“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13559 GEORGE HYMAN CONSTRUCTION COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April 26, 1977DECISIONBefore BARNAKO, Chairman; MORAN and CLEARY,Commissioners.BARNAKO, Chairman:??????????? Thiscase, like a number of other cases presently on review before the Commissioners,presents the issue of whether Respondent ?repeatedly? violated certain safetystandards promulgated pursuant to the Occupational Safety and Health Act of1970 (29 U.S.C. 651 et seq., hereinafter ?the Act?). The issue has beencomprehensively briefed in this case, and oral argument was had.[1] Unfortunately, the membersof the Commission cannot agree on what constitutes a repeated violation, and adefinition is therefore not possible at this time. Accordingly, by thisdocument the Commission members express their individual views in separateopinions on the question presented. Under my view, this case should be remandedfor additional evidence; Commissioner Cleary would affirm the citations asrepeated; and Commissioner Moran would not find the violations to be repeatedbut would affirm the citations as nonserious. Since a majority of theCommission members do not agree on a disposition, the Commission can take noofficial action in this case and the Judge?s decision therefore becomes thefinal action of the Commission. 29 U.S.C. 661(e).??????????? Thefacts are largely undisputed. Respondent is engaged in the constructionbusiness. As the result of an inspection at a worksite in the District ofColumbia, Respondent was issued, among other things, six citations, numbered 4through 9, alleging repeated violations of the Act.[2] Respondent stipulated thatthe alleged violative conditions existed. The evidence established thatRespondent had been issued two prior citations involving each of the standardscited in citations 6 and 8, and one prior citation involving each of thestandards cited in citations 4, 5, 7, and 9, which had become final ordersbefore the instant inspection. The prior citations involved different jobsiteswithin a five-mile radius in the District of Columbia and had been issuedwithin a year of the instant citations. The compliance officer testified thatthe hazards presented by the prior violations were identical to the hazardspresented by the instant violative conditions and Respondent did not introduceevidence to the contrary.??????????? Typically,Respondent performs work at twenty to thirty worksites at one time. Theworksite at which the instant inspection occurred was to be active for thirtymonths. Most jobs had a duration of from 18 to 32 months, but some employeesworked at more than one site during a year. Respondent employed an overallsafety director who inspected each worksite on a weekly or monthly basis. Theday-to-day safety supervision was delegated to job superintendents who stayed onone job until it was finished.??????????? Respondentintroduced into evidence the Secretary?s Field Operations Manual, which setsout the following guideline for determining whether an alleged violation shallbe cited as repeated:For purposes of considering whether aviolation is repeated, citations issued to employers having fixedestablishments (e.g., factories, terminals, stores) will be limited to thecited establishment. For employers engaged in business having no fixedestablishments (construction, painting, excavation) repeated violations will bealleged based on prior violations occurring anywhere within the same state. Ch.VIII, Sec. B.5.e.???????????? JudgeOsterman found the violations to have been repeated based on the guidelines onrepeated violations set out in the Secretary?s Field Operations Manual. Hedetermined that the Secretary?s guidelines should be upheld as reasonable. Hewas further persuaded by the fact that safety and health matters on allRespondent?s sites were under the overall supervision of one safety director,from whom knowledge of all the violations could be imputed to Respondent?smanagement. He concluded that Respondent should not be permitted to escape itsresponsibility under the Act simply because it operates numerous worksites,citing to the Commission decision in Bethlehem Steel Corp., 20 OSAHRC227, BNA 3 OSHC 1520, CCH OSHD para. 19,996 (1975).[3]??????????? Theconcept of a repeated violation is derived from section 17(a) of the Act, whichstates:Any employer who willfully or repeatedlyviolates the requirements of section 5 of this Act, any standard, rule, ororder promulgated pursuant to section 6 of this Act, or regulations prescribedpursuant to this Act, may be assessed a civil penalty of not more than $10,000for each violations.???????????? TheAct does not otherwise define or mention the word ?repeatedly.? Nor is thereany explicit indication in the legislative history of the Act concerning theintent of Congress in including the word ?repeatedly? in section 17(a). In thepast, the Commission has determined whether a violation was repeated on acase-by-case basis without developing and consistently applying a ruleapplicable to all cases. See Bethlehem Steel Corp., supra; GeneralElectric Co., 17 OSAHRC 49, BNA 3 OSHC 1031, CCH OSHD para. 19,567 (1975), rev?d in part on other grounds, 540 F.2d 67 (2nd Cir.1976); Todd Shipyards Corp., 15 OSAHRC 346, BNA 2 OSHC 1579, CCH OSHDpara. 19,272 (1975), pet. for review filed, No. 75-1909 (9th Cir., April 22,1975).??????????? Indetermining the nature of a repeated violation, a useful starting point isprovided by the decision in Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157(3rd Cir. 1976) (See n.2, supra.). As an initial matter, the courtconcluded that a repeated violation must be based on at least two priorviolations. In reaching this conclusion, the court noted that the word?repeated? connoted happening more than once, while ?repeatedly? connoted a morefrequent occurrence. Since section 17(a) uses the word ?repeatedly,? the courtconcluded that a violation falling under that section could not be based on asingle prior occurrence. The court also noted that section 17(a) speaks ofviolations of the ?requirements of section 5 of this Act,? as well asviolations of standards. Since a violation of section 5 occurs whenever eitherthe general duty clause in section 5(a)(1) or any standard is violated, thecourt noted that an interpretation of section 17(a) which requires only asingle prior violation for a subsequent violation to be classed as repeatedwould permit a repeated violation to be found whenever an employer commits asecond violation of the Act, no matter how unrelated the violations might be.??????????? Thecourt also noted that ?repeatedly? as used in section 17(a) is linked to?willfully,? and that the penalties provided for in section 17(a) substantiallyexceed those permitted for ordinary violations.[4] The court thereforereasoned that a repeated violation, like a willful violation, must consist ofparticularly flagrant conduct. The court noted that proof of intent wasnecessary to show a willful violation. It thought that a repeated violationwould consist of flagrant conduct similar to a willful violation, but that arepeated violation could be shown by proof of objective facts which would raisean inference of willfulness. Quoting from our decision in General Electric Co.,supra, the court concluded that a repeated violation could be shown by objectiveevidence establishing that the employer demonstrated a flaunting[5] disregard of therequirements of the Act, and that all relevant circumstances surrounding theexistence of an alleged repeated violation should be considered in making thisdetermination.??????????? Respondentcontends that the Commission should adopt the court?s analysis in BethlehemSteel while the Secretary urges that we reject the approach taken in thatcase. The Secretary argues that a repeated violation can be based on a singleprior violation. He contends that we should follow the guidelines in his FieldOperations Manual in determining whether a violation is repeated.??????????? TheCommission is not bound to follow the decision in Bethlehem Steel. See Monroe& Sons, Inc., No. 6031, BNA 4 OSHC 2016, CCH