POTLATCH CORPORATION
OSHRC Docket No. 16183
Occupational Safety and Health Review Commission
January 22, 1979
[*1]
Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Associate Regional Solicitor, U.S. Department of Labor
Wynne M. Blake, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
A decision of Administrative Law Judge Garl Watkins, dated July 19, 1976, is before the Commission pursuant to section 12(j) of he Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [the Act]. In that decision the judge concluded that a violation of section 5(a)(2) of the Act for failure to comply with the standard at 29 C.F.R. § 1910.265(c)(12)(iii) n1 was not, as complainant alleged, repeated within the meaning of section 17(a) of the Act. n2
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n1 The cited standard provides:
29 C.F.R. § 1910.265 - Sawmills
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(c) Building facilities, and isolated equipment.
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(12) Electrical wiring and equipment.
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(iii) Identification. Marks of identification on electrical equipment shall be clearly visible.
n2 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]
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As a result of an inspection of Potlatch Corporation's sawmill by an Occupational Safety and Health Administration (OSHA) compliance officer on November 4, 1975, respondent was issued three citations on November 19, 1975. n3 Citation number three alleged a repeated failure to comply with the standard at 29 C.F.R. § 1910.265(c)(12)(iii) in that:
The marks of identification for the electrical control push buttons on the console for the #4 surfacer in the surfacing department were not clearly visible.
Respondent timely contested citation number three in its entirety. The Secretary's first complaint n4 used language similar to that of the citation to describe the alleged violation. In a separate paragraph, the Secretary claimed this violation to be repeated as follows:
The worksite condition and practice alleged in the aforesaid Citation Number three and charged in paragraph III above is of such similarity in fact, import and character to the worksite conditions and practices present during the course of an inspection from January 7 through 16, 1975, for which worksite conditions and practices a citation [*3] was issued respondent, as to constitute repeatedly violative behavior and conduct within the meaning of section 17(a) of the Act.
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n3 Citations one and two were, by amendment, consolidated into one citation which was the subject of a settlement agreement between the parties. The agreement was approved by the judge; because his order was not directed for review by a member of this Commission, it evolved into a final order of the Commission. Section 12(j) of the Act, 29 U.S.C. § 666(i).
n4 Only citation 3 alleged a repeated violation. Two complaints and two answers were filed in the case. Although the language of the second complaint is somewhat different from that of the first, it does not amend the first complaint. It neither alleges a violation of 29 C.F.R. § 1910.265(c)(12)(iii) nor makes any reference to citation 3. In both answers, however, respondent denied being in repeated violation of the Act. This indicates that the parties considered the § 1910.265(c)(12)(iii) charge to be in issue. We therefore consider the two complaints to be one pleading and the two answers to be one pleading, and conclude that the issue of whether the violation is repeated is before us.
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On March 16, 1976, the parties jointly filed a stipulation and withdrawal of contest that resolved all issues between them except the question of whether the stipulated violation of 29 C.F.R. § 1910.265(c)(12)(iii) was repeated. The stipulation provided that a prior uncontested citation and notification of proposed penalty, as well as six photographs, be entered into the record. The parties further stipulated that the prior citation concerned the same facility and that the same "employees, work crews and management supervisors were employed by respondent" at the time of both inspections. The parties were then afforded the opportunity to file briefs. n5 The Secretary filed a brief and respondent filed a brief letter stating its position. An earlier letter from Potlatch to the judge contained the following paragraph:
It should be apparent from the exhibits submitted by Potlatch that the prior citations all involved electrical panels situate at the power source used in connection with the switching on and off of such power, whereas the panel in the case before the Court at this time, the panels [*5] were of type used to control the operation of a surfacer. It is Potlatch's position that as a factual matter the equipment is dissimilar, the violation as to a panel used in the remote control of the surfacer would not be a repeat violation as to panels which had previously been cited used in the supply of power. [Emphasis added by the Judge.]
The Secretary's brief accepts as true the facts stated by respondent. Thus, the parties are in agreement as to the facts.
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n5 There was an apparent understanding between the parties that a hearing would not be held and that the issue would be decided solely upon the stipulation and statements of position or briefs submitted.
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Item 1 of citation number five issued on February 14, 1975, alleged that respondent failed to comply with the standard at 29 C.F.R. § 1910.265(c)(12)(iii) in that:
No clearly visible marks of identfication were visible on the following electrical equipment. . . .
