TODD SHIPYARDS CORPORATION
OSHRC Docket No. 1556
Occupational Safety and Health Review Commission
January 31, 1975
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: On July 30, 1973, Judge James A. Cronin, Jr. issued his decision and order in this case. The case is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter "the Act").
The Commission has reviewed the entire record and affirms the Judge's decision with one exception. n1
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n1 The question of whether the citation was issued with reasonable promptness was raised by respondent during the "issue formulation" stage of the proceedings as required by the majority opinion in Chicago Bridge Iron Co., No. 744 (January 23, 1974). Respondent has failed to show that it was prejudiced by the 34 day delay in the issuance of the citation, and the Judge so found.
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Respondent contends that, in order to find a repeated violation within the meaning of section 17(a) of the Act, the nature of the violations be "substantially similar." The Judge, [*2] in rejecting this contention, has ruled on a question of law not necessary to his decision.
The question of what will form the basis for a repeated violation need not be answered here. In this case, the Secretary introduced into evidence a citation and notification of proposed penalty that had been earlier issued to respondent. Respondent did not file a notice of contest and this citation and notification of proposed penalty became a final order of the Commission by operation of law. This citation alleged, among other things, that on the same ship herein involved respondent failed to comply with the same standards with which it is found in non-compliance here. In light of these circumstances respondent is clearly in repeated violation and we find no prejudicial error in the Judge's decision.
Accordingly, it is ORDERED that the Judge's decision is affirmed with the exception noted.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: This case should have been dismissed because complainant failed to issue the citation with reasonable promptness, as required by 29 U.S.C. § 658(a). n2 Secretary v. Chicago Bridge and Iron Co., 6 OSAHRC 244 (1974), a decision issued subsequent [*3] to the Judge's decision in this case is controlling. In that case we vacated a citation which had not been issued pursuant to the § 658(a) reasonable promptness requirement.
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n2 29 U.S.C. § 658(a), in pertinent part, provides as follows:
If, upon inspection, or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 654 of this title, or any standard, rule or order promulgated pursuant to section 655 of this title, or any regulations prescribed pursuant to this chapter, he shall with reasonable promptness issue a citation to the employer.
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However, rather than follow the rule of that case, this decision affirms a ruling which requires respondent to show it has been prejudiced by the delay, a position which was also taken in Secretary v. E.C. Ernst, Inc., 14 OSAHRC 579 (1975).
As I stated in E. C. Ernst, such an additional burden is not required. Nevertheless, even assuming the propriety of such a requirement, the citation should be dismissed [*4] because there was evidence establishing that respondent was in fact prejudiced by the delay.
Respondent is a California corporation involved in longshoring activities. On August 17, 1974, while respondent was engaged in the repair of the S/S OREGON MAIL, complainant conducted an inspection of the ship. Nothing further happened until September 18, 1972 (32 days after inspection), when a citation was issued alleging repeated violations of various occupational safety and health standards aboard the ship. In the meantime, on September 15, respondent completed its work and delivered control of the ship back to its owner and the S/S OREGON MAIL had sailed out of the yard. Respondent showed that its defense of this case was greatly hampered by its inability to go back to the ship to gather evidence. For example, since respondent could not make photographs of the ship, it was forced to rely on drawings made from memory and photographs of ships similar to the S/S OREGON MAIL. I am mystified by the Commission's failure to even explain why such a crippling of respondent's defense did not constitute prejudice.
The Judge below seemingly recognized the disadvantaged position in [*5] which this placed the respondent. However, he waived it away with these words:
. . . this state of affairs [the sailing of the ship] wasn't caused by an affirmative action or failure to act on the part of the Secretary, nor is there any indication that the Secretary delayed issuance of this citation until the work was completed and the vessel returned to its owner. The claim of prejudice, therefore must be rejected.
When a respondent is unable to adequately defend a charge brought against him because of circumstances beyond his control, due process requires that the charges be dismissed. The prosecution doesn't have to cause those circumstances. The Constitution guarantees a fair trial period.
In this case, however, the delay in citation issuance -- even though unintentional -- put the respondent's best evidence (the ship) beyond its control. This is a clear demonstration of the very reason why Congress wanted a 72-hour rule for issuance of citations.
