VAPPI & COMPANY, INC.

OSHRC Docket No. 8282

Occupational Safety and Health Review Commission

April 29, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor

Jeremiah F. Healy, III, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Ben D. Worcester, dated January 7, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i). At issue is whether the Judge correctly characterized three of the alleged violations as "repeated" violations.

The facts in this case are not in dispute as they were agreed to by a stipulation between the parties. The respondent is a building construction contractor whose principal office is located in Cambridge, Massachusetts. Prior to the inspection which resulted in the issuance of the aforementioned citations, respondent had been cited for failing to comply with each of the same standards on one prior occasion at other construction worksites. Since these citations were not contested by the respondent, they became final orders of the Commission pursuant to 29 U.S.C. 659(a). The factual bases on which the previous citations were predicated are substantially the same as those upon which the instant citations [*2] were grounded.

The Commission members are unable to arrive at a majority position on the question in issue in this case. Chairman Barnako would remand for further evidence as to whether the prior and instant violations occurred under the responsibility of the same supervisor. n1 Commissioner Moran would affirm only nonserious violations in each instance because a "repeated" violation cannot be predicated upon only one prior noncompliance with a particular standard. Commissioner cleary would affirm the citations as repeated. For a comprehensive exposition of the views of each Commission member on what constitutes a repeated violation, see Secretary v. George Hyman Construction Co., OSAHRC Docket No. 13559, April 26, 1977.

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n1 Contrary to the Secretary of Labor's arguments on review, he would not raise a presumption of knowledge of a prior citation. As indicated in his separate opinion in Secretary v. George Hyman Construction Co., OSAHRC Docket No. 13559, April 26, 1977, the question is one of fact, and its resolution will depend on the nature of the alleged violation.

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Since a majority of the Commission members cannot agree on the disposition of the matter in issue, they can take no official action thereon. 29 U.S.C. 661(e). Accordingly, the Judge's decision, attached hereto as Appendix A, n2 becomes the final action of the Commission.

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n2 Chairman Barnako does not agree to this attachment.

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