MATTSON CONSTRUCTION CO.

OSHRC Docket No. 76-4219

Occupational Safety and Health Review Commission

January 31, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry C. Mahlman, Associate Regional Solicitor, USDOL

Robert A. Wheeler, for the employer

OPINION:

DECISION

BY THE COMMISSION:

An April 25, 1977 decision of Administrative Law Judge James A. Cronin, Jr. is before this Commission for review pursuant to section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970. n1 This proceeding involves a citation alleging that Respondent (Mattson) repeatedly violated the Secretary's construction safety standards at 29 C.F.R. §   1926.500(d)(1), 29 C.F.R. §   1926.450(a)(9), and 29 C.F.R. §   1926.402(c)(1). n2 Because he found that the company's violations of these standards were not "repeated" violations within the meaning of either the Commission decision in General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974-75 CCH OSHD P19,567 (No. 2739, 1975), rev'd on other grounds, 540 F.2d 67 (2d Cir. 1976) or the third circuit's decision in Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3d Cir. 1976), Judge Cronin reduced the character of the guardrail citation to serious and the ladder and electrical appliance [*2]   citations to nonserious. He assessed penalties of $1,000, $180, and $60 for the respective violations.   The issue on review is whether Judge Cronin erred in concluding that Mattson did not repeatedly violate the above standards. n3

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n1 29 U.S.C. § §   651-678, hereinafter "the Act."

n2 The cited standards provide:

29 C.F.R. §   1926.500 Guardrails, handrails and covers.

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(d) Guarding of open-sided floors, platforms, and runways.

(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, . . ., on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. . . .

29 C.F.R. §   1926.450 Ladders.

(a) General requirements.

* * *

(9) The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

29 C.F.R. §   1926.402 Equipment installation and maintenance.

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(c) Switches, circuit brakers, and disconnecting means. (1) Each disconnecting means for motors and applicances, and each service feeder or branch circuit at the point where it originates, shall be legibly marked to indicate its purpose unless located and arranged so the purpose is evident.

n3 Mattson has not taken exception to the judge's determination that it violated the standards.

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During the fall of 1976, Mattson was involved in constructing an addition to the Bottineau county court house in Bottineau, North Dakota. James E. Howe, a compliance officer for the United States Department of Labor, conducted an inspection of this worksite on September 1, 1976.   While inspecting the second floor of the building, Howe observed three men working at and around a power saw at the northeast corner.   This table saw was located two feet from the east edge of the floor, which was 30 feet long and located approximately 10'7" above the hard packed ground below.   Because the three workers were not protected from falling over the edge of the building by standard railings, Mattson was cited for a violation of section 1926.500(d)(1).   Based on four citations for violations of the same standard within the previous four years, the present citation was characterized as repeated. All of the prior violations occurred at a jobsite in Minot, North Dakota.   They took place on July 10, 1972, June 6, 1973, October 10, 1973, and September 23, 1975.   Since Mattson did not contest any of the previous violations,   [*4]   they became final orders of the Commission.   29 U.S.C. §   659(a).

During the same inspection, the compliance officer noticed that the side rails of a ladder going to the second floor at the north side of the building extended approximately 12 inches above the landing at the floor level.   Therefore, the company was cited for violating the 36-inch requirement of section 1926.450(a)(9).   Because three citations alleging violations of this standard had become final orders in the three years prior to the September 1976 inspection, the Secretary characterized this citation as repeated. Like those involving the guardrail standard, these violations also occurred in Minot, North Dakota.   They took place on June 6, 1973, July 10, 1973, and September 24, 1974.

Finally, Howe observed an electric circuit box on the north side of the foreman's shed on the second floor. Because the box did not have any identification labels indicating what equipment the various circuit breakers operated, Mattson was cited for violating the marking requirements of section 1926.402(c)(1).   Mattson had received one prior citation alleging a violation of this standard at its Minot worksite on September 23, 1975.   [*5]   Like the prior violations involving the other standards, the earlier section 1926.402(c)(1) charge had evolved into a final order of the Commission prior to the inspection here.   Therefore, the Secretary characterized the present citation as repeated.

Judge Cronin found that none of the violations were properly characterized as repeated. Relying on the Commission decision in General Electric Co., supra, and the third circuit opinion in Bethlehem Steel Corp., supra, he held that the "record must establish that the Act has been repeatedly violated in a manner demonstrating a flaunting disregard by an employer of the requirements of the Act." Because the Secretary did not prove a clear case of Mattson's neglect or "utter disregard" of its statutory compliance responsibilities, the judge found that this test had not been met.   Judge Cronin did, however, affirm the section 1926.500(d)(1) citation as serious and the section 1926.450(a)(9) and section 1926.402(c)(1) citations as nonserious.