[The Judge's decision referred to herein follows]
CRONIN, JUDGE: 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 two [*6] citations, and Notification of Proposed Penalty, issued by Complainant against the Respondent on September 18, 1972. These citations were the result of an investigation of a Respondent worksite aboard the ship S/S OREGON MAIL on August 17, 1972.
At the outset of the hearing the Secretary's motion to withdraw the Citation for Serious Violation alleging a violation of 29 CFR § 1915.41(j)(5) on the grounds of insufficient evidence to sustain the charge was granted. The "Repeat Citation" alleged five non-serious violations of the Act, namely, 29 CFR 1915.43(a), § 1915.51(a), § 1915.41(h)(2), § 1915.41(i)(1), and § 1915.47(b), but Respondent did not contest the alleged violation of § 1915.41(i)(1). The proposed penalties for the disputed repeat violations are $400 for § 1915.43(a); $350 for § 1915.51(a); $375 for § 1915.41(h)(2), and $2125 for § 1915.47(b).
The alleged violation of § 1915.43(a) was described in the citation as follows:
Failed to guard open manholes around which employees were working in the following locations:
(a) #2 Starboard tank top
(b) #3 Port tank top
The standard as promulgated by the Secretary provides:
When employees are working in the vicinity [*7] of flush manholes and other small openings of comparable size in the deck and other working surfaces, such openings shall be suitably covered or guarded to a height of not less than 30 inches, except where the use of such guards is made impracticable by the work actually in progress.
The alleged violation of § 1915.51(a) was described in the citation as follows:
Failed to maintain good housekeeping condition on main deck, part side. Passageway was obstructed with construction material, welding lines and air hose.
The standard as promulgated by the Secretary provides:
Good housekeeping conditions shall be maintained at all times. Adequate aisles and passage ways shall be maintained in all work areas. All staging platforms, ramps, stairways, walkways, aisles, and passageways on vessels or dry docks shall be kept clear of all tools, materials, and equipment except that which is in use, and all debris such as welding rod tips, bolts, nuts, and similar material. Hose and electric conductors shall be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks.
The alleged violation of § 1915.41(h)(2) was described in the citation as follows: [*8]
Failed to provide two (2) 10 inch planks for an employee working approximately 7 feet above a solid surface in electrical workshop.
The standard as promulgated by the Secretary provides:
Platforms of staging shall be not less than two 10 inch planks in width except in such cases as the structure of the vessel or the width of the trestle ladders make it impossible to provide such a width.
The alleged violation of § 1915.47(b) was described in the citation as follows:
Employer failed to provide scaffold or sloping ladder for an employee working more than 5 feet above a solid surface and were not protected by safety belts, No. 10 hatch, starboard side and on foremast.
The standard as promulgated by the Secretary provides:
When employees are working aloft, or elsewhere at elevations more than 5 feet above a solid surface, either scaffolds or a sloping ladder, meeting the requirements of this subpart, shall be used to afford safe footing, or the employees shall be protected by safety belts and lifelines meeting the requirements of § 1915.84(b). Employees visually restricted by blasting hoods, welding helmets, and burning goggles shall work from scaffolds, not from ladders, [*9] except for the initial and final welding or burning operation to start or complete a job, such as the erection and dismantling of hung scaffolding, or other similar, non-repetitive jobs of brief duration.
The two day hearing in this case took place on April 26, and May 14, 1973, with the Secretary and Respondent subsequently filing briefs.
JURISDICTION AND ISSUES
The Respondent maintains a place of business at San Pedro, California and is engaged in shipbuilding and ship repair on vessels which transport persons and goods between the various states and between various states and foreign countries. By its answer Respondent admits that it is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act. On these facts, jurisdiction over the Respondent is conferred on the Commission.
Prior to the hearing, Respondent filed with the Commission a Motion to Dismiss the complaint on the grounds that the Secretary had failed to comply with Section 9(a) of the Act because the citation was not issued with "reasonable promptness." This motion was denied by the Motions Judge without opinion.
The issues to be resolved and determined are:
1. [*10] Whether the Secretary complied with Section 9(a) of the Act?
