Docket No. 8392

BETHLEHEM STEEL CORPORATION

OSHRC Docket No. 8392

Occupational Safety and Health Review Commission

September 17, 1975

[*1]

Before MORAN, Commissioner and CLEARY, Commissioner *

* Chairman Barnako disqualified himself from consideration of this case on August 13, 1975.

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: The January 20, 1975, decision of Administrative Law Judge Robert N. Burchmore in this case is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"]. Judge Burchmore concluded that respondent's second violation of the standard set forth at 29 CFR § 1915.51(a) had been established but that it was not a "repeated violation" within the meaning of section 17(a) of the Act. He ruled that the violation was non-serious and assessed a $30 penalty therefor. The sole question presented to us is whether, under the facts of this case, the undisputed second violation of the standard was a "repeated violation" within the meaning of the Act.

Respondent, Bethlehem Steel Corporation, is an employer whose business affects commerce within the meaning of section 3(5) of the Act. At all times pertinent to this case, it was engaged in the maintenance and repair of harbor craft and ocean vessels in its place [*2] of business known as the San Pedro Shipyards at Tiber Island, California. On February 9, 1974, a Navy Department Oil tanker, the U.S.S. NAVASOTA, was inspected in the yard where it was docked for repairs. As a result of this inspection, respondent was cited for non-compliance with 29 CFR § 1915.51(a) for permitting a bilge pump and the attached air hoses to obstruct a passageway in an area forward of the shaft alley on the ship. The standard provides:

§ 1915.51 Housekeeping

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

This non-serious citation was not contested and no penalty was proposed or assessed. It became the final order of the Commission on April 1, 1974.

On May [*3] 9, 1974, the U.S. Coast Guard Vessel GLACIER and the SS WYOMING were inspected at respondent's San Pedro Shipyard where they were docked for repairs. The compliance officer observed welding and burning leads, oxyacetylene hoses, and other hoses obstructing the passageways in the dry stores locker on the GLACIER. Welders and fitters were erecting steel for bulkheads in these passageways at the time of the inspection. Thereafter, on May 16, 1974, a citation for a repeated violation of 29 CFR § 1915.51(a) issued. The proposed penalty is $60.

In lieu of a hearing, the parties submitted the case on a stipulation of facts and briefs. Respondent argued that the citation violated the requirements of section 9(a) of the Act by failing to state with particularity the basis for complainant's characterization of the violation as "repeated." The Judge ruled against respondent on this issue because he concluded that respondent need only look at his file of prior citations to see which one cites the same standard that is alleged as the basis for the "repeated violation." Respondent has not excepted to this ruling of the Judge, and it is affirmed.

The Judge then went on to hold, as noted above, [*4] that the instant violation was not a "repeated" violation within the meaning of section 17(a) of the Act. In support of his conclusion, the Judge indicates that the language of section 17(a) is ambiguous in failing to define exactly what conditions constitute a repeated violation. Thus, he outlined the structure of possible penalties for different types and gradations of violations, recognizing that section 17(a) provides for penalties up to $10,000 for willful or repeated violations. After noting that the circumstances of the two violations in this case were "entirely different," he stated

In this structure, the committing of a second unrelated violation of the same housekeeping standard does not faintly fit the $10,000 category of "willful or repeated" violations. The standard is so broad in terms, and prescribes such a wide and disparate variety of offenses against good housekeeping, that an employer could easily be in violation thereof without actually repeating any given act or omission and in the complete absence of any repetition of a particular condition or practice.

The Judge then concluded that the instant violation was not "repeated" within the meaning [*5] of section 17(a).

For reasons set forth below, we reverse this portion of the Judge's decision and hold that respondent's undisputed non-compliance with 29 CFR § 1915.51(a) on May 9, 1974, constitutes a "repeated violation" within the meaning of section 17(a) of the Act.

Respondent has attempted to support its contention that the May violation was not "repeated" by several arguments. First, respondent insists that a repeated violation must result from more than simple neglect because the statutory language of section 17(a) couples the term "repeatedly" with the term "willfully." We find this contention unsupported by law and unpersuasive. There is no language in section 17(a) that mandates imposition of a penalty, in any amount, for "willful" or "repeated" violations. The section clearly states:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, . . . ., may be assessed a civil penalty of not more than $10,000 for each violation (emphasis added).