OSHD para. 21,470 (Jan.21, 1977). The court?s decision is, however, entitled to careful consideration.Having considered the court?s reasoning together with the arguments of theparties, I conclude that in some respects the court?s analysis should be adopted,but respectfully decline to follow the decision in its entirety.??????????? Iagree with the Third Circuit?s conclusion that the conduct which a repeatedviolation encompasses is similar to that which would raise an inference of willfulness.We have previously noted that the civil enforcement provisions of the Act weredrafted by Congress to induce voluntary compliance with its provisions, andthat the provisions for different types of violations must be read together tofurther that end. Crescent Wharf and Warehouse Co., 2 OSAHRC 1318, BNA 1OSHC 1219, CCH OSHD para. 15,687 (1973). A principal tool which Congressprovided to further voluntary compliance is the authority to assess penaltiesfor first instance violations. Congress intended that the possibility of suchpenalties would serve as an incentive for employers to comply with the Actbefore they were inspected by the Secretary. See Atlas Roofing Co. v. OSHRC,518 F.2d 990 (5th Cir. 1975), cert. granted, 96 S. Ct. 1458 (1976).??????????? Congressalso recognized, however, that the possibility of higher monetary penaltiesthan those provided for first instance violations was necessary to act as anincentive for certain employers to comply. Thus, in section 17(d) of the ActCongress provided that penalties up to $1000 per day could be assessed if anemployer failed to abate a violation for which it was cited. Similarly, insection 17(a), Congress provided that an employer who willfully commits aviolation could be penalized up to $10,000, or ten times the amount it could bepenalized for an ordinary first instance violation. One obvious purpose ofproviding a higher penalty for a willful violation was the necessity to have agreater incentive to comply on the part of an employer who intentionallypermits a violation to exist, as compared to an employer who inadvertentlyallows a violation to occur.??????????? In myopinion, by linking repeated violations with willful violations in section17(a), Congress must have thought that a repeated violation was of such anature that higher penalties than normal were necessary to provide a sufficientincentive for employers to prevent such violations. Thus, an employer whocommits a repeated violation must exhibit a degree of disregard of the Act?srequirements similar to an employer who either commits a willful violation orfails to abate a cited violation.??????????? Awillful violation occurs when an employer consciously and deliberately decidesnot to comply. Kent Nowlin Construction, Inc., No. 9483, BNA 5 OSHC1051, CCH OSHD para. 21,550 (Feb. 15, 1977). A failure to abate also requires aconscious decision in that the employer fails to comply with an order of theCommission of which it has actual knowledge. Thus, these types of violationsinvolve aggravated conduct greater than mere inadvertence or negligence. SinceI have concluded that a repeated violation is similar in degree to a willfulviolation, it must involve a comparable type of aggravated conduct. Thedistinction between a willful and a repeated violation, as the Third Circuitconcluded, is that proof of actual intent is not necessary to establish arepeated violation. Instead, a repeated violation is established by proof ofobjective facts from which it can be inferred that the employer?s conduct hasbeen of such a nature to constitute disregard of the Act?s requirements.??????????? Itherefore reject the test for repeated violations set out in the Secretary?sField Operations Manual.[6] That test, as applied toemployers with both fixed and non-fixed worksites, is purely mechanical andwould permit the finding of a repeated violation even if the violation isinadvertent. In my opinion, such a result is contrary to the enforcement schemeestablished by Congress. In assessing penalties for ordinary violations, one ofthe factors that must be considered is the employer?s history of violations. 29U.S.C. 666(i). If a subsequent violationautomatically justifies a higher penalty, that can be accomplished within theframework of the Act without subjecting an employer who commits an inadvertentviolation to the potential higher penalties intended to apply to employers whodisregard the Act.[7]??????????? Idisagree, however, with the Third Circuit?s conclusion that a repeatedviolation must be based on at least two prior violations. A willful violationmay be found regardless of whether any prior violation occurred so long as theviolation was committed consciously or deliberately. See IntercountyConstruction Co., 5 OSAHRC 782, BNA 1 OSHC 1437, CCH OSHD para. 17,044(1973), aff?d 522 F.2d 777 (4th Cir. 1975). Only a single violation need occurin order for penalties to be assessed for a failure to abate. Thus, to requireat least two prior violations for a repeated violation would mean that such aviolation could connote a greater degree of disregard of the Act on the part ofthe employer than a willful violation or a failure to abate. If anything itappears that the opposite should be true.[8]??????????? I donot place any significance on the fact that section 17(a) uses the word?repeatedly? instead of ?repeated.? In its original form, section 17(a)referred only to willful violations. ?Repeatedly? was added after ?willfully?was already present in the section.[9] It thus is more likelythat ?repeatedly? was used instead of ?repeated? simply to be in grammaticalconformance with ?willfully,? rather than as a conscious choice by Congress torequire at least two prior violations.[10] In general, of course, apattern of conduct in disregard of the Act will be more easily established onthe basis of more than one prior violation. I will not, however, foreclose thepossibility that a repeated violation may be established on the basis of oneprior violation.??????????? Asdiscussed above, employers are expected to comply with the Act regardless ofwhether they have been inspected or cited for alleged violations, and penaltiesfor first instance violations provide an incentive for such compliance. When anemployer has been found to have violated the Act, as evidenced by a final orderof the Commission, it is reasonable to expect that employer to take extraprecautions to prevent the recurrence of similar violations. The entry of afinal order finding a violation provides actual notice to an employer that itscompliance program is deficient and that further steps are necessary to preventsubstantially similar violations in the future. If the employer fails to takethese further steps, then it may be said that the employer is disregarding theAct.[11] In these circumstances,the employer has demonstrated that the penalties provided for first instanceviolations are not sufficient to produce the incentive necessary to comply, andthat the further incentive provided by higher potential penalties is necessary.I would thus find a repeated violation when the circumstances show that anemployer who has committed a prior violation has failed to take appropriatesteps to prevent recurrences of substantially similar violations.??????????? Indetermining what steps are appropriate to prevent violations from recurring,the realities of corporate control and decision making must be considered. Wehave previously noted that in order to comply with the requirements of the Act,an employer must give adequate safety training to its supervisory personnel. OceanElectric Corp., 75 OSAHRC 6\/C14, BNA 3 OSHC 1705, CCH OSHD para. 20,167(1975). In general, the supervisor who is responsible for abating a violationcan be expected to exert special efforts to prevent the recurrence of similarviolations, and an employer can reasonably be expected to instruct itssupervisors that such efforts are required. Thus, when a violation recurs inthe area of responsibility of a particular supervisor, the inference arisesthat the employer has failed in its duty to adequately train that supervisor toprevent recurring