UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-1481
BETHLEHEM STEEL CORPORATION,
Respondent.

April 29, 1980

DECISION

Before: CLEARY, Chairman, and COTTINE, Commissioner.*

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). A decision of Administrative Law Judge Robert N. Burchmore is before the Commission for review under section 12(j) of the Act, 29 U.S.C. § 661(i). In pertinent part, the judge concluded that the Respondent, Bethlehem Steel Corporation (‘Bethlehem’), had committed five nonserious violations of section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), by failing to comply with several standards published at 29 C.F.R. Parts 1910 and 1916. At issue is whether the judge properly held that the violations were not repeated within the meaning of section 17(a) of the Act.1 We reverse that portion of his decision and find that the violations were repeated.

As a result of a February 2–3, 1976 inspection of the Respondent’s shipbuilding and repair facility at Beaumont, Texas, one citation alleging nonserious violations of the Act and nine citations alleging repeated violations of the Act were issued to the respondent.2 Citation number two alleged a repeated failure to comply with the standard at 29 C.F.R. § 1910.27(d)(2)3 in that:

landing platforms were not provided for each 20 feet of height of ladder to the roof on the north side of the fabrication shop building.

Judge Burchmore affirmed this citation as a nonserious violation, finding that Respondent maintained ‘a straight, uninterrupted ladder about 45 feet high, which had no offsets or landing platforms, and there was no ladder climbing safety device on it.’ Citation number four, item ‘a’, alleged a repeated failure to comply with Section 400–4 of the National Electrical Code as adopted by 29 C.F.R. § 1910.309(a)4 for:

Prohibited use of flexible electric cords at the following locations:

a. 440 volt power lead and three extension cords through hole in wall by Column #4 of the fabrication shop.

Based on his determination that ‘flexible cords [were] run through a jagged opening cut in a corrugated metal wall,’ the judge affirmed this item of the citation as a nonserious violation. Citation number eight alleged a repeated violation of the standard at 29 C.F.R. § 1916.43(a)5 in that:

Flush manholes and other small openings of comparable size in the deck were not suitably covered or guarded at the following locations:

a. two holes in the second deck of the starboard pod house of rig #4889

b. second deck store room hatch to No. 5 tank of rig #4889

c. partle [sic] guarded deck holes on mat deck of #4891 platform.

The judge affirmed this citation as a nonserious violation, finding that there were three manholes at the Respondent’s workplace ‘which were not covered or guarded.’ Citation number nine alleged a repeated violation of the standard at 29 C.F.R § 1916.51(a)6 in that:

Good housekeeping conditions were not maintained as follows:

a. deck by the starboard yoke house of rig #4889, coiled cables

b. deck at top of starboard ladder to drill floor of rig #4889—welding leads and trash

c. doorway at the head of the gangway on platform #4891 hoses across doorway.

The judge held that in two ‘temporary’ instances ‘loose cables or hose were . . . in the way of employee traffic,’ and accordingly affirmed items ‘b’ and ‘c’ of this citation as a nonserious violation.7 Finally, citation number ten alleged a repeated violation of the standard at 29 C.F.R. § 1916(i)8 for the following:

A load of scaffolding was swung over the head of an employee on rig #4889 by No. 14 gantry crane.

The judge affirmed this citation as a nonserious violation, based on his finding that ‘a load of scaffolding [was] lifted and swung over an employee’s head.’

The Respondent had been previously cited under each of the above standards for violations occurring at the Respondent’s Beaumont, Texas facility. In each instance, the prior citation became a final order of the Commission prior to the date of the inspection giving rise to the present citations. On June 19, 1973, Respondent was cited for a nonserious violation of section 1910.27(d)(2). That violation was described as a failure to provide landing platforms, a cage, or a ladder safety device for ladders used to ascend heights exceeding 20 feet. In an attempt to distinguish the factual relatedness of the prior and present citations, the Respondent produced evidence at the hearing showing that the citations concerned different areas at Bethlehem’s Beaumont, Texas facility. An alleged violation of Section 400–4 was also included in the citation issued on June 19, 1973. That violation involved, among other things, the use of flexible electrical cord where the cord was run through a hole in a wall. Again, in an attempt to distinguish the factual relatedness of the prior and present citations, the Respondent produced evidence at the hearing showing that the citations concerned different areas at Bethlehem’s Beaumont, Texas facility. A further distinction was suggested on the basis that the electrical lines were routed differently.

