UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 12311
FMC CORPORATION,
Respondent.

June 6, 1979

DECISION

BEFORE CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COTTINE, Commissioner.

A decision of Administrative Law Judge Garl Watkins is before the Commission for review under § 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (‘the Act’). The issues in this case involve the judge’s affirmance of a violation of 29 C.F.R. § 1916. 51(a),[1] the characterization of the violation as repeated,[2] and the appropriateness of the $1,000 penalty.

The Respondent, FMC Corporation (‘FMC’), is an employer engaged in shipbuilding. On January 10, 1975, an OSHA compliance officer inspected the Chevron Oregon, a 35,000 ton oil tanker under construction at FMC’s Portland, Oregon, ship construction facility. FMC was subsequently cited for a repeated nonserious violation of 29 C.F.R. § 1916.51(a). The citation alleged that FMC failed to maintain good housekeeping in that hoses, welding leads, electric cords, and debris were on deck in walkways and working areas at eight specified locations throughout the ship. The complaint restated this allegation. It further stated that the violation was characterized as repeated because three prior citations had been issued to FMC for violations of the same standard that occurred aboard the Chevron Oregon in May, July, and August of 1974. None of these citations had been contested and each had become a final order of the Commission prior to the January 1975 inspection.[3] A $1600 penalty was proposed for the violation at issue in this proceeding.

At the hearing, FMC did not dispute the Secretary’s allegation that the conditions described in the citation existed at the time of the inspection. Instead, it sought to prove that compliance with the housekeeping standard during the building of the Chevron Oregon was difficult[4] and that it had greatly intensified its efforts to improve housekeeping after receiving the August 1974 citation.[5] In its post-hearing brief to the judge, FMC argued that it was not in violation of the standard because the Secretary failed to prove that adequate aisles and passageways were not maintained, that cited materials and equipment were not in use, and that the individuals observed by the compliance officer were employees of FMC. Alternatively, FMC asserted that the violation was not repeated. Its primary argument in support of this contention was that no ‘flaunting’ of the Act had been shown. Finally, FMC asserted that the penalty proposed by the Secretary was excessive.

In his decision, Judge Watkins found that the Secretary met his burden of proving the existence of the conditions described in the citation. He also found that compliance with the housekeeping standard is more difficult in shipbuilding than in other types of construction but that compliance is not impossible and that FMC had made good faith but still unsuccessful efforts to comply with the standard. Nevertheless, Judge Watkins concluded that these findings were relevant only to the determination of an appropriate penalty and did not negate the existence of the violation. The violation was characterized as repeated based upon the fact that there were three previous violations of the same standard aboard the same ship within the nine month period prior to the violation at issue. However, he concluded that the $1600 penalty proposed by the Secretary ‘tends toward the punitive’, particularly in view of the ‘minimal’ hazards presented to employees. The judge assessed a penalty of $1,000 based upon ‘all statutory factors and the entire record.’

Review of the judge’s decision was directed by former Commissioner Moran. FMC resubmitted its post-hearing brief to the Commission, thereby raising the same issues on review as were raised before the judge.

FMC contends that it was not in violation of 29 C.F.R. § 1916.51(a) because the standard’s requirement that aisles and passageways be kept clear of tools, materials, and equipment is violated only if the tools, materials, and equipment are not ‘in use.’ According to FMC, the Secretary failed to sustain his burden of proof on this issue because the compliance officer admitted that he did not determine whether the items observed were in use. In FMC Corp., 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977–78 CCH OSHD ¶ 22,060 (No. 13155, 1977),[6] the Respondent asserted the same defense based on facts almost identical to those presented in this case. The Commission held that the phrase ‘except that which is in use’ creates an exception to the provision that must be proved as an affirmative defense. The violation in that case was affirmed because there was no reliable evidence that particular tools, materials and equipment were in use. The Commission found unpersuasive general testimony that it was possible that some objects may have been in use. Moreover, the Commission ruled that the ‘in use’ exception does not apply to hose and electric conductors. The provision of the standard most pertinent to these objects is the last sentence of 29 C.F.R. § 1916.51(a) which requires that hose and electric conductors ‘be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks.’

In this case the only evidence relevant to the ‘in use’ exception is a statement made by the compliance officer that some of the ‘hoses and welding leads and so forth’ were in use and some were not. However, under the standard hoses must be elevated or covered regardless of whether they are in use. Moreover, because FMC adduced no specific evidence that any particular tools, equipment or materials described in the citation were in use, we conclude that it has not proved that the ‘in use’ exception applies to any of the cited objects.