We interpret this language to mean only that Congress recognized that "repeated" violations, like "willful" violations, may require the imposition of a higher penalty to insure future [*6] compliance with the Act. Furthermore, there is no language in the Act or its legislative history indicating that a second violation must result from any particular state of the employer's mind in order to be a repeated violation within the meaning of section 17(a).

Secondly, respondent argues that the magnitude of the potential penalty requires that, in order to establish a repeated violation, the facts comprising the second violation must be "substantially identical" to the facts comprising the first violation. Thus, respondent contends that these two violations were "entirely different" because they were found: (a) aboard two different ships; (b) in two different parts of the ships; and (c) in passageways of different dimensions that contained different equipment. Accepting these distinctions, we fail to see how they render the two violations any different for purposes of the standard or the Act.

We held in General Electric Co., No. 2739 (April 21, 1975), that a citation for non-compliance with a standard at one worksite may be the basis for a finding of "repeated violation" when followed by a citation for non-compliance with the same standard at a different worksite. [*7] In that case, we found a repeated violation on the undisputed evidence that respondent had failed to comply with a standard, more than once, in different buildings in its Schenectady complex.

Here, we find that the respondent's business of ship repair and maintenance is characterized by rapidly changing worksites. While the maintenance and repair activities involve different ships, they are all within the same port area and involve the same work crews, equipment, and techniques. In sum, the operating procedures and safety habits, or lack thereof, remain the same from ship to ship. In such a situation, it is extremely unlikely that two violative conditions would ever be factually identical. They would occur either on different ships or on different parts of the same ship. Thus, if we accepted respondent's "substantially identical" argument, it might be virtually impossible ever to find a repeated violation in the ship repair and maintenance activity. Since this activity is not exempt from the requirements of section 17(a), we reject respondent's argument.

That the passageways were of different dimensions, in different parts of different ships, and contained different equipment [*8] has nothing to do with the plain fact that in both situations respondent subjected its employees to the same hazard of tripping by failing to comply with the same standard. In deciding whether the May violation was "repeated" within the meaning of the Act, the distinctions urged by respondent are unpersuasive.

The standard at 29 CFR § 1915.51(a) plainly states, in relevant part, that

All . . . passageways on vessels . . . shall be kept clear of all tools, materials, and equipment except that which is in use . . . . Hose and Electric conductors shall be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks.

Respondent's contention that the general text of the standard obscures its meaning is without merit. For purposes of the two violations with which we are concerned, the meaning of the standard is abundantly clear. Good housekeeping on vessels expressly includes preventing obstruction of their passageways by all tools, materials, and equipment, including hose, except that which is in use. n1 Both of the violations cited here, one February 9, 1974, and the other on May 9, 1974, are based upon the obstruction of passageways [*9] by hoses and other equipment. Thus, we find that respondent's failure to comply with the standard set forth at 29 CFR § 1915.51(a) on May 9, 1974, constitutes a "repeated" violation within the meaning of section 17(a) of the Act.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Respondent has never contended and there is no evidence in the record to support a finding that these materials were in use at the time of either inspection.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Underlying respondent's presentation is an apparent concern with the fact that section 17(a) of the Act permits the assessment of civil penalties up to $10,000 for "repeated" violations. This permits wide discretion for dealing with repetitive violations that may vary greatly as to the remedy needed to achieve compliance. The repetition may be the consequence of simple negligence, or they may be the result of greater degrees of carelessness or intentional flouting of the Act's requirements. The latter may warrant the assessment of civil penalties in amounts higher than the general $1,000 ceiling under section 17 for violations [*10] that are not "willful" or "repeated." Cf. General Electric Co., supra. But in any event the assessment of the penalty is an act of discretion the soundness of which must be measured by the factors listed in section 17(j) and any other reasonable factors.

Here, respondent and complainant have stipulated that a $60 penalty is appropriate in this case for a finding of a repeated violation. This is twice the amount assessed by the Judge, who found no "repeated" violation. We accept the stipulation and a penalty in the amount of $60 is assessed. See Thorleif Larsen & Son of Indiana, Inc., No. 370 (October 11, 1974).

So ORDERED.

[The Judge's decision referred to herein follows]

BURCHMORE, JUDGE: By citation issued May 16, 1974, the Secretary charges that, on May 9, 1974, the respondent committed a repeat violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq (the Act), in that respondent failed to comply with the Safety and Health Regulations for Maritime Employment, 29 C.F.R. 1951.51(a).