2. Whether the record evidence establishes that Respondent repeatedly violated the cited standards?
3. If the violations were committed, what penalties are appropriate?
SUMMARY OF EVIDENCE
An inspection of a Respondent workplace on the vessel S/S OREGON MAIL was conducted on August 17, 1972 by Robert W. Raymond, a safety compliance officer for the Occupational Safety and Health Administration. As a result of this inspection citations were issued on September 18, 1972 and received by the Respondent on September 20, 1972.
Officer Raymond testified he observed an unguarded manhole on both the No. 2 Hold starboard tanktop and No. 3 Hold port tanktop and that Respondent's laborers were observed, one for approximately three or four minutes, cleaning up debris in their vicinity.
The unguarded manhole on No. 2 Hold starboard, according to Officer Raymond, is located directly in front of the feet of the individual appearing in the center of Secretary's Exhibit 3, Photograph No. 1. Officer Raymond testified that the unguarded manhole he observed in Hold No. 3 was located in the area marked with an "X" on Secretary's Exhibit [*11] No. 3, Photograph No. 2. To the best of his recollection the manhole in No. 2 Hold, which he observed close up, was a flush manhole. He looked into the tank through this manhole; it was "very dark inside," and he did not see any staging in the tank or detect anyone working inside. Officer Raymond denied that anyone employed by Respondent had advised him that the rails around this manhole had been removed in order to facilitate the stripping of all staging in the tank.
Mr. Bromley, Respondent's Foreman of the Stage Rigger Department testified that with respect to the manhole shown in Photograph No. 1, a guard rail had been around that manhole on the day before the inspection and then removed to enable the expeditious removal of the staging inside the tank. Foreman Bromley testified that he told Officer Raymond during the inspection that the tanks were bring stripped and that they were going to be painted and cleaned. Foreman Bromley also testified that all manholes installed on the wing tanks of the OREGON MAIL had raised combings "all the way around."
Mr. Lawrence, Quarterman A of the Shipfitter Department, testified that Photograph No. 1 does not depict Hold No. [*12] 2, but rather Hold No. 6 of the vessel, because Hold No. 2 does not have a wing tank as shown in Photograph No. 1. With respect to the manholes themselves Mr. Lawrence testified that all wing tanks had raised manholes which had 6-inch high combings around the hole (Sheet 14 of Respondent's Exhibit No. 4).
With respect to Photograph No. 2 of Secretary's Exhibit No. 3, Mr. Lawrence stated that the area marked by an "X" by Officer Raymond was a solid ballast area and there were no tanks or manholes in this area.
Officer Raymond identified Photograph No. 3 of Secretary's Exhibit No. 3 as showing the alleged "housekeeping" violation on the OREGON MAIL. In his opinion the excess debris marked as "D" on this photograph, the construction structural material marked as "C," and the welding and burning leads marked "L," were all located in a passageway used by 12 employees and constituted a tripping hazard. These materials were not in use at the time of his inspection.
Quarterman A Lawrence testified that the item marked as "C," and resting on a pallet, was an 80 pound flange which was to be installed underneath the girder in "midhole structure, No. 2 Hold." He observed this flange being [*13] loaded on the ship "just prior" to the inspection of this area by Officer Raymond and that it was removed from the pallet and installed within the twenty-five minute period following inspection of the area.
According to Quarterman A Lawrence the pedestal foundation depicted in Photograph No. 3 was about to be welded by the employee and then lowered to the deck. The T-bar Header, adjacent to the employee's leg, and the other T-bar Header marked "D," were to be placed under the pedestal foundation for support. These T-bars and pedestals are "cut pieces" and would normally display "burned ends." They were installed after lunch on the day of the inspection. In his opinion there was no other place where this material could have been located.
According to Mr. Lawrence there was room in the passageway to pass to the left side of the blower marked "X" in Photograph No. 3. On both sides of the passageway were "trees" on which were suspended all "air," "building" and "light" leads (Photograph No. 3). Mr. Lawrence also testified that the lead marked with an "L" and located at the employee's feet was his "burning lead" and the "thicker" hose line shown was the lead furnishing [*14] electricity to the blower (Photograph No. 3).
Union Representative Brough testified that the items marked "D" were in the passageway prior to 9 o'clock in the morning on the day of inspection and remained there until noon.