It went on to describe seven instances of the alleged violation, specifying particular [*6] electrical boxes, transformers and other electrical equipment that were inadequately marked. n6 At that time the alleged violations were characterized as "Nonserious Repeated." A penalty of $90 was proposed for this violation. Respondent did not contest, and the citation became the final order of the Commission under section 10(a) of the Act, 29 U.S.C. § 659(a). Each piece of equipment described in the earlier citation was, with the exception of the sixth, power supply equipment controlling the flow of electrical current to other locations. In contrast, the present citation deals with a "remote control" panel of a particular piece of machinery, the number 4 surfacer.
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n6 The citation described the instances as follows:
1) The disconnecting means marked "480V" at the entrance to the storage area in the carrier shop was not identified as to its intended use.
2) Ten (10) electrical boxes on the east wall of the upstairs winding room of the machine shop
3) Two (2) General Electric transformers, serials 9T21A1004 and 9T21A1004TX, on the west wall, north end of the winding room in the machine shop
4) Six (6) electrical boxes on the west wall, north end, in the winding room in the machine shop
5) Four (4) electrical boxes on the south wall of the welding shop, center room, in the machine shop
6) The electrical box to the draw fan on the east wall and south of the double sliding doors in the welding room of the machine shop
7) Two (2) frequency changes located in the grinding room of the profile building were not identified.
[*7]
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The judge held that to find that an employer has repeatedly violated the Act, there must be, in addition to a showing that respondent had previously failed to comply with the same standard, evidence that the hazard to employees resulting from the two violations was the same. The judge found an absence of such proof and therefore found the violation not to be repeated.
The Secretary filed a petition for discretionary review arguing that the judge erred when he "declined to make the reasonable inference that the hazards posed in both situations were substantially similar. . . ." The Secretary also took exception to what he characterized as the judge's "clear implication" that the violation was not repeated because the two violations did not involve the same machines. Review was directed by Chairman Cleary on the question of whether the judge erred in finding the violation not repeated. Former Commissioner Moran directed review without stating an issue. In his brief on review the Secretary argues that the hazards generated by both violations were "sufficiently similar to support a repeated violation." [*8] n7 Respondent filed no brief on review.
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n7 The Secretary also stated that he "agrees with the Commission's statements that similarity in hazards involved is a factor to be considered in determining whether a violation is 'repeated'."
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For the reasons stated below we reverse the judge's decision and find respondent's failure to comply with 29 C.F.R. § 1926.265(c)(12)(iii) to have been repeated as alleged.
The question of what constitutes a repeated violation has come before the Commission and the courts on a number of occasions. Although several plausible suggestions have been made by individual Commissioners and the courts, no consistent and authoritative answer has emerged. See the various administrative and judicial opinions in George Hyman Construction Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD P21,774 (No. 13559, 1977), aff'd, No. 77-1591 (4th Cir., August 22, 1978); and Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327, 1332 n.1 (9th Cir. 1977) (dissenting opinion) (synopsis [*9] of major decisions). Inasmuch as the announcement of authoritative guidelines is an important matter, we have thoroughly re-examined this issue in light of the decisions of the Fourth and Ninth Circuits, and we now announce the following principles.
A violation is repeated under section 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 Secretary may establish substantial similarity n8 in several ways. In cases arising under section 5(a)(2) of the Act, which states that each employer shall comply with occupational safety and health standards, the Secretary may establish a prima facie case of similarity by showing that the prior and present violations are for failure to comply with the same standard. It is important to recognize that occupational safety and health standards range from those that designate specific means of preventing a hazard or hazards to those that either do not specify the means of preventing a hazard or apply to a variety of circumstances. Accordingly, in cases where the Secretary shows that the prior and present violations are for an employer's [*10] failure to comply with the same specific standard, it may be difficult for an employer to rebut the Secretary's prima facie showing of similarity. This is true simply because in many instances the two violations must be substantially similar in nature in order to be violations of the same standard. However, in cases where both violations are for failure to comply with the same general standard, it may be relatively undemanding for the employer to rebut the Secretary's prima facie showing of similarity. For example, 29 C.F.R. § 1926.28(a), n9 one of the most commonly cited construction safety standards, is often alleged to be violated on the grounds that an employer failed to protect its employees from fall hazards by requiring the use of safety belts. n10 On the other hand, the same standard has been cited under dissimilar circumstances, such as an employer's failure to require its employees to use seat belts in an earthmoving vehicle. n11 A prima facie showing of similarity would be rebutted by evidence of the disparate conditions and hazards associated with these violations of the same standard. Of course, when the Secretary alleges a repeated violation of a general standard [*11] such as § 1926.28(a), it is likely that he would introduce evidence of similarity other than that the prior violation and the alleged repeated violation are in contravention of the same standard.
