“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 10434 DONALD HARRIS, INCORPORATED, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 January 3, 1978DECISIONBefore CLEARY, Chairman; and BARNAKO, Commissioner.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Joseph L. Chalk, dated May 28, 1975, isbefore the Commission for review pursuant to 29 U.S.C. ? 661(i). Although thecomplainant cited the respondent for a repeated violation of the standardcodified at 29 CFR ? 1926.451(a)(8) and proposed a penalty of $90 therefor,judge Chalk affirmed a nonserious violation of the standard and assessed a $45penalty.??????????? Onreview, the complainant argues that the Judge erred in finding that theviolation should not be characterized as a repeated one. Implicit in thatargument is a contention that the $45 penalty assessment is inadequate. See J.A. McCarthy, Inc., 76 OSAHRC 65\/A2, 4 BNA OSHC 1358, 1976?77 CCH OSHD para.20,813 (No. 3985, 1976).??????????? Theinstant citation was issued because several split and damaged planks on atubular frame scaffolding platform had not been immediately replaced asrequired by ? 1926.451(a)(8). The respondent had previously been cited for twoviolations of this same standard at other worksites in Pennsylvania. Since therespondent did not contest these violations they became final orders byoperation of law. 29 U.S.C. ? 659(a).??????????? Irrespectiveof how a violation is classified, the Commission is required to consider anemployer?s ?history of previous violations? in assessing penalties. 29 U.S.C. ?666(i). In this case, there is no showing that the instant violation or theprior violations were of high gravity of that the violative conditions existedfor a long time. Although the prior violations should have alerted the respondentto the need for vigilance, there is no evidence indicating that the respondentdid not make a good faith attempt to avoid reoccurrence of the violation.Considering these circumstances and the entire record in conjunction with allthe criteria specified in 29 U.S.C. ? 666(i), the Commission finds that apenalty of $45 is appropriate.??????????? Inview of the relatively small penalty assessment, the Commission will notaddress the repeated characterization of the violation. A maximum penalty of$10,000 is authorized for a repeated violation.[1] However, a penaltyassessment of $45, or even $90 as proposed by the complainant, is considerablyless than the $1,000 authorized for serious or nonserious violations.[2] Therefore, the question ofwhether the violation should be classified as repeated need not be addressed bythe Commission. Penn Central Transportation Co., 77 OSAHRC 15\/F4, 4 BNAOSHC 2033, 1976?77 CCH OSHD para. 21,540 (No. 13084, 1977).??????????? Accordingly,the Judge?s decision is affirmed.?FOR THE COMMISSION:?Ray H. Darling Jr.Acting Executive SecretaryDated: January 3, 1978\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 10434 DONALD HARRIS, INCORPORATED, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 May 28, 1975APPEARANCESJoan M. Roller, Esq. For Complainant\u00a0Henry G. Beamer, III, Esq. For Respondent\u00a0DECISION AND ORDERChalk, Judge??????????? Followingan inspection of Respondent?s worksite in Mercer, Pennsylvania, by a Departmentof Labor compliance officer on September 5, 1974, Respondent, on September 23,1974, was issued a Citation alleging a violation of 29 U.S.C. 654(a)(2), asfollows:??Repeated?29 C.F.R. 1926.451(a)(8)[3]?Several planks on the tubular frame scaffoldingplatform in the following location, were split and damaged and were notimmediately replaced or repaired:(a) Northeast corner of Ceramic StudioRoom 310 . . .??A penalty of $90.00 was proposed for this charge.??????????? OnOctober 9, 1974, Respondent contested the charge.[4]I??????????? Therecord establishes, inter alia, that Respondent maintains constructionworksites throughout Pennsylvania and West Virginia.??????????? Atthe hearing, no witnesses were called, as all the facts were stipulated, andRespondent admitted the violation, except for the ?repeated? aspect thereof. Inthis stipulation, it was agreed that Respondent would pay the proposed penaltyof $90.00, if the charge were sustained, or a penalty of $45.00, if the chargewere not found to be repeated.??????????? Allmatters that follow appear in the stipulation.??????????? Respondentwas previously cited on two occasions, November 20, 1973 and November 27, 1973,for violations of the same standard at two other construction sites inPennsylvania. These charges were not contested.??????????? Thepresent Citation was issued in accordance with the following excerpt fromLabor?s Field Operations Manual, paragraph VIII?12, (1974):For purposes of considering whether aviolation is repeated, citations issued to employers having fixedestablishments e. g., factories, terminals, stores) will be limited to the cited establishment. Foremployers engaged in a business having no fixed establishments (construction, painting,excavation) repeated violations to be alleged based on prior violations occurringanywhere within the same State . . .