During the inspection of the electrical workshop, Officer Raymond, Foreman Bromley, Safety Engineer Glasgow, Project Superintendent White and Union Representative Brough were present.
Officer Raymond testified on direct examination that there were "two different sets of scaffolding in the area and one individual on each scaffolding." On cross-examination, however, Officer Raymond testified that he observed only one staging and that two employees were standing on that staging. He stated that both employees were standing on a single 10 or 12-inch plank approximately seven feet above a solid surface, and one was welding over his head. Officer Raymond does not remember Foreman Bromley's presence in the electrical workshop or speaking to him.
Union Representative Brough said he never saw two sets of staging, or a plank laid across two pipes.
According to Foreman Bromley he was present with Officer Raymond in the electrical shop and observed two sets of scaffolding [*15] as depicted in Respondent's Exhibit No. 5. The lower scaffolding consisted of standard tubular scaffolding, with room for three 12-inch planks, and was built up from the deck approximately 5 to 6 feet high. At the time of inspection he observed that there were only two 12-inch planks on the lower scaffolding. n1 The upper scaffolding consisted of one 12-inch plank resting on two pipes near the ceiling of the workshop. He observed one man standing on the lower scaffolding, not working. A welder was kneeling on the upper plank and was welding a bracket back in among the pipes. Because he was too near the ceiling the welder could not perform his work in a standing position.
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n1 On cross-examination Witness Bromley admitted he was "not sure" and conceded the possibility that there was only one 12-inch plank.
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According to Foreman Bromley, Officer Raymond discussed with him in the electrical shop both the regular staging and the plank on the pipes. With respect to the lower staging Officer Raymond commented [*16] that it lacked a plank and railing, and with respect to the plank on the pipes he stated that the man was not supposed to work on a single plank. In Mr. Bromley's opinion there was not room to place another 12-inch plank next to the single plank on the pipes.
Project Superintendent White testified that the lower staging had two planks at the time of inspection and he observed a man "setting" or kneeling on a single plank which was resting on the overhead pipes. In his opinion and the man could not have stood on the lower scaffolding to perform his work.
At the No. 10 hatch, starboard side, an employee, without the protection of a safety belt, was observed by Officer Raymond and others standing on a scaffold railing, 30 feet above a solid surface, grinding a container guide (Secretary's Exhibit No. 3, Photograph No. 4).
On the foremast, at least 20 feet above a solid surface, another employee was observed standing with one foot on the scaffold railing and the other foot on the bracing of the foremast (Secretary's Exhibit No. 3, Photograph No. 5).
John Booth, a welder, is the person shown in Photograph No. 5 and according to his testimony he was welding a bracket on the foremast [*17] at the time, 35-40 feet above the main deck. Welder Booth was of the opinion he could not competently perform his work without standing as shown in the picture. The bracket to be welded was positioned at shoulder height, about three feet away from him. It was in the shape of a "T," about "five inches high." According to Mr. Booth he was able to weld one side of the bracket while standing on the provided staging but not the other side. Pat Espinoza, Quarterman B in charge of all welders including Mr. Booth, and Foreman Bromley, both testified that it was not necessary for Mr. Booth to stand on the railing; that the work could have been performed while standing on the scaffolding and leaning across rail to the foremast.
Mr. Booth was unaware of any supervisors in the area when he was standing on the railing and at the time the picture was taken he felt secure and believed he was in a safe position. He admitted that he had previously been advised to be careful not to stand on "staging or cans" and that if he felt an area staging was unsafe he should report it to his leadman or supervisor.
On one occasion during his employment with Respondent Mr. Booth reported to his [*18] leadman the lack of a safety rail. In response, the leadman put up the safety rail. A short time later, in regard to the same work assignment, he made a request of that leadman for additional planking. According to Mr. Booth, the leadman "didn't say much," he "just smiled"; he doesn't remember his exact words.
W. D. Frost, the grinder pictured in Photograph No. 4, Secretary's Exhibit 3, stood on the top of the staging in order to avoid the "sparkles" coming into his face. He had been standing on the railing approximately 10 to 14 minutes when he was told to get down. According to Grinder Frost, Joe Sanchez, General Foreman of the Ironworkers, looked at him from a distance of 20 to 25 feet while he was standing and working on the top railing and "walked off." General Foreman Sanchez denied that he had ever seen Mr. Frost standing on the top railing, insisting that he was not on the ship at that time.