violations. Thus, I would only infer that an employer hasdisregarded the Act in committing a subsequent violation when that violationoccurs under the responsibility of the same supervisor who was responsible forabating the original violation or violations.??????????? Therelevant level of supervision to which I would look will vary according to thenature of the violation. For example, if the violation is of a local andtransitory nature, such as a housekeeping violation, the first-line supervisorin charge of the area will generally have the authority to abate, and willoften be the only supervisor who can be expected to have actual knowledge ofthe violation. Thus, for a violation of that nature, I would generally onlyfind a repeated violation when the same first-line supervisor is responsiblefor the prior violation or violations. By way of contrast, when abatement of aviolation requires the authority of a higher level of supervision to correct,that higher level supervisor will be responsible for abatement. For that typeof violation, I would find that the Secretary has established a prima faciecase for a repeated violation when both the initial and subsequent violation orviolations occur within the area of corporate responsibility of that higherlevel of supervision.??????????? Thus,in my opinion, the Secretary establishes a prima facie case that a violation isrepeated when he shows (1) a violation has been cited and has become a finalorder, and (2) a substantially similar violation occurs under the control ofthe supervisor who had responsibility for abating the first violation. Istress, however, that the ultimate test for whether an employer has committed arepeated violation is whether, under all the circumstances, an employer can besaid to have disregarded the Act by failing to take the necessary steps afterthe occurrence of the initial violation to prevent its recurrence. Thus, anemployer can rebut the Secretary?s prima facie case by showing that it did takesuch steps or that the circumstances otherwise show that the employer has notdisregarded the Act?s requirements.[12]??????????? Turningto the facts of this case, the record as it is presently constituted shows thatviolations occurring on Respondent?s worksites were substantially similar toprior violations which have become final orders. There is however, no showingas to any of the violations that the same supervisors in charge of any of theworksites when the subsequent violations occurred were also responsible forabating the prior violations. The fact that the same safety director inspectedeach worksite does not alter this conclusion, as it was not shown that thesafety director was responsible for abating the initial violations. Thus, onthe record, the Secretary has not established a prima facie case that any ofthe violations were repeated.??????????? Atthe time this case was tried, however, the Commission decision in BethlehemSteel Corp., supra, was the most recent Commission precedent on the subjectof repeated violations. Under that decision, the Secretary could not have knownthat evidence of the type I require would have been relevant. The same is truein numerous other cases now on review involving repeated violations.??????????? Iwould therefore remand this case in order to permit the parties to present anyadditional evidence they might wish relevant to the test I have set out above.As indicated in their separate opinions, however, Commissioner Cleary wouldaffirm the Judge?s decision and Commissioner Moran would affirm the violationsas nonserious. Accordingly, the Commission can take no official action on thecase, and the Judge?s decision becomes the final action of the Commission.??????????? FORTHE COMMISSION:?William S. McLaughlinExecutive SecretaryBY: Gloria W. WhiteActing Executive SecretaryDATE: APR 26, 1977?CLEARY, Commissioner:??????????? OnApril 19, 1976, Administrative Law Judge Henry K. Osterman issued a decisionholding that the respondent George Hyman Construction Company had ?repeatedly?violated 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?651 et seq. [hereinafter ?the Act?]. Respondent timely petitioned for review ofthat decision, and on May 19, 1976, I granted the petition and invitedsubmissions on the primary issue of whether the Administrative Law Judge erredin concluding that the violations at issue in this case are ?repeated? withinthe meaning of section 17(a) of the Act.??????????? Inresponse, both parties have filed briefs. The American SubcontractorsAssociation and the Associated General Contractors of America have filed briefsas amici curiae. Also, the Commission heard extensive oral argument from theparties.1. Background??????????? OnApril 2, 1975, Compliance Safety and Health Officers of the Occupational Safetyand Health Administration conducted a compliance inspection at 19th and EStreets, Southeast, in the District of Columbia, where George HymanConstruction Company was engaged as the general contractor for the constructionof the new District of Columbia Jail. As a result of this inspection, ninecitations were issued. Citation number one consisted of 13 items that allegednon-serious violations of the Act. Citations numbered two through nine allegedthat George Hyman had repeatedly violated the Act. Only citations four, five,six, seven, eight and nine are at issue here. Respondent has admitted that theAct was violated as alleged by the citations, but contests the characterizationof the violation as ?repeated.? The parties have stipulated that if respondentis found to have repeatedly violated the Act, the penalties proposed by theSecretary are appropriate. The chart appended to this decision summarizes thebasic facts of the present and antecedent violations.??????????? Allpresent and antecedent violations occurred in the District of Columbia, andwithin a one-and-a-half mile radius of the D.C. Jail site. Each presentviolation occurred between two-and-one-half and eleven months after itsantecedent. Safety and health at all of respondent?s worksites are under thesupervision and control of respondent?s safety director who inspectsrespondent?s worksites on a weekly or monthly basis. Job superintendents reportto him on safety and health matters, and he has the authority to issueinstructions on these matters to the job safety superintendents.??????????? Beforethe Administrative Law Judge, the respondent argued primarily that contrary tothe view of the Secretary expressed in his enforcement guidelines in the FieldOperations Manual, Chapter VIII,12a arepeated violation could not be found if the antecedent violation occurred atanother construction worksite. Judge Osterman rejected the argument. Heconcluded that the Secretary?s enforcement guidelines were reasonable andappropriate. He relied also upon the Commission?s decision in BethlehemSteel Corporation, 20 OSAHRC 227, BNA 3 OSHC 1520, CCH 1975-76 OSHC para.19,996 (No. 8932, 1975).??????????? Afterthe review briefs had been received by the Commission, the Third Circuitdecided Bethlehem Steel Corporation v. O.S.H.R.C., 540 F.2d 157 (3d Cir.1976), reversing the Commission?s decision in that case. After the oralargument before the Commission, the parties and the Associated GeneralContractors filed supplemental briefs discussing the Third Circuit?s decision.2. Discussion.??????????? Thearguments before us concern mainly (1) the application of the Secretary?sguidelines for finding ?repeated? violations on construction sites; (2) theapplication of our precedents represented by General Electric Co., 17OSAHRC 49, BNA 3 OSHC 1031, CCH 1974-75 OSHD para. 19,567 (No. 2739, 1975), rev?d in part on other grounds, 540 F.2d 67 (2d Cir. 1976)and Bethlehem Steel Corp., 20 OSAHRC 227, BNA 3 OSHC 1520, CCH 1975-76para. 19,996 (No. 8932, 1975); and (3) the Third Circuit?s decision in BethlehemSteel Corp. v. O.S.H.R.C. and Brennan, 540 F.2d 157 (3d Cir. 1976),reversing the aforementioned Commission decision.??????????? Ipreface my opinion by observing that in our cases to date the problem of?repeated? violations has been exaggerated in importance. Characterization of aviolation as ?repeated? expands