TODD SHIPYARDS CORPORATION

OSHRC Docket No. 12510

Occupational Safety and Health Review Commission

December 22, 1975

[*1]

Before: MORAN and CLEARY, Commissioners. n1

n1 Chairman Barnako disqualified himself from consideration of this case on August 11, 1975.

COUNSEL:

John M. Orban, Assoc. Regional Solicitor

Everett F. Meiners, for the employer

OPINIONBY: MORAN

OPINION:

DECISION MORAN, Commissioner: A decision of Review Commission Judge James A. Cronin, Jr., dated July 2, 1975, which is attached as Appendix A hereto, is before this Commission for review pursuant to 29 U.S.C. 661(i). At issue is whether Judge Cronin erred in holding that the respondent's failure to comply with the occupational safety and health standards codified at 29 C.F.R. 1916.51(b) and 1916.47(b) did not constitute repeated violations of 29 U.S.C. 654(a)(2) as alleged in Citations 1 and 2, respectively. We reverse as to the latter standard, finding a repeated violation thereof. Judge Cronin's holding regarding the remaining contested citations n2 is affirmed as a result of an equal division between the two participating members. See the separate opinion of Commissioner Cleary.

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n2 The respondent withdrew its notice of contest to a third citation, and the Judge assessed a penalty of $80.00 therefor.

[*2]

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The facts in this case are substantially similar to those in Secretary v. Bethlehem Steel Corporation, 20 OSAHRC     (Docket No. 8392, September 17, 1975). As in Bethlehem Steel, the violations in issue here did not occur on the same ship as the prior violations on which the complainant relies to establish the repeated nature of the instant violations. Similarly, the present and former violations occurred in the same port area, and involved noncompliance with the same standards. Furthermore, the former violations were not contested by the respondent and became final orders by operation of law. 29 U.S.C. 659(a).

The instant violations of 29 C.F.R. 1916.47(b) as well as two prior violations of this standard pertain to the respondent's failure to provide its employees with the protective equipment enumerated in the standard while they were working at elevations more than five feet above a solid surface. Since the violative conditions involved in all three citations were substantially the same, we conclude that our decision in Bethlehem Steel is controlling and that the respondent's [*3] violation of 29 C.F.R. 1916.47(b) should be characterized as repeated. We accept the stipulation of the parties that the proposed penalty was reasonable and proper and, therefore, assess a penalty of $160.00 for this violation.

In regard to the respondent's noncompliance with 29 C.F.R. 1916.51(b) it is my opinion that the instant case is distinguishable from Bethlehem Steel. In that case, which also involved a violation of a housekeeping standard (29 C.F.R. 1915.51(a)), both the violation in issue and the prior violation were based on the obstruction of passageways with hoses. In the instant case, the prior violation resulted from the respondent's failure "to keep working areas clear of. . . pieces of pipe," whereas the citation in issue avers that the respondent:

"[f]ailed to keep working areas reasonably free of debris and failed to store building materials so as not to present a hazard to employees . . . ."

Since the violation in issue does not relate to storing building materials, the recidivism of that citation must rest on a failure "to keep working areas reasonably free of debris." However, in view of the general wording of 29 C.F.R. 1916.51(b) n3 and the failure [*4] of the record to establish the type of debris involved in the subsequent citation, n4 I do not believe it reasonable to conclude that the two violative conditions are substantially the same or even that they subjected the respondent's employees to the same type of hazard.

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n3 That standard provides that:

"All working areas on vessels and dry docks shall be kept reasonably free of debris, and construction material shall be so piled as not to present a hazard to employees."

n4 This debris could be anything from small scraps of paper or a discarded lunch sack to something that represented a serious tripping hazard. Obviously, under the circumstances of this case, Congress could not have intended to subject the respondent to a maximum penalty of $10,000 if the subsequent violation involved no more than a small amount of waste paper.

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A repeated violation of 29 C.F.R. 1916.47(b) is affirmed, and a penalty of $160.00 is assessed therefor. The remaining findings of the Judge are affirmed.