[5]\u00a0??????????? Respondentmaintains its permanent office in Pittsburgh, Pennsylvania, but as a masonrycontractor, its employees work at different construction sites throughoutPennsylvania, as well as West Virginia. When work is completed at a given site,its supervisors and foremen are moved to other sites. When possible, the sameprocedure is followed with respect to workmen. During the year 1974, Respondentperformed work at about twenty-five different worksites in the above twostates. A supervisor or foreman may be employed at different worksites duringthe course of a typical year.II??????????? Respondent?sprincipal argument is that the Secretary?s guideline regarding repeatedviolations arbitrarily discriminates against employers without fixed worksites,such as construction companies. It argues that there is no rational reason whya construction company with worksites in, for example, Pittsburgh andPhiladelphia should be subjected to heavier penalties for the same activitiesas a manufacturing company with plants in the same two cities.[6]??????????? TheSecretary argues that heavier penalties are provided for repeated violations inorder to deter employers from exposing their employees to the same hazard forwhich they were previously cited. He claims that fixed worksites can beregularly visited by compliance officers to determine if the employer ispersisting in exposing his employees to the same hazard. Because constructionsites exist only for a limited duration, however, and because the constructioncrew may then begin work at a different location, he argues it is necessary tobe able to cite a repeated violation at the new worksite in order to deter theemployer from exposing his employees to the same hazard which may have existedat the previous worksite. The Secretary therefore concludes that it is rationalto treat employers with fixed worksites differently from those without fixedworksites. He further argues that, to satisfy due process, a classificationneed not be perfect, but only rationally related to the end it seeks toachieve, citing, inter alia, Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153 (1970), and Richardson v. Belcher, 404 U.S. 78, 92 S. Ct. 245(1971).??????????? Thecases cited by the Secretary involve situations where statutes were found to benot unduly arbitrary or discriminatory. They were decided in accordance withthe familiar rule that courts will not review the wisdom, but only theconstitutionality, of legislative enactments. Here, however, we are not dealingwith a statute, or even a regulation,[7] but simply with theSecretary?s interpretation of a term used in a statute. The Secretary istherefore essentially asking that this Commission give his interpretation of astatutory term a deference comparable to that a court would give to alegislative judgment embodied in a statute.?It is true that courts will give deference to aninterpretation by an administrative agency of the statute that the agencyadministers (NLRB v. Hearst Publications, Inc., 322 U.S. 111, 64 S. Ct.851 (1944); The Budd Company v. OSAHRC, Nos. 74?1256 and 74?1781 (3rdCir., March 24, 1975)). But Congress assigned responsibilities under this Actto two agencies: the Secretary of Labor and this Commission. The Secretarypromulgates standards and issues citations. The Commission?s role isadjudication. The process of adjudication involves interpretation of thestatute; and, where this involves specialized questions of law peculiar to theadministration of this Act, it is the Commission?s, not the Secretary?s,interpretation to which a court will defer (Brennan v. Gilles & Cotting,Inc., 504 F.2d 1255 (4th Cir., 1974)). In a proceeding before theCommission, the Secretary?s opinion regarding the interpretation of the Act issimply that of one of the parties, and is entitled to no more weight than thatof any other party.[8]Thus, the real issue is not whether the Secretary?s guideline is arbitrary, butwhether it embodies the correct definition of repeated violation.??????????? TheReview Commission has recently adopted the following test for determiningwhether a violation is properly classified as repeated:?The term ?repeated? is therefore read tomean happening more than once in a manner which flaunts the requirements ofthat Act. With a test of whether the requirements of the Act are being flauntedit cannot be said abstractly just how many places of employment or conditionsof employment should be considered. Each case must be decided upon its ownmerits and turn upon the nature and extent of the violations involved.? Secretaryv. General Electric Company, Docket No. 2739, April 21, 1975 (slip opinionat p. 25).???????????? It isclear that the Secretary?s guideline is inconsistent with this test, for histest is objective-he would classify the instant violation as repeated solely onthe fact that Respondent violated the same standard at more than one worksitewithin the same state. The Commission?s test on the other hand, issubjective-it requires evidence that the instant violation occurred in a mannerindicating that Respondent flaunted the requirements of the Act. Thus, for arepeated charge to be sustained, there must be something more than a bareshowing of a recurrence of the same violation, as was shown in this case. Here,the void might have been filled had the Secretary shown, for example, that alarge percentage of the total number of planks Respondent was using wereseverely damaged and that the same supervisory personnel were involved in allviolations.??????????? TheSecretary bears the burden of proving all elements of his charge (see Secretaryv. Warner Brothers, Inc., 14 OSAHRC 474 (1974), and cases therein). As hehas failed to meet that burden in this case, the repeated aspect of the chargecannot be sustained.