On review, the Secretary argues that the judge applied an incorrect standard for defining the statutory term "repeatedly." Referring to the Commission decision in Bethlehem Steel    [*6]   Corp., 75 OSAHRC 83/C12, 3 BNA OSHC 1520, 1974-75 CCH OSHD P19,996 (No. 8392, 1975), rev'd, 540 F.2d 157 (3d Cir. 1976), he asserts that nothing in the Act or its legislative history suggests that an employer's state of mind is relevant to a determination of whether a second violation occurring at its worksite is repeated Mattson asks that we affirm Judge Cronin's decision for the reasons given by the judge.

We agree with the Secretary that Mattson repeatedly violated the cited standards.   The resolution of this issue is controlled by the Commission decision in Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979).   In Potlatch, we established a new test for determining whether a violation is properly characterized as repeated. Under that test, an employer's state of mind is not relevant in determining whether a second violation committed by an employer is properly characterized as repeated. The Potlatch test states that, "[a] violation is repeated under section 17(a) n4 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."   [*7]   7 BNA OSHC at 1063, 1979 CCH OSHD at p. 28,171. In order to prove a prima facie case of a repeated violation, the Secretary has the burden of proving that a substantial similarity exists between the present and antecedent violations.   However, the Secretary satisfies this burden where he alleges and proves that both citations involve violations of the same standard.   The employer may then rebut this showing by coming forward with evidence that the viclations for which it was cited occurred under disparate conditions or involved different hazards.

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n4 Section 17(a), 29 U.S.C. §   666(a), provides:

An 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.

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In this case the Secretary introduced prior citations demonstrating that each of the allegedly repeated violations had been preceeded [*8]   by at least one final order charging the company with a violation of the same specific standard.   All of the prior violations had occurred within a four-year period at the company's Minot worksite, and each one had become a final order of the Commission prior to the issuance of the present citations.   The Secretary's prima facie case is, therefore, established.   Mattson did not come forward with evidence that these violations occurred under disparate conditions or involved different hazards.

We conclude that Mattson did not rebut the Secretary's prima facie showing that it repeatedly violated sections 1926.500(d)(1), 1926.450(a)(9), and 1926.402(c)(1).   Accordingly, we find the company in repeated violation of the above standards.

We turn finally to the assessment of appropriate penalties.   The Secretary initially proposed penalties of $1,800 for the section 1926.500(d)(1) violation and $180 for the section 1926.450(a)(9) and section 1926.402(c)(1) infractions.   On review he asks that we reinstate those penalties.   We agree with the Secretary that his original penalty proposals are appropriate.

In Potlatch, we stated that factors such as an employer's attitude or state [*9]   of mind, the commonality of supervisory control over the violative conditions, the geographical proximity of the violations, the time lapse between violations, and the number of prior violations are only important in fashioning an appropriate penalty for an employer found to be in repeated violation of the Act.   Because these factors bear on the "good faith" efforts of the employer to comply with the Act's requirements, they are considered along with the usual criteria evaluated in penalty assessments under section 17(j). n5

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n5 Section 17(j), 29 U.S.C. §   666(i), provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and history of previous violations.

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The three citations in this case were preceeded by final orders charging the company with one to four prior violations of the same specific standards.   Mattson offered little evidence [*10]   that it instituted a safety program designed to prevent the recurrence of these violations.   In fact, the company's foreman admitted, and the judge noted, that although safety matters were left up to him, he had "no scheduled program." Compliance Officer Howe testified that the company was generally cooperative in its dealings with OSHA, but he concluded that Mattson's prior history of violations indicated that its safety program was weak.   We agree. Taking all of the above factors into consideration, we assess penalties of $1,800, $180, and $180 respectively for Mattson's repeated violation of the standards at sections 1926.500(d)(1), 1926.450(a)(9), and 1926.402(c)(1).

We note that this case was tried and decided prior to our decision in Potlatch. Normally when there has been a significant change in Commission precedent between the hearing and our decision on review of a case, we offer the affected party an opportunity to present additional evidence relevant to the newly established test or defense.   See e.g., Truland-Elliott, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976-77 CCH OSHD P20,908 (No. 11259, 1976).   In this case, however, the prior repeated violations are based on [*11]   final orders alleging violations of the same specific standards.   Under these circumstances, we find that the record before us precludes Mattson from rebutting the Secretary's prima facie case. See Potlatch Corp., supra; Triple "A" South, Inc., 79 OSAHRC    , 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979).

Accordingly, the citation alleging repeated violations of 29 C.F.R. § §   1926.500(d)(1), 1926.450(a)(9), and 1926.402(c)(1), and the penalties proposed therefor, are affirmed.  

CONCURBY: BARNAKO (In Part)

DISSENTBY: BARNAKO (In Part)

DISSENT:

BARNAKO, Commissioner; concurring in part and dissenting in part:

Although for different reasons than advanced by my colleagues, I agree with the majority that the company's violations of sections 1926.500(d)(1), 1926.450(a)(9) and 1926.402(c)(1) n1 should be characterized as repeated. I would, however enter a conditional order as to the repeated nature of the violations and permit Matson an opportunity to rebut the characterization of the violations as repeated.

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n1 See footnote 2 of the majority opinion for the provisions of these standards.

