to $10,000 for any willful or repeated violation, of 29 U.S.C. section 654(a), which in part requires compliance with occupational safety and health standards promulgated under the Act [clause (2)]. Under 29 U.S.C. section 655 the Secretary promulgated 29 C.F.R. sections 1910.13(a) and 1910.14(a), which adopted by reference 29 C.F.R. Parts 1501 and 1502, included all the regulatory sections under which the present citations were issued, and occupational safety and health standards under 29 U.S.C. section 654(a)(2). The standards in question had previously been promulgated as regulations under 33 U.S.C. section 941 for ship repairing [defined at 29 C.F.R. section 1501.2(i)] and shipbuilding [defined at 29 CFR section 1502.2(i)].

The substance of the allegations is as follows:

1. There was no top or mid railing on stagings located in four separate fish tanks on board the vessel Atlantic Gennis and three separate fish tanks on board the vessel Dennise Marie and that the height of such stagings was seven feet above the bottom of the fish tanks. (Citation 1, Amended).

2. Employees were working on stagings containing single 2 X 10 inch planking in three fish tanks on board the vessel Atlantic Gennis and in two fish tanks on board the vessel Dennise Marie and that the height of such stagings was seven feet above the fish tank bottoms. (Citation 2 Amended).

3. Acetylene and oxygen supply hoses left in enclosed spaces, namely three fish tanks, were not shut off at their cylinders during the lunch hour on board the vessel Atlantic Gennis. (Citation 3 Amended, #1).

4. Acetylene and oxygen supply hoses left in enclosed spaces, namely three fish tanks, were not shut off at their cylinders during the lunch hour on board the vessel Dennise Marie. (Citation 3 Amended, #2).

The evidence adequately shows, and contestant concedes, that the conditions alleged in the citations in issue, as amended, did exist at the time of the inspection on June 10, 1971.

The Act was relatively new in its application at that time, but the same regulation had applied to this employer under another act for a number of years.

ISSUES

The general issues are whether penalties should be imposed under the Act for violating safety standards in the contestant's shipbuilding and ship repair operations, and if so, in what amounts. The principal specific issues in dispute are whether two of the violations were serious, depending on the degree of probability of injury, and how the penalty should be evaluated. Contestant contends no penalty is justified.

OPINION

In its trial brief, contestant's principal contentions are that none of the violations was serious because the lack of a second plank underfoot, and of "mid or back rails" at the sides, of scaffoldings "did not create a condition from which there was a 'substantial probability that death or serious physical harm could result.'" In effect, it argued that although injury from a fall was possible, such was not substantially probable, and offered evidence on its experience.

In mitigation of the penalty, contestant asserted that the violations resulted from employee disobedience.

The contestant also emphasized the newness of the statute and the contestant's good faith in establishing and implementing safety efforts and attempts to comply with the Act.

The Secretary contends that a serious violation is established by an unsafe condition that could result in an accident and a substantial probability exists that death or physical harm could result in the event of an accident, together with the statutory actual or imputed scienter. This contention misreads the statute as though the word "could" related to the accident and "substantial probability" related to the resultant injury.

For reasons discussed at length in the Decision in OSHRC Case No. 1, a copy of which is enclosed herewith, the alleged violator is here designated the "contestant;" the burden of proof as to violation, seriousness, and the use of a rational method of computing the penalties rests on the Secretary of Labor, hereinafter designated "the Secretary;" the burden of proof of inaccuracy of basis of the penalty rests on the contestant.

The Act defines a serious violation in essence as one from which "a substantial probability" exists "that death or serious physical harm could result" [29 U.S.C. section 666(j)]. For reasons explained previously (OSHRC Decision No. 1, pp. 10-17; No. 5, pp. 3-5), this expression means that the risk, danger, likelihood, or probability n1 of death or serious physical harm is great enough to make it a genuine, reasonably foreseeable danger, of sufficient likelihood to make protection against the danger a worthwhile subject of public attention. While strict mathematical proof is ordinarily not feasible and is not required, it may be inferred from the legislative history that, if the probability of injury would be greater than half were a worker exposed to the danger continuously throughout the working hours of his working life, the danger would be great enough to meet this test.

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n1 In this context these four words are virtually synonymous.

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In addition, if the evidence shows that the employer neither knew, nor that in the exercise of due diligence it should have known, of the violation, a proven violation is not "serious."

These two requirements do not apply to a nonserious violation.