When grinding the other guides of Hatch 10 Gringer Frost stood on the staging platform. At the time he was standing on the railing he didn't think it unsafe. He also testified that at safety meetings he had been told that if the scaffolds or "whatever you were doing" looked unsafe, [*19] "not to get up there." If scaffolding was thought unsafe he was told to "get somebody to fix it for you." Quarterman A Lawrence, Foreman Bromley, and General Foreman Sanchez testified Mr. Frost could have safely stood n the main deck and performed his grinding work.
DISCUSSION
A. As to Secretary's compliance with Section 9(a) of the Act. Section 9(a) in pertinent part provides:
If upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of Section 5 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer.
The Act fails to define the phrase "reasonable promptness," therefore, reference to the Act's legislative history is in order. The House Amendment to Senate Bill 2193 provided (Section 10C) that if the Secretary "believes" that the employer has violated the Act he shall issue a citation within 45 days from the "concurrence" of the alleged violation, but for "good cause" such period could be extended up to 90 days. Another provision, Section 10(f), provided that no citation could be issued after the expiration [*20] of "three months" following the violations' occurrence.
Senate Bill 2193, on the other hand, provided (Section 9(a)) that if the Secretary "determines" that an employer has violated the Act's mandatory requirements he shall "forthwith" issue a citation. No time period within which to issue a citation was prescribed, and no statute of limitations provision appeared, in the Senate bill.
In the final bill, drafted by the committee of conference, the House provision prescribing a definite time period within which to issue a citation was eliminated and the statute of limitations period was changed from three months to six months. In the Statement of the Managers On The Part Of The House, the following language appears:
The conference report provides that if the Secretary "believes" that an employer has violated such requirements he shall issue the citation with reasonable promptness. In the absence of exceptional circumstances any delay is not expected to exceed 72 hours from the time the violation is detected by the inspector. n2
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n2 See Legislative History of the Occupational Safety and Health Act of 1970, 92d Congress 1st Section, pg. 1191.
[*21]
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We suggest that this history makes clear that Congress decided against the adoption of a provision that would require the Secretary to issue a citation within a set time of the date of the inspection or investigation. The language in the Statement Of The Managers that "any delay is not expected to exceed 72 hours" is not considered an interpretation of the phrase "reasonable promptness," but simply and expression of expectation.
Turning again to this record we are unable to conclude that the disputed "Repeat Citation" was not issue with reasonable promptness.
The first crucial factor to be considered in making a determination on this question is when did the Secretary believe in this case, or have a basis for belief, as a result of his inspection, that Respondent had repeatedly violated the Act. For it is the intervening period between his belief and the issuance of the citation that determines whether the citation was issued with reasonable promptness. Even if the circumstances of a case establish that the Secretary should have arrived at his belief prior to the time he did, the period [*22] to be evaluated would be from that prior point to the date the citation was issued.
Although Area Director Mignano testified in some detail as to why there was a lapse of 32 days between the inspection and the issuance of the "Repeat Citation," the record fails to establish when the Secretary finally arrived at his belief that the Respondent had repeatedly committed the cited violations, or when, under all the circumstances, he should have. Therefore, we are without sufficient facts to find that the citation at issue was not issued with reasonable promptness.
Respondent contends that it was prejudiced by the delay of 34 days between the inspection and receipt of the citation because the vessel on which the violations allegedly occurred had been returned to its owner prior to the issuance of citation, on September 15, 1972, and was no longer under Respondent's control. But this state of affairs wasn't caused by any affirmative action or failure to act on the part of the Secretary, nor is there any indication that the Secretary delayed issuance of this citation until the work was completed and the vessel returned to its owner. The claim of prejudice, therefore, must be rejected. [*23]
B. As to Violation
In response to a question of the presiding judge, Secretary's counsel represented at the hearing that the alleged violation of § 1915.41(h)(2) related solely to the standard tubular staging and not to any single plank that might have been resting on overhead pipes. The Secretary's position is that an employee was standing and welding overhead on a single 10 or 12-inch plank, thereby constituting a violation of this standard (Tr. 409-411).