CLEARY, Commissioner, Separate [*5] Opinion:

I agree with my colleague that respondent was in repeated violation of section 5(a)(2) of the Act within the meaning of section 17(a) for its non-compliance with safety standard 29 CFR 1916.47(b) for the reasons set forth in Bethlehem Steel Corporation, supra. In addition, I would find respondent in repeated violation of section 5(a)(2) of the Act for non-compliance with section 1916.51(b) for the same reasons.

A violation is "repeated" when it occurs more than once. General Electric Co., No. 2739 (April 25, 1975), petition for review docketed, No. 75-4116, 2d Cir., June 20, 1975. A "repeated" violation is established whenever an initial citation becomes a final order of this Commission, and a subsequent citation is either not contested, or is affirmed by this Commission.

In this case both the previously cited hazard under section 1916.51(b) and that presently cited involve obstructing the workplace with needless materials. The situations are not legally distinguishable because there is no essential difference between them. That there was in one instance debris or building material causing the hazard and in the other "pieces of pipe" is [*6] not significant because in both instances the workplace is obstructed.

Because of the divided views of the two voting Members on section 1916.51(b), I consider this disposition to lack precedential value. This is consistent with our precedent in this situation. See for example, Anchor-Hocking Corp., No. 3783 (July 22, 1975).

APPENDIX A

DECISION AND ORDER

Jeanne J. Meyer, Office of Solicitor, U.S. Department of Labor, for the Secretary of Labor

Everett T. Meiners, for the respondent

Cronin, Judge OSAHRC: This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act) contesting three citations and Notification of Proposed Penalty issued on January 30, 1975.

The parties have filed a Stipulated Statement of Facts and Issues and request a determination of this matter on the basis of this statement.

This matter will be treated in a manner similar to where one party moves for summary judgment pursuant to Rule 56 of the Federal Rules of Court Procedure (F.R.C.P.), and then both sides agree that there are no material fact issues and join in a request that the case be decided on the single motion. [*7] The parties, pursuant to stipulation, have selected and limited the record to what each consider to be material facts, have admitted these facts, and agreed that only questions of law remain to be determined.

As a result of an inspection of respondent's San Pedro, California, shipyard on January 29, 1975, three citations were issued; Citations Nos. 1 and 2 allege violations of 29 C.F.R. 1916.47(b) and 29 C.F.R. 1916.51(b), respectively. These two citations are characterized as "REPEAT" citations. The respondent, in the Stipulation Statement, withdraws its Notice of Contest to Citation No. 3, which alleges violations of 29 C.F.R. 1916.51(d), 29 C.F.R. 1916.43(b), and 29 C.F.R. 1916.84(c)(2). Respondent also withdraws its Notice of Contest to all proposed penalties ton the Secretary's agreement that the proper and reasonable penalty would be $40.00 for each affirmed citation if the alleged "repeat" citations are not found to be repeat violations.

Issues

On the basis of the Stipulated Statement of Facts and Issues, but as restated, the issues remaining to be determined are:

1. Whether Citations Nos. 1 and 2, issued January 30, 1975, must be vacated for their failure [*8] to describe with particularity the prior citation or citations which serve the basis for the complainant's allegations that the described conditions constitute "REPEAT" violations?

2. Whether the stipulated factual record supports a conclusion of law that Citations Nos. 1 and 2, issued January 30, 1975, constitute "repeat" violations within the meaning of Section 17(a) of the Act?

Findings of Fact

On the basis of the stipulation agreement, the following facts are found:

1. Todd Shipyards, a corporation, is a New York corporation (hereinafter referred to as "Todd Shipyards"), duly qualified to do business and doing business in its San Pedro, California, shipyard, where it is engaged in the shipbuilding and repair business.

2. On January 30, 1975, the respondent was issued Citation No. 1 alleging a "REPEAT" violation of 29 C.F.R. 1916.47(b). This alleged violation occurred on board the vessel INDIAN OCEAN on January 29 1975.

3. On January 30, 1975, the respondent was issued Citation No. 2 alleging a "REPEAT" violation of 29 C.F.R. 1916.51(b). The alleged violation occurred on board the vessel INDIAN OCEAN on January 29, 1975.

4. Respondent admits that the conditions [*9] alleged in Citations Nos. 1 and 2 issued January 30, 1975, existed on January 29, 1975.

