FMC CORPORATION

OSHRC Docket No. 13155

Occupational Safety and Health Review Commission

August 4, 1977

  [*1]  

Before BARNAKO, Chairman; and CLEARY, Commissioner

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert A. Friel, Assoc. Regional Solicitor

Richard C. Hunt, for the employer

OPINIONBY: CLEARY

OPINION:

Decision

CLEARY, Commissioner:

Administrative Law Judge Jerry W. Mitchell held that respondent FMC Corporation had failed to comply with the occupational safety and health standard at 29 CFR §   1916.51(a), and had done so on three previous occasions.   He therefore affirmed a citation alleging a "repeated nonserious" violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq. [hereinafter "the Act"], and assessed a penalty of $2,000.   Respondent submitted a timely petition for discretionary review of the Judge's decision, which was granted and which presented the following issues:

(1) Whether the Administrative Law Judge erred in concluding that respondent was in violation of 29 CFR §   1916.51(a)?

(2) Whether the Administrative Law Judge erred in concluding that the violation was a repeaced violation?

(3) Whether the assessed penalty was appropriate?

In its brief, respondent makes several additional arguments.   We affirm the Judge's decision.   [*2]  

The respondent, FMC Corporation, is engaged in ship repair and construction work subject to the requirements of 29 CFR Part 1916.   At the time of inspection, respondent was constructing two oil tankers, the Chevron Washington and the Chevron Oregon, at its Swan Island shipyard in Portland, Oregon.   The citation, and subsequently the complaint, alleged that hoses, ducts, wire ropes, slings, cords, chain hoists, a ladder, electric wires, and other objects cluttered and obstructed twelve walkways, aisles, and passageways on the Chevron Washington and four such areas on the Chevron Oregon. Respondent does not dispute this, but contends that evidence of a failure to comply with the standard is lacking.   The standard n1 cloed reads as follows:

§   1916.51.   Housekeeping.

(a) Good housekeeping conditions shall be maintained at all times.   Adequate aisles and passageways shall be maintained in all work areas.   All staging platforms, ramps, stairways, walkways, aisles, and passageways, on vessels or drydocks shall be kept clear of all tools, materials, and equipment except that which is in use, and all debris such as welding rod tips, bolts, nuts, and similar material.   [*3]   Hose and electric conductors shall be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks.

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n1 Respondent briefly argues that the housekeeping standard is "vague and illdefined", pointing to a lack of any "regulation or guideline that identifies the proper way of eliminating the claimed hazards of hoses, cords, and leads . . . ." Resp. Brief at 24.   A standard, such as this one, that identifies prohibited hazards, however, need not, in order to withstand a constitutional vagueness attack, specify how elimination of the hazard is to be achieved.   See Diebold, Inc., 3 BNA OSHC 1897, 1975-76 CCH OSHD para. 20,333 (No. 6767 etc., 1976), pet. for review filed, No. 76-1278, 6th Cir., March 8, 1976.

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With respect to materials or objects other than hose and electrical conductors that cluttered or obstructed stairways, walkways, aisles and passageways on the two ships, the Judge found that the condition of such areas was contrary to the standard's requirement that [*4]   they be "kept clear of all tools, materials, and equipment . . . ." n2 Respondent argues that even if the areas cited were not kept clear the evidence is nevertheless insufficient because the record does not indicate that the tools, material and equipment were not "in use".   Judge Mitchell rejected this argument, concluding that the language of the standard indicates that the "in use" element must be proved affirmatively by the employer:

The wording of the [clause], ". . . except that which is in use . . .", is in the nature of an affirmative defense. Respondent must, therefore, show that the specific tools were in use.   Complainant does not have to show that they were not in use.

