“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-1481 BETHLEHEM STEEL CORPORATION, ??????????????????????????????????? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April 29, 1980DECISIONBefore:CLEARY, Chairman, and COTTINE, Commissioner.*BYTHE COMMISSION:??????????? Thisis a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651?678 (?the Act?). A decision of Administrative Law Judge Robert N. Burchmoreis before the Commission for review under section 12(j) of the Act, 29 U.S.C. ?661(i). In pertinent part, the judge concluded that the Respondent, BethlehemSteel Corporation (?Bethlehem?), had committed five nonserious violations ofsection 5(a)(2) of the Act, 29 U.S.C. ? 654(a)(2), by failing to comply withseveral standards published at 29 C.F.R. Parts 1910 and 1916. At issue iswhether the judge properly held that the violations were not repeated withinthe meaning of section 17(a) of the Act.1?We reverse that portion of his decisionand find that the violations were repeated.I??????????? As aresult of a February 2?3, 1976 inspection of the Respondent?s shipbuilding andrepair facility at Beaumont, Texas, one citation alleging nonserious violationsof the Act and nine citations alleging repeated violations of the Act wereissued to the respondent.2 Citationnumber two alleged a repeated failure to comply with the standard at 29 C.F.R.? 1910.27(d)(2)3 in that:landing platforms were not provided foreach 20 feet of height of ladder to the roof on the north side of thefabrication shop building.??????????? JudgeBurchmore affirmed this citation as a nonserious violation, finding thatRespondent maintained ?a straight, uninterrupted ladder about 45 feet high,which had no offsets or landing platforms, and there was no ladder climbingsafety device on it.? Citation number four, item ?a?, alleged a repeatedfailure to comply with Section 400?4 of the National Electrical Code as adoptedby 29 C.F.R. ? 1910.309(a)4 for:Prohibited use of flexible electric cordsat the following locations:a. 440 volt power lead and three extensioncords through hole in wall by Column #4 of the fabrication shop.???????????? Basedon his determination that ?flexible cords [were] run through a jagged openingcut in a corrugated metal wall,? the judge affirmed this item of the citationas a nonserious violation. Citation number eight alleged a repeated violationof the standard at 29 C.F.R. ? 1916.43(a)5in that:Flush manholes and other small openings ofcomparable size in the deck were not suitably covered or guarded at thefollowing locations:a. two holes in the second deck of thestarboard pod house of rig #4889?b. second deck store room hatch to No. 5tank of rig #4889?c. partle [sic] guarded deck holes on matdeck of #4891 platform.\u00a0??????????? Thejudge affirmed this citation as a nonserious violation, finding that there werethree manholes at the Respondent?s workplace ?which were not covered orguarded.? Citation number nine alleged a repeated violation of the standard at29 C.F.R ? 1916.51(a)6 in that:Good housekeeping conditions were notmaintained as follows:\u00a0a. deck by the starboard yoke house of rig#4889, coiled cables?b. deck at top of starboard ladder todrill floor of rig #4889?welding leads and trash?c. doorway at the head of the gangway onplatform #4891 hoses across doorway.???????????? The judgeheld that in two ?temporary? instances ?loose cables or hose were . . . in theway of employee traffic,? and accordingly affirmed items ?b? and ?c? of thiscitation as a nonserious violation.7 Finally,citation number ten alleged a repeated violation of the standard at 29 C.F.R. ?1916(i)8 for the following:A load of scaffolding was swung over thehead of an employee on rig #4889 by No. 14 gantry crane.???????????? Thejudge affirmed this citation as a nonserious violation, based on his findingthat ?a load of scaffolding [was] lifted and swung over an employee?s head.?II??????????? TheRespondent had been previously cited under each of the above standards forviolations occurring at the Respondent?s Beaumont, Texas facility. In eachinstance, the prior citation became a final order of the Commission prior tothe date of the inspection giving rise to the present citations. On June 19,1973, Respondent was cited for a nonserious violation of section 1910.27(d)(2).That violation was described as a failure to provide landing platforms, a cage,or a ladder safety device for ladders used to ascend heights exceeding 20 feet.In an attempt to distinguish the factual relatedness of the prior and presentcitations, the Respondent produced evidence at the hearing showing that the citationsconcerned different areas at Bethlehem?s