FMC also contends that the standard requires only that ‘adequate’ aisles and passageways be maintained and that it complied with this requirement. The several requirements of § 1916.51(a) each create independent abatement responsibilities, FMC Corp. (13155), supra. Thus, the provision requiring the maintenance of ‘adequate’ aisles and passageways does not limit or qualify the other provisions of the standard. In this case, FMC was cited for violating the provision requiring that hose and electric conductors be elevated or covered and the provision requiring that passageways be kept clear of all debris and all tools, materials, and equipment, except those in use. The Secretary has established the alleged violation of these provisions.[7]

FMC also asserts that the Secretary failed to prove that the employees observed by the compliance officer were its employees and not those of a subcontractor. The compliance officer testified that Harold Vick, FMC’s safety supervisor, indicated to him that the observed employees were those of the Respondent. This testimony was unrebutted. The compliance officer identified other FMC employees by observing their FMC hardhats. Therefore, the judge correctly found that FMC’s employees were exposed to the hazardous conditions. In summary, we conclude that FMC violated 29 C.F.R. § 1916.51(a) as alleged in the citation.

Alternatively, FMC contends that the violation was not repeated within the meaning of the Act. In Potlatch Corp., 79 OSAHRC ——, 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23,294 (No. 16183, 1979), we recently set forth the following test for determining whether a violation is repeated:

A violation is repeated under § 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.

Under this analysis, proof that an employer has committed a prior violation of the same standard constitutes a prima facie showing by the Secretary of substantially similar violations. The employer may then rebut this showing by offering evidence that the violations occurred under disparate conditions or involved different hazards. Factors such as the employer’s attitude, the commonality of supervisory control over the violative conditions, the geographical proximity of the violations, the time lapse between violations, and the number of prior violations are relevant only to determining an appropriate penalty.

In this case, FMC was cited four times within a nine-month period for violating the same standard. Each of the prior citations had become a final order of the Commission prior to the issuance of the present citation. The Secretary’s prima facie case is therefore established.

The Respondent argues that a violation is not repeated ‘unless [it] . . . has been repeated under the same circumstances as the preceding violation.’ It further argues that this prerequisite has not been met because ‘none of the conditions specifically identified and located in the citation of January 10, 1975 were cited in prior citations.’ Specifically, it notes that the prior citations concerned conditions at different or unspecified locations on the Chevron Oregon.

To serve as a basis for a repeated classification, prior violations need not be identical, as FMC asserts, but only substantially similar to the present violation. Each of the four citations considered in this case alleged that hoses and electric conductors were in passageways and work areas. Additionally, the August 1974 citation and the citation under review here included violations of the requirement that walkways be kept clear of all debris and all tools, materials, and equipment, except those in use. Each violation created the same hazard—a tripping hazard. The only distinction among the various violations is the precise location of the violative conditions on the ship. As stated in Potlatch, the fact that the violations occurred at different worksites is not a relevant factor in determining whether a violation is repeated. It clearly follows, therefore, that a difference in the location of violations at the same worksite is not a relevant consideration. Accordingly, we conclude that FMC has not shown that the violations involve disparate conditions or different hazards.[8]

FMC also contends that a repeated violation shares common elements with a willful violation and that ‘flaunting’ of the Act must be shown for a violation to be characterized as repeated.[9] FMC asserts that it made good faith efforts to comply with the cited standard but that numerous factors made strict compliance difficult if not impossible and, therefore, its noncompliance does not represent a ‘flaunting’ of the housekeeping requirement. In Potlatch Corp., supra, we rejected the contention that an employer’s attitude is relevant to whether a violation is repeated. This is consistent with George Hyman Construction Co. v. O.S.H.R.C., 582 F.2d 834 (4th Cir. 1978), where the court reasoned that the legislative history of the Act indicates that a repeated violation ‘[does] not necessarily rise to the level of willfulness,’ 582 F.2d at 840. Following Potlatch, we reject FMC’s contention and conclude that FMC’s violation of 29 C.F.R. § 1916.51(a) is ‘repeated’ as alleged in the citation.[10] FMC’s asserted good faith efforts to comply with the standard are entitled to consideration in assessing an appropriate penalty.