The evidence relied on by the Secretary to establish these facts derives from Officer Raymond and Union Representative Brough. Both testified to the presence of a single plank on the tubular staging, although Mr. Brough contradicts Officer Raymond by contending the welder was kneeling on this staging, not standing. The testimony of Respondent's three witnesses, Foreman Bromley, Safety Engineer Glasgow and Project Superintendent White, is in direct conflict on these various points. All three testified that the welder was not on the tubular staging and was either kneeling, sitting or straddling on a single plank situated above the pipes and Foreman Bromley (somewhat uncertainly) and Project Superintendent White [*24] both testified that the tubular staging contained two planks.
On the basis of this evidentiary record we conclude that the Secretary has failed to carry his burden of proof with respect to the alleged violation of § 1915.41(h)(2). Officer Raymond's contradictory testimony with respect to the presence of two different sets of scaffolding, with one employee on each scaffolding, the illogic of Mr. Brough's contention that the welder was working from a kneeling position, and the overall reasonableness and consistency of the testimony of Respondent's witnesses, compel this conclusion.
The Secretary's evidence establishes that at least one manhole on the top of a wingtank (Hold 6) was unguarded; that an employee was working in its vicinity cleaning up debris and no work was being performed within the tank. This condition constitutes a prima facie violation of § 1915.43(a).
Respondent's contention that the standard does not apply to raised manholes is not well made and Respondent's evidence attempting to prove that the guarding of this manhole was impracticable is not persuasive. While apparently this was not a "flush manhole," a raised manhole falls within the classification [*25] of "other small openings of comparable size in . . . other working surfaces." n3 Foreman Bromley's testimony concerning the work in progress within the tank was indefinite and inconclusive, and does not overcome Officer Raymond's uncontradicted observations.
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n3 Respondent's Exhibit 4, Sheets 14 and 15A, indicates that raised manholes measure 15" by 23", the same as flush manholes.
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Due to Quarterman A Lawrence's testimony with respect to Photograph 2 of Secretary's Exhibit 3, however, the evidence does not permit a finding that an unguarded manhole existed in the area of Hold 3 designated by Officer Raymond.
The so-called "housekeeping" regulation, § 1915.51(a) requires that adequate passageways be maintained and that they be kept clear of debris and materials not in use. An additional requirement is that hoses and conductors be elevated over the walkway or covered. Although testimony at the hearing established that most of the construction material thought to be debris was actually to be used on August 17th, the [*26] evidence also proves that, with the exception of the flange on the pallet, the construction materials and the piece of scrap metal in Photograph 3 of Secretary's Exhibit 3 had been in the passageway from before 9 o'clock in the morning until noon and that the blower's electrical line was in the passageway and uncovered. Furthermore, it was uncontroverted that the congested area shown in the photograph was being used as a passageway by approximately 12 employees. Certainly, these facts permit the reasonable conclusion that Respondent was not maintaining on the morning of August 17, 1972 an "adequate" passageway for those 12 employees in violation of the standard. Perhaps there was another passageway on the other side of the vessel but there is no indication that Respondent had required its use and closed the passageway in question to employee traffic.
Whenever an employee works aloft, or at elevations above 5 feet, and depending upon the particular work assignment, an employer is under the mandatory obligation to provide, and require the use of, scaffolds, a sloping ladder, or safety belts and life lines. By reason of Section 5(b) of the Act all such employees are required [*27] to use this protection.
Because scaffolding was provided, and used by, Welder Booth and Grinder Frost, we must presume that the Respondent intended, and the employees knew, that both were to perform their respective work assignments from the scaffolding. n4
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n4 There is no evidence that Grinder Frost was given the option of performing his work from the main deck.
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Apparently, the Secretary's theory of liability is that Respondent's scaffolding was inadequate for the assigned tasks and no other protection from falling was provided. The evidence on the issue of the inadequacy of the scaffolding, however, is in conflict. While Respondent's opinion evidence with respect to Welder Booth's ability to perform his work on the foremast from the scaffolding can be given little weight because the witnesses admittedly had not observed his actual working conditions, Welder Booth's opinion testimony also is considered insubstantial. He concedes that from a physical standpoint he could have performed his welding, but not as competently [*28] as he would have preferred. On this record, therefore, we are unable to find Welder Booth's staging inadequate.