Beaumont, Texas facility. An allegedviolation of Section 400?4 was also included in the citation issued on June 19,1973. That violation involved, among other things, the use of flexibleelectrical cord where the cord was run through a hole in a wall. Again, in anattempt to distinguish the factual relatedness of the prior and presentcitations, the Respondent produced evidence at the hearing showing that thecitations concerned different areas at Bethlehem?s Beaumont, Texas facility. Afurther distinction was suggested on the basis that the electrical lines wererouted differently.??????????? TheRespondent had been previously cited for a violation of section 1916.43(a) onAugust 2, 1974. That violation entailed a failure to guard a deck opening whereemployees were working. Three prior section 1916.51(a) citations were issued tothe Respondent. The citation issued on February 12, 1974, concerned scrap metaland welding rods scattered on staging platforms in addition to service linesand house laying on a deck such that a clear passageway was not maintained.9 Finally, on June 19, 1973, theRespondent was cited for a violation of section 1916.66(i). That violationinvolved the swinging of a load of pipe over the heads of employees. At thehearing the Respondent distinguished the prior and present citations on thebasis of the type of load involved (pipe versus scaffolding) and the areas atthe Beaumont, Texas facility in which the respective violations occurred.??????????? Thejudge held that evidence of one prior violation is insufficient to establish arepeated violation, according to the rule announced by the United States Courtof Appeals for the Third Circuit in Bethlehem Steel Corp. v. OSHRC, 540F.2d 157 (3rd Cir. 1976). In that case, the court held that ?repeatedly? refersto a violation that has occurred at least twice after the first violation and,further, one which ?flaunts? the Act. Consequently, the judge characterized theviolations described in the instant citations as nonserious violations of theAct. The Secretary maintains that the judge erred in concluding that theviolations were not repeated.[1]III??????????? TheCommission has respectfully declined to follow that aspect of the ThirdCircuit?s decision in Bethlehem Steel Corp. upon which the judge reliedin reaching his conclusion.[2] In Potlatch Corp.,79 OSAHRC 6\/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ? 23,294 (No. 16183, 1979), theCommission held that a violation is repeated under section 17(a) of the Act if,at the time of the alleged repeated violation, there was a Commission finalorder against the same employer for a substantially similar violation. TheCommission also held in Potlatch that the Secretary may establish a prima faciecase of substantial similarity by showing that the past and present violationsare for failure to comply with the same standard. The employer can rebut theprima facie case by proving that the factual circumstances of the presentviolation are so disparate from those of the past violation that no reasonablerelationship exists between them. Belger Cartage Service, Inc., 79OSAHRC 16\/B14, 7 BNA OSHC 1233, 1236, 1979 CCH OSHD ?23,440 at p. 28,374 (No.76?1480, 1979).??????????? Here,the Secretary?s evidence showing Bethlehem Steel?s prior violations of the samestandards is sufficient to establish a prima facie case of substantialsimilarity. Once the Secretary has established a prima facie case, the burdenshifts to the employer to rebut that showing. See Potlatch Corp., supra. At thehearing and in its post-hearing brief, the Respondent argued that the prior andpresent violations of section 1910.27(d)(2), Section 400?4, and section1916.66(i) are so dissimilar as to negate a repeated classification inasmuch asthe prior violations in each instance occurred a different areas withinBethlehem?s Beaumont, Texas facility. This evidence is insufficient to rebutthe Secretary?s prima facie case. We have recently held that ?a difference inthe location of violations at the same worksite is not a relevant consideration?to a determination of whether a violation is properly classified as repeated.FMC Corp., 79 OSAHRC ??, 7 BNA OSHC 1419, 1421, 1979 CCH OSHD ? 23,631 atp. 28,657 (No. 12311, 1979). See also, Potlatch Corp., supra; Accord, J.M.Martinac Shipbuilding Corp. v. Marshall and OSAHRC, No. 78?2633, ?? F.2d ??