III

FMC contends that the $1,000 penalty assessed by the judge is excessive. The judge found that the Respondent made good faith efforts to comply with the standard under difficult circumstances and that the cited conditions presented ‘minimal (but not de minimis . . .)’ hazards to employees. We accept these unchallenged findings. On the other hand, FMC was cited four times within a nine-month period for violations of the same standard at the same worksite. Many of the same supervisory personnel who participated in the inspection that resulted in this proceeding were involved in one or more of the prior inspections. Eight separate instances of the violation were alleged in the citation now before the Commission. Finally, FMC is not entitled to any credit as a small employer. It employed over 200 employees aboard the Chevron Oregon alone. Considering all of these factors under §§ 17(a) and 17(j) of the Act, 29 U.S.C. §§ 666(a) and 666(i), we affirm the $1,000 penalty assessed by the judge.

Accordingly, the decision of Judge Watkins is affirmed.

IT IS SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: JUN 6, 1979

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

I agree with the majority that FMC violated the Secretary’s general housekeeping standard at 29 C.F.R. § 1916.51(a).[11] However, I disagree with my colleagues’ conclusion that the shipbuilding company’s violation of this section was properly characterized as repeated. Under the test set forth in my dissenting opinion in Potlatch Corp., 79 OSAHRC 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23,294 (No. 16183, 1979), I would affirm the § 1916.51(a) citation as nonserious rather than repeated.

In order to find a repeated violation, my colleagues apply the test announced by the majority of this Commission in Potlatch Corp., supra. That test states that, in order to be properly characterized as repeated under § 17(a) of the Act, a violation must be substantially similar to a prior violation established by a final order of this Commission. Although I agree that this is a necessary element of a repeated violation, I disagree with the majority’s analysis of what is required to establish substantial similarity in any given case and its allocation of the burden of proof on this point. Whereas both the majority and I agree that the Secretary bears the ultimate responsibility for showing substantial similarity between the violations involved, the majority would presume that the Secretary satisfies this burden by proving that both the present and antecedent violations involve violations of the same standard. At this juncture, the majority would shift the burden to a respondent to rebut the Secretary’s prima facie case by showing that the violations occurred under disparate conditions or involved different hazards.

I would not give the Secretary the benefit of this presumption. Instead, I would place on him the responsibility of proving substantial similarity between the initial and subsequent violations in all cases involving repeated violations.

In this case I would agree with the majority that a substantial similarity existed between the three prior § 1916.51(a) violations and the citation at issue. As in the present case, the Secretary proved that each of the previous citations alleged that hoses and electric conductors obstructed the deck in passageways and work areas. In addition, one of the prior citations similarly charged that walkways were not kept clear of all debris as well as tools, materials, and equipment not in use. All of the violations occurred within nine months on the same ship and in the same port. All involved the same tripping hazard. Only the precise location of the violations on the ship differed, and I agree with the majority that this is not a relevant consideration for determining whether or not a violation is repeated.

Although I would agree that the Secretary satisfied his burden of proving substantial similarity in this case, I would not find FMC in repeated violation of the housekeeping standard. In my dissenting opinion in Potlatch Corp., supra, I stated that a ‘defense should be available where the employer can show that it took reasonable, good faith steps after receiving the initial citation to eliminate substantially similar violations from its workplaces.’ 7 BNA OSHC at 1068, 1979 CCH OSHD at p. 28,176. The majority only considers these good faith factors relevant in determining an appropriate penalty under § 17(j) of the Act.[12] Although I agree that these steps are also important for penalty assessment purposes, I would find them relevant to a consideration of whether a respondent was reasonably attempting to comply with its abatement responsibilities under the Act. I believe that good faith attempts at compliance justify a reduction in the characterization of the violation from repeated to serious or nonserious.

In this case, FMC has shown that it made substantial attempts after receiving the initial citations to comply with its responsibility for improving housekeeping conditions on its ship. Mr. Harold Vick, the company’s safety supervisor, testified at length regarding the various policies and programs FMC instituted after its receipt of citations for violation of § 1916.51(a). Beginning in August 1974, FMC embarked upon a vigorous safety program, each element of which emphasized the importance of housekeeping. The Safety Department issued a memorandum to all employees concerning the importance of keeping passageways and walkways clear, and safety posters were posted at 20 locations throughout the vessel. New employees were instructed on safety matters during their orientation, and each employee told that he was to be responsible for housekeeping in his own work area. In order to achieve some control over the vessel, the ship was divided into geographic areas, and supervisory personnel were assigned safety responsibility for each designated area. Safety manuals were issued to these supervisors, and memos on safety topics were issued from the Safety Department to plant supervisors to be used as the subject of weekly safety meetings with the crews.

