GEORGE HYMAN CONSTRUCTION CO.

OSHRC Docket No. 76-702

Occupational Safety and Health Review Commission

December 31, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Kenneth Hellman, Coordinator for D. C. Litigation, Office of the Solicitor, USDOL

Donald W. Savelson, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Joseph Chodes is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The respondent, George Hyman Construction Co. ("Hyman"), admitted that it failed to comply with construction safety standards published at 29 C.F.R. 1926.25(a) n2 and 1926.401(j)(1). n3 The only issue is whether those violations are repeated violations within the meaning of section 17(a) of the Act, 29 U.S.C. 666(a). n4 Judge Chodes so found n5 and we affirm, for the following reasons.

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

n1 29 U.S.C. 661(i).

n2 Section 1926.25(a) provides:

During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

n3 Section 1926.401(j)(1) provides:

Temporary lights shall be equipped with guards to prevent accidental contact with the bulb, except that guards are not required when the construction of the reflector is such that the bulb is deeply recessed.

n4 Section 17(a) provides:

Any employer who willfully or repeatedly violates the requirements of section 654 of this title, any standard, rule, or order promulgated pursuant to section 655 of this title, or regulations prescribed pursuant to this chapter, may be assessed a civil penalty of not more than $10,000 for each violation.

n5 The case was submitted for decision upon a stipulation of the parties and a partial withdrawal of the notice of contest. The respondent agreed to post the stipulation pursuant to 29 C.F.R. 2200.7, and the judge accepted the stipulation. The record reveals no objection by any employees or employee representatives to the stipulation, including the amounts of the stipulated penalties.

[*2]

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

A citation for noncompliance with each standard was issued following an inspection on January 16, 1976, of one of Hyman's construction sites in Washington, D.C. Hyman previously had been cited for noncompliance with section 1926.25(a) on June 12, 1974, and February 28, 1975, and it had been cited for noncompliance with section 1926.401(j)(1) on October 3, 1974, and February 3, 1975. The four previous citations involved worksites in Washington, D.C., entirely separate from the site involved here. The judge found, and it is undisputed, that the previous citations had become final orders of the Commission before the present violations occurred.

Though Hyman admitted that the present violations occurred, it argues for a number of reasons that they should not be considered repeated. Hyman contends that the worksites where the previous violations occurred are totally unrelated to the worksite involved here, and that those worksites were under the control of different job superintendents, who are the persons primarily responsible for safety at each site.

Hyman also argues that the Secretary's guidelines [*3] n6 for determining when to cite for a repeated violation are arbitrary and capricious. Hyman points out that the guidelines permit an employer with a fixed worksite to be cited only at the same worksite, while they permit an employer like Hyman without fixed worksites to be cited for repeated violations at any worksite in the same state. n7

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

n6 Occupational Safety and Health Administration, U.S. Dept. of Labor, Field Operations Manual, Chapter VIII, para. (b)(4)(e) (1974, as amended).

n7 Hyman also argues that the state boundary provision is arbitrary and capricious. This argument is not before us since all of Hyman's construction sites were located in the District of Columbia. George Hyman Constr. Co. v. OSHRC, 582 F.2d 834 (4th Cir. 1978).

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

Hyman further argues that neither of the present violations involved flagrant misconduct or a flouting of the requirements of the Act. As part of this argument, Hyman contends that there was no evidence presented that it knew of the present violations, that any of the same [*4] supervisory personnel or employees were involved in the different violations, or that it showed a lack of care or concern for safety. Also as part of this argument, Hyman contends that the previous violations were remote in time from the present ones. Hyman would have us conclude that since there was nothing flagrant about its behavior, it cannot be liable for a repeated violation.

In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979), we held that a violation is repeated under section 17(a) of the Act, 29 U.S.C. 666(a), if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation. We concluded that 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. The burden then shifts to the respondent to show that the past and present violations are not substantially similar. We held 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, [*5] the time lapse between the violations, and the number of prior violations do not bear on whether a violation is repeated, although these matters will be considered in assessing a penalty. 79 OSAHRC at 6/B1, 7 BNA OSHC at 1064, 1979 CCH OSHD P23,294 at p. 28,172. Thus, to the extent Hyman's arguments involve its attitude toward the Act, lack of common supervisory control, n8 the different locations of the worksites, and the time lapse between the violations, they are not relevant to our determination of whether a violation is repeated, but are relevant in assessing a penalty.

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

n8 In this connection, we note that Hyman employs a safety director who has companywide responsibility for safety training and advice.

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

With respect to Hyman's contention that there was no evidence presented that it had knowledge of the alleged repeated violations, we note simply that knowledge, to the extent it would be part of our analysis, is an element to be considered in finding a violation. It plays no role in determining whether a violation, [*6] once established, is properly characterized as "repeated." See Potlatch Corp., 79 OSAHRC at 6/B1-B2, 7 BNA OSHC at 1064, 1979 CCH OSHD P23,294 at p. 28,173. In this case, Hyman admitted the violations. Its arguments focus on the characterization of those violations as repeated. Indeed, Hyman's argument concerning evidence of knowledge is not an independent argument, but is part of a broader argument that there was no showing that it flouted the requirements of the Act. As noted above, insofar as "knowledge" is an element of Hyman's broader "attitude" argument, it is a factor to be considered in assessing a penalty and not in determining whether the violations are repeated.

