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.
TEXACO, INC.
KENNETH P. THOMPSON CO., INC.
HENRY C. BECK COMPANY
HEATH & STICH, INC.
FARMERS EXPORT COMPANY
FOSTER AND KLEISER
TURNER WELDING & ERECTION CO., INC.
TRI-CITY CONSTRUCTION CO.
THE DURIRON COMPANY, INC.
SAMSON PAPER BAG CO., INC.
MEL JARVIS CONSTRUCTION COMPANY, Inc.
OSHRC Docket No. 77-671
Occupational Safety and Health Review Commission
June 10, 1980
[*1]
Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor
John W. Mize, for the employer
OPINION:
DECISION
BY THE COMMISSION:
A decision of Administrative Law Judge John A. Carlson 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. Judge Carlson, among other things, concluded that Respondent's failure to comply with 29 C.F.R. § 1926.303(b) was not properly classified as repeated as alleged by the Secretary. The Secretary's petition for review of this aspect of the judge's decision was granted. n2
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n1 29 U.S.C. § 661(i).
The Secretary's petition for review of part of the judge's decision in No. 77-207 was also granted. Because the two cases do not involve common questions of fact or law, we hereby sever them for decisional purposes. 29 C.F.R. § 2200.9.
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Since the judge issued his decision, the Commission has definitively identified the circumstances under which a violation is properly classified as repeated. Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979) ("Potlatch"); see 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). Thus, the judge's ruling on the repeated issue must be reconsidered under current Commission precedent. The Commission will remand the case to an administrative law judge to reconsider Judge Carlson's decision on that issue. n3
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n3 This case was tried prior to the issuance of our decision in Potlatch. In cases tried prior to Potlatch but decided under the Potlatch test, when the Commission has concluded that the Secretary established a prima facie case that a violation is repeated in nature, the Commission has considered whether it is appropriate to afford the employer the opportunity to present additional evidence relevant to the repeated issue. On remand in this case, if the judge determines that the Secretary made out a prima facie case that the violation is repeated, he should, in a similar manner, determine whether to offer Respondent the opportunity to present additional evidence. See Stearns-Roger, Inc., supra, 7 BNA OSHC at 1924 & n. 15, 1979 CCH OSHD at 29,159 & n. 15; Communications, Inc., supra, 7 BNA OSHC at 1603 & n. 5, 1979 CCH OSHD at 28,813-14 & n. 5.
[*3]
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Accordingly, the case is remanded to the chief judge for assignment to an administrative law judge n4 to issue a decision and order disposing of whether Respondent's noncompliance with 29 C.F.R. § 1926.303(b) is properly classified as repeated. n5 SO ORDERED.
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n4 Judge Carlson has transferred to the Mine Safety and Health Review Commission since the issuance of his decision in this case.
n5 In Potlatch, Commissioner Barnako set forth his test for determining the circumstances under which a violation is properly characterized as repeated. That test differs in some respects from that of the Commission majority. Commissioner Barnako continues to adhere to the position set forth by him in Potlatch. However, he has previously recognized that the orderly administration of the Act requires that the Commission's administrative law judges follow precedents established by the Commission. Gulf & Western Food Products Co., 77 OSAHRC 72/A2, 4 BNA OSHC 1436 at 1439, 1976-77 CCH OSHD P20,886 at 25,067 (Nos. 6804 & 6805, 1976). For this reason, he joins with his colleagues in their remand order.
[*4]
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