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By applying the test enunciated in the recent majority opinion in Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979), my colleagues find that Mattson repeatedly violated the three cited standards.   That test states that a violation is properly characterized as repeated under section 17(a) of the Act if it is preceded by a substantially similar violation established by a final order of the Commission.   Although I agree that proof of substantial similarity between the present and antecedent violations is essential, I disagree with the majority's analysis of what is required to establish this element and its allocation of the burden of proof on this point.   As expressed in my separate opinion in Potlatch, I would not presume that a violation of the same standard fulfills the substantial similarity requirement.   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 [*13]   such notice is not apparent from the face of the citation, I would require the Secretary to prove substantial similarity.

In this case, the Secretary introduced as exhibits the prior citations upon which he based the repeated allegations.   The descriptive language used in all four of the previous citations involving a section 1926.500(d)(1) violation shows that Mattson was charged with failure to provide a standard railing around the open-sided edge of a floor exceeding six feet in height.   Each of the three prior citations alleging a violation of section 1926.450(a)(9) charged Mattson with violating this standard by failing to insure that a ladder's side or hand rails extended three feet above a landing. The earlier citation for violation of section 1926.402(c)(1) alleged that Mattson violated the standard by failing to legibly mark the disconnecting means for various electrical equipment.   It is obvious, therefore, from the face of the previous citations, that the prior violations of sections 1926.500(d)(1), 1926.450(a)(9), and 1926.402(c)(1) involved conditions substantially similar to those on which the present violations of the same standard are based. n2 Moreover, the hazards [*14]   and means of abatement are identical in each case.   For these reasons, I agree with the majority that the Secretary showed a substantial similarity between the present and prior violations of the three cited standards.

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n2 The citation for repeated violation of 29 C.F.R. §   1926.500(d)(1) at issue here alleged that

Open-sided floors or platforms, 6 feet or more above adjacent floor or ground level, were not guarded by a standard railing or the equivalent on all open sides: On or about September 1, 1976, on the second floor of the construction site at the corner of Bennett Street and Fourth Street West, Bottineau, North Dakota, employees were exposed to falling in excess of 6 feet over the edge of the building at the northeast corner of the building where men were cutting materials for forms.

The citation for repeated violation of 29 C.F.R. §   1926.450(a)(9) at issue here alleged that

The side rails of ladder(s) did not extend more than 36 inches above landing(s): On or about September 1, 1976, the ladder that went to the second floor of the building on the corner of Bennett Street and Fourth Street West, Bottineau, North Dakota, did not extend 3 feet (36 inches) above the landing, exposing employees to falling hazards.

The citation for repeated violation of 29 C.F.R. §   1926.402(c)(1) at issue here alleged that

Each disconnecting means for motors and appliances, or each service feeder or branch circuit at the point where it originates, was not legibly marked to indicate its purpose when the purpose was not evident: On or about September 1, 1976, the electric control box, north of the contractor's trailer, did not have the switches legibly marked to show what they operate.

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In my separate opinion in Potlatch Corp., supra, I stated that I would allow an employer to affirmatively defend against the Secretary's prima facie case of a repeated violation by showing that it took reasonable good faith steps to prevent the occurrence of subsequent violations after receiving adequate notice of the existence of initial ones.   Although the majority only considers these factors in determining an appropriate penalty assessment under section 17(j) of the Act, I also find them relevant in considering whether an employer was reasonably attempting to comply with its abatement responsibilities under the Act.   If an employer proves it made a sufficient good faith effort to comply, I would reduce the characterization of the violation from repeated to serious or nonserious. See my dissenting opinion in FMC Corp., 79 OSAHRC    , 7 BNA OSHC 1419, 1979 CCH OSHD P23,631, (No. 12311, 1979).

Mattson's foreman testified that, although he was in charge of safety at the Bottineau project, he did not organize a safety program there.   This tends to indicate that Mattson cannot establish [*16]   the good faith defense I set forth in Potlatch.

However, as my colleagues note, this case was tried and decided prior to the Commission decision in Potlatch. Therefore, Respondent did not know at the hearing that it could defend by proving it took reasonable good faith steps after the entry of a prior final order to prevent the recurrence of a substantially similar violation.   As the majority properly indicates, in situations where there has been a significant intervening change in the law between the hearing and our decision on review of the case, our usual practice is to allow the parties an opportunity to present additional evidence relevant to any new defense or legal theory.   See Triple "A" South, Inc., 79 OSAHRC    , 7 BNA OSHC 1352, 1979 CCH OSHC P23,555 (No. 15908, 1979) (concurring and dissenting opinion).

Accordingly, I would enter a conditional order, finding Mattson in repeated violation of the cited standards unless within 10 days from the issuance of this decision Mattson notifies the Executive Secretary of the Commission that it wishes to adduce additional evidence with respect to any efforts it took after entry of the prior final orders to prevent [*17]   the recurrence of substantially similar violations.   See Stearns-Roger, Inc., 79 OSAHRC    , 7 BNA OSHC 1919, 1979 CCH OSHD P24,008 (No. 76-2326, 1979).