the Commission?s discretion in penaltyassessment. It has no other legal significance. It does not, for example,affect the employer?s duties under section 5(a). Any penalty assessed for arepeated violation must, under section 17(j), be appropriate in light of theemployer?s history of previous violations, good faith, size, and the gravity ofthe violation. If a penalty does not exceed $1,000, but is neverthelessappropriate under section 17(j), it is of no moment that the penalty ischaracterized as ?repeated? or not (see International Terminal OperatingCo., Inc., BNA 4 OSHC 2029, CCH 1976-77 OSHD para. 21,499 (No. 13021),1977)). Compare Bethlehem Steel Corp., supra, wherein the proposed penaltytotaled only $60. If the penalty for a repeated violation exceeds $1,000 and isappropriate under section 17(j), the penalty would reflect the Commission?sview that the employer has, for example, not endeavored to prevent repetitiousviolations or has flouted the Act. I make the observation in this case becausenone of the proposed penalties exceeds $1,000.??????????? Underthe Secretary?s enforcement guidelines, the issuance of citations for repeatedviolations is generally limited to instances where an employer maintaining afixed establishment commits a repeated violation at the same establishment. Butan employer without a fixed establishment such as one engaged in construction,painting, and excavation work, will be issued a citation for repeated violationif the prior violation occurs anywhere in the same state, and, in the case of amaritime employer, in the same ?port area.? Respondent challenges this policyas unlawfully discriminating against construction contractors and argues thatit should be treated as if it operated a fixed establishment at eachconstruction site. George Hyman submits that construction worksites aregenerally active for a period of time substantial enough to permit reinspections, and that construction companies wouldattempt to avoid citations for repeated violations by forming a separatecorporation for each construction project. To illustrate the problems ofinterpretation that the Secretary?s policy might raise, respondent posesnumerous hypothetical situations that might arise in future cases but are notpresented here. It also attacks the Secretary?s policy as not worthy ofdeference because it is not embodied in a regulation and because the opinion ofthe Secretary is no more than that of any other party. Respondent thereforeasks that we declare the Secretary?s policy to be neither ?necessary norappropriate? and adopt a uniform test treating all employers alike.??????????? TheFirst Circuit was recently faced with a similar contention couched in terms ofan equal protection argument, and rejected it on the strength of reasoning thatis pertinent here. Desarrollos Metropolitanos, Inc. v. O.S.H.R.C., No. 76-1171 (1stCir., March 23, 1977), aff?g, BNA 4 OSHC 1033, CCH1975-76 OSHD para. 20,103 (No. 11884, 1975) (Administrative Law Judge). In anyevent it is not our function in this case to review the warp and woof of theSecretary?s enforcement policy concerning ?repeated? violations. We are notconcerned with the imaginary cases with combinations of facts that differ fromthe real case before us.[13] Also, the one-site ruleurged by respondent is too rigid to deal with the array of situations existingin the construction industry. See 29 CFR ? 1910.12 and ? 1904.14; UnitedTelephone of the Carolinas, Inc., BNA 4 OSHC 1644, CCH 1976-77 OSHD para.21,043 (No. 4210, 1976); Beatty Equipment Leasing, Inc., BNA 4 OSHC 1211, CCH1975-76 OSHD para. 20,694 (No. 3901, 1976); and New England Telephone &Telegraph Co., BNA 4 OSHC 1839, CCH 1976-77 OSHD para. 21,267 (No. 9627,1976). See generally Bechtel Power Corp., BNA 4 OSHC 1005, CCH 1975-76OSHD para. 20,503 (No. 5064, 1976), aff?d per curiam No. 76-1365 (8th Cir.,Jan. 25, 1977).In the real cases that have been before theCommission, it has applied logic not unlike that of the First Circuit in Desarrollos Metropolitanos,Inc. There, the court noted that the statutory goal of employee safety isadvanced by increasing the penalties assessed upon employers who repeatedlyviolate safety requirements, and observed that it is logical to coordinaterepeated violations with those portions of a business which have authority overworker safety. Compare the Commission?s decision in General Electric, supra,where in the Schenectady area facilities were considered collectively for thepurpose of determining whether a violation was repeated. Similarly, activity ina port area was collectively considered by the Commission in Bethlehem Steel,supra.??????????? Thesame logic requires greater flexibility in dealing with geographically separateconstruction sites. The court in DesarrollosMetropolitanos, Inc. described construction sitesas ?movable? as opposed to ?fixed?. Our experience suggests that constructionsites are not ?fixed? in the sense of being permanent, and frequently the samecrews, or at least key personnel, work at more than one site.??????????? Here,the jobsites were close in distance (within a one and one half mile radius). Aviolation at one of them can by any reasonable measurement be considered withsubsequent violations[14] at a different site indetermining whether there was a ?repeated? violation or violations. Also, it issignificant, as noted by the Administrative Law Judge, that matters relating tosafety and health were under the supervision and control of respondent?s SafetyDirector, who visited each worksite weekly or monthly.[15]??????????? Iturn now to perhaps the major question raised by the Third Circuit?s BethlehemSteel decision. It is the question of whether the employer must have aparticular state of mind or a motive for flouting the Act, or otherwise exhibitan aggravated form of misconduct, in order to have ?repeatedly? violated theAct. I find that he need not.??????????? Section17(a) permits the assessment of a higher penalty if an employer ?willfully orrepeatedly violates the requirements of section 5 of this Act, any standard,rule, or order promulgated pursuant to section 6 of this Act, or regulationsprescribed pursuant to this Act . . ..? In its Bethlehem Steel decision, theThird Circuit announced that ?repeatedly? refers to violations occurring morethan twice in a manner that flouts the requirements of the Act. To reach thisconclusion, the court made use of standard definitions, legislative history,the test of willfulness based on a flouting of the Act adopted by the ThirdCircuit in Frank Irey, Jr., Inc. v. O.S.H.R.C.,519 F.2d 1200 (3d Cir. 1975), aff?d on other points, sub nom., Atlas RoofingCo., Inc. v. O.S.H.R.C., 45 U.S.L.W. 4312 (U.S. March 23, 1977) (Nos.75-746 -748) and the Commission?s decision in General Electric Co., supra.I respectfully decline to follow the opinion of the Third Circuit. It isinconsistent with the Secretary?s enforcement policy approved by the FirstCircuit in Desarrollos Metropolitanos,Inc.??????????? Thelegislative history fails to support a restrictive meaning of the term?repeated? or ?repeatedly.? It is true, as the Bethlehem court noted,that the original Senate bill, S. 2193, 91st Cong., 1st Sess. (1969), did notprovide a civil penalty for either willful or repeated violations, but acriminal penalty for willful violations only. The original version of the Housebill, H.R. 16785, 91st Cong., 2d Sess. 26 (1970), and the version reported tothe House by the Committee on Education and Labor, provided for a civil penaltyfor a willful violation only. See H. Rep. No. 91-1291, 91st Cong., 2d Sess. 9(1970), reprinted in Staff of Senate Comm. on Labor & Public Welfare, 92dCong., 1st Sess., Legislative History of the Occupational Safety and Health Actof 1970, 831, 839, 959-960 (Comm. Print 1971), [hereinafter cited as ?Legis.Hist.?]