The number of inspections of the ship by the safety personnel was increased to an average of four per week. Specific instructions were given to the plant safety inspectors to watch for housekeeping as they were conducting inspections for other conditions considered unsafe. Authority to instruct an employee to immediately correct a violation which he observed during routine inspections was given to Mr. Vick. If the safety inspector could not determine which employee was responsible for a violation, he was authorized to make a note of it for the appropriate management channels to handle. Emphasis was placed on handling serious hazards immediately.

Additionally FMC employed 20 laborers whose primary task was to perform housekeeping functions and to clean up after the work crews. These laborers were specifically directed to clean up debris and straighten, hook, and disconnect cords, hoses and leads. During the eight month period from April 24 to December 31, 1974 workers on board spent 20,412 hours on housekeeping. During January 1975 alone, 4,135 hours were devoted to housekeeping matters.

Although poor housekeeping existed during the January 10, 1975 inspection, I would not find FMC to be in repeated violation of the Act. The instances of poor housekeeping were few and isolated in nature, and as demonstrated above FMC made reasonable, good faith attempts to eliminate housekeeping violations from its workplace after receiving the initial citations. That FMC did not succeed in removing all the housekeeping problems is at least partly attributable to the very nature of the task facing it, which further illustrates why FMC should not be charged with a repeated violation of the Act.

The task of maintaining proper housekeeping on a ship under construction is a formidable one. The record establishes and the judge found that it is more difficult to comply with housekeeping standards in shipbuilding than in any other type of construction. The dynamic nature of the tanker construction project accounts for much of the difficulty. Because of the confined spaces with narrow openings present on a ship, personnel are constantly changing. Work crews progress in sequential order through the various parts of the ship, often barely finishing work in an area in time for another crew to begin work there. Such movement of personnel and equipment create practical problems of maintaining proper housekeeping since there is an ongoing potential that any one of a series of crafts will create a housekeeping condition which may exist temporarily before being rectified.

FMC’s housekeeping task is further complicated because of the need to build and dismantle scaffolding, planking and walkways. Construction scaffolding is continually built and torn down. Even the crossover walkways used to cover hoses are sometimes dismantled and reassembled. Moreover, the shipbuilding process requires that a great deal of equipment be kept on board. At the time of the January inspection, 400 electric cords, 400 air hoses and 100 welding leads were on board. The presence of such equipment in small compartments necessarily creates peculiar housekeeping problems.

It is true, of course, that FMC’s efforts were not sufficient to achieve full compliance, but in view of the efforts it did undertake and the difficulty of maintaining proper housekeeping, I would not find FMC in repeated violation of the Act. Accordingly, applying the test I announced in Potlatch, I would reduce the repeated citation with which FMC is now charged to a nonserious one because the conditions were readily visible to FMC’s supervisors who were constantly in the area[13] and because there was not a substantial probability of death or serious physical harm.[14] Based upon the penalty factors listed in § 17(j) of the Act, I would assess a penalty of $150.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 12311
FMC CORPORATION,
Respondent.

February 2, 1979

DECISION

Appearances:

Charles G. Preston, Seattle, Washington for Complainant

Richard C. Hunt, Portland, Oregon for Respondent

GARL WATKINS, Judge:

In this enforcement proceeding under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., the question for decision is whether on January 10, 1975 Respondent was in ‘repeated nonserious’ violation of 29 USC 654(a)(2) for failure to comply with a shipbuilding housekeeping standard on board the CHEVRON OREGON, a 35,000 ton tanker Respondent was building at the Swan Island yard, Portland, Oregon.

The Secretary contends that all eight specifications of Citation Number Two issued to Respondent January 29, 1975 were proved; and further that the violation should be held ‘repeated’ because Respondent had not contested three previous citations involving the same standard, the same ship and all at one stay at the same location, commencing with an inspection April 24, 1974.

Respondent asks vacation of the citation and proposed penalty of $1600 principally because of a failure of proof that it failed to comply with the housekeeping standard. It further contends that in any event there should be no finding that any violation was ‘repeated’ because there is no evidence that it ‘..... repeatedly’ violated ‘..... any standard’ within the meaning and intent of the statutory language.