The Respondent had been previously cited for a violation of section 1916.43(a) on August 2, 1974. That violation entailed a failure to guard a deck opening where employees were working. Three prior section 1916.51(a) citations were issued to the Respondent. The citation issued on February 12, 1974, concerned scrap metal and welding rods scattered on staging platforms in addition to service lines and house laying on a deck such that a clear passageway was not maintained.9 Finally, on June 19, 1973, the Respondent was cited for a violation of section 1916.66(i). That violation involved the swinging of a load of pipe over the heads of employees. At the hearing the Respondent distinguished the prior and present citations on the basis of the type of load involved (pipe versus scaffolding) and the areas at the Beaumont, Texas facility in which the respective violations occurred.

The judge held that evidence of one prior violation is insufficient to establish a repeated violation, according to the rule announced by the United States Court of Appeals for the Third Circuit in Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3rd Cir. 1976). In that case, the court held that ‘repeatedly’ refers to a violation that has occurred at least twice after the first violation and, further, one which ‘flaunts’ the Act. Consequently, the judge characterized the violations described in the instant citations as nonserious violations of the Act. The Secretary maintains that the judge erred in concluding that the violations were not repeated.[1]

III

The Commission has respectfully declined to follow that aspect of the Third Circuit’s decision in Bethlehem Steel Corp. upon which the judge relied in reaching his conclusion.[2] In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23,294 (No. 16183, 1979), the Commission held that a violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation. The Commission also held in Potlatch that the Secretary may establish a prima facie case of substantial similarity by showing that the past and present violations are for failure to comply with the same standard. The employer can rebut the prima facie case by proving that the factual circumstances of the present violation are so disparate from those of the past violation that no reasonable relationship exists between them. Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1236, 1979 CCH OSHD ¶23,440 at p. 28,374 (No. 76–1480, 1979).

Here, the Secretary’s evidence showing Bethlehem Steel’s prior violations of the same standards is sufficient to establish a prima facie case of substantial similarity. Once the Secretary has established a prima facie case, the burden shifts to the employer to rebut that showing. See Potlatch Corp., supra. At the hearing and in its post-hearing brief, the Respondent argued that the prior and present violations of section 1910.27(d)(2), Section 400–4, and section 1916.66(i) are so dissimilar as to negate a repeated classification inasmuch as the prior violations in each instance occurred a different areas within Bethlehem’s Beaumont, Texas facility. This evidence is insufficient to rebut the Secretary’s prima facie case. We have recently held that ‘a difference in the location of violations at the same worksite is not a relevant consideration’ to a determination of whether a violation is properly classified as repeated. FMC Corp., 79 OSAHRC ——, 7 BNA OSHC 1419, 1421, 1979 CCH OSHD ¶ 23,631 at p. 28,657 (No. 12311, 1979). See also, Potlatch Corp., supra; Accord, J.M. Martinac Shipbuilding Corp. v. Marshall and OSAHRC, No. 78–2633, —— F.2d —— (9th Cir., January 16, 1980). Bethlehem also argued that the violations of Section 400–4 are factually unrelated in that the electrical lines were routed differently. The judge, however, found that the present violation resulted from flexible electrical cords being routed through a jagged opening cut in a wall. Similarly, the prior violation of Section 400–4 involved flexible electrical cord where the cord was run through a hole in a wall. Accordingly, the evidence does not support the Respondent’s contention that the violations of Section 400–4 are factually unrelated. Similarly, Bethlehem’s attempt to distinguish the violations of section 1916.66(i) on the basis of the type of load involved does not establish a factual dissimilarity sufficient to rebut the Secretary’s prima facie case. The evidence shows that both violations of this standard involved a load being passed over the heads of employees.

This case was tried and decided prior to our decision in Potlatch. Usually when there has been an intervening change in law between the hearing and our decision on review in a case, we will offer the affected party an opportunity to present additional evidence relevant to the newly established legal test or defense. See e.g., Truland-Elliot, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976–77 CCH OSHD ¶ 20,908 (No. 11259, 1976). However, at the hearing and in its post-hearing brief Bethlehem asserted a defense that the prior and present violations of section 1910.27(d)(2), Section 400–4, and section 1916.66(i) were factually unrelated and therefore the present violations of the standards were not repeated. Under these circumstances, we conclude that the defense in each instance would not have been tried any differently had Potlatch been issued before the hearing. Therefore, we do not offer the Respondent an opportunity for a remand with respect to these violations. See FMC Corp., supra, 7 BNA OSHC at 1422 n. 8, 1979 CCH OSHD at p. 28,657 n. 8.

