1 of 202 DOCUMENTS

TURNER COMPANY


A. SCHONBEK & CO., INC.  


NORANDA ALUMINUM, INC.  


GENERAL MOTORS CORP., GM ASSEMBLY DIV.  


ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.  


CLEMENT FOOD COMPANY


MILLCON CORPORATION


FWA DRILLING COMPANY, INC.  


CCI, INC.  


GENERAL ELECTRIC COMPANY


CONSOLIDATED ALUMINUM CORPORATION


THE BRONZE CRAFT CORPORATION


CARGILL, INC.  


CHAPMAN CONSTRUCTION CO., INC.  


GALLO MECHANICAL CONTRACTORS, INC.  


SPECIAL METALS CORPORATION


WILLAMETTE IRON AND STEEL COMPANY


NASHUA CORPORATION


WESTINGHOUSE ELECTRIC CORPORATION


RESEARCH-COTTRELL, INC.  


ROCKWELL INTERNATIONAL CORPORATION


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.  


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.  


BUNKOFF CONSTRUCTION CO., INC.  


GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION


HARRIS BROTHERS ROOFING CO.  


GENERAL DIVERS COMPANY


ORMET CORPORATION


R. ZOPPO CO., INC.  


COEUR D'ALENE TRIBAL FARM


L. A. DREYFUS COMPANY


CMH COMPANY, INC.  


BENTON FOUNDRY, INC.  


MICHAEL CONSTRUCTION CO., INC.  


WHIRLPOOL CORPORATION


BROWN & ROOT, POWER PLANT DIVISION


MARION POWER SHOVEL CO., INC.  


ERSKINE-FRASER CO.  


MORRISON-KNUDSEN AND ASSOCIATES


THE BOAM COMPANY


DIC-UNDERHILL, a Joint Venture


C. R. BURNETT AND SONS, INC.; HARLLEE FARMS


STRIPE-A-ZONE, INC.  


FORTE BROTHERS, INC.  


RAYBESTOS FRICTION MATERIALS COMPANY


TEXLAND DRILLING CORPORATION


THE ANACONDA COMPANY, WIRE AND CABLE DIVISION


SAM HALL & SONS, INC.  


VAMPCO METAL PRODUCTS, INC.  


LEONE INDUSTRIES, INC.  


ASARCO, INC.  


DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY


PLUM CREEK LUMBER COMPANY


PLUM CREEK LUMBER COMPANY


STEARNS-ROGER, INC.  


FERRO CORPORATION, (ELECTRO DIVISION)


AMERICAN PACKAGE COMPANY, INC.  


BROWN & ROOT, INC., POWER PLANT DIVISION


FLEETWOOD HOMES OF TEXAS, INC.  


DONALD HARRIS, INC.  


A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.  


ELECTRICAL CONSTRUCTORS OF AMERICA, INC.  


DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)


ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY


NAVAJO FOREST PRODUCTS INDUSTRIES


METROPAK CONTAINERS CORPORATION


AUSTIN BUILDING COMPANY


BABCOCK AND WILCOX COMPANY


DARRAGH COMPANY


BABCOCK & WILCOX COMPANY


OTIS ELEVATOR COMPANY


R. ZOPPO COMPANY, INC.  


LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS


PENNSYLVANIA POWER & LIGHT CO.  


HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY


NORTHWEST AIRLINES, INC.  


INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.  


GENERAL MOTORS CORPORATION, INLAND DIVISION


WELDSHIP CORPORATION


S & S DIVING COMPANY


SNIDER INDUSTRIES, INC.  


NATIONAL STEEL AND SHIPBUILDING COMPANY


MAXWELL WIREBOUND BOX CO., INC.  


CONTINENTAL GRAIN COMPANY


MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY


CAPITAL CITY EXCAVATING CO., INC.  


GAF CORPORATION


PPG INDUSTRIES (CARIBE) a Corporation


DRUTH PACKAGING CORPORATION


SOUTHWESTERN ELECTRIC POWER COMPANY


TUNNEL ELECTRIC CONSTRUCTION CO.  


WEATHERBY ENGINEERING COMPANY


JOHNSON STEEL & WIRE CO., INC.  


AUSTIN ROAD CO.  