Timely notice of contest was filed and the proceeding was referred to the undersigned judge for determination. The parties [*11] have filed briefs in which they submitted the case upon a stipulation of facts, on the basis of which I find and conclude as follows:

RESPONDENT'S BUSINESS

1. Respondent is a corporation organized and existing under the laws of the State of Delaware and doing business in California. Respondent maintains its principal office in Bethlehem, Pennsylvania.

2. Respondent also maintains a place of business known as its "San Pedro Yard" located at 965 South Seaside Avenue, Terminal Island, California, where Respondent is engaged in the repair and maintenance of harbor craft and ocean vessels. Respondent, at all times relevant hereto, has employed at this workplace approximately 350 production employees, who perform work in one of the following representative craft or non-craft jobs:

Burners

Welders

Machinists

Painters

Sheet Metal Workers

Laborers

Boilermakers

Carpenters

Shipfitters

Electricians

Pipefitters

Riggers

3. Respondent's San Pedro Yard includes two large floating drydocks of 15,000 and 20,000 tons lifting capacities which handle all types of vessels from harbor craft to freighters and tankers. The Yard also includes four piers with lengths from approximately [*12] 550 ft. to 1800 ft. which are equipped with electric power for ship's usage and welding purposes and lines for high-pressure steam, oxygen, acetylene, compressed air, natural gas and fresh and salt water. The Yard also consists of electric, sheet metal, machine, pipe and copper, carpenter and plate shops, which are equipped with tools and machines necessary to perform the related work.

4. Respondent's San Pedro Yard performs a wide variety of ship repair and maintenance consisting of such work as periodic surveys, repair of collision damage, underwater and topside repairs, drydocking, pierside and anchorage services, and hull, engine, electrical, pipe, and boiler work. The Yard also specializes in repair and reconditioning of all types of marine propulsion units including repair of marine steam turbine or reciprocating engines and overhaul of diesel engines. Respondent's work crews are assigned to perform repair work and maintenance work on vessels both within the confines of the Yard and at various berthing sites outside of the Yard in different locations throughout the Los Angeles and Long Beach harbor areas. Respondent's work crews also perform repair and maintenance work [*13] at anchorage sites within these harbors.

5. Different harbor craft and ocean-going vessels of all types are continuously brought in for repair and maintenance work and they are subsequently returned to the owners. In each year since the effective date of the Occupational Safety and Health Act (hereinafter referred to as the Act) the number of ocean-going vessels alone, by type and nature of repairs performed, are indicated in the following table:

Major Repair & Overhaul Work to Large Vessels
Performed by Respondent's San Pedro Yard
	July-Dec.	Jan-Dec.	Jan-Dec.	Jan-June
	1971	1972	1973	1974
Type Vessel Repaired
Cargo	9	17	16	13
Tanker	6	8	11	10
Boat Carrier	2	2	3	3
Container Ship	2	1	4	3
Government	4	10	6	4
Barge	0	2	4	5
Tug	0	0	2	0
Total	23	40	46

No. repaired in drydock *	10	28	27	21
No. repaired topside *	13	12	19	17

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

* Generally, drydock repairs are more extensive than topside repairs in that they commonly involve repairs to the underside of a ship, although some topside repairs of engines, boilers, etc., are equally extensive.

[*14]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

6. Respondent is an employer engaged in a business affecting commerce who has employees within the meaning of Section 3(3), (5) and (6) of the Act and is accordingly subject thereto.

THE STANDARD INVOLVED

7. The standard set forth at 1915.51(a) states as follows:

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

THE PRIOR CITATION

8. On February 19, 1974, Compliance Safety & Health Officer (CSHO) Robert Raymond, an authorized representative of Complainant, plainant, conducted an inspection of the vessel U.S.S. NAVASOTA (a Navy Department Oil Tanker) which was docked at respondent's San Pedro Yard for [*15] repairs. Respondent on that occasion had permitted a bilge pump and the attached air hoses to obstruct a passageway which was used by employees at the lower level, forward of the shaft alley, midships, in an area (approximately 75' by 50') which housed the main engine, condensers, generators, various pumps and valves, coolers and piping and where employees were installing various valves and pipes and pumping bilge water.

9. As a result of CSHO Raymond's inspection, respondent was issued on March 8, 1974, an amended citation alleging a non-serious violation of 29 CFR 1951.51(a) and a Notification of Proposed Penalty recommending a $0 penalty which were received by respondent on March 11, 1974.

10. Respondent did not contest the citation for non-serious violation or Proposed Penalty of $0 and, pursuant to Section 10(a) of the Act, both became a final order of the Commission on April 1, 1974.