(9th Cir., January 16, 1980). Bethlehem also argued that the violations ofSection 400?4 are factually unrelated in that the electrical lines were routeddifferently. The judge, however, found that the present violation resulted fromflexible electrical cords being routed through a jagged opening cut in a wall.Similarly, the prior violation of Section 400?4 involved flexible electricalcord where the cord was run through a hole in a wall. Accordingly, the evidencedoes not support the Respondent?s contention that the violations of Section400?4 are factually unrelated. Similarly, Bethlehem?s attempt to distinguishthe violations of section 1916.66(i) on the basis of the type of load involveddoes not establish a factual dissimilarity sufficient to rebut the Secretary?sprima facie case. The evidence shows that both violations of this standardinvolved a load being passed over the heads of employees.IV??????????? Thiscase was tried and decided prior to our decision in Potlatch. Usually whenthere has been an intervening change in law between the hearing and ourdecision on review in a case, we will offer the affected party an opportunityto present additional evidence relevant to the newly established legal test ordefense. See e.g., Truland-Elliot, 77 OSAHRC 163\/A7, 4 BNA OSHC 1455,1976?77 CCH OSHD ? 20,908 (No. 11259, 1976). However, at the hearing and in itspost-hearing brief Bethlehem asserted a defense that the prior and presentviolations of section 1910.27(d)(2), Section 400?4, and section 1916.66(i) werefactually unrelated and therefore the present violations of the standards werenot repeated. Under these circumstances, we conclude that the defense in eachinstance would not have been tried any differently had Potlatch been issuedbefore the hearing. Therefore, we do not offer the Respondent an opportunityfor a remand with respect to these violations. See FMC Corp., supra, 7BNA OSHC at 1422 n. 8, 1979 CCH OSHD at p. 28,657 n. 8.??????????? Theevidence of record in this case demonstrates that the earlier violation ofsection 1916.43(a) was virtually identical to the violations of this standardin this instance. Each violation involved a failure to guard a deck opening.The evidence of record also demonstrates that the earlier violation of section1916.51(a) cited on February 12, 1974, was virtually identical to the presentviolations of this standard. In both instances hoses and welding materials werescattered around the work area presenting tripping hazards. Since on the factsof this case the Respondent could not have rebutted the Secretary?s prima faciecase by showing significant factual dissimilarities between the present andearlier violations of sections 1916.43(a) and 1916.51(a), no remand is ordered.See Belger Cartage Service, Inc., supra, 7 BNA OSHC at 1236, 1979 CCHOSHD at p. 28,374.V??????????? TheSecretary proposed the following penalties: $100 for the Section 400?4violation; $150 for the section 1916.43(a) violation; $100 for the section1916.51(a) violation, and $125 for the section 1916.66(i) violation. For eachof these violations, the judge reduced the penalty to $50. In addition, theSecretary proposed a $125 penalty for the section 1910.27(d)(2) violation,which penalty the judge vacated. Based on our review of the factors enumeratedin section 17(j) of the Act, 29 U.S.C. ? 666(i), and the guidelines set forthby our decision in Potlatch, we conclude that the penalties proposed bythe Secretary for the violations of section 1910.27(d)(2), Section 400?4,section 1916.43(a), section 1916.51(a) and section 1916.66(i) are appropriatein each instance. We take particular note of the fact that all of the repeatedviolations in this case were committed at the same facility as the priorviolations.??????????? Accordingly,we modify the judge?s decision to find the violations of 29 C.F.R. ??\u00a01910.27(d)(2),1916.43(a), 1916.51(a) and 1916.66(i), and of Section 400?4 to have beenrepeated within the meaning of the Act, and we assess penalties of $125, $150,$100, $125, and $100 respectively.SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.Executive SecretaryDATED: APR 29, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-1481 BETHLEHEM STEEL CORPORATION, ??????????????????????????????????? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 November 9, 1976DECISION AND ORDERJack F. Ostrander for the Secretary ofLabor.Murray N. Shelton, Jr. for the respondent.