5. On March 27, 1974, respondent was issued a citation alleging that on March 20, 1974, on board the U.S.M.S. SEALIFT PACIFIC the respondent committed a "REPEAT" violation of 29 C.F.R. 1916.51(b). This citation was not contested by respondent and has become a final order of the Occupational Safety and Health Review Commission.

6. On August 30, 1974, respondent was issued a citation alleging that on August 27, 1974, on board the vessel SEALIFT ARABIAN SEA the respondent committed a "REPEAT" violation of 29 C.F.R. 1916.47(b). This citation was not contested by respondent and has become a final order of the Occupational Safety and Health Review Commission.

7. On October 29, 1974, respondent was issued a citation alleging that on October 24, 1974, on board the vessels ARABIAN SEA and CHINA SEA the respondent committed a "REPEAT" violation of 29 C.F.R. 1916.47(b). This citation was not contested by respondent and has become a final order of the Occupational Safety and Health Review Commission.

8. The facts which gave rise to the violations of 29 C.F.R. 1916.51(b) on January 29, 1975 [*10] and March 20, 1974 were not "identical," did not occur on the same vessel, and occurred 11 months apart.

9. The facts which gave rise to violations of 29 C.F.R. 1916.47(b) on August 27, 1974, October 24, 1974, and January 29, 1975, were not "identical," and did not occur on the same vessel.

Discussion

Section 9(a) of the Act provides:

"Each citation shall be in writing and describe with particularity the nature of the violation, including a reference to the provision of Act, standard, rule, regulation, or other alleged to have been violated."

Respondent contends that Citations Nos. 1 and 2 were not issued in compliance with this particularity requirement, thereby requiring their vacation. We disagree.

The pleading requirement of Section 9(a) is not viewed as contrary to the general approach of simplified pleading adopted by the Federal Rules of Civil Procedure and by the Commission's own Rules of Procedure. It is suggested that Section 9(a) does not require significantly more particularity than Rule 8 of the Federal Rules of Civil Procedure. The provisions of the latter rule state that technical forms of pleadings are not required, that pleadings are to be construed [*11] liberally so as to do substantial justice, and mandate only "a short and plain statement of the claim showing that the pleader is entitled to relief." The pleading philosophy embodied in Rule 8 is to require pleadings to serve the primary function of giving fair notice of the nature and basis or grounds of the claim to the other party.

The citations at issue plainly charge that the alleged violations were "REPEAT." While these are mere conclusions of the complainant, they clearly put respondent on notice of the nature of violations alleged. As one court stated:

"If conclusions of law are relevant and raise issues, the mere fact that they may be conclusions of law does not require that they be stricken from the complaint." Howitt v. St. John; D.C. Ohio 1949, 9 F.R.D. 608, 609.

In United States v. Employing Plasterers Association of Chicago, 1954, 347 U.S. 186, the Supreme Court laid to rest any doubt as to the propriety of "conclusions" in a pleading. In the course of reversing the district court's dismissal of the complaint for failure to state a "cause of action," the court said at 188-189:

"If a party needs more facts, it has a right to call for them under [*12] Rule 12(e) of the Federal Rules of Civil Procedure, 28 U.S.C.A. And any time a claim is frivolous, an expensive full dress trial can be awarded by invoking summary procedure under Rule 56."

Later cases have supported this view. In Arthur H. Richland Co. v. Harper, C.A. 5th 1962, 302 F. 2d 324, the use of conclusions was approved, and it was held that whether a conclusion is "all steam" or whether there is some substance to it is to be determined in summary judgment or at trial but not on a motion to dismiss for failure to state a claim for relief.

In our opinion, the citations in this case are in compliance with Section 9(a) and are particularized sufficiently to withstand respondent's challenge. They served an informative function by enabling respondent to file its Notice of Contest and to prepare an affirmative defense to the complaint's general (even vague) allegations implying repeat violations. Moreover, the subsequent filing of the Stipulated Statement of Facts and Issues by the parties makes clear that respondent has not been prejudiced in pursuing a determination of this matter on the merits.