The evidence of record in this case demonstrates that the earlier violation of section 1916.43(a) was virtually identical to the violations of this standard in this instance. Each violation involved a failure to guard a deck opening. The evidence of record also demonstrates that the earlier violation of section 1916.51(a) cited on February 12, 1974, was virtually identical to the present violations of this standard. In both instances hoses and welding materials were scattered around the work area presenting tripping hazards. Since on the facts of this case the Respondent could not have rebutted the Secretary’s prima facie case by showing significant factual dissimilarities between the present and earlier violations of sections 1916.43(a) and 1916.51(a), no remand is ordered. See Belger Cartage Service, Inc., supra, 7 BNA OSHC at 1236, 1979 CCH OSHD at p. 28,374.

The Secretary proposed the following penalties: $100 for the Section 400–4 violation; $150 for the section 1916.43(a) violation; $100 for the section 1916.51(a) violation, and $125 for the section 1916.66(i) violation. For each of these violations, the judge reduced the penalty to $50. In addition, the Secretary proposed a $125 penalty for the section 1910.27(d)(2) violation, which penalty the judge vacated. Based on our review of the factors enumerated in section 17(j) of the Act, 29 U.S.C. § 666(i), and the guidelines set forth by our decision in Potlatch, we conclude that the penalties proposed by the Secretary for the violations of section 1910.27(d)(2), Section 400–4, section 1916.43(a), section 1916.51(a) and section 1916.66(i) are appropriate in each instance. We take particular note of the fact that all of the repeated violations in this case were committed at the same facility as the prior violations.

Accordingly, we modify the judge’s decision to find the violations of 29 C.F.R. §§ 1910.27(d)(2), 1916.43(a), 1916.51(a) and 1916.66(i), and of Section 400–4 to have been repeated within the meaning of the Act, and we assess penalties of $125, $150, $100, $125, and $100 respectively.

SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

Executive Secretary

DATED: APR 29, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-1481
BETHLEHEM STEEL CORPORATION,
Respondent.

November 9, 1976

DECISION AND ORDER

Jack F. Ostrander for the Secretary of Labor.

Murray N. Shelton, Jr. for the respondent.

BURCHMORE, Judge:

By citations issued March 9, 1976, as amended, complainant charges that on February 2–3, 1976, respondent committed numerous violations, both non-serious and repeated, 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, in some instances, with the Occupational Safety and Health Standards contained in 29 C.F.R. 1910, and in other instances with the Safety and Health Standards for Shipbuilding as contained in 29 C.F.R. 1916. Penalties totaling $1420 were proposed.

Timely notice of contest was filed as to specified items and the proceeding was referred to the undersigned administrative law judge for hearing and adjudication. Hearing was held at Houston, Texas, on September 9, 1976. The parties have submitted post hearing briefs.

It is alleged and admitted in the pleadings, and I find, that respondent is an employer engaged in a business affecting commerce. I conclude that respondent is subject to the Act and that this Commission has jurisdiction in the premises.

By stipulation entered at the hearing and approved by the judge, and by motion made subsequent to the hearing, which is hereby granted, it was agreed that Item 2(a) of the non-serious citation be affirmed without penalty, that Item 6 of the non-serious citation be affirmed with a penalty of $35, and that the following items be vacated: Items 1, 3, 5, 8, 13 and 14 of the non-serious citation; and Citations for repeated violations numbered 3, 4(b) and (c), and 5. There remains for disposition contested Items 7(a) and (b), 9 and 12 of the non-serious citation and Citations for repeated violation numbered 2, 4(a), 6, 7, 8, 9 and 10.