\u00a0BURCHMORE, Judge:??????????? Bycitations issued March 9, 1976, as amended, complainant charges that onFebruary 2?3, 1976, respondent committed numerous violations, both non-seriousand repeated, of section 5(a)(2) of the Occupational Safety and Health Act of1970, 29 U.S.C. 651 et seq. (the Act), in that respondent failed to comply, insome instances, with the Occupational Safety and Health Standards contained in29 C.F.R. 1910, and in other instances with the Safety and Health Standards forShipbuilding as contained in 29 C.F.R. 1916. Penalties totaling $1420 wereproposed.??????????? Timelynotice of contest was filed as to specified items and the proceeding wasreferred to the undersigned administrative law judge for hearing andadjudication. Hearing was held at Houston, Texas, on September 9, 1976. Theparties have submitted post hearing briefs.??????????? It isalleged and admitted in the pleadings, and I find, that respondent is anemployer engaged in a business affecting commerce. I conclude that respondentis subject to the Act and that this Commission has jurisdiction in thepremises.??????????? Bystipulation entered at the hearing and approved by the judge, and by motionmade subsequent to the hearing, which is hereby granted, it was agreed thatItem 2(a) of the non-serious citation be affirmed without penalty, that Item 6of the non-serious citation be affirmed with a penalty of $35, and that thefollowing items be vacated: Items 1, 3, 5, 8, 13 and 14 of the non-seriouscitation; and Citations for repeated violations numbered 3, 4(b) and (c), and5. There remains for disposition contested Items 7(a) and (b), 9 and 12 of thenon-serious citation and Citations for repeated violation numbered 2, 4(a), 6,7, 8, 9 and 10.REPEATED VIOLATIONS??????????? Itshould be noted at the outset that the evidence introduced by the complainantto establish the repeated nature of the alleged violations simply comprisedcopies of prior citations which became effective under the same regulations; ineach instance, one prior violation was shown. Such evidence is insufficient toestablish a repeated violation within the meaning of the Act because it hasbeen held in a case involving this same respondent that the complainant mustshow at least two prior violations and complainant must also show that theinstant violation was committed under circumstances amounting to a flaunting ofthe Act. Bethlehem Steel Corporation v. OSHRC and Brennan, BNA 4 OSHC1451 (3rd CA decided July 20, 1976). I therefore conclude that the allegedviolations have not been shown to have been repeated. On the other hand, thefact that the alleged violations were not shown to be repeated still leaves fordetermination whether lesser, non-serious violations occurred for which reducedpenalties should be assessed. Secretary of Labor v. Dye Construction Company,BNA 4 OSHC 1444 (No. 4172, decided July 12, 1976).??????????? Inassessing such penalties as may be appropriate, due consideration must be givento the fact that the inspection and alleged violations took place at a verylarge shipyard of the respondent located in Beaumont, Texas, where respondentemploys more than 99 employees. Respondent has been cited several times in thepast for violations of the Act, and such citations have become effective. Onthe other hand, respondent conducts an extensive and ongoing safety programembracing continuous instruction and supervision of employees; its good faithis not questioned herein.??????????? The Non-SeriousCitation??????????? Item7(a)(b). The two parts of this item are ?equivalent? in the words of theinspecting officer. They are drawn, respectively, under two paragraphs of thegeneral industry standards, 29 C.F.R. 1910.252(a)(iii)(b)(1) and 252(a)(5)(iv),which provide:(iii) Piping protective equipment.(b) Approved protective equipment(designated PF in Figs. Q?1, Q?2 and Q?3) shall be installed in fuel-gas pipingto prevent:(1) Backflow of oxygen into the fuelgassupply system; and?(iv) Station outlet protective equipment.(a) A check valve, pressure regulator, hydraulic seal, or combination of thesedevices shall be provided at each station outlet, including those on portableheaders, to prevent backflow, as shown in Figures Q?1, Q?2 and Q?3 and designatedas SF and SO.???????????? Respondentcontends that it was not citable under the general industry regulations becauseit is engaged in shipbuilding and that it should have been cited under 29C.F.R. 1916.35(e) governing fuel gas and oxygen manifolds in the shipbuildingindustry. Examination of the two sets of regulations reveals, however, thatPart 1910 provides more detailed standards regulating the precise point incontroversy. It has never been held that the general industry standards do notapply to industries as to which there are industry standards in effect, and Ihold that, where the general industry standards contain requirements that arenot provided in connection with a particular industry, the industry is subjectto the general industry standards as well as those provided for the particularindustry.??????????? Theinspecting officer testified that the deficiency complained of was a lack ofcheck valve, or anti-backflow device. This was