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n8 Both the Commission and the courts have laid emphasis upon the similarity of the antecedent and present violations. See the administrative and judicial opinions in the following cases: Todd Shipyards Corp., 75 OSAHRC 21/D4, 3 BNA OSHC 1813, 1975-76 CCH OSHD P20,237 (No. 12510, 1975), aff'd, No. 76-1336 (9th Cir., November 17, 1978); Bethlehem Steel Corp., 75 OSAHRC 83/C12, 3 BNA OSHC 1520, 1975-76 CCH OSHD P19,996 (No. 8392, 1977), rev'd on other grounds, 540 F.2d 157 (3d Cir. 1976); George Hyman Constr. Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1518, 1977-78 CCH OSHD P21,774 (No. 13559, 1977) (opinions of Commissioners Barnako and Cleary), aff'd, No. 77-1591 (4th Cir., August 22, 1978) (slip op. at 17 n.15).
Thus, in most cases arising under section 5(a)(2), the reference in the previous citation to the standard violated gives the employer adequate notice of the condition or conduct proscribed.
n9 The standard provides, "The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees."
n10 See, e.g., Joseph Bucheit & Sons Co., 78 OSAHRC 43/E9, 6 BNA OSHC 1640, 1978 CCH OSHD P22,770 (No. 14739, 1978); Lehr Const. Co., 78 OSAHRC 12/B4, 6 BNA OSHC 1352, 1978 CCH OSHD P22,542 (No. 7240, 1978); PPG Industries, inc., 77 OSAHRC 196/E5, 6 BNA OSHC 1050, 1977-78 CCH OSHD P22,344 (No. 15426, 1977); Jensen Const. Co. of Okla., Inc., 77 OSAHRC 180/B1, 5 BNA OSHC 1906, 1977-78 CCH OSHD P22,215 (No. 12940, et al., 1977).
n11 See Able Constractors, Inc., 77 OSAHRC 184/A2, 5 BNA OSHC 1975, 1977-78 CCH OSHD P22,250 (No. 12931, 1977), aff'd on remand by administrative law judge June 14, 1978.
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In the absence of evidence that the antecedent and present violations concern non-compliance with the same standard, the Secretary must present other evidence that the violations are substantially similar in nature. In this regard, we think that evidence that the violations involve similar hazards would be relevant. We assign weight to the similarity of the hazards for two reasons. First, a failure to do so would re-cast the phrase "section 5 of this Act" in section 17(a) to read "section 5(a)(2)" and thus preclude the possibility that an employer could repeatedly violate section 5(a)(1). Second, to hold that characterization as repeated is limited to subsequent violations of the same standard could lead to patently absurd results. For example, if two employees performing construction work such as painting were exposed to a 20 foot fall from an unguarded scaffold, the employer would be in violation of 29 C.F.R. § 1926.451(a)(4); a subsequent citation based on exposure of the same employees to a 20 foot fall while using the same unguarded scaffold to replace light bulbs would be a violation of 29 [*13] C.F.R. § 1910.28(a)(3). Under the "same standard" restriction, however, the subsequent violation could not be classified as repeated.
Section 17(a) provides that a repeated violation may be predicated upon violations of ". . . 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. . . ." A section 5(a)(2) violation may therefore be found to be repeated on the basis of either a prior section 5(a)(1) or section 5(a)(2) violation and a section 5(a)(1) violation may similarly be found to be repeated on the basis of either a prior section 5(a)(1) or section 5(a)(2) violation. There must, of course, be evidence of substantial similarity between the prior and present violations.
We also believe that one prior violation may support a finding of repeated. The common usage of the term "repeatedly" leads us to respectfully reject the "more than twice" concept advanced by the Third Circuit in Bethlehem Steel v. O.S.H.R.C., 540 F.2d 157 (3d Cir. 1976). This view comports with our prior holding in Hyman, as well as holdings of the Fourth and Ninth Circuits in Hyman and [*14] Todd.
The Secretary, in order to prove any violation to be repeated, must demonstrate that the earlier citation upon which he relies became a final order of the Commission prior to the date of the alleged repeated violation. As the Fourth Circuit pointed out in its Hyman decision "[B]efore a repeated violation may be found it is essential that the employer receive actual notice of the prior violation." Slip op. at 16 (footnote omitted); accord, Independent Pier Co., et al., 1974-75 OSAHRC 90/A2, 3 BNA OSHC 1674, 1975-76 CCH OSHD P19,407 (Nos. 4897, et al., 1975) (Administrative Law Judge's decision).
On the other hand we hold that an employer's attitude (such as his flouting of the Act), commonality of supervisory control over the violative condition, the geographical proximity of the violations, the time lapse between the violations, and the number of prior violations do not bear on whether a particular violation is repeated, although these matters will be considered in assessing a penalty.