Respondent’s amended answer sets out six affirmative defenses:

1. The violations alleged in Citation Number Two and charged in paragraph IV of the Complaint are not repeat violations in that they involve different conditions, employees, locations, crafts, functions and other circumstances.

2. The Citation and Complaint, in violation of the requirements of 9(a) of the Act, fail to allege with particularity the circumstances in which the present Citation constitutes a repeated nonserious violation of prior Citations.

3. The Respondent has made a good faith, diligent and reasonable effort to advise employees of the housekeeping standard and obtain compliance with that standard.

4. The statutory definition of ‘repeated violation’ within the meaning of Section 17(a) of the Act is broad, ambiguous and unclear and is subject to varying, inconsistent and discretionary interpretations by Occupation Safety and Health Administration personnel.

5. The designation of Citation Number Two as a repeat violation failed to give due consideration to the size of Respondent’s facility, the magnitude and complexity of the project, the number of employees, the longevity of the project, the need to relocate equipment and a variety of other factors.

6. The description of the Citation as a ‘Repeated Nonserious Citation’ is unprecise and confusing and does not afford the employer and his affected employees a basis for ascertaining the precise factual and legal issues that will be involved.

The pertinent language of the standard, the citation and the complaint follow:

STANDARD:

Subpart F—General Working Conditions

§ 1915.51 Housekeeping

(a) Good housekeeping conditions shall be maintained at all times. Adequate aisles and passageways shall be maintained in all work areas. All staging platforms, ramps, stairways, walkways, aisles, and passageways on vessels or dry docks shall be kept clear of all tools, materials, and equipment except that which is in use, and all debris such as welding rod tips, bolts, nuts, and similar material. Hose and electric conductors shall be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks.

CITATION NO. 2 (Repeated-Non-Serious)

Description of alleged violation

Employer failed to maintain good housekeeping in that hose, welding leads, electric cords, and debris were on deck in walkways and working areas aboard vessel ‘Chevron Oregon’, in the following locations:

1. Starboard side aft, weather deck.

2. Port side aft, weather deck.

3. Electric control rooms, port and starboard side.

4. Walkway leading to main turbine room.

5. Starboard side weather deck, forward.

6. Main turbine room, starboard side walkway upper level.

7. Main deck forecastle, port side.

8. Walkways on 01–02–03 levels, athwart ship.’

COMPLAINT:

On or about January 10, 1975, at the worksite and place of business and employment above described, the Respondent violated the shipbuilding regulations in that the employer failed to maintain good housekeeping in that hose, welding leads, electric cords, and debris were on deck in walkways and working areas aboard vessel ‘Chevron Oregon’, in the following locations:

1. Starboard side aft, weather deck;

2. Port side aft, weather deck;

3. Electric control rooms, port and starboard side;

4. Walkway leading to main turbine room;

5. Starboard side weather deck, forward;

6. Main turbine room, starboard side walkway upper level;

7. Main deck forecastle, port side; and

8. Walkways on 01–02–03 levels, athwart ship;

all contrary to 29 C.F.R. 1916.51(a).

VIII

The worksite conditions and practices alleged in the aforesaid Citation Number 2 and charged in paragraph IV above are of such similarity in fact, import and character to the worksite conditions and practices present on (1) April 24, 1974, (2) July 9 and 10, 1974, and (3) August 6, 1974 on the ‘Chevron Oregon’, for which worksite conditions and practices citations were issued Respondent, as to constitute repeatedly violative behavior and conduct within the meaning of Section 17(a) of the Act.’

Details of the three previous citations and penalties on which the Secretary relies for a finding of ‘repeated’ here follow:

(Secretary’s Exhibits 1 through 6)

Date of Inspection: April 24, 1974

Date of Citation: May 13, 1974

Description of alleged violation:

Employer failed to maintain good housekeeping in that home and electric conductors were on weather deck and on deck in passageways and walkways throughout vessel ‘Oregon Chevron’. 100 employees exposed to tripping hazard.

Proposed Penalty: $30.00

Date of Inspection: July 10, 1974

Date of Citation: July 17, 1974

Description of alleged violation:

Employer failed to maintain good housekeeping, in that hose and electric conductors were on deck in walkways and passageways in forecastle, main deck, forward deep tanks No. 1 and No. 2, and in auxiliary turbine room, at foot of access ladder aboard vessel ‘Chevron Oregon’. Approximately 40 employees exposed to tripping hazard.