We agree with this analysis.   The clause's employment of the conjunction "except" indicates that the phrase "in use" provides an exception to the standard's requirement. n3 We have several times held that such an exception must be proved as an affirmative defense. Griffin & Brand of McAllen, Inc., 4 BNA OSHC 1900, 1904, 1976-77 CCH OSHD para. 21,388 (No. 4415, 1976) ("except" clause); Stephenson Enterprises, Inc., 4 BNA OSHC 1702, 1705, 1976-77 CCH OSHD para. 21,120 (No. 5873, 1976), pet. for   [*5]    review filed, No. 76-4163, 5th Cir., November 19, 1976; Agrico Chemical Co., 4 BNA OSHC 1727, 1976-77 CCH OSHD para. 21,116 (No. 8285, 1976).

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n2 The citation does not allege the presence of debris in the the areas with which we are concerned.   We accordingly do not discuss the standard's requirement that areas on ships be clear of "all debris such as welding rod tips, bolts, nuts, and similar material."

n3 See Southern Pacific Transportation Co., 2 BNA OSHC 1313 n.5, 1974-75 CCH OSHD para. 19,054 (No. 1348, 1974) (citing cases).

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We also agree with the Judge that the evidence is insufficient to bring respondent within the exception.   There was no reliable evidence that any particular tools, materials or equipment were in use at the time of the alleged violation; general testimony that it was possible that some of these objects may have been in use is nonpersuasive.   Inasmuch as respondent's employees n4 were actually exposed or had access to these violative conditions, respondent is held to have violated [*6]   section 5(a)(2) of the Act.

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n4 Respondent argues that the testimony of Area Director Harrower, who conducted the inspection, is insufficient to identify the exposed employees.   We disagree.   With respect to many subitems, Mr. Harrower specifically identified during direct examination, employees he saw actually exposed as FMC employees.   He also testified on redirect examination that persons referred to on direct examination as "employees" were FMC employees.   Under these circumstances, we do not reach the question of whether respondent had such control of the worksite that it might be found responsible for the abatement of violative conditions to which employees of its subcontractors were exposed or had access.   See Brennan v. O.S.H.R.C. and Underhill Construction Corp., 513 F.2d 1032, 1036-1038 (2d Cir. 1975) (building construction industry).

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In instances where hoses and electrical conductors cluttered walkways or working surfaces, we find most pertinent the last sentence of the standard, n5 requiring that [*7]   objects of this kind "be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks." In only one instance were hoses or electrical conductors covered by crossover planks (subitem h), and even there, contrary to the standard, a portion of a wooden walkway was missing.   Inasmuch as these areas were used by or were accessible to FMC employees, respondent's failure to comply with the standard was a violation of section 5(a)(2) of the Act.

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n5 We agree with Judge Mitchell's holding that the "in use" exception of the standard has no pertinence to hoses and electrical conductors.

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Respondent also argues that the citation must be vacated because it fails to meet the "particularity" requirement of section 9(a) of the Act. n6 Respondent notes that the citation alleges for penalty purposes that FMC's violation of section 5(a)(2) was a "repeated nonserious" violation, and states that it therefore is unsure of whether "it is subject to the penalty provisions applicable to nonserious violations [*8]   [sections 17(c) and (j)] or the penalty provisions applicable to "repeated" violations [section 17(a) and (j)]." Resp. Brief. at 23.   We disagree.

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n6 Section 9(a) states, in pertinent part, that "[e]ach citation . . . shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.

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In Todd Shipyards Corp., 5 BNA OSHC 1012, 1016, 1976-77 CCH OSHD para. 21,509 (No. 8500, 1977) the Commission rejected a similar argument concerning a citation issued for a "repeated-serious" violation.   We observed that the argument confuses the penalty provisions of the Act with its duty clauses, and noted that a citation is sufficiently particular when it identifies the particular conduct or condition violative of section 5(a)(2).   We adhere to this view.   The lack of specificity respondent complains of does not affect FMC's ability to identify the conditions to be abated (see Concrete Construction Corp., 4 BNA [*9]   OSHC 1133, 1135, 1975-76 CCH OSHD para. 20,610 (No. 2490, 1976)), and is more properly considered as an objection to the sufficiency of notice provided by the pleadings.   Even if we were to consider the objection on that basis, however, we would conclude that respondent lacks reason to complain.   Because the pleadings alleged that the violation was "repeated", FMC had notice, and indeed understood, that the matter at issue was proof of the "repeated" element in section 17(a), and that a penalty of not more than $10,000 may be assessed.   The allegation that the violation was "nonserious" was surplusage that added no material issue.

