TRIPLE "A" SOUTH, INC.  

OSHRC Docket No. 15908

Occupational Safety and Health Review Commission

May 15, 1979

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

John M. Orban, Assoc. Regional Solicitor

J. S. Rawls, Triple "A" South, for the employer

W. L. Lajeunesse, Bus. Mgr. & Sec. Treas., Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers Lodge 732, for the employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Harold A. Kennedy, dated December 8, 1976, is before the Commission pursuant to §   12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq. (the Act).   In that decision the Judge concluded that the respondent had violated §   5(a)(2) of the Act for failure to comply with he standards at 29 C.F.R. § §   1915.43(e) n1 and 1915.64(c). n2 However, he did not find the violations were, as the Secretary alleged, repeated within the meaning of §   17(a) of the Act. n3 We reverse this portion of his decision and find that the violations were repeated.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The cited standard provides:

§   1915.43 - Guarding of deck openings and edges.

* * *

(e) Sections of bilges from which floor plates or gratings have been removed shall be guarded by guardrails except where they would interfere with work in progress.   If these open sections are in a walkway at least two 10-inch planks placed side by side, or equivalent, shall be laid across the opening to provide a safe walking surface.

n2 The cited standard provides:

§   1915.64 - Chain falls and pull-lifts.

* * *

(c) Straps, shackles, and the beam or overhead structure to which a chain fall or pull-lift is secured shall be of adequate strength to support the weight of load plus gear.   The upper hook shall be moused or otherwise secured against coming free of its support.

n3 Section 17(a), 29 U.S.C. §   666(a) provides:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.

  [*2]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

As a result of an October 15-22, 1975 inspection of the respondent's worksite at the U.S.S. Sealift in drydock at the U.S. Naval facility in San Diego, California, four citations were issued to the respondent. n4 Citation number three alleged a repeated, nonserious failure to comply with the standard at 29 C.F.R. §   1915.43(e) for:

Failure to provide at least two 10-inch planks placed side by side, or the equivalent, over open sections of bilges which are in a walkway. At location of the lower level access from engine room to the shaft alley.

Citation number four alleged a repeated, nonserious failure to comply with the standard at 29 C.F.R. §   1915.64(c) for:

Failure to mouse or otherwise secure the upper hooks of 4 chain falls, against coming free from their supports.   At location of the vessel's starboard stern pad-eyes.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 The judge affirmed citation 1 involving a nonserious violation of 29 C.F.R. §   1915.43(a) and vacated citation 2, involving an alleged serious violation of 29 C.F.R. §   1915.64(a).   No party has objected to the disposition of these citations, and they will not be considered by the Commission because they do not involve issues of compelling public interest.   See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).

  [*3]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The respondent had been previously cited for a violation of §   1915.43(e) in February, 1975.   That violation was described as a failure to provide at least two 10-inch planks placed side-by-side on open bilge sections used as walkways in engine and boiler rooms.   The prior §   1915.64(c) violation occurred in November, 1974 and entailed a failure to mouse (latch) the upper hooks of chain falls used to support propeller components underneath a vessel. Although these prior violations took place on ships other than the U.S.S. Sealift, both occurred at the San Diego U.S. Naval Station.   Both citations were uncontested and became final orders of the Commission.

At the hearing the parties stipulated that a nonserious violation of §   1915.43(e) had occurred, and that the only issue was whether the violation was repeated. In his decision the judge concluded that respondent had also violated §   1915.64(c), but he did not find either the § §   1915.43(e) or 1915.64(c) violations to be repeated.

The Judge, adopting the test espoused by the United States Court of Appeals for the Third Circuit in Bethlehem Steel Corp.   [*4]    v. OSHRC, 540 F.2d 157 (3rd Cir. 1976), ruled that "'repeatedly' . . . refers to a violation that has occurred at least twice after the first violation and further, one which 'flaunts' the Act." As he found there had been only one prior violation of each standard, and no evidence of "flaunting", he concluded that the present violations could not be characterized as repeated.

The Secretary filed a petition for discretionary review arguing that the judge erred as a matter of law when he applied the Third Circuit's definition of "repeated".   Chairman Cleary directed review on the repeated issue.   Former Commissioner Moran also directed review, but did not specify an issue.   Neither party filed briefs.   Accordingly, the only issue before the Commission is the question of whether the judge erred when he declined to characterize the present violations as repeated.