Proposed Penalty: $90.00

Date of Inspection: August 6, 1974

Date of Citation: August 20, 1974

Description of alleged violation:

Employer failed to maintain good housekeeping aboard vessel ‘G.T.T. Hull No. 1’ in that welding leads, air hose and burning hose were on deck in fuel handling room. Stairway leading into No. 1 fuel tank obstructed by staging planks. Stairway leading to motor room obstructed by staging planks. Walkway outside compartment on C-deck, starboard side, has debris and material on deck. Employees use stairways and walkway. Employees work in fuel handling room. Weather deck, port side forward of superstructure, hose and leads on deck in walkway.

Proposed Penalty: $200.00

The August citation refers to ‘G.T.T. Hull No. 1’ rather than ‘Chevron Oregon’. They are the same. Construction of the hull began in 1972. It was launched on April 19, 1974 and towed to Swan Island. All four citations were issued following inspections at that location.

The first question for decision is whether there was in fact a failure to comply with the cited standard. It is sufficient to say that the Secretary has met his burden of proof on all items alleged in the citation and complaint. The violations were minimal (but not de minimis as that term is limited by 29 USC 658(a)).

Respondent’s evidence tends to prove two things. Both are important on the question of penalty. Neither defeats a finding of violation of the Act.

1. In shipbuilding it is more difficult to comply with housekeeping safety standards than in any other type of construction. There is no evidence on which a finding of impossibility of compliance could be based.

2. Respondent made a good faith—but unsuccessful—attempt to comply with the standard. Its safety efforts became more intensive and more concentrated on housekeeping after the third citation in August; the reason is not shown.

The second question for decision is whether the violation of the Act was ‘repeated’; or more specifically, whether Respondent ‘..... repeatedly violate(d) the requirements of Section 5 of this Act .....’. 29 USC 666(a).

On the present state of decisional law I can think of no greater exercise in utter futility than an attempt:

1. to determine the rule for a ‘repeated’ violation, or

2. to apply any rule thus far stated to a set of facts.

Compare: Secretary v. Todd Shipyards Corp., No. 1556, 15 OSAHRC 346, CCH Employment Safety and Health Decisions ¶ 19272, 16373; Secretary v. General Electric Co. No. 2739, 17 OSAHRC 49, CCH Employment Safety and Health Decisions ¶ 19567, 16946; Secretary v. Bethlehem Steel Corporation, No. 8392, —— OSAHRC ——, CCH Employment Safety and Health Decisions ¶ 19996, 19191.

This decision therefore represents only my own best judgment. The sole regard for precedent is in the preliminary ‘assumption’ following.

Assuming for the purpose of this decision that a violation of the Act described as ‘non-serious’ under 29 USC 666(c) can also be categorized as ‘repeated’ under subsection (a); it is my considered opinion that this case presents exactly the type of situation contemplated by the Act as ‘Repeated’. Four violations in nine months is enough.

I should add that I am not unmindful of Judge Winters’ well-reasoned decision in Secretary v. Todd Shipyards Corp., No. 8500 (March 25, 1975), CCH Employment Safety and Health Decisions ¶ 19532; now under review.

The Secretary’s proposed penalty of $1600 tends toward the punitive. This is particularly true in view of the fact that the housekeeping violations found presented minimal hazards to employees. We also consider the method used to arrive at the proposal for the penalty. The compliance officer simply determined the figure he believed proper for the violation he found, and then (although following the rules under which he was required to compute) arbitrarily multiplied that figure by ten.

Considering all statutory factors and the entire record, it is my judgment that a penalty of $1000 should be assessed.

Based upon the foregoing, the undersigned makes the following

FINDINGS OF FACT

On January 10, 1975 Respondent was in the process of building the ‘Chevron Oregon’, an oil tanker, at the Swan Island ship repair yard at Portland, Oregon. On that day, the worksite of Respondent was inspected by a representative of the Occupational Safety and Health Administration, United States Department of Labor, as a result of which a citation was issued January 20, 1975, alleging that Respondent was in violation of 29 USC 654(a)(2) for failure to comply with 29 CFR 1916.51(a). A penalty in the amount of $1600 was proposed on the same date the citation was issued.