countered by testimony ofrespondent?s Safety Engineer to the effect that there were anti-backflowdevices in the system. On rebuttal the inspecting officer testified that, ifthere were anti-backflow devices, they were located upstream of the requiredplacement according to the diagram in the regulation. The final testimony onthe subject was from the Safety Engineer, on surrebuttal, when he flatly statedthat there was an anti-backflow device both in the main piping and in thebranch piping. This testimony stands uncontroverted and I find that thecomplainant has failed to prove be alleged violation.??????????? Item9. The inspecting officer observed some electric power supply boxes from whichcords ran to machinery. The boxes were covered but there were no warning signson them to keep employees away, so he cited respondent for violation of Article110?17(c) of the National Electrical Code, NFPA 70?1971, which was adopted in29 C.F.R. 1910.309(a) and which provides:Entrances to rooms and other guardedlocations containing exposed live parts shall be marked with conspicuouswarning signs forbidding unqualified persons to enter.???????????? Respondentcontends that the regulation is not applicable in this situation because therewas no room or other guarded location to be marked; the boxes were not in aroom by themselves but were out in the open, and they were covered. I agree,and I find that complainant has failed to prove that there was an unmarkedentrance to a room or other guarded location containing exposed live parts. Theitem must be vacated.??????????? Item12. An employee was observed working at the unguarded edge of the drill floorplatform on a drilling rig under construction. He was not protected by safetybelt, and respondent was therefore cited for violation of Part 1916.47(b) whichprovides:When employees are working aloft, orelsewhere at elevations more than 5 feet above a solid surface, eitherscaffolds or a sloping ladder, meeting the requirements of this subpart, shallbe used to afford safe footing, or the employees shall be protected by safetybelts and lifelines meeting the requirements of ?\u00a01916.84(b). * * *???????????? Therecan be no question that there was a violation here, but respondent introducedevidence which shows that the employee was acting unpredictably and inviolation of adequate instructions and rules. Respondent?s Job Safety Analysisrequires employees to use safety belts under the circumstances here involved,and that instruction had been thoroughly covered with the employee involved.There is no evidence that the supervisor of the employee was aware or couldhave reasonably become aware of the employee?s disobedience. This is asituation which is governed by the decision in Secretary of Labor v.Engineers Construction, Inc., BNA 3 OSHRC 1537. The item will be vacated.??????????? CitationNo. 2??????????? Onthe north side of the fabrication shop building there was a straight,uninterrupted ladder about 45 feet high, which had no offsets or landingplatforms, and there was no ladder climbing safety device on it. Part1910.27(d)(2) requires as follows:When ladders are used to ascend to heightsexceeding 20 feet (except on chimneys), landing platforms shall be provided foreach 30 feet of height or fraction thereof, except that, where no cage, well,or ladder safety device is provided, landing platforms shall be provided foreach 20 feet of height or fraction thereof. Each ladder section shall be offsetfrom adjacent sections. Where installation conditions (even for a short,unbroken length) require that adjacent sections be offset, landing platformsshall be provided at each offset.???????????? Respondentpoints out that there were over 100 other ladders in the facility, all of whichconformed to the regulation, and respondent contends that this was therefore anisolated instance for which it is not responsible. However, the defense of anisolated instance relates to the question whether respondent had knowledge of aviolation, and there can be no question that respondent had, or should havehad, knowledge of this ladder, no matter how many other ladders there were inthe yard. On the other hand, the evidence shows that the ladder was used veryrarely, only once or twice a year, and that when it was used the employees wereinstructed to use safety belts. I find, therefore, that the gravity of theviolation was so low as to warrant a zero penalty, considering the good faithof the respondent and its history of efforts to comply with the law.??????????? CitationNo. 