Section 17(j) of the Act specifically provides that "the good faith of the employer" is to be given due consideration in determining an appropriate penalty. Accordingly, [*15] evidence as to aggravated conduct, disregard of the Act, or flouting is relevant only to the assessment of an appropriate penalty.
We do not adopt the view that the same supervisors must control two violative conditions for the subsequent one to be repeated. A corporation as an entity is put on notice of a violation of the Occupational Safety and Health Act by issuance of a citation (and its becoming final), and is obligated to abate cited hazards wherever they may occur in its place or places of business. Corporations commonly administer other aspects of their business and control policy in several or many locations, and we see no reason why compliance with this statute should be fragmented. We recognize that supervisors are key personnel, but they are normally not the policy makers of a corporation, and we do not believe adherence to safety standards by a corporation should depend on localized administration by less than high echelon officials. In short it is not unrealistic to require that an employer observe the law (as with any other statute) in all locations where it transacts business. Finally, as noted by the Fourth Circuit in Hyman, basing the classification of [*16] repeated upon personal knowledge or ability to control conditions would serve to encourage employers to allocate compliance responsibilities among their supervisors and foremen. Slip op. at 16 n.14. As with evidence of respondent's attitude, however, we believe that evidence regarding commonality of supervision and an employer's internal distribution of safety responsibility may be indicative of its good faith. Thus, such evidence would be cognizable in assessing an appropriate penalty.
Similarly, we find the fact that the violations occurred at different worksites is not relevant to a determination of a repeated characterization. n12 The geographic proximity of past and present violations may well reflect upon the effectiveness of an employer's internal safety program and its delegation of safety responsibilities as well as its distribution of information. As such, the geographic proximity of past and present violations is indicative of the employer's good faith, and will be considered by the Commission in the assessment of a penalty.
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n12 Such a consideration, along with the nature of respondent's business, is a factor in the Secretary's decision to allege that a violation is repeated. The Secretary's Field Operations Manual, U.S. Dept. of Labor, Occupational Safety and Health Admin., Chap. VIII B.5e applies different criteria for repeated depending on whether the employer has a fixed establishment. This distinction has withstood a constitutional (equal protection) attack. Desarrollos Metropolitanos, Inc. v. O.S.H.R.C., 551 F.2d 874 (1st Cir. 1977).
[*17]
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Further, the length of time between the two violations is relevant only to the "good faith" criterion for penalty assessment. While the amount of time having elapsed between prior and present violations does not have a bearing on the similarity of antecedent and present violations, it does reflect upon the degree of an employer's continuing efforts to protect employees against hazards. Accordingly, such evidence will be considered by the Commission in assessing appropriate penalties for repeated violations.
Applying the above analysis to the facts of this case we conclude that respondent's failure to comply with 29 C.F.R § 1910.265(c)(12)(iii) was repeated as alleged in the citation issued February 14, 1975, and that a penalty of $100 is appropriate.
The existence of the present violation was conceded by respondent. The entry into the record of a prior citation issued to respondent alleging a violation of the same standard, combined with respondent's further concessions that the prior citation was not contested and had become a final order prior to the date of the inspection giving rise to the present [*18] citation, was sufficient to complete the Secretary's prima facie case. Upon this showing the burden of going forward shifted to respondent. Since respondent claims that the past and present violations were dissimilar, our resolution of the issue under the test we have outlined above necessarily turns on whether respondent successfully rebutted the evidence of similarity. We find that it did not.
The cited standard requires clearly visible marks of identification on every type of electrical equipment in sawmills. That the equipment which was the subject of the present citation is of a different type than that previously cited is of little moment. Respondent seeks to have us distinguish between various subcategories of electrical equipment on the basis of its function and location. There is no question, however, that the subject of both citations was electrical equipment -- the term employed by the standard. By virtue of the finality of the prior citation respondent had adequate notice that the specific equipment identified in that citation was required to be in compliance. Moreover, that citation notified respondent that all types of electrical equipment in its plant [*19] had to have clearly visible marks of identification.
In addition to the usual considerations regarding an appropriate penalty, n13 having found this violation to be repeated, we also take cognizance of the facts that the prior violation was itself repeated, occurred ten months previously, and was committed at the same facility with the same management supervisors.
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n13 These considerations include gravity of the violation, history of previous violations, size of respondent's business, and respondent's good faith. Nacirema Operating Company, Inc., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD P15,032 (No. 4, 1972).