THE PRESENT CITATION

11. On May 9, 1974, Compliance Safety & Health Officer George Godzak, an authorized representative of complainant, conducted an inspection of the U.S. Coast Guard Vessel GLACIER (an icebreaker) and SS WYOMING which were docked at respondent's San Pedro Shipyard for repairs. [*16]

12. During the course of the inspection of the GLACIER, CSHO Godzak inspected the dry stores locker (an area approximately 50' X 30' just forward of midship at the fifth level) where he observed welding and burning leads, oxyacetylene hoses and other hoses lying on the working surface, obstructing the passageways where welders and fitters were erecting steel for bulkheads. Said employees were burning away the existing bulkhead for removal and preparing the area for installation of a new sewage tank.

13. As a result of CSHO Godzak's inspection on board the GLACIER, respondent was issued on May 16, 1974, Citation No. 2 for a REPEAT violation, and a Notification of Proposed Penalty of $60, which were received by respondent on May 20, 1974.

14. On June 10, 1974, respondent timely filed with a representative of complainant a notification of intent to contest Citation No. 2, which alleges a repeat violation of the standard set forth at 29 CFR 1915.51(a), and the corresponding proposed penalty ($60) for this alleged violation, pursuant to the provisions of Section 10(a) of the Act. This notification of intent to contest was duly transmitted to the Occupational Safety and [*17] Health Review Commission and jurisdiction of this proceeding is properly conferred upon the Commission by Section 10(c) of the Act.

THE REPEAT VIOLATION ALLEGATION

15. The complainant alleges that the condition set forth above in paragraph No. 12 is in violation of the Occupational Safety and Health Standard cited at 29 CFR 1915.51(a). Respondent does not contest this portion of the Citation.

16. The complainant alleges that the present violation of 29 CFR 1915.51(a) constitutes a non-serious violation. Respondent agrees that the facts set forth in paragraph No. 12 do not constitute a serious violation. Respondent has abated the condition set forth in paragraph No. 12.

17. Respondent had not at any time prior to the date of the May 16, 1974 inspection received a previous citation for obstructing working surfaces with welding leads or other hoses in violation of the standard set forth at 29 CFR 1915.51(a) on board the vessel GLACIER at the dry stores locker in question nor had it received a similar citation for violation of the same standard at any other dry stores locker or any other location on board that vessel.

18. Respondent agrees that the violation set forth in complainant's [*18] citation for repeat violation constitutes the second violation by respondent of 29 CFR 1915.51(a) at its San Pedro Yard.

19. Respondent does not dispute the reasonableness of the $60 proposed penalty should there be a finding of a repeat violation and both parties agree that a $30 penalty is reasonable in the event that a repeat violation is not sustained.

THE ISSUES

The parties state that the issues to be determined are:

(a) whether the citation is violative of the requirements of Section 9(a) of the Act by failing to state with particularity the basis for the alleged characterization of the violation as a repeat one;

(b) whether the instant violation constitutes a repeat violation within the meaning of Section 17(a) of the Act.

DISCUSSION

The issue as to whether there was a repeated violation within the meaning of section 17(a) of the Act cannot be decided on the basis of the naked words of the statute, for they are ambiguous. Section 17(a) provides:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this [*19] Act, may be assessed a civil penalty of not more than $10,000 for each violation.

Taken literally, the statutory language is fulfilled whenever there is a second violation of any kind, even absent any similarity between the two violations either as to the circumstances of the case or as to the applicable standard. This is so because an employer has "repeatedly" violated section 5 at any time that more than one standard has been violated. However, not even the Secretary would go so far, for it is his position herein that the two violations must offend the same standard. Moreover, the Secretary in his Field Operations Manual further restricts the definition of repeat violations by requiring that the two violations be committed in the same state or port area or fixed establishment. At that point, however, the Secretary insists that any second violation of the same section of the regulations, if committed in the same state or port area or fixed establishment, constitutes a repeated violation even though, as here, the circumstances of the violations were entirely different.

Respondent, on the other hand, contends that a violation is repeated within the meaning of the Act only when [*20] the same conditions are repeated in the same place and in violation of the same section of the regulations. Respondent points out that the Secretary's interpretation would produce inequitable results. For example, says respondent, a contractor could be cited for a housekeeping violation on an erection project in Philadelphia in 1974 if boxes of welding rods were found in a walkway. The same contractor, doing work in Pittsburgh in 1980, working with entirely different personnel, different unions and possibly with changed construction methods, could be cited for a repeat violation subject to a penalty of up to $10,000 for allowing boxes of welding rods to be left in a walkway. Did Congress intend to lay down such a classification of violations?