MAYHEW STEEL PRODUCTS, INC.  


LADISH CO., TRI-CLOVER DIVISION, a Corporation


PULLMAN POWER PRODUCTS, INC.  


NATIONAL ROOFING CORPORATION


OSCO INDUSTRIES, INC.  


HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY


S.J. GROVES AND SONS COMPANY


CAR AND TRUCK DOCTOR, INC.  


PRESTRESSED SYSTEMS, INC.  


TEXACO, INC.  


GEORGIA HIGHWAY EXPRESS, INC.  


RED LOBSTER INNS OF AMERICA, INC.  


SUNRISE PLASTERING CORP.  


STONE & WEBSTER ENGINEERING CORPORATION


H.B. ZACHRY COMPANY (INTERNATIONAL)


NATIONAL INDUSTRIAL CONSTRUCTORS, INC.  


BUSHWICK COMMISSION COMPANY, INC.  


CIRCLE T DRILLING CO., INC.  


J.L. FOTI CONSTRUCTION COMPANY, INC.  

OSHRC Docket No. 77-2848

Occupational Safety and Health Review Commission

June 30, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Regional Attorney

Louis H. Orkin, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge James D. Burroughs is before the Commission 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").   At issue before the judge was a citation alleging that the Respondent, J.L. Foti Construction Company, Inc., failed to comply with 29 C.F.R. §   1926.451(d)(10) in that standard guardrails and toeboards were not installed at the open sides and ends on three levels of a tubular welded frame scaffold. The Secretary of Labor ("the Secretary") further alleged in this citation that the Respondent's failure to comply with section 1926.451(d)(10) constituted a repeated violation of the Act within the meaning of section 17(a) of the Act, 29 U.S.C. §   666(a).

In his decision, Judge Burroughs concluded that the Respondent had failed to comply with section 1926.451(d)(10), expressly rejecting the Respondent's defenses to this charge, including the following (as stated [*2]   by the judge):

(1) there is no credible evidence that employees of respondent were on the scaffold;

(2) equivalent protection was provided by a nylon mesh net; [and]

(3) the cross bracing of the scaffold provided equivalent protection; . . . .

The judge rejected the Respondent's first contention on the basis of his evaluation of the record evidence, entering a finding that employees of the Respondent worked on the three levels of the scaffold that were alleged to be inadequately guarded.   With respect to the second contention, Judge Burroughs apparently accepted the Respondent's underlying premise, that is, that a nylon mesh net would provide equivalent protection.   Nevertheless, he rejected the defense on the ground that "[t]he preponderance of the evidence supports the conclusion that no nylon mesh netting was in use . . . ." The judge also rejected the third contention of the Respondent, concluding that, although "[t]he cross bracing must be viewed as a type of guardrail," it did not provide "equivalent protection" to that required under the standard.   Having rejected these and other defenses to the charge, Judge Burroughs affirmed the Secretary's allegation that the Respondent [*3]   failed to comply with section 1926.451(d)(10).

However, the judge vacated the Secretary's allegation that the Respondent's noncompliance with the cited standard constituted a repeated violation of the Act.   He noted that the Secretary based this allegation on the fact that the Respondent had previously been issued a citation alleging noncompliance with 29 C.F.R. §   1926.451(a)(4), a standard setting forth general requirements applicable to all scaffolds. He further noted that the Commission had "not addressed the question of whether a prior violation of one standard . . . can be construed as presenting circumstances that would result in a repeat violation of another standard . . . ." After considering this issue, Judge Burroughs concluded that "a repeat violation should be determined only in those cases where the same standard has been previously violated by an employer . . . ." Applying this test, he accordingly vacated the repeated allegation in the case before us.   He us.   He affirmed the citation as modified to allege a serious rather than repeated violation of the Act.

Both of the parties filed petitions for review of the judge's decision and order.   The Respondent took exception [*4]   to the judge's conclusion that it failed to comply with section 1926.451(d)(10) and in particular argued that the judge erred in rejecting the three contentions set forth above.   The Secretary took exception to the judge's conclusion that the Respondent's noncompliance was not a repeated violation of the Act.   In directing review of Judge Burroughs' decision and order, Chairman Cleary expressly granted both of these petitions for review.