We now consider whether the Judge properly characterized the violation as "repeated", and the associated question of whether the penalty of $2,000 was excessive.   In reliance on the Commission's decision in Bethlehem Steel Corp., 3 BNA OSHC 1520, 1975-76 CCH OSHD para. 19,996 (No. 8932, 1975), rev'd, 540 F.2d 157 (3d Cir. 1976) Judge Mitchell, held that because the present and antecedent violations took place within the same worksite and concerned failures to comply with the same standard, the violations were repeated. n7 In George Hyman Construction   [*10]    Co. 5 BNA OSHC 1318, 1977-78 CCH OSHD para. 21,774 (No. 13559, 1977), pet. for review filed, No. 77-1591, 4th Cir., May 2, 1977, the Commission re-examined Bethlehem Steel, and its members failed to agree on what a "repeated" violation is.   Plainly, however, a majority of the Commission no longer adhered to Bethlehem Steel. Chairman Barnako would hold that, for the reasons stated below, the violation was "repeated" because the elements of proof he would require have been satisfied here.   For my own part, I would, for the reasons stated in my separate opinion in George Hyman, adhere to the Commission's decision in Bethlehem Steel, and adopt the Judge's reasoning on the "repeated" violation question.

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n7 Chairman Barnako notes that the Judge found that the present and antecedent violations involved similar conditions, crafts, locations, and circumstances.   J.D. at 18.

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Before further discussing this matter, we turn to respondent's contention that the citation is defective n8 because the Area Director,   [*11]   the officer who both conducted the inspection and issued the citation, failed to comply with part of section B.5.f. of chapter VIII of the Field Operations Manual, and therefore has gone beyond his delegation of authority.   The provision of the manual relied upon here contains a "note" that reads in pertinent part as follows:

The question of whether to issue a citation for a willful or repeated violation will frequently raise difficult issues of law and policy, including the evaluation of complex factual situations.   Accordingly, no citation for a willful or repeated violation shall be issued without consultation with the Assistant Regional Director, who shall, as appropriate, discuss the matter with the Regional Solicitor.   [Emphasis in the original.]

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n8 It is unclear whether respondent is arguing that the citation is invalid in its entirety, or is invalid only to the extent that it characterized the violation as "repeated".   We will assume that respondent is urging the positions in the alternative.

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The   [*12]   Area Director (AD) testified that he had orally received permission from the Assistant Regional Director (ARD) to issue citations for "repeated" violations without consulting with him.   Judge Mitchell held this grant of blanket authority to be permissible.   FMC Corporation contends that this procedure violates that above provision of the manual because it does not provide in every case for the high-level examination contemplated by the manual. The Secretary denies that the AD acted contrary to the manual, but argues also that the manual is not legally binding and provides only guidelines for implementing the Act, a question left open in our decision in Aluminum Coil Anodizing Corp., 1 BNA OSHC 1508, 1973-74 CCH OSHD para. 17,185 (No. 829, 1974).