4(a)??????????? Article400?4 of the National Electrical Code, NFPA 70?1971, as adopted by 29 C.F.R.1910.309(a), provides:Prohibited Uses. Except where installed inaccordance with Article 645, flexible cord shall not be used (1) as asubstitute for the fixed wiring of a structure; (2) where run through holes inwalls, ceilings, or floors; (3) where run through doorways, windows, or similaropenings; (4) where attached to building surfaces; or (5) where concealedbehind building walls, ceilings, or floors.???????????? Theinspecting office observed and photographed flexible cords run through a jaggedopening cut in a corrugated metal wall, and cited respondent accordingly.Respondent says the wires were only temporary hookups, but that does not excusethe violation. Respondent also complains that the inspecting officer did nottest the wires to see they were alive. In my opinion, it was a reasonable inferencefrom the existence, location and hookup of the wires to assume that they werelive, and I so find. I affirm the citation. The proposed penalty for a repeatedviolation was $100 and I find that the appropriate penalty for the violation,which is not shown to have been repeated within the meaning of the Act, is $50.??????????? CitationNo. 6??????????? Theinspecting officer observed ground cables used in welding operations at theyard and the insulation on the conductors was worn, or bare in places.Respondent was cited for this condition under Part 1916.36(b)(4), whichprovides ?All arc welding and cutting cables? shall be completely insulated.However, respondent points out that section (c) of the regulation separatelydeals with ?ground return cables? and contains no requirement that they shallbe insulated. I conclude, therefore, that the cited paragraph does not apply toground cables and that the citation should be vacated.??????????? CitationNo. 7??????????? Part1916.41(h)(3) requires that the planking on scaffolds shall extend at least 12inches but not more than 18 inches beyond the scaffold frame. The obviousreason for this is to insure that the planking overlaps enough to keep it fromcoming dislodged, but not so much that it might be upended if an employeestepped on the end.??????????? Thereare thousands of feet of scaffolding in respondent?s shipyard. Out of all thisthe inspecting officer found three instances where the planking overlapped byslightly more than 18 inches. He photographed one instance of this and citedrespondent under the regulation. The photograph shows that the overlap exceeded18 inches by not more than a few inches. Moreover, respondent?s Safety Directortestified that in two instances the scaffold was being disassembled and in theother instance it was being erected. In each instance there was a railing onthe end of the scaffold and the approach to mounting the scaffold was from theside, so that there was very little chance of an employee stepping on theexcessive end.??????????? Hereis a technical violation of the literal words of the regulation, which howeverinvolves almost no risk to employee safety. I find that there was a violationand that no penalty is appropriate.??????????? CitationNo. 8??????????? Part1916.43(a) requires that flush manholes be covered or guarded to a height of 30inches. There were over 150 manholes in the yard out of which the inspectingofficer observed three which were not covered or guarded. Respondent contendsthat it would have been impracticable to cover the holes in the instances citedas there was work in progress. But its Safety Director conceded that ?it?sstandard procedure to have all these openings covered . . . people go in andout of these at different times, and it?s just like closing a door.? I concludethat in the instances cited there was a technical violation. The proposedpenalty, had the violation been a repeated one, was $150 and I find that thisshould be reduced to $50.??????????? CitationNo. 9??????????? Duringthe two-day inspection tour, the inspector covered about 90 per cent of theyard, which is about 71 acres in extent. He cited respondent for threehousekeeping violations in all this area, and these related to tripping hazardsof excess cables or hoses in walkways. Part 1916.51(a). Complainant concedesthat respondent had a program whereby wooden walkways were built in all workingareas where welding cables were used. But at the time of the inspection therewere these three areas where loose cables or hose were observed in way ofemployee traffic.??????????? Respondentshowed that as to one of the areas, the material in question was damaged cablewhich was in the process of being rolled up for removal. In the other areasthere were temporary conditions that were remedied immediately after theinspection.??????????? Underthe circumstances I find that in the two instances of temporary condition therewas a technical housekeeping violation for which a penalty of $50 isappropriate.??????????? CitationNo. 