Finally, we believe that vacations of a citation for failure to particularize [*13] are justified only when absolutely necessary to effectuate the purposes and safeguard the integrity of the particularity requirement of Section 9(a). No such necessity has been shown by respondent.

We now turn to the second issue of whether "REPEAT" violations have been established. On the basis of the stipulated factual record, the characterizations, "REPEAT," will be stricken from Citations Nos. 1 and 2.

In that case, this Judge held that the Secretary need only establish that an employer violated a standard "more than once" in order to establish that he "repeatedly" violated a standard within the meaning of Section 17(a), and that it was unnecessary for the Secretary to establish that the nature of the violations are "substantially similar," as contended by the respondent. On review, however, the Commission indicated that this Judge should not have addressed [*14] himself to respondent's contention that the nature of the violations must be "substantially similar," stating that this Judge "ruled on a question of law not necessary to his decision." According to the Commission, "The question of what will form the basis for a repeated violation need not be answered here." It then went on, however, to affirm a repeated violation on the basis that the respondent failed to previously comply with the same standard on the same vessel. In its words, "In the light of these circumstances respondent is clearly in repeated violation and we find no prejudicial error in the judge's decision."

The Commission's holding in Docket No. 1556, involving the same respondent, is not considered dispositive of the present case for two reasons. First, the parties here stipulated that the admitted violations of the same standards were not committed on the same vessels (as was found in Docket No. 1556), and secondly, the more recent decision of the Commission in Secretary v. General Electric Co., Docket No. 2739 (April 21, 1975), appears to have added an additional essential element not established by this stipulated factual record. In that case, [*15] the Commission stated:

"The term 'repeated' is therefore read to mean happening more than once in a manner which flaunts the requirements of the Act. With a test of whether the requirements of the Act are being flaunted, it cannot be said abstractly just how many places of employment or conditions of employment should be considered. Each case must be decided upon its own merits and turn upon the nature and extent of the violations involved." [Emphasis added].

Obviously, the Secretary's contentions here with respect to the meaning of a "repeat" violation under Section 17(a) of the Act conflict with the Commission's decision in the General Electric case, supra. The Secretary, however, has chosen to have this matter determined on the basis of a factual record which fails to permit a finding that the violations (admittedly committed, "more than once") happened "in a manner which flaunts the requirements of the Act." In the absence of facts from which this conclusion may be reasonably inferred, a "REPEAT" citation cannot be affirmed as a matter of law. Evidence establishing only that violations of the same standard have been committed more than once, on different vessels, [*16] is considered insufficient to permit a finding on this essential element; therefore, this Judge is constrained to strike the characterizations of "REPEAT" from Citations Nos. 1 and 2.

Conclusions of Law

1. On January 29, 1975, Todd Shipyards was an employer with employees engaged in a business affecting commerce within the meaning of Section 3(3), (5), and (6) of the Act.

2. On January 29, 1975, respondent was in violation of 29 C.F.R. 1916.51(d), 1916.43(e), and 1916.84(c)(2).

3. A penalty of $40.00 each for respondent's violations of 29 C.F.R. 1916.51(d) and 29 C.F.R. 1916.43(e) is appropriate. No penalty for respondent's violation of 29 C.F.R. 1916.84(c)(2) would be appropriate.

4. On January 29, 1975, respondent was in violation of 29 C.F.R. 1916.51(b) and 29 C.F.R. 1916.47(b), but these violations were not committed "repeatedly" within the meaning of Section 17(a) of the Act.

5. A penalty of $40.00 each for respondent's violations of 29 C.F.R. 1916.51(b) and 29 C.F.R. 1916.47(b) is appropriate.

ORDER

Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED:

1. The characterization, "REPEAT," is hereby stricken [*17] from Citations Nos. 1 and 2, issued January 30, 1975.

2. Violations of 29 C.F.R. 1916.51(d), 1916.43(e), 1916.84(c)(2), 1916.51(b), and 1916.47(b) are hereby AFFIRMED. No penalty for violation of 1916.84(c)(2) is assessed. A penalty of $40.00 for each of the other violations is hereby ASSESSED.

James A. Cronin, Jr., Judge, OSAHRC

Dated: July 2, 1975