Actual knowledge is not required by the statute, and this approach has been upheld by the courts under similar statutes for the safety of workers [ Hutchison Brothers Excavation Co., Inc., v. District of Columbia (D.C. Cir., 1971)    F. 2d   , Case No. 5540, citing U.S. v. Dotterweich, 320 U.S. at 281]. The contestant should have known, in view of the obvious nature of the violations, that they occurred. It is inferred that through its supervising employees it could hardly have failed to know.

The existence of the regulation raises a rebuttable presumption of cognizable danger in violation (OSHRC Decision No. 1, p. 13), but not of seriousness (OSHRC Decision No. 5). The danger of falling is patent. The evidence of considerable experience without fall injuries is worthy of serious consideration, but that evidence does not show, and it cannot be assumed, that this extensive experience mainly, or even largely, involved continuous violation of the prevailing legal safety standard. Therefore the evidence is of limited persuasive power. Injury, if it occurred, probably would be less severe than in Case No. 1, but the probability of a fall is higher, and the probability of injury in case of fall is high [cf. Judge Learned Hand's description of the interplay of risk factors in Conway v. O'Brien (2d Cir. 1940) 111 F. 2d 611, 612, cited in OSHRC Decision No. 5].

All factors considered, it appears that the probability of serious injury from the scaffolding is substantial. The violations were therefore serious. The expense required to correct all conditions, in terms of total employee time, was greater in this case than in Case No. 1.

As previously explained (OSHRC Decision No. 1, pp. 18-22 and 45-47), the Secretary's standards for evaluating the penalty for serious violation penalties do not appear complete, and therefore require independent reevaluation by his autonomous agency, but the Secretary's standards for fixing penalties in non-serious cases appear adequate (OSHRC Decision No. 5, p. 9, compared with criteria in Decision No. 1, cited above).

The contestant's good faith appears to be high in its efforts to secure safe working conditions generally, and its history under the Act is unblemished. In size it is larger than the contestant in Case No. 1.

The gravity of the individual acts related to scaffolding involved substantially less serious consequences, in view of the distances from the bottoms of the tanks, than in Case No. 1, but the number of workers affected altogether is approximately comparable. The combination of lack of both floor width and "side" or "back" railing tends to magnify the effect of either violation separately, as does the number of violations.

On the other hand the ambiguity involved in the "X" shaped side rail mentioned in one connection, and the prompt correction tend to mitigate, as do the contestant's efforts. Yet the contestant certainly could perceive and identify the nature of the railings and scaffolding footways, and through its supervisory personnel certainly at least should have known, and it is concluded did know, of these conditions.

The evidence suggesting, that, though serious, the violations involved here were substantially less dangerous than those in OSHRC Case No. 1. They were however more obvious. They continued a substantial time. The gravity is therefore over all comparable to that in OSHRC Case No. 1, though perhaps a little lower.

It is concluded that, at this stage of application of the law, a civil penalty of $220 for each vessel is sufficient for the scaffolding violations ($110 for each serious charge).

As to the torch precautions, the danger appears quite substantial, could affect a very large number of workers very seriously, and requires more effort to correct. The testimony suggested that correction would be regarded by the owners' managers as onerous. This situation may imply need for a substantial penalty to induce compliance. The Secretary's standards generally are adequate for "non-serious" penalty violations, but in this case it is the examiner's opinion that the matter is of higher urgency than the Secretary's proposed penalty suggests.

It is therefore concluded that $140 is the appropriate penalty for the total of first violations of the violations in Citation #3, relating to shutting off the valves at the cylinders as well as at the using end.

FINDINGS OF FACT

From a careful consideration of the entire record, the hearing examiner finds the facts to be as set forth below.

1. Contestant was, at all times material herein, an "employer" as that word is used in the Act.

2. Contestant builds ships up to 258 feet in length, repairs water craft, has grown substantially from 80 to sometimes 1000 employees in the past 20 years, and has an active worker-safety program. It has had several plant locations in its history.

3. Contestant hires production employees from a union hiring hall. Employee turnover exceeds 5% per month.

4. The contestant's safety program had, before the inspection mentioned below, included specific warning that scaffolding should be a minimum of two planks wide and should include a midrail and top rail.

5. Some employees had resisted some of the contestant's safety efforts.

6. Before the events described below, the Secretary did not issue any citations to this contestant for violations of the Act.

7. On June 10, 1971, the contestant employed affected employees in the repair (including conversion) of the Atlantic Gennis, a tuna-fishing vessel, and in building the Dennise Marie, a similar vessel, both at its boatyard in Tacoma, Washington.