Grinder Frost's testimony on this point also is less than persuasive. He admits that he was able to grind the other container guide shown in Photograph No. 4 without standing on the railings and this guide appears to be identical to the guide being worked upon. Moreover, his further admission that he originally believed his assumed position to be safe tends to suggest that he may have stood on the top railing for reason of personal convenience or preference, not because of an inability to perform his work from the platform.
Furthermore, even assuming inadequate scaffolding in the two areas, the conditions certainly were not to obvious to place the Respondent on notice that further action with respect to the scaffolding was required.
For the foregoing reasons, the Secretary's evidence is considered insufficient to establish that Respoondent failed to provide or "use" adequate scaffolding.
Respondent, however, also is obliged by § 1915.47(b) to require employees to use the provided protection and Respondent failed this obligation with respect to Grinder [*29] Frost. Clearly, this record supports the reasonable inference that Respondent's supervisory personnel knew, or with the exercise of reasonable diligence could have known, of Grinder Frost's failure to use the scaffolding in a proper manner. He maintained his unsafe position for 10 to 14 minutes in a location where supervisory personnel were passing nearby and were bound to see him. Because there is no evidence, however, from which to infer Respondent's actual or presumed knowledge of Welder Booth's violation, Respondent's liability for this incident is not established.
C. As to Penalty
Mr. Bernard Tibbets, a Senior Compliance Officer, testified as to the method utilized by the Secretary in determining the proposed penalties for "repeat" violations. An unadjusted penalty for non-serious violations is assigned on the basis of the gravity of the violations. The penalty is then doubled and all "previous unadjusted penalties" for violation of the same standard added thereto (Secretary's Exhibit No. 4). Apparently, with respect to a "repeat" violation which is considered "serious" within the meaning of Section 17(k) of the Act, the unadjusted penalty to be doubled and to which [*30] prior penalties are added, is always $1,000 (Secretary's Exhibit No. 4). In determining the proposed penalties no consideration is given by the Secretary to whether prior violations of the same standard are "serious" or non-serious.
Section 17(j) requires that in assessing all civil penalties under Section 17 due consideration must be given to the size of an employer's business, the gravity of the violation, employer's good faith and history of previous violations. This requirement, therefore, includes violations committed "repeatedly" under Section 17(a). Obviously, the Secretary failed to consider Respondent's size and good faith in this case. Also, there was no attempt to evaluate the gravity of the violation of § 1915.47(b) except to determine that it was a "serious" violation. n5 Under these circumstances little weight can be given to the Secretary proposed penalties.
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n5 For purposes of penalty the alleged violation of § 1915.47(b) was deemed "serious" but in the complaint it was alleged to be non-serious (Par. V, A(1)).
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Respondent's prior history of violations under the Act requires a finding that Respondent "repeatedly" has committed violations of § 1915.43(a), § 1915.51(a), and § 1915.47(b), (Secretary's Exhibits 1, 2). Respondent contends that "repeatedly" means the commission of "several" violations of the same standard; in other words, more than two items. We do not agree. The Act fails to define the adverb "repeatedly," and therefore, reference must be had to its ordinary and customary meaning. The first definition in Webster's New World Dictionary of the American Language (1966) is "more than once" and unquestionably, all of the violations were committed by Respondent "more than once." In this latter regard we also would point out that Respondent previously was determined in violation of a "Repeat" Citation for § 1915.43(a) and § 1915.51(a) (Secretary's Exhibit 1) and therefore, Respondent has violated these standards more than two times.
Respondent also contends that in order to find that a standard has been "repeatedly" violated the Secretary must establish that the nature of the violations are "substantially similar." Again we must disagree. Any such [*32] requirement would place an impossible burden on the Secretary, a burden obviously not intended by the Congress.
Although direct evidence relating to the size of Respondent's business is non-existent, we are justified in concluding that a corporation able to perform ship conversion work on vessels like the S/S OREGON MAIL is of substantial size.