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The parties have stipulated that if the violation is found to be repeated a penalty of $100 is appropriate. While the Commission is not bound to accept such a stipulation, n14 we accept it here because our view of all of the considerations stated leads us to conclude that a penalty of $100 would not be repugnant to the purposes of the Act. Thorlief Larsen & Son, Inc., 74 OSAHRC 74/C8, 2 BNA [*20] OSHC 1256, 1971-73 CCH OSHD P15,401 (No. 370, 1974).
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n14 A stipulation between the Secretary and an employer as to the appropriateness of a penalty is not binding upon the Commission. Bettendorf Terminal Co., 74 OSAHRC 28/E13, 1 BNA OSHC 1695, 1973-74 CCH OSHD P17,722 (No. 837, 1974).
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Accordingly, we reverse the judge's decision and find the violation of 29 C.F.R. § 1910.265(c)(12)(iii) to have been repeated within the meaning of the Act and we assess a penalty of $100.
SO ORDERED.
CONCURBY: BARNAKO (In Part)
DISSENTBY: BARNAKO (In Part)
DISSENT:
BARNAKO, Commissioner, concurring in part and dissenting in part:
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. I also agree that in determining substantial similarity, it is appropriate to look to the nature of the hazard rather than to whether the standard cited is the same or different than the one the employer previously violated. I further agree that a repeated [*21] violation may be predicated on a single prior violation. I would not, however, presume that a violation of the same standard fulfills the substantial similarity requirement and shift the burden to the employer to prove otherwise, but would in all cases require the Secretary to prove that a violation he alleges to be repeated is substantially similar to the earlier violation. I would also 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 occurrence of substantially similar violations. On the facts of this case, I would find that the violations are not substantially similar, and I would affirm the citation as nonserious rather than repeated.
As the majority observes, prior cases have failed to produce an authoritative definition of a repeated violation. There has been general agreement that a repeated violation is properly predicated on a single substantially similar prior violation. n1 The main point of disagreement has involved whether a finding that the employer flouted or disregarded the Act was necessary. In Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3rd Cir. 1976), the Court held that a repeated [*22] violation could not be found absent evidence giving rise to an inference that the employer's conduct was willful. n2 In George Hyman Construction Co., 77 OSAHRC 67/D7, 5 BNA OSHC 1318, 1977-78 CCH OSHD P21,774 (No. 13559, 1977), I reached a similar conclusion, stating that the ultimate question in determining whether a violation was repeated was whether the employer had disregarded the requirements of the Act. I said that the Secretary could make a prima facie showing of such disregard by establishing that both the earlier and later violations had occurred under the control of the same supervisor. Both the Third Circuit and I relied on the fact that willful and repeated violations are grouped together in Section 17(a) of the Act, n3 leading to the conclusion that Congress intended both types of violations to have similar characteristics.
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n1 In Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3rd Cir. 1976), the Court held that at least two previous violations were necessary before a repeated violation could be found. This test, however, was rejected by a majority of the Commission in George Hyman Construction Co., 77 OSAHRC 67/D7, 5 BNA OSHC 1318, 1977-78 CCH OSHD P21,774 (No. 13559, 1977), and also by two courts of appeals. George Hyman Construction Co. v. OSHRC, 582 F.2d 834 (4th Cir. 1978); Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327 (9th Cir. 1977). My reasons for concluding that only a single prior violation is necessary are stated in my opinion in George Hyman Construction Co., supra.
n2 The Commission reached a similar conclusion in General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1074-75 CCH OSHD P19,567 (No. 2739, 1975), rev'd in part on other grounds, 540 F.2d 67 (2d Cir. 1976). It later departed from this test, and explicitly held that the employer's state of mind was irrelevant in determining whether a violation was repeated. Bethlehem Steel Corp., 75 OSAHRC 83/C12, 3 BNA OSHD 1520, 1975-76 CCH OSHD P19,996 (No. 8392, 1975), rev'd, 540 F.2d 157 (3rd Cir. 1976). Subsequently, a majority of the Commission members were unable to agree on any single test for repeated violations. George Hyman Construction Co., supra.
n3 Section 17(a), 29 U.S.C. 666(a), is quoted at fn. 2 of the lead opinion.
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In deciding the appeal in George Hyman, the Fourth Circuit rejected this rationale, saying:
The legislative history of the Occupational Safety & Health Act, although meager, suggests that willful violation citations and repeated violation citations were designed to reach different problems. . . We believe the most reasonable inference to be drawn from the subsequent addition of "repeatedly" is that Congress intended for enhanced penalties when an employer committed recurrent violations that did not necessarily rise to the level of willfulness. 582 F.2d 834, 840 (1978).