Nothing in the reported cases or in the legislative history is of real assistance in deciding the issue. In one case, Secretary of Labor v. Todd Shipyards Corporation, No. 1556, August 27, 1973, an Administrative Law Judge rejected the contention that the second violation must be "substantially similar" to the first in order to be repeated within the meaning of 17(a). He thought that such a requirement would "place an [*21] impossible burden on the Secretary, a burden obviously not intended by the Congress". However, the judge did not explicate the reasons for his holding and it leaves open the question as to what reason exists for holding that under 17(a) the second violation must be a true repeat of the circumstances and conditions of the first.

An examination of the classification of violations and penalties within the statutory framework is illuminating. For we find that the lowest level of violation is "de minimis", as recognized by section 9(a) and for which no penalty is provided. Next comes the non-serious violation for which a penalty of up to $1000 may be assessed; for the serious violation such penalty "shall" be assessed under section 17. By section 17(d) a penalty of up to $1000 per day may be assessed for failure to abate. And for willfully or repeatedly violating the requirements 17(a) provides for penalties up to $10,000. Finally, section 17(e) provides for criminal fines up to $10,000 and imprisonment for not more than six months for any willful violation which results in the death of an employee.

In this structure, the committing of a second, unrelated violation of the same [*22] housekeeping standard does not fairly fit the $10,000 category of "willful or repeated" violations. The standard is so broad in terms, and proscribes such a wide and disparate variety of offenses against good housekeeping, that an employer could easily be in violation thereof without actually repeating any given act or omission and in the complete absence of any repetition of a particular condition or practice.

On the other hand, the situation is more fittingly covered by the provision in section 17(j) to the effect that the history of past violations shall be given due consideration in assessing the penalty for a current violation. Under that provision, the fact that the employer has committed a second, and different, violation of the same standard can and should be given weight in arriving at an appropriate penalty within the $1,000 range. But there is no equitable basis for raising the range to $10,000, as the Secretary would do.

In my opinion, the Congress reasonably intended only to embrace repeated instances of the same violation within the $10,000 range of 17(a). In so doing, it maintained consistency with the penalty scale of $1000 per day for failure to abate. [*23] In other words, when an employer commits a housekeeping violation, he can be penalized up to $1000. If he fails to abate within the time prescribed, he can be penalized up to $1000 per day. If he does abate, but then permits the same violation to be repeated under the same circumstances, then he is subjected to the potential penalty range of $10,000. This makes sense because the employer knows that the condition actually amounts to a violation, having already been cited for it. It also makes sense because a condition that has once been brought to the employer's attention is one for which it is difficult to imagine an excuse for letting it happen again; indeed it is not unreasonable to say that a repetition of the same conditions may be rebuttably presumed to be akin to a willful violation. It is not, therefore, unreasonable to include such violations in the willful class, especially since the assessment of penalty within the $10,000 range is discretionary and governed by the criteria of 17(j).

I conclude that the instant violation was not a repeat violation within the meaning of section 17(a) and that the citation should be modified by eliminating the repeat classification [*24] and affirmed as modified. Under all of the circumstances of the case, the proposed and agreed penalty of $30 is clearly appropriate.

The remaining issue as to the adequacy of the citation under section 9(a) must be decided in favor of the Secretary. Here respondent contends that the citation fails to specify the violation with particularity because it does not set forth the circumstances of the first violation as a basis for the repeat characterization. In view of the above decision that the second violation must be a true repeat of the conditions complained of in the first citation, there would be no point to re-describing them in the second citation since the one description would be enough. However, even if it were held that any second violation of a standard constituted a repeat, it would seem that the repeat citation is adequate in merely citing the particular section of the regulations and describing the conditions complained of as constituting the second violation. This is so because the employer already has in his possession all earlier citations issued to him, and if it is alleged that he has repeatedly violated a certain section, he need only look at his file [*25] of prior citations to see which one cites that same standard. I conclude that the citation was not deficient under section 9(a).

It is ORDERED that the citation be and the same is hereby modified to non-serious by eliminating the characterization "repeated", that the citation be and the same is hereby affirmed as modified, that a penalty of $30 be and the same is hereby assessed and that this proceeding be and the same is hereby discontinued.