[9]??????????? Additionally,I am persuaded that the Secretary?s guideline regarding repeated violations isindeed arbitrary in the manner in which it treats employers with and withoutfixed worksites differently (see Dandridge v. Williams, supra; Scheider v.Rusk, 377 U.S. 163, 84 S. Ct. 1187 (1964); Bolling et al v. Sharpe et al,347 U.S.: 497, 74 S. Ct. 693 (1953); Nebbia v. People of State of New York,291 U.S. 502, 545, Ct. 505 (1934); Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582 (1931). The Secretary attempts to justify his guideline on the basisthat it is necessary to deter employers from persisting is exposing theiremployees to the same hazard. Assuming that this objective can be achieved inthis manner, it is not clear why employees of some employers are entitled tomore protection than others. The Secretary?s definition would not permit theissuance of a repeated citation to an employer with two fixed worksites underconditions where the employer flaunts the requirements of a standard byviolating it at one worksite after having been found to have violated it at theother. Such a violation would be ?repeated? under the Commission?s test, butnot the Secretary?s.??????????? Furthermore,the instant enforcement proceeding demonstrates the irrationality of theguideline. As the Secretary states in his brief:?. . . by grouping repeated violations inthe same category as willful violations, Congress was indicating that itconsidered repeated violations very grave offenses.?\u00a0??????????? Despitethe fact that the Secretary ostensibly considers the violation in this case tobe ?very grave?, he proposed only a $90 penalty. If he thought this penalty wasjustified, he could have recommended it even if the violation was simplyclassified as nonserious. Among the factors to be considered in any penaltyassessment are the employer?s prior history of violations and his good faith.If an employer persistently violates a standard, these factors may justify ahigher than usual penalty even if the violation is not classified as repeated.Thus, the present enforcement proceeding does not support the notion thatciting repeated violations in accordance with the Secretary?s guideline isnecessary or appropriate to adequately protect employees.III??????????? Uponreview of the entire record, I reach the following findings of fact andconclusions of law:FINDINGS OF FACT??????????? 1. Atthe time and place in question, Respondent?s employees utilized a scaffoldingplatform containing several split and damaged planks.??????????? 2. Ontwo previous occasions at different worksites in Pennsylvania, Respondent hadbeen cited because its employees utilized scaffolding platforms containingsplit and damaged planks, citations which Respondent did not contest.??????????? 3.The citation for repeated violation in this instance was issued in accordancewith the guideline contained in Paragraph VIII?12 of the Secretary?s FieldOperations Manual promulgated in 1974.CONCLUSIONS OF LAW??????????? 1.That this Commission has jurisdiction over the cause.??????????? 2.That Respondent violated Section 5(a)(2) of the Act at the time and place inquestion by not complying with 29 C.F.R. 1926.451(a)(8).??????????? 3.The violation did not occur in a manner which flaunted the requirements of thestandard, and is therefore not ?repeated? within the meaning of Section 17(a)of the Act.??????????? Onlyso much of Citation number 1 as alleged a nonserious violation of 29 U.S.C.654(a)(2) by not complying with 29 C.F.R. 1926.451(a)(8) is affirmed. A penaltyof $45.00 is assessed therefor.?So ORDERED.?JOSEPH L. CHALKJudge, OSAHRCDated: May 28, 1975?Washington, D.C.\u00a0[1] 29 U.S.C. ?666(a).[2] 29 U.S.C. ? 666(b)and (c).[3] This standard provides:Anyscaffold including accessories such as braces, brackets, trusses, screw legs,ladders, etc. damaged or weakened from any cause shall be immediately repairedor replaced. [4] Respondent did notcontest another Citation issued as a result of the same inspection.[5] The distinctionbetween fixed establishments and otherwise did not appear in Labor?s ComplianceOperations Manual (1972) superseded by that cited above.[6] The maximumpossible penalty for a repeated violation is $10,000. For serious andnonserious violations, $1000 is the maximum penalty that may be assessed.[7] Judicial review ofa regulation would involve the same criteria as that of a statute (RailwayExpress Agency, Inc. v. New York, 336 U.S. 106, 69 S. Ct. 463 (1949).[8] Where the issue isthe interpretation of a standard which the Secretary has promulgated, one courthas held that the Secretary?s interpretation is conclusive if it is reasonable (Brennanv. Southern Contractors Service, 492 F.2d 498 (5th Cir., 1974)). Anothercourt has held, however, that it is the Commission?s interpretation of astandard which is entitled to judicial deference (Brennan v. OSAHRC (Ron M.Fiegen, Inc.), No. 74?1643 (8th Cir., April 18, 1975)). Regardless of whichof these views is correct, the present case is distinguishable. The view thatthe Secretary?s interpretation is entitled to deference is based on theassumption that, as the promulgator of the standard, he is presumably familiarwith its intent (Brennan v. Southern Contractors Service, supra. Thesame rationale is not applicable when it is the statute which is to beinterpreted.[9] The Secretarycites Secretary v. Vappi & Co., Inc., Docket No. 8282, January 7,1975, in which Judge Worcester found a repeated violation on facts similar tothose in this case. That case, however, is now under review by the Commission,and cannot therefore be considered persuasive authority. Additionally, JudgeWorcester?s decision was rendered prior to the Commission?s decision in Secretaryv. General Electric Co., supra, and would appear to be inconsistent withthe test set forth in that case.”