. The substitute for H.R. 16785 passed by the House, however, provided acivil penalty for both willful violations and repeated violations. Legis. Hist.at 1103. At conference, the conflict was resolved by a compromise in which eachhouse receded somewhat. The house?s provision for a civil penalty for a willfulor repeated violation was adopted, and the Senate provision for criminalviolations was amended to apply only to those that caused the death of anemployee. See Statement of the Managers on the Part of the House, contained inthe Conference Report, H. Rep. No. 91-1765, 91st Cong., 2d Sess. 32, 41,(1970), reprinted in Legis. Hist. at 1185, 1194; see also the statement ofCongressman Perkins, Legis. Hist. at 1199, 1203.??????????? Thecourt was of the opinion that ?willfully? firstappeared in a criminal provision and ?repeatedly? was added when that criminalprovision was changed to a civil provision.? 540 F.2d at 161. This, however, isnot fully accurate, for as the legislative history shows, the repeatedviolation was added at an earlier stage to a provision which had always beencivil in nature. The genesis of the civil provision for willful violations isin the civil provision in the House-passed bill, not the criminal provision inthe Senate bill. It also does not seem reasonable to conclude that the Houseadded ?repeatedly? to its civil provision to provide a basis to penalize anemployer on the basis of a strong showing of intent that borders upon a showingof motive, or indeed any intent at all. Plainly, intentional violations were tobe characterized as ?willful? violations. The House Committee report on H.R.16785 stated that for ?[o]ther than willfulviolations, the violator?s intent should not be a pertinent factor in theoriginal assessment of penalties. . . .? (Emphasis added). H. Rep. No. 91-1291,91st Cong., 2d Sess. 26 (1970); Legis Hist. at 856.This also coincides with the usual view that in a civil context proof a willfulviolation requires some showing of intentional conduct. See e.g. Coleman v.Jiffy June Farms, Inc., 458 F.2d 1139 (5th Cir. 1972); IntercountyConstr. Co. v. O.S.H.R.C., 522 F.2d 77 (4th Cir. 1975); cert. denied, 96 S.Ct. 854 (1976); Frank Irey,Jr., Inc. v. O.S.H.R.C., supra.??????????? Thuswe may infer that, when the House-passed bill provided a penalty for a?repeated? violation, more likely than not something different from a ?willful?violation was intended. Otherwise the addition of ?repeated? would be largely aredundancy.??????????? As tointrinsic evidence of statutory construction, I note that the court?s readingof the term ?repeated? as meaning three or more violations makes redundant ourapplication of the term ?history of previous violations? in section 17(j) ofthe Act.??????????? Mycolleagues agree with the Third Circuit that the conduct necessary to support a?repeated? violation is similar to that necessary to support a willfulviolation. I do not agree. To equate the two types of violations is to make theprovision for a ?repeated? violation essentially redundant. The Congressionalpurpose in drafting the ?repeated? provision is more reasonably read as adevice dealing with repetitive violations that do not necessarily rise to thelevel of willfulness.??????????? Thecourt?s holding for all practical purposes would read the ?repeated? violationout of the Act. If a ?repeated? violation must be supported by a showing of twoor more violations[16] in a manner that floutsthe Act, and proof of a willful violation requires only that an employer floutthe Act, there would be no reason to have recourse to the provision for a?repeated? violation, because it would include the elements of a ?willful?violation.??????????? Finally,the premise of the court?s definition is the Third Circuit?s decision in FrankIrey. Yet, the Commission has respectfullydeclined to follow the Frank Irey definitionof ?willfulness? and has followed contrary views of other circuits. KentNowlin Construction, Inc., Nos. 9483 etc. (February 15, 1977).??????????? Forthe above reasons the Commission?s Bethlehem Steel decision modified GeneralElectric Co., supra. See the Judge?s decision in DesarrollosMetropolitanos, Inc., supra. Whether anemployer?s conduct amounts to a flouting of the Act or similar behavior isproperly considered in determining the amount of the penalty to be assessed,not whether violations have occurred repeatedly. Id. In this connection, it issignificant that section 17(a) does not provide only for the assessment ofpenalties over a $1,000 to $10,000 for ?repeated? violations. There is nothingexpressly foreclosing the assessment of a penalty of less than $1,000 for a?repeated? violation when otherwise appropriate under section 17(j).??????????? Inote also that the court may have been concerned with the collateral matter ofthe scope of judicial review of the Commission?s findings under section 17(j).The court was concerned about the breadth of the Commission?s discretion undersection 17(j). See 540 F.2d at 161 n.10. I appreciate the court?s concern. Butnote that Bethlehem Steel involved a proposed penalty of only $60, and I submitthat section 17(j) is structured to provide effective judicial review of theCommission?s application of the factors listed therein. Cf. REA Express,Inc. v. Brennan, 495 F.2d 822 (2d Cir. 1974).??????????? Iwould therefore adhere to the Commission?s decision in Bethlehem Steeland affirm the decision of the Administrative Law Judge.Appendix Citation Number Standard Violated* and Penalty Stipulated \u00a0 Description of Violation Antecedent Violations Four 250(b)(1)$140 material stored within 10 feet of interior wall not higher than material. ? \u00a0 citation issued June 12, 1974; not contested. Description: material stacked next to floor opening. \u00a0 Five 401(a)(1)$90 \u00a0 non-current carrying metal parts of electric heater not grounded citation issued January 20, 1975; not contested. Description: same type of equipment not grounded. ? Six 401(j)(1)$90 \u00a0 temporary lights not guarded in rodman?s office trailer. \u00a0 citations issued October 3, 1974 and January 20, 1975; neither contested. Description: failure to bulb guards in carpenter office, carpenter?s trailer, storage trailer; and laborers trailer. \u00a0 Seven 450(a)(5)$340 \u00a0 less than 7 inch clearance behind ladder on crane. ? \u00a0 citation issued October 3, 1974; not contested. Description: same on scaffold. Eight 500(d)(1)$230 \u00a0 failure to have standard guardrail or equivalent. citations issued on June 12, 1974 and October 16, 1974; neither contested. Description: similar. ? Nine 550 (c)(5)$160 \u00a0 crane not operated as prescribed by manufacturer; interlocks did not work and strain gauge not hooked up. citation issued June 12, 1974; not contested. Description: interlocks on electrical panel doors of crane were inoperative. \u00a0MORAN, Commissioner:??????????? Thedisposition ordered below is incorrect and should be reversed.??????????? Thestatutory basis for repeated violations is 29 U.S.C. ? 666(a) which providesthat:Any employer who willfully or repeatedlyviolates the requirements of section 654 of this title, any standard, rule, ororder promulgated pursuant to section 655 of this title, or regulationprescribed pursuant to this chapter, may be assessed a civil penalty of notmore than $10,000 for each violation. (Emphasis added.)???????????? Theterm ?repeatedly? is not defined in the Act and the legislative history issilent on its meaning. Therefore, a reviewing tribunal is left without explicitdirection on this matter. Accordingly, it is appropriate to apply the generalrule of legislative construction that statutory language should be construed inits usual and conventional sense. United States v. Gilbert Associates, Inc.,345 U.S. 361, 364 (1953).??????????? Thedrafters of the Act purposefully chose to use the term ?repeatedly? as opposedto ?repeat.? There is a significant distinction between the two. Webster?sThird New International Dictionary (Unabridged) defines ?repeat? as ?to make ordo or perform again.? However, ?repeated?[17] is defined therein as?renewed or recurring again and again.? Thus, ?repeatedly? is descriptive of arather persistent course of conduct.??????????? Afterperforming a similar analysis, the United States Court of Appeals for the ThirdCircuit properly concluded that a single prior noncompliance with a standarddoes not provide a sufficient predicate for finding that a subsequentnoncompliance with the same standard constitutes a repeated violation. BethlehemSteel Corporation v. OSAHRC, 540 F.2d 157 (3d Cir. 1976). Moreover, thecourt held that, in view of the substantial penalties provided in ? 