REPEATED VIOLATIONS

It should be noted at the outset that the evidence introduced by the complainant to establish the repeated nature of the alleged violations simply comprised copies of prior citations which became effective under the same regulations; in each instance, one prior violation was shown. Such evidence is insufficient to establish a repeated violation within the meaning of the Act because it has been held in a case involving this same respondent that the complainant must show at least two prior violations and complainant must also show that the instant violation was committed under circumstances amounting to a flaunting of the Act. Bethlehem Steel Corporation v. OSHRC and Brennan, BNA 4 OSHC 1451 (3rd CA decided July 20, 1976). I therefore conclude that the alleged violations have not been shown to have been repeated. On the other hand, the fact that the alleged violations were not shown to be repeated still leaves for determination whether lesser, non-serious violations occurred for which reduced penalties should be assessed. Secretary of Labor v. Dye Construction Company, BNA 4 OSHC 1444 (No. 4172, decided July 12, 1976).

In assessing such penalties as may be appropriate, due consideration must be given to the fact that the inspection and alleged violations took place at a very large shipyard of the respondent located in Beaumont, Texas, where respondent employs more than 99 employees. Respondent has been cited several times in the past for violations of the Act, and such citations have become effective. On the other hand, respondent conducts an extensive and ongoing safety program embracing continuous instruction and supervision of employees; its good faith is not questioned herein.

The Non-Serious Citation

Item 7(a)(b). The two parts of this item are ‘equivalent’ in the words of the inspecting officer. They are drawn, respectively, under two paragraphs of the general industry standards, 29 C.F.R. 1910.252(a)(iii)(b)(1) and 252(a)(5)(iv), which provide:

(iii) Piping protective equipment.

(b) Approved protective equipment (designated PF in Figs. Q–1, Q–2 and Q–3) shall be installed in fuel-gas piping to prevent:

(1) Backflow of oxygen into the fuelgas supply system; and

(iv) Station outlet protective equipment. (a) A check valve, pressure regulator, hydraulic seal, or combination of these devices shall be provided at each station outlet, including those on portable headers, to prevent backflow, as shown in Figures Q–1, Q–2 and Q–3 and designated as SF and SO.

Respondent contends that it was not citable under the general industry regulations because it is engaged in shipbuilding and that it should have been cited under 29 C.F.R. 1916.35(e) governing fuel gas and oxygen manifolds in the shipbuilding industry. Examination of the two sets of regulations reveals, however, that Part 1910 provides more detailed standards regulating the precise point in controversy. It has never been held that the general industry standards do not apply to industries as to which there are industry standards in effect, and I hold that, where the general industry standards contain requirements that are not provided in connection with a particular industry, the industry is subject to the general industry standards as well as those provided for the particular industry.

The inspecting officer testified that the deficiency complained of was a lack of check valve, or anti-backflow device. This was countered by testimony of respondent’s Safety Engineer to the effect that there were anti-backflow devices in the system. On rebuttal the inspecting officer testified that, if there were anti-backflow devices, they were located upstream of the required placement according to the diagram in the regulation. The final testimony on the subject was from the Safety Engineer, on surrebuttal, when he flatly stated that there was an anti-backflow device both in the main piping and in the branch piping. This testimony stands uncontroverted and I find that the complainant has failed to prove be alleged violation.

Item 9. The inspecting officer observed some electric power supply boxes from which cords ran to machinery. The boxes were covered but there were no warning signs on them to keep employees away, so he cited respondent for violation of Article 110–17(c) of the National Electrical Code, NFPA 70–1971, which was adopted in 29 C.F.R. 1910.309(a) and which provides:

Entrances to rooms and other guarded locations containing exposed live parts shall be marked with conspicuous warning signs forbidding unqualified persons to enter.

Respondent contends that the regulation is not applicable in this situation because there was no room or other guarded location to be marked; the boxes were not in a room by themselves but were out in the open, and they were covered. I agree, and I find that complainant has failed to prove that there was an unmarked entrance to a room or other guarded location containing exposed live parts. The item must be vacated.

Item 12. An employee was observed working at the unguarded edge of the drill floor platform on a drilling rig under construction. He was not protected by safety belt, and respondent was therefore cited for violation of Part 1916.47(b) which provides:

When employees are working aloft, or elsewhere at elevations more than 5 feet above a solid surface, either scaffolds or a sloping ladder, meeting the requirements of this subpart, shall be used to afford safe footing, or the employees shall be protected by safety belts and lifelines meeting the requirements of § 1916.84(b). * * *

There can be no question that there was a violation here, but respondent introduced evidence which shows that the employee was acting unpredictably and in violation of adequate instructions and rules. Respondent’s Job Safety Analysis requires employees to use safety belts under the circumstances here involved, and that instruction had been thoroughly covered with the employee involved. There is no evidence that the supervisor of the employee was aware or could have reasonably become aware of the employee’s disobedience. This is a situation which is governed by the decision in Secretary of Labor v. Engineers Construction, Inc., BNA 3 OSHRC 1537. The item will be vacated.