10??????????? Part1916.55(i) relating to use of hoisting gear, provides that loads shall not beswung over the heads of employees. During the inspection the investigatorobserved a load of scaffolding being lifted and swung over an employee?s head.Although respondent contends that this was an isolated instance, and it doeshave a continuing rule and program of instruction to avoid such practices, therecord shows that this was the second time they were cited for violation of thesame standard. While the violation was not repeated within the meaning of theAct, the facts require that the citation be affirmed as a non-serious citationand that a penalty of $50 be assessed.??????????? It isORDERED that the several citations, as amended, be and the same are herebymodified to non-serious and affirmed or vacated as listed below, that penaltiesbe and the same are hereby assessed as listed and that this proceeding be andthe same is hereby discontinued. Citation No. \u00a0 Item No. \u00a0 Disposition \u00a0 Penalty \u00a0 1 1 \u00a0 vacated \u00a0 1 \u00a0 2(a) \u00a0 affirmed \u00a0 zero \u00a0 1 \u00a0 3 \u00a0 vacated \u00a0 \u00a0 1 \u00a0 5 \u00a0 vacated \u00a0 \u00a0 1 \u00a0 6 \u00a0 affirmed \u00a0 $ 35 \u00a0 1 \u00a0 7 \u00a0 vacated \u00a0 \u00a0 1 \u00a0 8 \u00a0 vacated \u00a0 \u00a0 1 \u00a0 9 \u00a0 vacated \u00a0 \u00a0 1 \u00a0 12 \u00a0 vacated \u00a0 1 \u00a0 13 \u00a0 vacated \u00a0 \u00a0 1 \u00a0 14 \u00a0 vacated \u00a0 \u00a0 2 \u00a0 \u00a0 affirmed \u00a0 zero \u00a0 3 \u00a0 \u00a0 vacated \u00a0 \u00a0 4(a) \u00a0 \u00a0 affirmed \u00a0 $ 50 \u00a0 5 \u00a0 \u00a0 vacated \u00a0 \u00a0 6 \u00a0 \u00a0 vacated \u00a0 \u00a0 7 \u00a0 \u00a0 affirmed \u00a0 zero \u00a0 8 \u00a0 \u00a0 affirmed \u00a0 $ 50 \u00a0 9 \u00a0 \u00a0 affirmed \u00a0 $ 50 \u00a0 10 \u00a0 \u00a0 affirmed \u00a0 $ 50 \u00a0 \u00a0Robert N. BurchmoreJudge, OSHRCDated: November 9, 1976* Commissioner Barnako did not participatein this decision.1 Section 17(a), 29 U.S.C. ? 666(a),provides:Anyemployer who willfully or repeatedly violates the requirements of section 5 ofthis Act, any standard, rule, or order promulgated pursuant to section 6 ofthis Act, or regulations prescribed pursuant to this Act, may be assessed acivil penalty of not more than $10,000 for each violation.2 The Secretary filed a petition fordiscretionary review and former Commissioner Moran directed review but did notspecify and issues to be considered by the Commission. The Secretary?s petitionfor review challenged the judge?s characterization of the violations alleged incitations numbered 2, 4a, 8, 9, and 10 as nonserious rather than repeatedviolations. Since the parties did not object to the judge?s disposition of theremainder of the citations for repeated violations and the citation fornonserious violations, they will not be considered by the Commission becausethey do not involve issues of compelling public interest. See Abbott-SommerInc., 76 OSAHRC 21\/A2, 3 BNA OSHC 2032, 1975?76 CCH OSHD ?20,428 (No. 9507,1976); Water Works Installation Corp., 76 OSAHRC 61\/B8, 4 BNA OSHC 1339,1976?77 CCH OSHD ?20, 780 (No. 4136, 1976). Those parts of the judge?s decisionrelating to these unreviewed citations are accorded the precedential value ofan unreviewed judge?s decision. Leone Construction Co., 76 OSAHRC 12\/E6,3 BNA OSHC 1979, 1975?76 CCH OSHD ?20,387 (No. 4090, 1976), appeal withdrawn,No. 76?4070 (2d Cir., May 17, 1976).3 The standard at 29 C.F.R. ? 1910.27(d)(2)provides, in pertinent part, the following:?1910.27 Fixed ladders.(d)Special requirements(2)Landing platforms. When ladders are used to ascend heights exceeding 20 feet .. ., landing platforms shall be provided for each 30 feet of height or fractionthereof, except that, where no cage, well, or ladder safety device is provided,landing platforms shall be provided for each 20 feet of height or fractionthereof. . . .4 The standard at 29 C.F.R. ? 1910.309(a)provides, in pertinent part, the following:?1910.309 National Electrical Code.(a)The requirements contained in the following articles and sections of theNational Electrical Code, NFPA 70?1971; ANSI C1?1971 (Rev. of 1968) shall applyto all electrical installations and utilization equipment:Sections400?4….. Flexible Cords and Cable ProhibitedSection400?4 provides the following:400?4.Prohibited Uses. Except where installed in accordance with Article 645,flexible cord shall not be used (1) as a substitute for the fixed wiring of astructure; (2) where run through holes in walls, ceilings, or floors; (3) whererun through doorways, windows, or similar openings; (4) where attached tobuilding surfaces; or (5) where concealed behind building walls, ceilings, orfloors.Allreferences to Section 400?4 in this decision refer to Section 400?4 of theNational Electrical Code, as adopted by 29 C.F.R ? 