AUSTIN ROAD CO.  

OSHRC Docket No. 77-2752

Occupational Safety and Health Review Commission

July 31, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Steven R. McCown, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Dee C. Blythe is before the Commission for review pursuant to section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   In his decision, Judge Blythe affirmed a citation alleging a "serious-repeat" violation of the Act in that the Respondent, Austin Road Co., failed to comply with 29 C.F.R. §   1926.652(c).   The cited standard applies to those trenches that are excavated in hard or compact soil and that are more than five feet in depth and eight feet or more in length.   When these conditions are encountered, the employer is required to shore or otherwise support the sides of the trench or alternatively to slope the sides above the five-foot level.

The Respondent petitioned for review of the judge's decision, taking exception to several of the judge's findings and conclusions.   Commissioner Barnako directed review of the judge's decision.   [*2]   However, he limited review to the following issue raised in the Respondent's petition:

Whether the trial judge committed reversible error in concluding that the violation of 29 C.F.R. 1926.652(c) was a repeated violation as alleged.

Since the judge issued his decision, the Commission has definitively identified the circumstances under which a violation is properly classified as repeated within the meaning of section 17(a) of the Act, 29 U.S.C. §   666(a).   Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979) ("Potlatch"). See also, Stearns-Roger, Inc., 79 OSAHRC    , 7 BNA OSHC 1919, 1979 CCH OSHD P24,008 (No. 76-2326, 1979); Communications, Inc., 79 OSAHRC 61/A2, 7 BNA OSHC 1598, 1979 CCH OSHD P23,759 (No. 76-1924, 1979), appeal filed, No. 79-2148 (D.C. Cir. Sept. 27, 1979); Triple "A" South, Inc., 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979).   Because the judge applied a different test in his analysis of the issue, his ruling on whether the Respondent's failure to comply with section 1926.652(c) was a repeated violation of the Act must be set aside and reconsidered under current   [*3]   Commission precedent.

Accordingly, the case is remanded to Judge Blythe. n1 The judge should reconsider the allegation that the Respondent's violation of the Act was repeated in light of the Commission's decisions in Potlatch and in subsequent cases where the Potlatch test has been applied. n2 In addition, the judge should rule upon the specific arguments raised by the Respondent on review in support of its contention that the violation at issue was not repeated. The following guidelines are to be observed in ruling upon those arguments.

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

n1 In Potlatch, Commissioner Barnako set forth his test for determining whether a violation is repeated under section 17(a) of the Act.   That test differs in some respects from that of the Commission majority.   Commissioner Barnako's current test also differs in some respects from the test he had previously adopted 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). (In the decision now under review, Judge Blythe sought to apply Commissioner Barnako's earlier test as stated in George Hyman.)

Commissioner Barnako adheres to his position in Potlatch. However, he recognizes that the orderly administration of the Act requires that the Commission's administrative law judges follow precedent established by the Commission.   Gulf & Western Food Products Co., 77 OSAHRC 72/A2, 4 BNA OSHC 1436, 1439, 1976-77 CCH OSHD P20,886 at p. 25,067 (Nos. 6804 & 6805, 1976).   For this reason, he joins with his colleagues in the Commission's remand order.

n2 Some of these post - Potlatch cases have been listed in the text, supra. The case now before us is similar to the cited cases in that the Potlatch test is to be applied even though the case was tried prior to the issuance of the Commission's decision in Potlatch. In cases of this type, when the Commission concludes that the Secretary has established his prima facie case, we consider whether it is necessary to afford the employer an opportunity to present additional evidence in rebuttal to that prima facie case. See, e.g., Stearns-Roger, Inc., supra, 7 BNA OSHC at 1924 & n. 15, 1979 CCH OSHD at p. 29,159 & n. 15; Communications, Inc., supra, 7 BNA OSHC at 1603 & n. 5, 1979 CCH OSHD at pp. 28,813-14 & n. 5. Accordingly, the judge should follow this same procedure on remand of the instant case.

  [*4]  