Citation No. 2

On the north side of the fabrication shop building there was a straight, uninterrupted ladder about 45 feet high, which had no offsets or landing platforms, and there was no ladder climbing safety device on it. Part 1910.27(d)(2) requires as follows:

When ladders are used to ascend to heights exceeding 20 feet (except on chimneys), landing platforms shall be provided for each 30 feet of height or fraction thereof, except that, where no cage, well, or ladder safety device is provided, landing platforms shall be provided for each 20 feet of height or fraction thereof. Each ladder section shall be offset from adjacent sections. Where installation conditions (even for a short, unbroken length) require that adjacent sections be offset, landing platforms shall be provided at each offset.

Respondent points out that there were over 100 other ladders in the facility, all of which conformed to the regulation, and respondent contends that this was therefore an isolated instance for which it is not responsible. However, the defense of an isolated instance relates to the question whether respondent had knowledge of a violation, and there can be no question that respondent had, or should have had, knowledge of this ladder, no matter how many other ladders there were in the yard. On the other hand, the evidence shows that the ladder was used very rarely, only once or twice a year, and that when it was used the employees were instructed to use safety belts. I find, therefore, that the gravity of the violation was so low as to warrant a zero penalty, considering the good faith of the respondent and its history of efforts to comply with the law.

Citation No. 4(a)

Article 400–4 of the National Electrical Code, NFPA 70–1971, as adopted by 29 C.F.R. 1910.309(a), provides:

Prohibited Uses. Except where installed in accordance with Article 645, flexible cord shall not be used (1) as a substitute for the fixed wiring of a structure; (2) where run through holes in walls, ceilings, or floors; (3) where run through doorways, windows, or similar openings; (4) where attached to building surfaces; or (5) where concealed behind building walls, ceilings, or floors.

The inspecting office observed and photographed flexible cords run through a jagged opening cut in a corrugated metal wall, and cited respondent accordingly. Respondent says the wires were only temporary hookups, but that does not excuse the violation. Respondent also complains that the inspecting officer did not test the wires to see they were alive. In my opinion, it was a reasonable inference from the existence, location and hookup of the wires to assume that they were live, and I so find. I affirm the citation. The proposed penalty for a repeated violation was $100 and I find that the appropriate penalty for the violation, which is not shown to have been repeated within the meaning of the Act, is $50.

Citation No. 6

The inspecting officer observed ground cables used in welding operations at the yard and the insulation on the conductors was worn, or bare in places. Respondent was cited for this condition under Part 1916.36(b)(4), which provides ‘All arc welding and cutting cables’ shall be completely insulated. However, respondent points out that section (c) of the regulation separately deals with ‘ground return cables’ and contains no requirement that they shall be insulated. I conclude, therefore, that the cited paragraph does not apply to ground cables and that the citation should be vacated.

Citation No. 7

Part 1916.41(h)(3) requires that the planking on scaffolds shall extend at least 12 inches but not more than 18 inches beyond the scaffold frame. The obvious reason for this is to insure that the planking overlaps enough to keep it from coming dislodged, but not so much that it might be upended if an employee stepped on the end.

There are thousands of feet of scaffolding in respondent’s shipyard. Out of all this the inspecting officer found three instances where the planking overlapped by slightly more than 18 inches. He photographed one instance of this and cited respondent under the regulation. The photograph shows that the overlap exceeded 18 inches by not more than a few inches. Moreover, respondent’s Safety Director testified that in two instances the scaffold was being disassembled and in the other instance it was being erected. In each instance there was a railing on the end of the scaffold and the approach to mounting the scaffold was from the side, so that there was very little chance of an employee stepping on the excessive end.

Here is a technical violation of the literal words of the regulation, which however involves almost no risk to employee safety. I find that there was a violation and that no penalty is appropriate.