1910.309(a).5 The standard at 29 C.F.R. ? 1916.43(a)provides, in pertinent part, the following:?1916.43 Guarding of deck openings and edges.(a)When employees are working in the vicinity of flush manholes and other smallopenings of comparable size in the deck and other working surfaces, suchopenings shall be suitably covered or guarded to a height of not less than 30inches, . . ..6 The standard at 29 C.F.R. ? 1916.51(a)provides the following:?1916.51 Housekeeping.(a)Good housekeeping conditions shall be maintained at all times. Adequate aislesand passageways shall be maintained in all work areas. All staging platforms,ramps, stairways, walkways, aisles, and passageways on vessels or drydocksshall be kept clear of all tools, materials, and equipment except that which isin use, and all debris such as welding rod tips, bolts, nuts, and similarmaterial. Hose and electric conductors shall be elevated over or placed underthe walkway or working surfaces or covered by adequate crossover planks.7 The judge made no specific order withrespect to item ?a? of citation number nine. In his discussion of thiscitation, however, the judge indicated that the conditions alleged in item ?a?complied with section 1916.51(a). He expressly limited his conclusion that theRespondent failed to comply with the standard to the conditions alleged initems ?b? and ?c?. Accordingly, we conclude that the judge?s order implicitlyvacated item ?a? of citation number nine and specifically affirmed items ?b?and ?c? as nonserious violations.8 The standard at 29 C.F.R. ? 1916.66(i)provides the following:?1916.66 Use of gear.(i)Loads (tools, equipment or other materials) shall not be swung or suspendedover the heads of employee.9 In paragraphXXIV(b) of his Complaint the Secretary referred to a prior citation for aviolation of section 1916.51(a) issued on August 2, 1974, as the basis on whichthe present violation was alleged to be repeated. However, the evidence ofrecord reveals three prior violations of this standard in citations issued onJune 19, 1973, on February 12, 1974, and on August 2, 1974. Rule 15(b) of theFederal Rules of Civil Procedure requires that, ?[w]hen issues not raised bythe pleadings are tried by the express or implied consent of the parties, theyshall be treated in all respects as if they had been raised in the pleadings.?Usually a party?s failure to object at trial to the introduction of evidencerelevant to the unpleaded charge established that the party has impliedlyconsented to the trial of that charge. 3 Moore?s Federal Practice?15.13[2] at 15?174 (2d ed. 1979). The only objection raised by Bethlehem withrespect to any of the three prior citations was an objection to theintroduction of the June 19, 1973 citation. The objection was based on the factthat the complaint, in a paragraph unrelated to the housekeeping violation atissue, referred to a June 16th citation but did not mention a June 19thcitation. In overruling the objection, the judge found that the Respondentcould not have been ?misled or prejudiced . . . because the Respondentcertainly has or has had copies of every citation issued to it.? Moreover, wenote that amendment in this case does not alter the legal theory on which theSecretary proceeded. Accordingly, we amend paragraph XXIV(b) of the Secretary?scomplaint to conform to the evidence of record. In our review of this case wewill consider each of the three prior violations of section 1916.51(a) as shownin the record. See generally, John and Roy Carlstrom, d\/b\/a CarlstromBrothers Construction, 78 OSAHRC 96\/A2, 6 BNA OSHC 2101, 1978 CCH OSHD ?23,155 (No. 13502, 1978).[1] The Secretaryrefers the Commission to the Secretary?s brief submitted in George HymanConstruction 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). TheRespondent did not file a brief.[2] Other circuitcourts have agreed with the Commission?s decision not to follow the ThirdCircuit?s rule in Bethlehem Steel Corp., supra. See, e.g., GeorgeHyman Construction Co. v. OSHRC, 582 F.2d 834 (4th Cir. 1978), affirming,George Hyman Constr. Co., 77 OSAHRC 67\/C7, 5 BNA OSHC 1318, 1977?78 CCHOSHD ?21,774 (No. 13559, 1977); Todd Shipyards Corporation v. Secretary ofLabor and OSAHRC, 566 F.2d 1327 (9th Cir. 1977), affirming, ToddShipyards Corp., 75 OSAHRC 32\/A2, 2 BNA OSHC 1579, 1974?75 CCH OSHD ?19,272 (No. 1556, 1975).”