666(a),[18] complainant must provenot only that an employer violated the same standard on more than one prioroccasion, but that the subsequent violation constitutes a ?flaunting [of] therequirements of the Act.?[19] 540 F.2d at 162. Thisconclusion is mandated by the fact that prior violations of the same standarddo not in and of themselves establish a course of conduct sufficiently grievousto warrant the imposition of the substantial penalties authorized by ?\u00a0666(a).[20]??????????? Floutingof the requirements of the Act can be proved by showing that an employer hasdemonstrated a pattern of consciously ignoring a standard after having beencited for noncompliance therewith. In this regard, it is appropriate toconsider whether the violative conditions occurred under substantially similarcircumstances. Secretary v. Todd Shipyards Corporation, OSAHRC DocketNo. 12510, December 22, 1975; Secretary v. Bethlehem Steel Corporation,20 OSAHRC 227 (1975). The persistent failure of an employer to heed the mandatefor corrective action may manifest a blatant disregard for the safety andhealth of its employees.??????????? Inthe case before us it is clear that the charges contained in citations 4, 5, 7,and 9 were not repeated because there is no indication that respondent failedto comply with the standards cited therein on more than one prior occasion.However, it is necessary to consider whether respondent flouted therequirements of the Act with respect to citations 6 and 8 because of theexistence of two final orders in each instance which pertain to the standardscited in citations 6 and 8.??????????? Althoughthe resultant hazards were alike, there is no evidence of record to indicatethat the instant violations occurred under circumstances substantially similarto those involved in the prior citations. There is no evidence that eitherviolation recurred under the auspices of the same supervisor.??????????? Complainantsubmits that a finding that the violations were repeated is compelled by thefact that overall safety supervision was vested in respondent?s safety directorand, therefore, that respondent presumably had centralized control over eachsite.[21] The facts, however, beliethis conclusion. Respondent maintains between 20 and 30 worksites at any giventime. Consequently, it is impossible for its safety director to inspect eachsite more than once a month or to keep apprised of day to day activities. Ofnecessity, primary safety responsibility is vested in the individual jobsuperintendent who generally remains at the project for its duration.??????????? Inlight of these facts, it is evident that complainant has failed to establishthat respondent has flouted the requirements of the Act. There is no evidenceto show that respondent engaged in a pattern of deliberately ignoring astandard after having been previously cited for violations thereof.??????????? Accordingly,the Judge?s decision should be reversed insofar as it characterizes theviolations in citations 4 through 9 as repeated. Since the stipulation of theparties establishes that each of these is a nonserious violation, citations 4-9should be affirmed as such,[22] and the penalty should bereduced accordingly.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13559 GEORGE HYMAN CONSTRUCTION COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April 19, 1976DECISION AND ORDER??????????? APPEARANCESHarold J. Engel, Assistant Counsel forLitigation U. S. Department of Labor, Washington, D.C. by Jeffrey L. Berger,Esq. For Complainant\u00a0Peter Chatilovicz,Esq. Donald Savelson, Esq. Arent,Fox, Kintner, Plotkin & Kahn For Respondent\u00a0OSTERMAN, Judge, OSAHRC??????????? Thisis a proceeding initiated by Respondent pursuant to Section 10(c) of theOccupational Safety and Health Act of 1970, 29 USC ? 659(c) [hereafter the Act]to contest nine Citations. A Notification of Proposed Penalty was issued onApril 29, 1975.??????????? CitationNumber 1 charged Respondent with thirteen (13) non-serious violations of thestandards issued by the Secretary of Labor pursuant to the Occupational Safetyand Health Act of 1970. The remaining eight Citations each charged Respondentwith one ?repeated? violation. The total proposed penalty for all violationsamounts to $1,485.??????????? As aconsequence of stipulations, both written and oral, entered into by the partiesthe existence of the current violations are not in issue (Stipulation, par. 7)and the number of violations to be considered herein have been reduced.[23] It is also conceded bythe Respondent that the standards cited in the ?repeated? violations wereviolated previously by the Respondent at construction sites other than the oneinvolved (see Respondent?s Answer to Complainant?s Request for Admissions) andthat the Citations issued with respect to these previous violations becamefinal orders of this Commission.[24] It is further conceded byRespondent that if the violations alleged in Citations 4 through 9 are upheldas ?repeated? violations, that the proposed penalties are proper and are notcontested (Tr. 4). Thus, there remains for decision only the narrow question ofwhether Citations 4 through 9 inclusive are properly treated as ?repeated?violations.??????????? Respondenttakes the position in effect, that the Secretary?s application of Section 17(a)of the Act, as it relates to an employer having no fixed worksite, isdiscriminatory and hence illegal since the criteria applied differs from thecriteria applied to employers who do have a fixed worksite (Respondent?s Brief4 et seq.).[25]Respondent relies upon Secretary of Labor v. Donald Harris, DOCKET NO. 10434(now on review) in which the Administrative Law Judge held that the Secretary?sguidelines relating to repeated violations, as given in the Operations Manual,is improper.??????????? TheSecretary maintains that the guide provided by the Operations Manual representsa practical solution to the problem created by an employer who operatesnumerous worksites, since experience has demonstrated that frequently separateworksites operated by a single employer are distances apart, and that the operationsare in most cases of only limited duration. The Secretary urges further thatthe guidelines expressed in his Operations Manual are reasonable under thesecircumstances and within his power to enforce.??????????? Initially,it should be noted that the Act itself places no limitation upon the power ofthe Secretary to determine what constitutes a ?repeated? violation, nor is theterm ?repeated? defined by statute. However, the plain purpose of the Act is toassure employees of working conditions which are free from hazards. To this endthe Act imposes upon employers generally the obligation to provide safe andhealthful working conditions and empowers the Secretary of Labor to setappropriate standards. The test, it appears to me, is whether under thecircumstances, the procedure followed by the Secretary is a reasonable one onan overall basis, Cf: Brennan v. OccupationalSafety and Health Commission and Kesler and Sons Construction Co., 513 F.2d553, 554 (10th Cir. 1975). The manner in which an administrative agencyinterprets Congressional intent and its own regulations should be upheld solong as it is one of several reasonable interpretations ?and even though it maynot appear quite as reasonable as some other,? Roy Bryant Cattle Co. v. U.S., 463 F.2d 418, 420 (5th Cir. 1972); Bd. of Directors, etc. v.National Credit Union Administration, 477 F.2d 777 (10th Cir. 1973).??????????? Therecan be no question in the instant case that Respondent, even though it operatedvarious worksites, could adequately control, and was aware of the currentviolations and the past violations. The record is clear that matters relatingto safety and health was under the overall supervision and control of oneman?the Respondent?s Safety Director?who visited each worksite on a weekly ormonthly basis. In his absence, responsibility for safety and health wasdelegated to the various job superintendents who remain on each jobsite on amore or less permanent basis (Tr. 86?89). Thus, knowledge of past violationswhich form the basis for the ?repeated? aspect of the current case canreasonably be attributed to Respondent?s management. Respondent should not bepermitted to escape its responsibility under the Act simply because it operatesnumerous worksites, Cf: Secretary v. BethlehemSteel, DOCKET NO. 8392, C.C.H. 19,996 (9\/17\/75).FINDINGS OF FACT??????????? 1.Respondent is a corporation with many employees engaged in construction as ageneral contractor. It is subject to the jurisdiction of this Commission.??????????? 