Citation No. 8

Part 1916.43(a) requires that flush manholes be covered or guarded to a height of 30 inches. There were over 150 manholes in the yard out of which the inspecting officer observed three which were not covered or guarded. Respondent contends that it would have been impracticable to cover the holes in the instances cited as there was work in progress. But its Safety Director conceded that ‘it’s standard procedure to have all these openings covered . . . people go in and out of these at different times, and it’s just like closing a door.’ I conclude that in the instances cited there was a technical violation. The proposed penalty, had the violation been a repeated one, was $150 and I find that this should be reduced to $50.

Citation No. 9

During the two-day inspection tour, the inspector covered about 90 per cent of the yard, which is about 71 acres in extent. He cited respondent for three housekeeping violations in all this area, and these related to tripping hazards of excess cables or hoses in walkways. Part 1916.51(a). Complainant concedes that respondent had a program whereby wooden walkways were built in all working areas where welding cables were used. But at the time of the inspection there were these three areas where loose cables or hose were observed in way of employee traffic.

Respondent showed that as to one of the areas, the material in question was damaged cable which was in the process of being rolled up for removal. In the other areas there were temporary conditions that were remedied immediately after the inspection.

Under the circumstances I find that in the two instances of temporary condition there was a technical housekeeping violation for which a penalty of $50 is appropriate.

Citation No. 10

Part 1916.55(i) relating to use of hoisting gear, provides that loads shall not be swung over the heads of employees. During the inspection the investigator observed a load of scaffolding being lifted and swung over an employee’s head. Although respondent contends that this was an isolated instance, and it does have a continuing rule and program of instruction to avoid such practices, the record shows that this was the second time they were cited for violation of the same standard. While the violation was not repeated within the meaning of the Act, the facts require that the citation be affirmed as a non-serious citation and that a penalty of $50 be assessed.

It is ORDERED that the several citations, as amended, be and the same are hereby modified to non-serious and affirmed or vacated as listed below, that penalties be and the same are hereby assessed as listed and that this proceeding be and the same is hereby discontinued.

Citation No.

Item No.

Disposition

Penalty

vacated

2(a)

affirmed

zero

vacated

affirmed

$ 35

vacated

affirmed

zero

vacated

4(a)

affirmed

$ 50

vacated

affirmed

zero

affirmed

$ 50

affirmed

$ 50

affirmed

$ 50

Robert N. Burchmore

Judge, OSHRC

Dated: November 9, 1976

* Commissioner Barnako did not participate in this decision.

1 Section 17(a), 29 U.S.C. § 666(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 Act, may be assessed a civil penalty of not more than $10,000 for each violation.

2 The Secretary filed a petition for discretionary review and former Commissioner Moran directed review but did not specify and issues to be considered by the Commission. The Secretary’s petition for review challenged the judge’s characterization of the violations alleged in citations numbered 2, 4a, 8, 9, and 10 as nonserious rather than repeated violations. Since the parties did not object to the judge’s disposition of the remainder of the citations for repeated violations and the citation for nonserious violations, they will not be considered by the Commission because they do not involve issues of compelling public interest. See Abbott-Sommer Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975–76 CCH OSHD ¶20,428 (No. 9507, 1976); Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976–77 CCH OSHD ¶20, 780 (No. 4136, 1976). Those parts of the judge’s decision relating to these unreviewed citations are accorded the precedential value of an unreviewed judge’s decision. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975–76 CCH OSHD ¶20,387 (No. 4090, 1976), appeal withdrawn, No. 76–4070 (2d Cir., May 17, 1976).

3 The standard at 29 C.F.R. § 1910.27(d)(2) provides, in pertinent part, the following:

§ 1910.27 Fixed ladders.

(d) Special requirements

(2) Landing platforms. When ladders are used to ascend heights exceeding 20 feet . . ., landing platforms shall be provided for each 30 feet of height or fraction thereof, except that, where no cage, well, or ladder safety device is provided, landing platforms shall be provided for each 20 feet of height or fraction thereof. . . .

4 The standard at 29 C.F.R. § 1910.309(a) provides, in pertinent part, the following:

§ 1910.309 National Electrical Code.