The Court also rejected as a criterion for a repeated violation that both violations must have occurred under the control of the same supervisor, concluding that such a test would enable employers to evade their responsibilities under the Act by failing to institute adequate reporting and control procedures. Id at 841, n. 14. The Court did, however, state that the employer must have received actual notice of the prior violation, "[f]or unless the employer has previously been made aware that his safety precautions are inadequate, [*24] there is no basis for concluding that a subsequent violation indicated the employer requires a greater than normal incentive to comply with the Act." Id at 841.
Having reexamined the question, I conclude that the Fourth Circuit's analysis is sound in that a repeated violation should not be likened to a willful one, and that the level of supervision under which the violations occurred should not be relevant. For reasons stated more fully below, I agree with the court's conclusion that, in general, a violation is properly classified as repeated when the same employer committed a substantially similar violation in the past. The problem remains, however, of how substantial similarity should be defined, and of allocating the burden of proof on this point. To answer these questions, it is necessary to look to the purpose repeated violations serve in the enforcement mechanism established by the Act.
The Act contemplates that employers will comply with its provisions before the Secretary inspects their workplaces, and provides for monetary penalties for first-instance violations to encourage such pre-inspection compliance. n4 When an inspection does reveal a violation, and a final order [*25] of the Commission ordering abatement of that violation is entered, then the employer is subjected to greatly enhanced penalties for failing to comply with that abatement order. n5 In other words, an employer who fails to comply with an explicit abatement order is subject to much higher penalties than he was for simply failing to comply with the Act prior to being inspected and found in violation. Such a result is, of course, eminently sensible, for a person's failure to correct a condition he knows is in violation of the Act is more reprehensible than a mere inadvertent failure to comply. n6
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n4 Sections 17(b) and (c) of the Act, 29 U.S.C. § § 666(b) and (c), provide that penalties up to $1000 may be assessed for first-instance serious and nonserious violations.
n5 Section 17(d) of the Act, 29 U.S.C. § 666(d), provides that an employer who fails to correct a violation within the period permitted for its correction may be penalized up to $1000 for each day the violation continues.
n6 If an employer knowingly commits a violation prior to being inspected, its conduct is properly characterized as willful, and it is subject to increased penalties for that reason. See Georgia Electric Co., 77 OSAHRC 30/A2, 5 BNA OSHC 1112, 1977-78 CCH OSHD P21,613, (No. 9339, 1977), pet. for review filed, No. 77-1916 (5th Cir. May 2, 1977).
[*26]
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The situation frequently arises when the Secretary, because of the limited resources he has available to conduct inspections and investigations, cannot, as a practical matter, cite all instances of a particular type of violation that occur in an employer's workplace. For example, although excessive noise may be pervasive throughout a large plant, it may be impractical for the Secretary to identify and measure the exposure of each employee who is exposed to excessive noise. In such a situation, the actual abatement order only extends to the cited conditions, and an employer who corrects those conditions cannot be subjected to potential daily penalties for failure to abate. See Carnation Co., 78 OSAHRC 54/D9, 6 BNA OSHC 1730, 1978 CCH OSHD P22,837 (No. 8165, 1978), pet. for review filed, No. 78-2894 (9th Cir. June 20, 1978). That does not, however, mean that the employer may close its eyes to hazards similar to those cited that exist elsewhere in its workplace. The Commission's final order, even if it only orders abatement of the conditions encompassed in the citation, places the employer [*27] on notice that similar conditions elsewhere in its workplace are also in violation of the Act. The employer's failure to eliminate all such hazards also justifies the imposition of higher penalties than are appropriate for pre-inspection, inadvertent violations. Thus, even if an employer's conduct is not willful in the sense that it represents a conscious decision not to comply, an employer's failure, after receiving an abatement order, to actively seek out and eliminate similar hazards throughout its workplace, should logically subject that employer to higher penalties if a subsequent inspection reveals violations substantially similar to those delineated in the abatement order. n7 Such violations are properly classified as repeated.
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n7 In using the term "workplace," I do not mean to imply that employer's duty is geographically limited. I generally agree with the majority that an employer who maintains multiple worksites should take steps to eliminate hazards found in one location from all of its worksites. However, as indicated infra, geographical considerations are important in evaluating whether an employer has established a defense to a repeated violation.