As noted above, the judge found, and it is undisputed, that at the time the present violations occurred, there were Commission final orders against Hyman for violations of the same standards involved here. The employer has made no showing that the earlier violations were in any way dissimilar from the present ones. n9 Thus, we affirm the judge's finding of repeated violations as to both section 1926.25(a) and section 1926.401(j)(1), based on the criteria established in Potlatch, supra. n10 [*7]

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

n9 For the reasons stated in his separate opinion in Potlatch, supra, Commissioner Barnako would not impose such a burden on the employer in this case. Rather, Commissioner Barnako would find the violation of section 1926.25(a) substantially similar to the prior violations because the citation now before us and the prior citations of this standard which have become final orders all allege failure to keep construction debris and, more specifically, scrap lumber clear from work areas. It is therefore obvious from the face of the previous citations that the prior violations of section 1926.25(a) involved conditions substantially similar to those on which the citation now before us is based. Moreover, the hazard and means of abatement are identical in each instance. See Stearns-Roger, Inc., 79 OSAHRC    , 7 BNA OSHC 1919, 1979 CCH OSHD P24,008 (No. 76-2326, 1979) (concurring opinion).

Similarly, Commissioner Barnako would find the violation of section 1926.401(j)(1) substantially similar to the prior violations of that standard because the present and prior citations on their face and identical. They all allege failure to equip temporary lights with guards to prevent accidental contact with the bulbs, and they require a single, specific means of abatement that is applicable in all instances where the hazard of contact with a light bulb exists. See Williams Enterprises of Georgia, Inc., 79 OSAHRC    , 7 BNA OSHC 1900, 1979 CCH OSHD P24,003 (No. 13875, 1979) (concurring and dissenting opinion).

n10 This case was tried and decided by the judge before our decision in Potlatch, supra. Usually when there has been a significant intervening change of law between the hearing and our decision on review in a case, we will offer the affected party an opportunity to present additional evidence relevant to the newly-established legal test or defense. See, e.g., Truland Elliot, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976-77 CCH OSHD P20,908 (No. 11259, 1976).

Here the respondent presented no evidence regarding any dissimilarity of the violative conditions involved in the prior and present citations. However, as Commissioner Barnako points out in note 9, above, the present citation for violation of section 1926.25(a) clearly relates to conditions substantially similar to those involved in the previous citations. In each instance, the employer failed to clear construction debris from work areas. Similarly, the present citation for a violation of section 1926.401(j)(1) clearly relates to conditions substantially similar to those referred to in the previous citations involving the same standard, for the reasons Commissioner Barnako points out. Thus, we conclude on the facts of this case that the respondent could not have rebutted by showing factual dissimilarities between the present violation and the earlier ones, and no remand is necessary. Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1979 CCH OSHD P23,440 (No. 76-1480, 1979); Triple "A" South, Inc., 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979); see FMC Corp., 79 OSAHRC    , 7 BNA OSHC 1419, 1979 CCH OSHD P23,631 (No. 12311, 1979).

As Commissioner Barnako stated in his separate opinion in Potlatch, supra, he would allow an employer to defend against an alleged repeated violation by demonstrating that it made good faith efforts after the entry of a final order to prevent the recurrence of a substantially similar violation. Since the stipulated record in this case predates the Commission decisions in 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 in Potlatch, supra, Commissioner Barnako would afford respondent an opportunity to present evidence as to this defense and would therefore remand to the judge for further proceedings. See Triple "A" South, Inc., supra (concurring and dissenting opinion).

[*8]

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

Finally, we affirm the judge's assessment of a $260 penalty for the section 1926.25(a) repeated violation and a $180 penalty for the section 1926.401(j)(1) repeated violation, made pursuant to a stipulation of the parties. Where all parties have agreed to the appropriateness of a specific penalty the Commission will accept that amount where there is no objection from any authorized employee representative or affected employees, and the amount of the agreed-upon penalty is not clearly repugnant to the purposes and policies of the Act. Thorleif Larsen & Sons, Inc., 74 OSAHRC 74/C8, 2 BNA OSHC 1256, 1974-75 CCH OSHD P18,826 (No. 370, 1974). Here, the record indicates no objection by or on behalf of employees. See note 5 supra. Based on our review of the factors enumerated in sections 17(a) and (j) of the Act, 29 U.S.C. 666(a) and (i), we conclude that the penalties to which the parties stipulated are not clearly repugnant to the purposes and policies of the Act. Accordingly, we affirm the judge's assessment of those penalties. Triple "A" South, Inc., supra, note 10. n11

- [*9] - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n11 Commissioner Barnako notes that the parties not only stipulated to the penalty to be assessed in the event the violations were found to be repeated but also stipulated to a lower penalty in the event violations were found as nonserious but not repeated. Because Commissioner Barnako would remand for a determination of the proper characterization of the violations, he would not at this time decide what penalty should be assessed. As a general matter, however, for the reasons stated in his separate opinion in Triple "A" South, supra, note 10, Commissioner Barnako would assess without further review a penalty amount to which the parties have agreed, and he would not allow employees or their representatives to object before the Commission to the amount of the penalty.

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

It is so ORDERED.