(a) The requirements contained in the following articles and sections of the National Electrical Code, NFPA 70–1971; ANSI C1–1971 (Rev. of 1968) shall apply to all electrical installations and utilization equipment:

Sections

400–4 ..... Flexible Cords and Cable Prohibited

Section 400–4 provides the following:

400–4. Prohibited Uses. Except where installed in accordance with Article 645, flexible cord shall not be used (1) as a substitute for the fixed wiring of a structure; (2) where run through holes in walls, ceilings, or floors; (3) where run through doorways, windows, or similar openings; (4) where attached to building surfaces; or (5) where concealed behind building walls, ceilings, or floors.

All references to Section 400–4 in this decision refer to Section 400–4 of the National Electrical Code, as adopted by 29 C.F.R § 1910.309(a).

5 The standard at 29 C.F.R. § 1916.43(a) provides, in pertinent part, the following:

§ 1916.43 Guarding of deck openings and edges.

(a) When employees are working in the vicinity of flush manholes and other small openings of comparable size in the deck and other working surfaces, such openings shall be suitably covered or guarded to a height of not less than 30 inches, . . ..

6 The standard at 29 C.F.R. § 1916.51(a) provides the following:

§ 1916.51 Housekeeping.

(a) Good housekeeping conditions shall be maintained at all times. Adequate 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. Hose and electric conductors shall be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks.

7 The judge made no specific order with respect to item ‘a’ of citation number nine. In his discussion of this citation, however, the judge indicated that the conditions alleged in item ‘a’ complied with section 1916.51(a). He expressly limited his conclusion that the Respondent failed to comply with the standard to the conditions alleged in items ‘b’ and ‘c’. Accordingly, we conclude that the judge’s order implicitly vacated item ‘a’ of citation number nine and specifically affirmed items ‘b’ and ‘c’ as nonserious violations.

8 The standard at 29 C.F.R. § 1916.66(i) provides the following:

§ 1916.66 Use of gear.

(i) Loads (tools, equipment or other materials) shall not be swung or suspended over the heads of employee.

9 In paragraph XXIV(b) of his Complaint the Secretary referred to a prior citation for a violation of section 1916.51(a) issued on August 2, 1974, as the basis on which the present violation was alleged to be repeated. However, the evidence of record reveals three prior violations of this standard in citations issued on June 19, 1973, on February 12, 1974, and on August 2, 1974. Rule 15(b) of the Federal Rules of Civil Procedure requires that, ‘[w]hen issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.’ Usually a party’s failure to object at trial to the introduction of evidence relevant to the unpleaded charge established that the party has impliedly consented to the trial of that charge. 3 Moore’s Federal Practice ¶15.13[2] at 15–174 (2d ed. 1979). The only objection raised by Bethlehem with respect to any of the three prior citations was an objection to the introduction of the June 19, 1973 citation. The objection was based on the fact that the complaint, in a paragraph unrelated to the housekeeping violation at issue, referred to a June 16th citation but did not mention a June 19th citation. In overruling the objection, the judge found that the Respondent could not have been ‘misled or prejudiced . . . because the Respondent certainly has or has had copies of every citation issued to it.’ Moreover, we note that amendment in this case does not alter the legal theory on which the Secretary proceeded. Accordingly, we amend paragraph XXIV(b) of the Secretary’s complaint to conform to the evidence of record. In our review of this case we will consider each of the three prior violations of section 1916.51(a) as shown in the record. See generally, John and Roy Carlstrom, d/b/a Carlstrom Brothers Construction, 78 OSAHRC 96/A2, 6 BNA OSHC 2101, 1978 CCH OSHD ¶23, 155 (No. 13502, 1978).

[1] The Secretary refers the Commission to the Secretary’s brief submitted in George Hyman Construction Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977–78 CCH OSHD ¶21,774 (No. 13559, 1977), aff’d 582 F.2d 834 (4th Cir. 1978). The Respondent did not file a brief.

[2] Other circuit courts have agreed with the Commission’s decision not to follow the Third Circuit’s rule in Bethlehem Steel Corp., supra. See, e.g., George Hyman Construction Co. v. OSHRC, 582 F.2d 834 (4th Cir. 1978), affirming, George Hyman Constr. Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977–78 CCH OSHD ¶21,774 (No. 13559, 1977); Todd Shipyards Corporation v. Secretary of Labor and OSAHRC, 566 F.2d 1327 (9th Cir. 1977), affirming, Todd Shipyards Corp., 75 OSAHRC 32/A2, 2 BNA OSHC 1579, 1974–75 CCH OSHD ¶19, 272 (No. 1556, 1975).