On the date alleged Respondent failed to comply with the standard which it is charged with violating in the eight particulars charged; and thus was in violation of the Act as alleged. The violation was minimal in that the hazards presented to Respondent’s employees thereby were small.

III

While the ship was under construction by Respondent and while berthed at the same place, Respondent had three times previously been adjudicated in violation of the same section of the law by reason of failure to comply with the same safety standard having to do with housekeeping in shipbuilding operations. The first of the three violations was based on an inspection on April 27, 1974.

Based on the foregoing and on all facts admitted, stipulated or proved by uncontroverted substantial credible evidence, the undersigned hereby makes the following

CONCLUSIONS OF LAW

Respondent is a corporation operating a workplace and place of employment in Portland, Oregon on navigable waters. It is an employer engaged in a business affecting commerce within the meaning of the Act. The Review Commission has jurisdiction of the parties and the subject matter of this action.

On January 10, 1975 Respondent was in ‘repeated’ violation of 29 USC 654(a)(2) by reason of its failure to comply with 29 CFR 1916.51(a) on the ‘Chevron Oregon’, a ship it was building at the Swan Island yard in Portland, Oregon.

III

One thousand dollars is a reasonable penalty to be assessed against Respondent for this violation.

ORDER

Based upon the foregoing, it is hereby ORDERED:

The citation for ‘Repeated’ violation issued by Complainant to Respondent on January 20, 1975, charging therein a violation of 29 USC 654(a)(2) for failure to comply with 29 CFR 1916.51(a) be and the same hereby is AFFIRMED.

IT IS FURTHER ORDERED that a penalty of $1000 be and the same hereby is ASSESSED for this violation of the Act.

Dated: February 2, 1976

GARL WATKINS

Judge

[1] The standard applies to shipbuilding operations and provides:

§ 1916.51 Housekeeping.

(a) Good housekeeping conditions shall be maintained at all times. Adequate aisles and passageways shall be maintained in all work areas. All staging platforms, ramps, stairways, walkways, aisles, and passageways on vessels or drydocks shall be kept clear of all tools, materials, and equipment, except that which is in use, and all debris such as welding rod tips, bolts, nuts and similar material. Hose and electric conductors shall be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks.

[2] Section 17(a), 29 U.S.C. § 666(a), provides:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.

[3] Each of the previous citations alleged that hoses and electric conductors were on deck in passageways and walkways aboard the Chevron Oregon. One of the citations also alleged that designated stairways were obstructed by staging planks and that debris and materials were on deck. The penalties assessed were $30, $90, and $200, respectively.

[4] FMC’s safety supervisor, its plant manager, and its manager of marine operations testified that difficult compliance problems existed because it was necessary for FMC’s employees to move continually with their equipment throughout the confined compartments in the ship. Employees of various crafts were required to work with their equipment in confined areas with limited access to and from the work areas. FMC also asserted that a high employee turnover contributed to its compliance problems.

[5] FMC’s safety supervisor testified that FMC increased employee awareness of housekeeping problems through safety posters, safety meetings and its employee orientation program. It issued safety manuals to supervisors and each supervisor was assigned to monitor a designated area of the ship. It also increased the number of laborers’ hours devoted to housekeeping and increased the number of safety inspections to four per week.

[6] FMC was again cited following an inspection on April 9, 1975, for similar violations of the same standard aboard the Chevron Oregon and a second ship under construction at the same worksite. That citation was the subject of Docket No. 13155, supra. In that case the Commission held that the violation was repeated based upon the same three uncontested citations that are the basis of the repeated allegation in this case. A $2,000 penalty was assessed.

[7] Though the Secretary did not charge that the employer failed to maintain adequate aisles and passageways, we note in passing that the record does not support FMC’s contention that adequate aisles and passageways were maintained.

[8] This case was tried and decided prior to our decision in Potlatch. Usually when there has been a significant intervening change in 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-Elliott, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976–77 CCH OSHD ¶20,908 (No. 11259, 1976) However, in its answer FMC asserted an affirmative defense that the violation at issue was not repeated because the prior violations ‘involve[d] different conditions, employees, locations, crafts, functions and other circumstances.’ It also argued dissimilarity in the violations in its brief to the judge and to the Commission. Under these circumstances, we conclude that the defense in this case would not have been tried and differently had Potlatch been issued before the hearing. Therefore, we need not offer Respondent an opportunity for a remand. Cf. Belger Cartage Service, Inc., 79 OSAHRC ——, 7 BNA OSHC 1233, 1979 CCH OSHD ¶ 23,440 (No. 76–1480, 1979).