2. Inthe course of its business Respondent operates at various worksites indifferent localities and at different times.??????????? 3. Onor about April 11, 1975, Respondent was issued Citations which included the six(6) ?repeated? violations of the standards issued by the Secretary of Laborpursuant to the Occupational Safety and Health Act of 1970 as follows:29 CFR 1926.250(b)(1)29 CFR 1926.401(a)(1)29 CFR 1926.401(j)(1)29 CFR 1926.450(a)(5)29 CFR 1926.500(d)(1)29 CFR 1926.550(c)(5)??????????? Theseviolations occurred at a worksite located at 19th and E Streets, S. E.,Washington, D. C.??????????? 4.Respondent had previously been issued Citations for violations of the identicalregulations which had occurred at different worksites and at different times.These earlier Citations had become the final orders of this Commission prior tothe issuance of the current Citations on April 11, 1975.??????????? 5.The penalties proposed by the Secretary for the violations noted in Finding 3have not been challenged by the Respondent.CONCLUSIONS OF LAW??????????? 1.The guidelines issued by the Secretary of Labor appearing in his FieldOperation Manual, Chapter VIII relating to ?repeated? violations are reasonableand appropriate. It is within the power and authority of the Secretary to issueand enforce such guidelines.??????????? 2. OnApril 2, 1975, Respondent was in violation of the regulations referred to inFinding 3 above. These violations were ?repeated? violations within the meaningof Section 17(a) of the Act.ORDER??????????? Pursuantto Section 10(c) of the Act, 29 USC ? 659(c) and Rule 66 of this Commission?sRules of Procedure, it is ORDERED:??????????? ThatCitations number 4 through 9 inclusive issued to Respondent on or about April11, 1975, and the penalties proposed for the violations charged in the saidCitations be, and the same hereby are, AFFIRMED.?HENRY K. OSTERMANJudge, OSAHRCDated: APR 19, 1976Hyattsville, Maryland[1] In addition tobriefs and supplemental briefs by the parties, amicus briefs were submitted bythe American Subcontractors Association and the Association of GeneralContractors of America.[2] The citationsalleged violations of 29 C.F.R. 1926.250(b)(1), 1926.401(a)(1), 1926.401(j)(1),1926.450(a)(5), 1926.500(d)(1), and 1926.550(c)(5).[3] The Commission?sdecision insofar as it found a repeated violation was reversed on judicialreview. Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3rd Cir. 1976).[4] For a seriousviolation, a penalty of up to $1000 must be assessed. 29 U.S.C. 666(b). For aviolation not of a serious nature, a penalty of up to $1000 may be assessed. 29U.S.C. 666(c).\u00a0[5] The word?flaunting? as applied to section 17(a) of the Act was first used by the ThirdCircuit in determining whether a violation was properly classified as willful. FrankIrey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (3rd Cir. 1974), aff?d enbanc, 519F.2d 1215 (1975), cert. granted on other grounds, 96 S. Ct. 1458 (1976). Thecourt stated that ?willfulness connotes defiance or such reckless disregard ofconsequences as to be equivalent to a knowing, conscious, and deliberateflaunting of the Act.? 519 F.2d at 1207. The Commission introduced a?flaunting? test in General Electric Co., supra, but applied that testto find a repeated violation under circumstances where the ?reckless disregard?mentioned by the Third Circuit could not be said to exist. Thus, the word?flaunting? cannot be said to have a well-defined meaning as applied to section17(a), and I think it best to avoid the use of that term.[6] In DesarrollosMetropolitanos, Inc. v. OSHRC, No. 76-1171 (1st Cir., March 23, 1977), thecourt held that the Secretary?s guidelines, insofar as they distinguish betweenemployers with fixed and transient worksites, do not violate the Constitutionalguarantee of equal protection of the laws. It also ruled that there is noconstitutional infirmity concerning the Secretary?s guidelines insofar as theydistinguish between construction work predicated on whether it is performedintra or interstate.\u00a0TheFirst Circuit was concerned only with the rationality of the Secretary?sguidelines insofar as they distinguish between different classes of employers.The court was not faced with, and did not decide, whether those guidelinesembody the appropriate test for repeated violations. Thus, the court did notpurport to apply principles of statutory construction in order to determine theproper meaning of ?repeatedly? as used in section 17(a). Under thesecircumstances, I do not think that the court?s decision in Desarrollosis instructive concerning the issue before the Commission in this case.\u00a0[7] The only instancein which this is not true is when a penalty of $1000 has been assessed for afirst instance violation. It has been our experience, however, that suchinstances are extremely unusual, and I do not think it is necessary to givespecial consideration to such a rare occurrence in devising an appropriate testfor repeated violations. On the other hand, it has also been our experiencethat, as in this case, the Secretary usually proposes penalties for allegedrepeated violations well below the $1000 limit for ordinary violations. Thus,in most cases involving violations which the Secretary alleges to be repeated,the penalty which the Secretary thinks is appropriate could be assessed even ifthe violation is not found to be repeated.[8] Pursuant tosection 17(e) of the Act, a willful violation may result in criminal liability.Criminal penalties are not, however, provided for repeated violations. Thus, awillful violation may require a greater degree of fault than a repeatedviolation. Similarly, the potential daily penalties for failure to abate aviolation may greatly exceed the penalty for a repeated violation. It wouldtherefore be unreasonable to establish a test for repeated violation whichinvolves greater disregard of the Act than a failure to abate[9] The Senate bill(S. 2193) provided at section 15(c) for a criminal penalty for any employer whowillfully violated the Act. See Staff of the Senate Subcommittee on Labor, 95ndCong., 1st Sess., Legislative History of the Safety and Health Act of 1970, p.566 (Comm. Print 1971). The original House bill (H.R. 16785) did not contain acriminal provision, but provided for a civil penalty of up to $10,000 againstan employer who ?willfully? violated a standard. Id. at pp. 746,959. Theamended version of the bill passed by the House included section 17(a) in itspresent form. Id. at p. 1103. Thus, the word ?willfully? in the original Housebill became ?willfully or repeatedly? in the final House version. Theconference committee bill which was ultimately enacted into law included theHouse?s civil penalty provision in section 17(a) and a modified version of theSenate?s criminal penalty provision in section 17(d). Id at pp. 1170-1171.\u00a0[10] The Third Circuitwas concerned that if a repeated violation could be based on a single priorviolation, then a repeated violation could occur within the literal terms ofsection 17(a) even if the two violations were completely unrelated. I note,however, that it has not been the Secretary?s policy to cite employers forrepeated violations based on unrelated prior violations. Thus, at present thedifficulty foreseen by the court is only theoretical, and does not present asignificant problem in interpreting section 17(a).