First we consider it helpful to set forth the background, drawn from Chapter III of the manual and 29 CFR Part 1903, against which this question should be viewed.   The Occupational Safety and Health Administration has assigned enforcement personnel to ten Regional Offices and 52 Area Offices.   Each Regional Office is headed by an Assistant Regional Director, who has general responsibility to manage, execute, and evaluate all OSHA programs [*13]   in his region, and who reports directly to the Assistant Secretary for Occupational Safety and Health.   He is guided in his responsibilities by Secretary's Orders, OSHA Administrative and Program Directives, Memorandums, Field Information Memorandums, and Regional Directives and Memorandums.   See section A.1; 29 CFR 1903.21(f).   The Area Director carries out the OSHA compliance program in his area under the guidance of the ARD.   See Section B.1; 29 CFR 1903.21(e).   The AD follows directives similar or identical to those provided to ARD's, but in addition he is guided in his duties by the Field Operations Manual. n9 Section B.2.   This manual and its inserts "provide guidelines for the conduct of most compliance operations activities." Id.

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n9 The manual is reprinted in the BNA OSHR Reference File Tab 77:2101, and in 1 CCH Employ S. & H. Guide para. 4251.   There is also an Industrial Hygiene Field Operations Manual containing guidelines for the handling of health inspections and citations which is reprinted at 1 CCH Employ. S. & H. Guide para. 4483.10, and at BNA OSHR Reference File Tab 77:8001.

  [*14]  

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We conclude that the ARD was not compelled to require consultation with the AD in every case involving a repeated violation question.

The manual contains only guidelines for the execution of enforcement operations, for which the ARD has general responsibility.   Moreover, the guidelines provided by the manual are plainly for internal application to promote efficiency and not to create an administrative straightjacket.   They do not have the force and effect of law, nor do they accord important procedural or substantive rights to individuals.   See Brennan v. Ace Hardware Corp., 495 F.2d 368, 376 (8th Cir. 1974) (Labor Department field operations handbook for Employment Standard Administration compliance officers); McCullough v. Redevelopment Authority of Wilkes Barre, 522 F.2d 858, 867-868 n.27 (3d Cir. 1975); Concerned Residents of Buck Hill v. Grant, 537 F.2d 29, 38 (3d Cir. 1976). See also American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 538-539 (1970). n10

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n10 This is not to say that the contents of the manual can never be accorded significance.   This case, for example, does not raise the questions of whether the Commission may refer to or feel bound by the Labor Department's legal or policy positions set forth in the manual or similar documents.   Compare Nacerima Operating Co., 1 BNA OSHC 1001, 1971-73 CCH OSHD para. 15,032 (No. 4, 1972) and J.E. Chilton Millwork & Lumber Co., Inc., 1 BNA OSHC 1034, 1971-73 CCH OSHD para. 15,069 (No. 123, 1972) with Turner Co., 4 BNA OSHC 1554, 1560 n.13, 1976-77 CCH OSHD para. 21,023 (No. 3635, 1976), pet. for review filed, 76-2025, 7th Cir., October 18, 1976; Diebold, Inc., 3 BNA OSHC 1897, 1975-76 OSHD para. 20,333 (No. 6767 etc., 1976), pet. for review filed, 76-1278, 6th Cir., March 8, 1976; and Braswell Motor Freight Lines, Inc., 5 BNA OSHC 1469, 1471 n.4, 1977-78 CCH OSHD para. 21,881 (No. 9480, 1977).

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As indicated above, I would, for the reasons stated in my opinion in George Hyman, affirm the Judge's holding on the "repeated" question.   Chairman Barnako would reach the same result because in his view the evidence clearly shows the existence of previous violations that have culminated in final orders of the Commission and that the respondent committed here a substantially similar violation under circumstances whereby it can be concluded that FMC has disregarded the Act by failing to take necessary steps after the occurrence of the initial violation to prevent its recurrence.   He notes that although the evidence does not address whether various violations occurred under the same lower-level supervisor, higher level supervisors with authority over the various violative conditions knew of the housekeeping problems and disregarded the standard's requirements.

Finally, we agree with and expressly adopt the Judge's discussion and findings on the penalty issue.   Accordingly, the citation is affirmed and a $2,000 penalty is assessed.   So ORDERED.