Since the filing of the judge's decision in this case, the Commission has decided several other cases that presented similar issues.   For example, in Dick Corp., 79 OSAHRC    , 7 BNA OSHC 1951, 1979 CCH OSHD P24,078 (No. 16193, 1979), the Commission rejected an employer's contentions (1) that the back and ends of a scaffold were not "open" within the meaning of section 1926.451(d)(10) because of the presence of cross-bracing and scaffold bucks and (2) that these devices constituted "equivalent protection" within the meaning of the standard.   The Commission's decision in that case clearly articulates the respective burdens of the Secretary in establishing his prima facie case and of the employer in establishing that it falls within the "equivalent [*5]   protection" exception to the standard's requirements.   Because the decision in Dick Corp. interprets the requirements of section 1926.451(d)(10), the same standard that is at issue in the case now before us, its relevance to this case is clear.   Also relevant to the Respondent's contentions on review is our recent decision in Wander Iron Works, Inc., 80 OSAHRC    , 8 BNA OSHC 1354, 1980 CCH OSHD P24,457 (No. 76-3105, 1980).   In that case we rejected the employer's contention that the use of safety belts constituted compliance with a standard that requires the use of guardrails. n1 The discussion in that case as to when an employer may substitute an alternative form of protection for that required under a standard is particularly relevant to the Respondent's contention in the case now before us that employees were protected by a nylon mesh net.

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

n1 The standard at issue in Wander Iron Works, Inc., supra, and the standard at issue in the case now before us are written using virtually identical language.   In essence, they establish the same requirements with respect to two different types of scaffolds.

  [*6]  

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

In addition, the Commission has issued a decision, since the filing of Judge Burroughs' decision in the case now before us, that is dispositive of the issue raised by the Secretary on review.   In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979), the Commission majority adopted a test for determining whether a violation is repeated within the meaning of the Act.   In pertinent part, the Commission stated the following:

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 in several ways . . . .

In the absence of evidence that the antecedent and present violations concern noncompliance 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 . . . .   [T]o hold that characterization as repeated [*7]   is limited to subsequent violations of the same standard could lead to patently absurd results . . . .

7 BNA OSHC at 1063, 1979 CCH OSHD at pp. 28,171-72. Thus, the judge's ruling on whether the Respondent's failure to comply with section 1926.451(d)(10) was a repeated violation of the Act must be set aside and reconsidered under current Commission precedent.

Accordingly, the case is remanded to Judge Burroughs. n2 On remand, the judge should issue a decision and order disposing of the contentions of both parties on review.   The judge should reconsider the Respondent's contentions that it provided equivalent protection in light of the Commission's decisions in Dick Corp., supra, and Wander Iron Works, Inc., supra. In addition, the judge should reconsider the Secretary's contention that the violation was repeated in light of the Commission's decisions in Potlatch Corp., supra, and in subsequent cases where the Potlatch test has been applied. n3 Finally, the judge should reconsider his finding that employees of the Respondent were exposed to the hazard, and any other issue that in his view is within the scope of the direction for review, in light of the [*8]   record, including the arguments of the parties on review.

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

n2 In Potlatch Corp., supra, 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.   Although Commissioner Barnako adheres to his position in Potlatch Corp., 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.

n3 See, e.g., 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).   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 Corp., supra. 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.

  [*9]  

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

SO ORDERED.

CONCURBY: COTTINE (In Part)

DISSENTBY: COTTINE (In Part)

DISSENT:

COTTINE, Commissioner, concurring in part and dissenting in part:

I concur in that portion of the lead opinion that remands this case to the judge for reconsideration of whether the violation of §   1926.451(d)(10) was repeated under the criteria set forth by the Commission in Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979). n1 However, a remand to reconsider the merits of the violation constitutes an unauthorized delegation of appellate authority, is wasteful of Commission resources, and is unjustified by any intervening change of law, need to supplement the record, absence of requisite findings or conclusions, n2 or other reason that legally supports an order requiring the judge to retrace his steps.