[*28]
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The above discussion primarily concerns violations that are continuing in nature. However, many violations of the Act are transitory; for such violations, abatement may occur, but the abatement as well as the violation may be transitory. For example, a violation resulting from an employee's failure to tie off a safety belt may be abated by the employee tieing off the belt. It, however, the employee fails to tie off his belt under similar circumstances in the future, this is technically a new violation rather than a failure to abate the original violation. Nevertheless, the employer should not be permitted to simply ignore the problem after abating the original violation. The first citation places the employer on notice that it must institute a program requiring safety belt usage or that any such program it already has is not being effectively communicated to employees or effectively enforced. See Asplundh Tree Service Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1978 CCH OSHD P23,033 (No. 16162, 1978). The employer's duty in such a situation is not simply to see that the condition for which [*29] it was cited is corrected. The employer should take affirmative steps to see that similar violations do not occur in the future, and it is reasonable to subject the employer to the risk of enhanced penalties if such violations do recur. Since such a situation is not a failure to abate, however, and since recurrent violations may not be willful because the employer's actions may not have been intentional, then such violations should be classified as repeated in order to effectuate the intent of Congress to provide for higher penalties for violations that occur despite an employer's knowledge that its safety program is deficient.
As the Fourth Circuit noted in George Hyman Construction Co., however, enhanced penalties are only appropriate when the employer has actual notice that its safety precautions are inadequate. Thus, the notice provided by a citation of the conduct required of an employer, and in turn the substantial similarity between the initial and subsequent violations, is critical in determining whether a subsequent violation is repeated. If the facts surrounding the subsequent violation are so different from those giving rise to the abatement order that it cannot [*30] be said that the employer had actual notice its safety precautions with respect to the subsequent violation were inadequate, then a repeated violation should not be found. More specifically, if situations arise in which the hazards are so different or while similar may arise in such different situations and require such different responses that it cannot be said that the employer had notice that the occurrence of the subsequent conditions was violative of the Act, then the violation is not repeated. Thus in determining substantial similarity, 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 abatement order embodied in the first citation, should have taken steps to eliminate from its workplace the condition alleged to constitute the repeated violation. In determining this issue, I would consider both the hazards and the conditions that gave rise to the initial and subsequent citations. Whether the same standard was cited in the subsequent citation is relevant, but it is not controlling. As I note below, many of the Secretary's standards apply to diverse situations, and on the other hand two different [*31] standards may apply to substantially similar conduct.
The majority recognizes that the Secretary, as the party seeking to have the repeated citation upheld, bears the ultimate burden of showing substantial similarity of the violations. n8 Where the same standard is involved, however, they give the Secretary the benefit of a presumption, shifting the burden to the employer to show that the violations are dissimilar. I would not apply such a presumption. Many of the Secretary's standards, including some of the most commonly cited, apply generally to a variety of situations. Thus, such a presumption will not be valid much of the time. Moreover, the Secretary is in at least as good a position as the employer to know whether the violations are substantially similar. Indeed, the Secretary should make a determination that the violations are substantially similar before issuing a repeated citation, and thus should know the basis on which the repeated allegation is made. Accordingly, I would place this burden of producing evidence on the question of substantial similarity with the Secretary.
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n8 This assignment of the burden of proof is required by the Administrative Procedure Act, 5 U.S.C. 556(d), which provides, in pertinent part, "except as otherwise provided by statute, the proponent of a rule or order has the burden of proof." As the proponent of the "repeated" characterization of a violation, the Secretary therefore has the burden of proof on the issue.
[*32]
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The question remains whether employers should be permitted any defenses to an allegation that a violation is repeated once the Secretary has shown substantial similarity to an earlier violation. I believe a defense should be available where the employer can show that it took reasonable, good faith steps after receiving the initial citation to eliminate substantially similar violations from its workplaces. Upon such a showing, the employer would be entitled to a reduction in the characterization of the repeated violation.
The existence of certain defenses to violations has long been recognized by the Commission, in deference to the principle that the Act does not impose absolute liability on employers. Hence for example the Commission has permitted employers to defend against a showing of violation by establishing impossibility of performance, n9 impossibility of compliance, n10 greater hazard n11 and unpreventability. n12 All of these defenses, however, were formulated in the context of first instance sanctions and if established justify complete vacation of the citation, with the corresponding elimination [*33] of any obligation by the employer to abate.
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n9 Alberici-Koch Laumand, a Joint Venture, 77 OSAHRC 179/A2, 5 BNA OSHC 1895, 1977-78 CCH OSHD P22,211 (No. 13026, 1977).
n10 Julius Nasso Concrete Corp., S & A Concrete Co., Inc., a Joint Venture, 77 OSAHRC 208/F2, 6 BNA OSHC 1171, 1799-78 CCH OSHD P22,401 (No. 16012, 1977).
n11 National Steel & Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD P22,808 (Nos. 11011 & 11769) appeal filed, No. 78-2695 (9th Cir. Aug. 3, 1978).
n12 Mountain States Telephone & Telegraph Co., 78 OSAHRC 30/A2, 6 BNA OSHC 1504, 1978 CCH OSHD P22,668 (No. 13266, 1978), pet. for review filed, No. 78-1438 (10th Cir. June 2, 1978).