No evidence significantly adverse to Respondent's "good faith" is contained in the record. The absence of an employer's "good faith" is not to be presumed solely because he "repeatedly" has violated a standard. Rather, all matters relating to his good faith must be considered. The evidence establishes that Respondent has a comprehensive safety program which Officer Raymond rated as "effective" (Respondent's Exhibits 1). Respondent's cooperation in correcting matters brought to its attention by Officer Raymond also was characterized as "excellent." Moreover, the so-called "repeat" violations do not indicate a blatant disregard of Respondent's compliance responsibilities under the Act.
With respect to the gravity of the violations in question, the violation of § 1915.47(b) clearly is of a higher gravity than either § 1915.51(a) [*33] or § 1915.43(a) and therefore deserves a larger penalty. The likelihood of an accident's occurrence with respect to § 1915.47(b) was greater, and with an accident there was a probability that serious physical injury could result.
Although the likelihood of an accident resulting from Responden's violations of § 1915.43(a) and § 1915.51(a) in this case was relatively low, the history of three prior violations requires that penalties designed to deter similar violations be assessed. A penalty in the amount of $350 for each of these violations, therefore, is considered appropriate.
With respect to the violation of § 1915.47(b), the relatively high level of gravity and history of one prior violation make a penalty of $700 appropriate.
FINDINGS OF FACT
Upon the entire record, the following facts are found:
1. Todd Shipyards Corporation maintains a place of business at San Pedro, California and is engaged in shipbuilding and ship repair work.
2. On August 17, 1972 an employee of Respondent was working in the vicinity of a raised manhole on top of the wing tank on Hold 6 of the S/S OREGON MAIL. This manhole was without a guard or cover and no work was then in progress within the [*34] tank which made the use of rail guards impracticable.
3. On August 17, 1972 an inadequate portside passageway on the OREGON MAIL was maintained by Respondent and utilized as a passagway by 12 of Respondent's employees. Such passageway way was obstructed by construction material, debris, and uncovered welding lines nad blower hose.
4. On August 17, 1972, an employee, without a safety belt or lifeline, was grinding a container guide while standing on the top railing of a staging, more than 5 feet above a solid surface.
5. On August 17, 1972 the Respondent knew, or could have known with the exercise of reasonable diligence, of the conditions set forth in Findings 2, 3 and 4 above.
6. The evidence does not permit a finding that the tubular staging in the electrical workshop contained less than 2 10-inch platform planks.
7. The Respondent on June 5, 1972 was issued a "Repeat" Citation alleging violations of § 1915.43(a) and § 1915.51(a) and this citation has become a final order of this Commission.
8. The Respondent on June 5, 1972 was issued a citation alleging violations of five standards, one of which was § 1915.47(b). This citation has become a final order of [*35] this Commission.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and obliged to comply with those standards promulgated under Part 1915, Title 29, of the Code of Federal Regulations.
2. On August 17, 1972 Respondent was in violation of 29 CFR § 1915.43(a), 29 CFR § 1915.51(a) and 29 CFR § 1915.47 (b).
3. Respondent has repeatedly violated the standards at 29 CFR § 1915.43(a), 29 CFR § 1915.51(a) and 29 CFR § 1915.47(b) within the meaning of Section 17(a) of the Act.
4. A penalty of $350 for Respondent's violation of 29 CFR § 1915.43(a) and a penalty of $350 for Respondent's violation of 29 CFR § 1915.51(a) is appropriate.
5. A penalty of $700 for Respondent's violation of 29 CFR § 1915.47(b) is appropriate.
6. On August 17, 1972 the Respondent was not in violation of 29 CFR § 1915.41(h)(2).
ORDER
Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED that:
1. Violations of 29 CFR § 1915.43(a), 29 CFR § 1915.51(a) and 29 CFR § 1915.47(b) are hereby AFFIRMED.
2. A penalty of $350 for violation of CFR § 1915.43(a) and a penalty of $350 [*36] for a violation of 29 CFR § 1915.51(a) are hereby ASSESSED.
3. A penalty of $700 for violation of 29 CFR § 1915.47(b) is hereby ASSESSED.
4. The alleged violation of 29 CFR § 1915.41(h)(2), and the proposed penalty based thereon, are hereby VACATED.