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

n1 The Commission decision in Potlatch Corp., supra, issued after the judge's decision, represents an intervening change in the rule of decision previously applied by the judge.   Moreover, in Potlatch and the cases following it, the Commission has definitively identified the circumstances under which a violation is properly classified as repeated. See, e.g., Communications, Inc., 79 OSAHRC 61/A2, 7 BNA OSHC 1598, 1979 CCH OSHD P23,759 (No. 76-1924, 1979); Triple "A" South, Inc., 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979).   Therefore, it is appropriate for the judge to re-examine the factual record in light of this change.   In addition, it may be necessary in this case to allow the parties to present additional evidence that is relevant to their respective burdens under Potlatch Corp., supra.

  [*10]  

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

Judge Burroughs found that the preponderance of the evidence did not establish the presence of nylon mesh netting on the exterior of the scaffold where the Respondent's employees were working.   The judge concluded that the cross-bracing on the scaffold did not constitute equivalent protection under §   1926.451(d)(10) because the cross-bracing was not in compliance with the guardrail height requirement of the cited standard and did not have a midrail.   The judge also rejected the Respondent's contention that safety belts were being worn by employees.

The rule of decision applied by Judge Burroughs in rejecting the Respondent's argument with respect to the protection afforded by the scaffold cross-bracing is fully consistent with the Commission decision in Dick Corp., 79 OSAHRC 101/E8, 7 BNA OSHC 1951, 1979 CCH OSHD P24,078 (No. 16193, 1979), and needs no further examination.   The judge's finding with respect to the absence of a nylon mesh net on the exterior of the scaffold obviates any need to determine whether the substitution of a net as an alternative form of protection would be permissible under [*11]   Wander Iron Works, Inc.,    OSHRC   , 8 BNA OSHC 1354, 1980 CCH OSHD P24,457 (No. 76-3105, 1980).   Judge Burroughs' factual findings and supporting credibility determinations are fully explained and comply with the requirements set forth both by the Commission and by the Administrative Procedure Act. See P and Z Co., Inc., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1977-78 CCH OSHD P22,413 (No. 76-431, 1977).

A remand to the judge under these circumstances to consider arguments raised in response to a Commission direction for review issued under 29 U.S.C. §   661(i), section 12(j) of the Act, n2 constitutes an improper delegation to the judge of review authority granted exclusively to Commission members under section 12(j).   The Commission is charged with the duty of formulating national policy in adjudications involving occupational safety and health.   S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1264, 1979 CCH OSHD P23,480 at p. 28,437 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979).   It is comprised of individuals "who by reason of training, education, or experience are qualified to carry out the functions of the Commission [*12]   under this Act." 29 U.S.C. §   661(a).   Congress clearly intended that the Commission members would perform these functions.   Furthermore, the delegation of administrative appellate responsibility that this case represents is inconsistent with the specific review provisions of this act, 29 U.S.C. §   661(i), and the Administrative Procedure Act, 5 U.S.C. §   557(b), n3 which provide for agency review of the initial decisions of agency employees.

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

n2 Section 12(j) of the Act, 29 U.S.C. §   661(i), provides:

(j) A hearing examiner appointed by the Commission shall hear, and make a determination upon, any proceeding instituted before the Commission and any motion in connection therewith, assigned to such hearing examiner by the Chairman of the Commission, and shall make a report of any such determination which constitutes his final disposition of the proceedings.   The report of the hearing examiner shall become the final order of the Commission within thirty days after such report by the hearing examiner, unless within such period any Commission member has directed that such report shall be reviewed by the Commission.

n3 Section 8(a) of the Administrative Procedure Act, 5 U.S.C. §   557(b), provides in pertinent part:

(b) When the agency did not preside at the reception of the evidence, the presiding employee . . . shall initially decide the case . . .   When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule.   On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issue on notice of by rule.

  [*13]  

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

In sum, the decision of the judge on the merits of the violation does not reveal the application of a rule of decision contrary to Commission precedent, see S.J. Groves & Sons Co., 79 OSAHRC 46/C8, 7 BNA OSHC 1481, 1979 CCH OSHD P23,650 (No. 78-5084, 1979), nor is there any intervening change in law that requires a reassessment or supplementation of the factual record. Accordingly, the judge's finding that the Respondent failed to comply with 29 C.F.R. §   1926.451(d)(10) should be reviewed and decided by the Commission without remand.