Until recently, no consistent and authoritative view as to what constitutes a repeated violation had emerged from either the Commission or the courts.   See, e.g., George Hyman Constr. Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD P21,774 (No. 13559, 1977), aff'd, 582 F.2d 834 (4th Cir. 1978); and Todd   [*5]    Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327, 1332 n.1 (9th Cir. 1977) (dissenting opinion) (synopsis of major decisions).   However, in the recent decision in Potlatch Corp., 79 OSAHRC    /   , 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, January 22, 1979), the Commission set forth guidelines on the issue.   In Potlatch, the Commission held that a violation is repeated under §   17(a) of the Act, if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.   The Commission further stated that a repeated violation may be predicated on a single prior violation and that an employer's attitude does not bear on whether a particular violation is repeated, but will only be considered in assessing a penalty.   One method for the Secretary to establish a prima facie case of similarity is to show that the past and present violations are for failure to comply with the same standard.   An employer may rebut the Secretary's prima facie case with evidence of the disparate conditions and hazards associated with the subsequent violations.

Under these guidelines, the judge's [*6]   application of the Third Circuit's decision in Bethlehem Steel Corp. was incorrect.   Applying the principles espoused in Potlatch to the facts of this case, we conclude that respondent's failure to comply with 29 C.F.R. § §   1915.45(e) and 1915.65(c) was repeated as alleged in the citations.

The respondent stipulated that the present violation of §   1915.43(e) had occurred and does not take exception to the judge's affirmance of the § §   1915.64(c) citation.   The respondent also stipulated that prior citations involving the same standards were uncontested and had become final orders of the Commission prior to the date of the inspection giving rise to the present citation.   Thus, there was sufficient evidence to establish the Secretary's prima facie case.

As previously discussed, once the Secretary has made a prima facie showing of similarity, the burden shifts to the employer to rebut that showing.   Here, the respondent has offered no evidence that the conditions associated with the prior violations are dissimilar from those involving the present violations.   Since the Potlatch decision was issued subsequent to the hearing, the Commission would normally afford [*7]   the respondent the opportunity to introduce rebuttal evidence.   See, e.g., Howard Electric Co., 78 OSAHRC 37/B9, 6 BNA OSHC 1518, 1978 CCH OSHD P22,672, (No. 15339, 1978).   However, the Commission finds that the facts in the record before it would preclude the respondent from negating the Secretary's prima facie case.

Regarding the §   1915.43(e) violation, the standard's terms are specific, and both the past and the present occurrences involve nearly identical conditions: a hole in a walkway on a ship, and the absence of planks over the opening. With respect to the §   1915.64(c) charge, the standard is one having specific provisions, and both occurrences involved virtually identical circumstances: a failure to mouse the hook on chain falls which were suspended from the hull of a vessel. In short, there are no possible dissimilarities of circumstances that the respondent could prove which would rebut the Secretary's prima facie case. n5 Accordingly, no purpose would be served in remanding this case for additional evidence.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 The Commission has previously found that violations of the same standard occurring at the same shipyard were repeated, even though the prior violations had occurred at different locations on other vessels. J.M. Martinac Shipbuilding Corp., 78 OSAHRC 46/A2, 6 BNA OSHC 1646, 1978 CCH OSHD P22,792 (No. 14767, 1978), appeal docketed, No. 78-2633 (9th Cir. August 1, 1978).   Similar evidence in this case does not establish that the violations were sufficiently disparate to rebut the repeated characterization of the violation.

  [*8]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

At the hearing the parties stipulated that $100 would be an appropriate penalty for the §   1915.43(c) violation if it was found to be repeated. Where all parties have agreed to the appropriateness of a specific penalty the Commission will accept that amount where the amount of the agreed upon penalty is not clearly repugnant to the purposes and policies of the Act.   See Thorlief Larsen & Son, Inc., 74 OSAHRC 74/C8, 2 BNA OSHC 1256, 1971-73 CCH OSHD P15,401 (No. 370, 1974).   Here, the authorized employee representative who elected party status, did not object to the stipulation, even though it had the opportunity to do so.   Also, on the basis of our review of the factors enumerated in § §   17(a) and (j) of the Act we conclude that a penalty of $100 is not clearly repugnant to the purposes and policies of the Act.   Accordingly, the stipulation is accepted.

As to the §   1915.64(c) violation, the Secretary had proposed a $300 penalty which the judge reduced to $30.   We find that the gravity of the violation was high as the workers were threatened with the possibility of one-ton chain falls dropping [*9]   onto them.   We accord little weight to the respondent's good faith because the prior violations both occurred within the previous year, and were committed at the same facility.   See Potlatch Corp., supra. Accordingly even though the respondent is a small employer, based upon gravity and lack of good faith, we conclude that a penalty of $300 is appropriate under § §   17(a) and (j) of the Act.