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Citations for repeated violations arise in a unique factual situation. They do not represent first instance violations but arise because the employer has failed to prevent occurrence of a substantially similar violation for which a prior citation has become a final order. As the Fourth Circuit indicated in George Hyman Construction Co., an [*34] employer is expected to institute adequate reporting and control procedures after an initial violation to eliminate all similar instances of noncompliance from its workplaces. However the steps it is reasonable to require an employer to take in response to the first citation will vary with the nature of the violation, the employer's business and the passage of time. For example, the conduct which is reasonable for an employer with a number of operations scattered throughout the country would be different for a violation that is common to all of its worksites than for a violation that is peculiar to one of its locations. Similarly violations that are of a continuing nature will require different treatment than transitory ones. And while I generally agree with my colleagues that arbitrary time limitations should not be imposed, this element will necessarily bear on the question of whether the steps the employer took were reasonable.
The majority concludes that the steps taken by an employer to prevent repeated violations should be considered only in assessing the penalty. While I agree that such steps are relevant to any penalty assessment, I would not stop here but would consider [*35] them in determining whether the employer was properly charged with a repeated allegation instead of a lesser violation. I believe such action is appropriate if employers are to be encouraged to eliminate substantially similar violations following issuance of the first citation. If employers are told that they will be issued citations for repeated violations regardless of the degree of effort utilized by them to achieve compliance following an initial citation, they will have little incentive to establish the procedures necessary to prevent repeated violations. As the Commission stated in Ocean Electric Corp., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD P20,167 (No. 5811, 1975), decision withdrawn and rehearing granted, No. 76-1060 (4th Cir. Oct. 26, 1977), "[a] rule which encourages diligence rather than rendering it irrelevant is to be preferred."
I will not attempt to set forth here the precise steps the employer must take to establish this defense, since those steps will depend upon a variety of factors, as noted above. I recognize that in some respects the showing made by an employer in attempting to establish this defense will coincide with the elements needed [*36] to establish a preventability defense. However, the defense I would allow to a repeated allegation will not require as stringent a showing as a defense of unpreventability, as at would be inappropriate for the question of whether a violation is repeated to be coextensive with whether a violation occurred at all.
Turning to the facts of this case, I would find that the Secretary failed to prove the violation presently before us was substantially similar to that described in the earlier uncontested citation. The earlier citation involved panels used to distribute electrical power to various circuits, while the present citation involves buttons on the control panel of a production machine, a surfacer. The Secretary asserts that the violations are substantially similar because the hazard in both instances is the exposure of employees to the inadvertent activation of a machine due to inadequate identification of devices that regulate the flow of electricity. I would not define the hazard so broadly. As discussed above, I would look to the notice provided by the first citation in determining whether the second violation is substantially similar. The first citation dealt with panels [*37] by which power can be supplied to or disconnected from various circuits. As prior Commission cases demonstrate, such disconnects are normally used when maintenance must be performed on a particular device using electric power. See United States Pipe and Foundry Co., 78 OSAHRC 8/D6, 6 BNA OSHC 1332, 1978 CCH OSHD P22,514 (No. 11739, 1978); Jersey Steel Drum Manufacturing Corp., 75 OSAHRC 36/E6, 2 BNA OSHC 1663, 1974-75 CCH OSHD P19,392 (No. 1119, 1975); Savannah Iron and Fence Corp., 74 OSAHRC 49/A3, 2 BNA OSHC 1065, 1973-74 CCH OSHD P18,233 (No. 1299, 1974). If a disconnect is not clearly identified, then power may either be disconnected from or reconnected to the wrong circuit. In either situation, the circuit on which maintenance is being done may be inadvertently energized, giving rise both to the hazard of electric shock and to hazards arising from accidental machine operations.
The violation now before us involves unclear identification of buttons used to control the operation of a production machine. Although the precise function of these buttons is not in the record, it is apparent that the hazard if any arises from the possibility of improper operation [*38] of the machine due to the possibility that the wrong button will be pushed. This is a different hazard than that presented if the wrong disconnect is actuated when maintenance must be performed on a machine. The first citation placed Potlatch on notice that it must abate the latter hazard, not that it must correct hazards resulting from potentially improper machine operation. Thus, I would find that the violations are not substantially similar, and that the violation now before us was not repeated. I would affirm the citation as nonserious.