[9] The cases relied upon by the Respondent have no precedential value in determining whether a violation is repeated. The Respondent cites General Electric Corp., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974–75 CCH OSHD ¶ 19, 597 (No. 2739, 1975), rev’d in part on other grounds, 540 F.2d 67 (2d Cir. 1976) in support of its contention that ‘flaunting’ must be shown. It cites the judge’s decision in Bethlehem Steel Corporation, OSHRC Docket No. 8392, for the proposition that a repeated violation occurs only if there has been a prior citation for substantially identical conditions. However, both of these tests were rejected by the Commission in reversing the judge’s decision relied upon by FMC. Bethlehem Steel Corp., 75 OSAHRC 83/C12, 3 BNA OSHC 1520, 1975–76 CCH OSHD ¶ 19,996 (No. 8392, 1975), rev’s, 540 F.2d 157 (3d Cir. 1976). See also, George Hyman Construction Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977–78 CCH OSHD ¶ 21,774 (No. 13559, 1977), aff’d, 582 F.2d 834 (4th Cir. 1978). The other judges’ decisions referred to in FMC’s brief have all been reviewed by the Commission and affirmed in decisions having no precedential value on the repeated issue. See National Steel & Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD ¶22, 808 (Nos. 11011 & 11769, 1978), appeal docketed, No. 78–2695 (9th Cir. Aug. 3, 1978); Todd Shipyards Corp., 75 OSAHRC 21/D4, 3 BNA OSHC 1813, 1975–76 CCH OSHD ¶20,237 (No. 12510, 1975), aff’d, 586 F.2d 683 (9th Cir. 1978); Donald Harris, Inc., 78 OSAHRC 1/C2, 6 BNA OSHC 1267, 1977–78 CCH OSHD ¶22,472 (No. 10434, 1978).

[10] FMC raises several other contentions. It argues that the standard is vague because it does not indicate the procedure an employer must follow to eliminate the hazard; that the citation lacks particularity because it characterizes the violation as both repeated and nonserious; and that the citation is invalid because OSHA failed to follow its own procedures in that the Area Director failed to consult the Assistant Regional Director prior to issuing a repeated citation, as required by the Field Operations Manual. These contentions were raised by FMC and rejected by the Commission in FMC Corp. (13155), supra. We reject them here for the reasons set forth in that decision.

[11] See footnote 1 of the majority opinion for the provisions of this standard.

[12] Section 17(j), 29 U.S.C. § 666(a), provides:

(j) The Commission shall have authority to assess all civil penalties provided in this section, giving due respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and history of previous violations.

[13] See Green Construction Co. & Massman Construction Co., 76 OSAHRC 134/D9, 4 BNA OSHC 1808, 1976–77 CCH OSHD ¶21,235 (No. 5356, 1976).

[14] Approximately eight months ago this Commission found the same shipbuilding company in repeated violation of § 1916.51(a). See FMC Corp., 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977–78 CCH OSHD ¶22,060 (No. 13155, 1977). As the majority points out, the facts surrounding this housekeeping violation were almost identical to those in the instant case, and the Commission based its finding of a repeated violation in the former FMC case upon the same three prior uncontested citations that are involved here. Although I agreed with the result in the earlier FMC case, I did so on the basis of a test to which I no longer adhere for determining repeated violations. That test required the Secretary to show that both the initial and subsequent violations occurred under the control of the same supervisors in order to sustain his burden of proving a prima facie case of a repeated violation. See George Hyman Construction Co., 77 OSAHRC 67/D7, 5 BNA OSHC 1318, 1977–78 CCH OSHD ¶21, 774 (No. 13559, 1977), aff’d, 582 F.2d 834 (4th Cir. 1978). After reexamining my position in light of the Fourth Circuit’s opinion in George Hyman Construction Co., supra, I specifically stated that the level of supervision under which the violation occurred would no longer workplace. See Potlatch Corp., supra violation. As indicated above, I would now allow a respondent to defend against the repeated characterization of a violation by demonstrating it made a good faith effort to eliminate a reoccurrence of the initial violation at its workplace. See Potlatch Corp., Supra (dissenting opinion). FMC has established such a defense.