Accordingly, we modify the judge's decision to find the violations of 29 C.F.R. § §   1915.45(e) and 1915.64(c) to have been repeated within the meaning of the Act, and we assess penalties of $100 and $300 respectively.

SO ORDERED.  

CONCURBY: BARNAKO (IN PART)

DISSENTBY: BARNAKO (IN PART)

DISSENT:

BARNAKO, Commissioner, Concurring and Dissenting:

I agree with the majority that the Secretary has made a prime facie showing that the violations of 29 C.F.R. § §   1915.43(e) and 1915.64(c) were repeated within the meaning of §   17(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq. (the Act).   However, I reach this conclusion for reasons somewhat different from those advanced in the majority opinion.   Moreover, before affirming these violations as repeated, I would afford Respondent [*10]   the opportunity to show any good faith efforts it made after receiving the first citations to eliminate substantially similar violations from its workplace.

The majority correctly concludes that the judge erred when he ruled that two prior violations and evidence of flaunting by the employer must precede a finding of repeated. Further, I agree with the majority that a violation, in order to be found repeated, must be substantially similar to a prior violation established by a final order of the Commission.   However, as expressed in my separate opinion in Potlatch Corp., 79 OSAHRC    , 7 BNA OSHC 1061, 1979 CCH OSHD para. 23,294 (No. 16183, 1979) (concurring and dissenting opinion), I would not presume that a violation of the same standard fulfills the substantial similarity requirement and shift the burden to the employer to prove otherwise.   Instead, I would look to whether the second violation is of such a nature that the employer, as a result of the notice provided by the first citation, should have taken steps to eliminate from its workplace the condition alleged to constitute the repeated violation.   Where this is not apparent from the face of the citations, I would require [*11]   the Secretary to prove substantial similarity. Where such a showing has been made, I would permit an employer, by way of defense, to show that it took good faith steps after the entry of a final order to prevent the recurrence of a substantially similar violation.

Applying these principles to the facts of this case, I would find that the past and present violations of each standard were substantially similar. Regarding the citations for violation of §   1915.43(e), identical hazards and means of abatement were involved in each occurrence. The same is true with respect to the citations for violation of §   1915.64(c).   Accordingly, insofar as the conditions involved in the present citations, Respondent was put on actual notice by the prior citations that its safety precautions were inadequate.

At the hearing, Respondent defended against the repeated allegations solely on the grounds that there had been no flaunting of the Act nor at least two prior violations.   It offered no evidence that, after the entry of final orders in the prior citations, it had taken affirmative steps to see that similar violations did not occur in the future.   However, since this case was tried prior to the [*12]   issuance of the Commission's decisions in Potlatch, supra, and George Hyman Construction Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD para. 21,774 (No. 13559, 1977), aff'd, 582 F.2d 834 (4th Cir. 1978), Respondent may not have recognized the need to demonstrate what, if any, affirmative steps it had taken.   Accordingly, I would afford it the opportunity to present evidence as to this defense.

I also agree that the penalties of $100 and $300 are appropriate.   My rationale for assessing the $300 penalty is the same as that of the majority.   However, with respect to the $100 penalty I do not agree with the majority's conclusion that where all parties have agreed upon the appropriateness of a penalty the Commission should review the agreed upon penalty to determine if it is repugnant to the purposes of the Act.   Where the Secretary and Respondent have stipulated to a penalty amount, the Commission should not second guess or alter their agreement.   Cf. IMC Chemical Group, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1978 CCH OSHD para. 23,149 (No. 76-4761, 1978), petition for review filed, No. 79-3041 (6th Cir. January 16, 1979).   Nor would I permit the authorized [*13]   employee representative to object before the Commission to the amount of the penalty.   Employees who are parties in a proceeding cannot object before the Commission to the Secretary's actions unless it is directed to the reasonableness of the abatement period.   See Kaiser Aluminum & Chemical Corp., No. 76-2293 (Dec. 4, 1978) petition for review docketed, No. 79-7047 (9th Cir. Feb. 2, 1979) (dissenting opinion); ITT Thompson Industries Inc., 78 OSAHRC 70/D10, 6 BNA OSHC 1944, 1978 CCH OSHD para. 22,944 (Nos. 77-4174 & 77-4175, 1978) (concurring opinion); Reynolds Metals Co., Docket No. 78-2485 (Jan. 12, 1979) (concurring and dissenting opinion).

Therefore, for the above reasons, I would enter a conditional order, affirming the citations as repeated, but would afford Respondent 10 days from the issuance of the decision to move that the case be reopened for the taking of additional evidence on the repeated issue.