[11] If a violation isnot substantially similar to a prior violation(s) an inference that theemployer has disregarded the Act cannot be drawn. In this circumstance, theprior violation(s) cannot be said to have put the employer on notice thatspecial efforts were necessary to avoid the subsequent violation. Of course, inall cases the history of violations must be considered in assessing penalties.29 U.S.C. 666(i). See p.9, supra.[12] Respondentcontends that there should be a one-year limitation for use of a priorviolation as a basis for a repeated violation. I do not think such a limitationis appropriate. A substantial time lag between violations is, of course, onefactor which may be considered in determining whether the circumstances exhibita disregard of the Act. To establish rigid rules concerning the factors whichenter into whether the employer has disregarded the Act would ultimately reducethe inquiry to a mechanical one. As discussed above, I do not think amechanical approach is appropriate.\u00a0Ialso note that I would not distinguish between employers with fixed andnon-fixed worksites. Since the ultimate question is whether the employer hasexhibited a disregard of the Act, the same test is appropriate for both.12a See note 3 of theJudge?s decision quoting the guidelines.[13] For this reasonwe are not concerned here with the issue of whether the Commission shouldcontinue to require, as would the Secretary, that an employer previouslyviolated the same standard. Each standard here has been violated twice, andwith respect to citations six and eight, three times.[14] Note in additionthat the violations involved occurred within the same year.\u00a0[15] I addparenthetically that I disagree with the Chairman?s view that a violation canbe found to be ?repeated? only when an antecedent violation occurred under theresponsibility of the same supervisor. This would create a legal,straightjacket for the Secretary?s proof even under the Chairman?s general testfor a ?repeated? violation of whether the employer failed to take the necessarysteps for preventing recurrence of the antecedent hazard. We should resist thetemptation to lay down a principle that could become a useless platitude whenconfronted with adjudicative facts. Also, an important consideration should bethat this course may discourage the centralization and coordination of safetypractices and responsibilities by construction employers. This result would beinconsistent with the statutory purpose of encouraging employers to perfectexisting programs for providing safe working conditions. See 29 U.S.C. section651(b)(1). Moreover, the First Circuit in upholding the Secretary?s enforcementguidelines, implicitly rejected this element of proof because it requires anincreased OSHA staff to determine after each inspection whether the safetyprogram of that employer was centralized or delegated before it could proposean appropriate penalty. ?This?, the court noted, ?would inflate the cost ofadministering the program without realizing any benefit in carrying out thelegislative goals (emphasis added).? Desarrollos Metropolitanos, Inc.,supra.[16] I agreed with theChairman?s discussion on the issue of whether the second of two violations maybe considered ?repeated.?\u00a0[17] Repeatedly is theadverbial form of repeated.[18] The maximum penalty that can beimposed upon one found to have repeatedly violated the Act is ten times thatwhich can be assessed for a nonaggravated serious or nonserious violation. 29U.S.C. ? 666(b) and (c). The significance of these differences in penaltyamounts was discussed at some length in Frank Irey, Jr., Inc. v. OSAHRC,519 F.2d 1200, 1207 (3d Cir. 1974).\u00a0[19] The ?flaunting? test was originallylaid down by this Commission in Secretary v. General Electric Company, 17OSAHRC 49, 65 (1975). Since the term ?flouting?, however, is more appropriatelydescriptive of the conduct intended, its usage in the future is warranted.\u00a0[20] I agree with Chairman Barnako?sanalysis of the decision in Desarrollos Metropolitanos, Inc. v. OSAHRC,No. 76-1171 (1st Cir., March 23, 1977), as reflected in footnote 6 of the leadopinion.[21] See Secretary v. GeneralElectric Company, supra.\u00a0[22] Cf. Secretary v. Colorado PikeLines, Inc., OSAHRC Docket No. 2805, December 31, 1975.[23] Respondent has withdrawn its noticeof contest as to Items 1, 3, 4, 5, 7, 8, 9, 10, 11, 12, and 13 of Citation 1.Complainant vacated Item 6 of Citation 1.\u00a0Complainanthas also vacated repeated Citations 2 and 3 and amended repeated Citation 7 asfollows:Citation 7, Item 1 (paragraph XXIV of theComplaint) alleges a repeated violation of 29 CFR 1926.450(a)(5), ANSI A14.3?1956 Safety Code for fixed ladders, Sections 4.1.2, 4.1.3 and 5.4.Citation 7, Item 1 and paragraph XXVII of the Complaint are amended so as toallege a non-serious violation within the meaning of 17(c) of the Act withrespect to sections 4.1.2 and 4.1.3 of ANSI A 14.3?1956 . . ..Sincerespondent only contested the repeated nature of Citation 7 Item, it must bedeemed admitted in all other respects.\u00a0Byletter dated March 12, 1976, Respondent has withdrawn its contest of Item 2 ofCitation number 1. See also Stipulation, J?15; Tr. 3?5; Secretary?s Brief, p 2.\u00a0[24] The standards involved herein arethe following:CitationNo. 4?29 CFR 1926.250(b)(1)CitationNo. 5?29 CFR 1926.401(a)(1)CitationNo. 6?29 CFR 1926.401(j)(1)CitationNo. 7?29 CFR 1926.450(a)(5)CitationNo. 8?29 CFR 1926.500(d)(1)CitationNo. 9?29 CFR 1926.550(c)(5)\u00a0OnJune 12, 1974, Respondent was cited for a violation of 29 CFR 1926.250(b)(1)which occurred in Washington, D. C. Respondent did not contest this Citationwhich thereafter became the final order of this Commission. (Items 128?131,Complainant?s Request for Admissions; Respondent?s Answer to Complainant?sRequest, Items 128?131).\u00a0OnJanuary 20, 1975, Respondent was cited for a violation of 29 CFR 1926.401(a)(1)which occurred in Washington, D. C. Respondent did not contest this Citationwhich became the final order of this Commission. (Items 136?139, Complainant?sRequest for Admissions; Respondent?s Answer to Complainant?s Request, Items136?139).\u00a0OnOctober 3, 1974, and again on January 20, 1975, Respondent was cited for aviolation of 29 CFR 1926.401(j)(1) which occurred in Washington, D. C.Respondent did not contest these citations which became the final orders ofthis Commission (Items 140?147, Complainant?s Request for Admissions;Respondent?s Answer to Complainant?s Request, Items 140?147).OnOctober 3, 1974, Respondent was cited for a violation of 29 CFR 1926.450(a)(5)which occurred in Washington, D.C. Respondent did not contest the citationwhich became the final order of this Commission (Items 148?151, Complainant?sRequest for Admissions; Respondent?s Answer to Complainant?s Request, Item 148admits a violation of 29 CFR 1926.450(a)(5) but denies that Section 5.4 of theANSI Code was involved. Respondent admits Items 149?151).OnJune 12, 1974, and again on October 16, 1974, Respondent was cited forviolations of 29 CFR 1926.500(d)(1) which occurred in Washington, D. C.Respondent did not contest the Citations which became the final order of thisCommission (Items 152?159, Complainant?s Request for Admissions; Respondent?sAnswer to Complainant?s Request, Items 152?159).\u00a0OnJune 12, 1974, Respondent was cited for a violation of 29 CFR 1926.550(c)(5)which occurred in Washington, D. C. Respondent did not contest the Citationwhich became the final order of this Commission (Items 160?163, Complainant?sRequest for Admissions; Respondent?s Answer to Complainant?s Request, Items160?163).\u00a0[25] The Secretary?s Field OperationsManual, Chapter VIII, B.5.e., in effect on the inspection date, provides asfollows:For purposes of considering whether aviolation is repeated, citations issued to employers having fixedestablishments (e.g., factories, terminals, stores) will be limited to thecited establishment. For employers engaged in in businesses having no fixedestablishments (construction, painting, excavation) repeated violations will bealleged based on prior violations occurring anywhere within the same State.”