8. On June 10, 1971, several dozen of contestant's affected employees worked in or physically on the two vessels named in the preceding finding, and less than a dozen of said employees worked from positions standing on stagings located seven feet from the bottom of four fish tanks on the Atlantic Gennis and three in the Dennise Marie.

9. The stagings (also called scaffoldings) mentioned in the preceding paragraph lack top railings and lacked mid railings.

10. Three of the stagings on the Atlantic Gennis and two on the Dennise Marie lacked second planks, having only single planks approximately two inches thick and 10 inches wide.

11. Acetylene and oxygen supply hoses were left in enclosed spaces, viz. fish tanks, in both vessels named above, shut off at the delivery nozzle but not shut off at the cylinder, during a lunch hour on June 10, 1971.

12. On June 10, 1971, the employer failed to provide railings with top rails and midrails on staging elevated seven feet above the steel bottoms of four fish tanks, while employees were working thereon on board the Atlantic Gennis while docked at 1840 Marine View Drive, Tacoma, Washington, a place of employment of employees engaged in ship repair; and

On June 10, 1971, the employer failed to provide railings with top rails and mid rails on stagings elevated seven feet above the steel bottoms of three fish tanks while employees were working thereon, on board the Dennise Marie while docked at 1840 Marine View Drive, Tacoma, Washington, a place of employment of employees engaged in ship building.

13. On June 10, 1971, the employer failed to provide staging platforms of not less than two ten-inch planks in width and employees were working on single ten-inch planking on stagings seven feet above the steel tank bottoms of three fish tanks on board the Atlantic Gennis while docked at 1840 Marine View Drive, Tacoma, Washington, a place of employment of employees engaged in ship repairing; and

On June 10, 1971, the employer failed to provide staging platforms of not less than two ten-inch planks in width and employees were working on single ten-inch planking on stagings seven feet above the steel tank bottoms of three fish tanks on board the Dennise Marie while docked at 1840 Marine View Drive, Tacoma, Washington, a place of employment of employees engaged in shipbuilding.

14. The employer knew, or should have known, of all the aforesaid unsafe conditions or practices, namely the lack of top rails and mid rails and the existence of the single planking, on both vessels.

15. On June 10, 1971, the employer failed to shut off the gas supply to acetylene torches at a point outside the confined space, while the torches were left unattended during lunch hour in confined spaces, that is, in three fish tanks on board the Atlantic Gennis, while docked at 1840 Marine View Drive, Tacoma, Washington, a place of employment of employees engaged in ship repairing.

16. On June 10, 1971, the employer failed to shut off the gas supply to acetylene torches at a point outside the confined space, while the torches were left unattended during lunch hour in confined spaces, that is, in three fish tanks on board the Dennise Marie, while docked at 1840 Marine View Drive, Tacoma, Washington, a place of employment of employees engaged in ship building.

17. Prior to June 10, 1971, all employees had been specifically instructed that all scaffolding should be a minimum of two-planks in width with mid rails and top rails.

18. Over the past several years a minimum of 75 men per day have worked on scaffolding of the employer and there had never been a serious injury from a fall off of any scaffolding in the employer's plants.

19. Prior to June 10, 1971, all employees had been instructed to turn off acetylene and oxygen supply hoses at their cylinders during the lunch hour.

20. On June 10, 1971, the Secretary inspected and observed the conditions for which the citations and notices of proposed penalty were subsequently issued, leading to the present proceeding.

21. The Secretary promptly issued the citations and notices of proposed penalty which initiated the present proceeding. Thereafter the contestant timely gave notice of intent to contest.

22. The matter was duly noticed and came on regularly for hearing without further pleadings. Stipulations were taken, the citations were slightly amended, evidence, argument, and proposed findings, conclusions, and orders submitted, and the entire case was taken under submission.

23. On the day of the hearing, the contestant had about 650 employees.

24. A substantial probability existed of serious injury from the scaffolding conditions set forth above.

25. A reasonable civil penalty for the scaffolding violations is a total of $440.

26. The violations were easily recognizable, but correction would require substantial readjustments of procedure, time, and expense.

27. Contestant knew of all the conditions described herein, above and below, and should have known of them.

28. A reasonable penalty for the total of violations relating to citation #3 is $140.

29. Contestant is entitled to considerations of good faith, good history, gravity, and size in accordance with the views expressed in the opinion.

30. The size of the company was such that:

(a) The penalty here involved is not likely to affect its ability to stay in business;

(b) The problems of control by management, extensive places of work, and activities are significant;

(c) The violations found are not single, isolated ones;

(d) The maximum penalty is not likely to be required to secure compliance in cases of comparable severity with this company in the future.