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

In its petition for review, the Respondent set forth 23 specific exceptions to the judge's decision and order.   The exceptions numbered 11-17 are each directed to the judge's discussion of the repeated allegation.   These exceptions and exceptions 22 and 23 -- to the extent they are directed to the judge's affirmance of the repeated allegation -- are therefore within the scope of the direction for review. n3 The Respondent's remaining exceptions are beyond the scope of the direction for review and they are deemed denied.   See Commission Rule of Procedure 91(d), 29 C.F.R. §   2200.91(d).   In addition, any issue neither raised in a petition for review nor directed for review by an individual member upon his own motion, see Commission Rule of Procedure 92(c), 44 Fed. Reg. 70,106 at 70,111 (1979), to be codified in 29 C.F.R. §   2200.92 [formerly Rule 91a(c), 29 C.F.R. §   2200.91a(c)], is not before the Commission on review.   These limitations on the scope of review are applicable to the remand proceedings in the instant case.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -   [*5]   - - -

n3 The Respondent also filed a brief on review in which it limited its arguments to the issue specified in the direction for review.   In addition to presenting arguments in support of the exceptions stated in the petition for review, the Respondent also raised a new contention.   It listed eleven "facts" assertedly established by the record and argued that the judge erroneously failed to consider those facts in determining that the violation at issue was repeated. We conclude that this argument is also within the scope of the direction for review and therefore before Judge Blythe on remand.

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

Three of the Respondent's exceptions raise issues that have not previously been addressed by us.   Final resolution of these issues in this opinion is therefore warranted.

The Respondent argued before the judge that "[t]here simply cannot be a repeated violation of a standard unless the same degree of culpability is attributable to a respondent for each alleged offense." Here the violation at issue was alleged to be serious as well as repeated. However, the prior instance of noncompliance with section   [*6]   1926.652(c) relied upon by the Secretary as the basis for the repeated charge in this case was alleged to be a nonserious violation of the Act.   Thus, according to the Respondent, the instant violation was not repeated because the prior violation had a different "degree of culpability."

Judge Blythe rejected this argument.   He noted that the contention was not supported by any "authority".   He further stated that "[s]uch a requirement would place a premium upon consistency in classification of violations which . . . would unduly hamper the enforcement . . . of the Act." In addition, he observed that the serious allegation in the citation under review was of limited significance.   Its primary purpose was to serve as an alternative allegation in the event the repeated charge were vacated.

In its petition, the Respondent took exception to the judge's ruling, renewing its argument before us.   In response, the Secretary argued that the judge's ruling was correct.   In addition to endorsing the judge's reasoning, the Secretary further noted that two violations of the same standard may create the same hazard and yet differ in terms of their gravity, thereby justifying the classification   [*7]   of one violation as serious and the other as nonserious. He thereby implicitly contended that the principal factor to be considered in determining whether a violation is repeated is whether the prior and instant violations resulted in substantially similar hazards and not whether they both resulted in a likelihood of death or serious physical harm.   Furthermore, the Secretary observed, a citation supplies the same "notice that his [the employer's] safety regime is deficient" and creates the same "obligation to prevent a recurrence of the violation" regardless of whether the violation is alleged to be serious or nonserious. Under this reasoning, either citation would be equally relevant in determining whether a subsequent violation was repeated.

We agree with both Judge Blythe and the Secretary.   The Respondent's exception is denied and the judge's ruling is affirmed.

The Respondent also contended before the judge that the violation at issue could not be classified as repeated because the prior violation which served as the basis of the repeated allegation occurred approximately three years prior to the issuance of the citation now under review.   Initially the Respondent cited to [*8]   section 9(c) of the Act, 29 U.S.C. §   658(c), which states that "[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation." On the basis of this provision, the Respondent asserted "that a repeated violation cannot occur when the previous citations on which the repeated violation is based occurred greater than six months ago." Alternatively the Respondent argued that reliance upon the prior violation is barred by a provision of the Texas civil code creating a two-year statute of limitations for personal injury actions.   It reasoned that, if the specific federal statute of limitations [section 9(c) of the Act, supra] were held to be inapplicable, then "the analogous general state statute of limitations" would be controlling.

Judge Blythe rejected both of these alternative arguments.   He concluded that neither section 9(c) of the Act nor the state statute was applicable to the situation before him.   The judge stated:

Section 9(c) provides a limitation for the issuance of the current citation after the occurrence of the violation and does not pertain to the historical period which may be considered in determining   [*9]   whether an employer has "repeatedly" violated a standard . . . .

The state statutes (sic) of limitations has no application here, since the Act has its own limitation in §   9(c) and the state statute, by its own terms, applies to personal injury actions.

We reject the Respondent's exceptions to these two conclusions.   We conclude that the judge properly rejected the Respondent's arguments for the reasons he assigned and we adopt his conclusions.   Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

The remainder of the Respondent's arguments on review are governed by Commission precedent, including that cited at the outset of this decision.   Accordingly, Judge Blythe should consider -- or reconsider -- the issues raised by the Respondent in light of the arguments of both parties on review and any relevant precedent.   Where appropriate, e.g., where the Respondent asserts that the prior and instant violations are so dissimilar as to preclude classification of the instant violation as repeated, the judge should consider the Respondent's arguments as part of his application [*10]   of the test under Potlatch.

SO ORDERED.