31. The parties were not prejudiced by any procedural defects of this proceeding, were adequately prepared to go to hearing, and did so.

CONCLUSIONS OF LAW

1. The contestant Tacoma Boatbuilding Co., Inc., is an employer within the meaning of the Occupational Safety and Health Act of 1970.

2. On June 10, 1971, contestant violated section 5(a)(2) of the Act by violating 29 C.F.R. sections:

1501.41(i)(1) as adopted by reference in 29 C.F.R. section 1910.13(a)

1502.41(i)(1) as adopted by reference in 29 C.F.R. section 1910.14(a)

1501.41(h)(2) as adopted by reference in 29 C.F.R. section 1910.13(a) and

1502.41(h)(2) as adopted by reference in 29 C.F.R. section 1910.14(a)

3. The violations listed in the preceding paragraph were and are serious violations under 29 U.S.C. section 666.

4. The appropriate penalty to be applied for each of these four violations is the sum of $110, a total of $440.

5. On June 10, 1971, the contestant violated section 5(a)(2) of the Act by violating 29 C.F.R. sections 1502.32(g) as adopted by 29 C.F.R. section 1910.14(a) and 1501.32(g) as adopted by 29 C.F.R. section 1910.13(a).

6. The appropriate penalty to be applied for each of these two violations is $70, a total of $140.

ORDER

It is therefore hereby ORDERED:

1. The citations of the Secretary of Labor, as amended, are affirmed.

2. Contestant has violated the safety standards set forth under Conclusions of Law above.

3. The proposed penalties are modified.

4. Civil penalties are fixed as set forth above, an overall total of $580.

5. The contestant shall pay the same to the Secretary within 10 days after this Order becomes final.


Docket No. 6, Decision of Examiner Heyer, p. 5 (Ap OSHRC Docket No. 6, Decision of Examiner Heyer, p. 5 (April 19, 1972)). In any event, it is believed that the violation of the standard here involved was one which a reasonably prudent employer could or should have known about with the exercise of reasonable diligence.

Similarly, in determining the proposed civil penalties for each cited violation of the occupational safety and health standards, Complainant properly considered the size of Respondent's business, the gravity of the violation, and Respondent's good faith and history of previous violations consistent with Section 17(c) and (j) of the Act. The imposition of the civil penalties hereinafter assessed by this decision, after Respondent has had an opportunity to be heard, is consistent with recognized standards of administrative due process and within the intent of Congress (Section 10(a) of the Act).

CONCLUSIONS OF LAW

1. The Respondent is, and at all times material hereto, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) and (3) of the Occupational Safety and Health Act of 1970.

2. The Respondent is, and at all times material hereto, was engaged in the business of reroofing, residing, and other exterior improvements of existing houses, which business constitutes construction, alteration, and/or repair work subject to the safety and health regulations for construction, 29 C.F.R. Part 1518.

3. The Respondent is, and at all times material hereto, was subject to the requirements of the Occupational Safety and Health Act and the standards duly promulgated thereunder, including the specific standards cited herein, and the Commission has jurisdiction of the parties and of the subject matter herein under the provisions of Section 10(c) of the Act.

4. The citation and notification of proposed penalty, and all pleadings filed in this matter have been properly served or posted in compliance with the notice and service requirements of the Act, including Section 9, and the pertinent regulations promulgated thereunder.

5. On or about October 27, 1971, Respondent violated the following occupational safety and health regulations at the workplace cited herein:

(a) 29 CFR 1518.451(u)(1)

(b) 29 CFR 1518.451(u)(3)

(c) 29 CFR 1518.23

(d) 29 CFR 1518.51(c)(1)

(e) 29 CFR 1518.450(a)(10)

6. Giving due consideration to the provisions of Section 17(c) and (j) of the Act, the penalties proposed by the Complainant for each of the aforestated non-serious violations of the regulations should be affirmed, with the exception of the regulation violations under 5(b) and (d) above, which should be modified by reducing the proposed penalties of $35.00 and $7.00, respectively, to zero in each item, thus reducing the total penalty assessed to $69.00.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law and the record as a whole, including the proposed findings of fact, conclusions of law, and briefs submitted by the parties, and good cause appearing, it is hereby ORDERED, that the Complainant's citation and notification of proposed penalty issued on November 11, 1971, be and hereby are affirmed, with the sole modifications that the proposed penalties for violations of Item Nos. 2 and 4 of the citation be and hereby are reduced to zero in each item, resulting in a total assessment of penalties in the amount of $69.00.