UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 76–3444 & 76–3674
BETHLEHEM STEEL CORPORATION, and LOCAL 33, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, AUTHORIZED EMPLOYEE REPRESENTATIVE
Respondents.

February 25, 1981

DECISION

Before: CLEARY, Chairman, and COTTINE Commissioner*

BY THE COMMISSION:

Two decisions of Administrative Law Judge Benjamin Usher are before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’).[1] In these decisions, Judge Usher concluded that Bethlehem Steel Corporation (‘Bethlehem’) violated several shipbuilding safety standards published in 29 C.F.R. Part 1916. The first case, Docket No. 76–3444, involves nine citations arising from an inspection of a 265,000 ton supertanker at a graving dock in Bethlehem’s Sparrows Point Shipyard in Maryland. The second case, Docket No. 76–3674, concerns three citations arising from a follow-up inspection of the same supertanker at a wet dock in the same shipyard. In both decisions, the judge concluded that Bethlehem committed a serious violation of the Act by failing to comply with the scaffolding standard at 29 C.F.R. § 1916.41(a)(5).[2] He assessed a penalty of $1,000 in each case. The judge also concluded that Bethlehem failed to comply with five other standards in 29 C.F.R. Part 1916. The judge rejected, however, the Secretary of Labor’s (‘the Secretary’) characterization of these violations as repeated. He found that some of these alleged repeated violations were serious and others were other than serious; he assessed penalties totaling $7,300 for these violations. Both Bethlehem and the Secretary petitioned for review of Judge Usher’s decisions. Chairman Cleary granted both petitions for review. The direction for review was limited to the following issues:

(1) Whether 29 C.F.R. § 1916.41(a)(5) applies to the alleged violative conditions?

(2) If so, does the evidence establish that respondent violated the standard?

(3) Whether the judge erroneously characterized the violations that were cited as repeated violations?

I

The eight items at issue in both citation 2 in Docket No. 76–3444 and citation 1 in Docket No. 76–3674 allege that, contrary to 29 C.F.R. § 1916.41(a)(5), Bethlehem failed to maintain, at various places on the supertanker, scaffold staging in a safe condition because there were gaps between the staging and bulkheads. At the hearing, the compliance officer testified that according to his measurements the gaps in the scaffold staging ranged from twelve inches to twenty-four inches in width depending on the location. He testified that the fall distances from the scaffolds ranged from seven to fifty feet, and that the gaps in the staging presented a falling hazard that could cause serious bodily injury. Bethlehem offered rebuttal testimony contradicting several of the compliance officer’s measurements, but the judge found the testimony was ‘not convincing.’ The judge held that Bethlehem was in serious violation of the shipbuilding standard at section 1916.41(a)(5) assessed a penalty of $1,000 in each case. The judge concluded that each cited scaffold was not ‘safe’ within the meaning of the standard because there were gaps exposing employees to fall hazards.

On review, Bethlehem contends that section 1916.41(a)(5) is inapplicable. It argues that the standard mentions only ‘broken, burned or otherwise defective’ scaffolds and does not require that scaffolding be flush against the bulkhead. Bethlehem argues the maxim expressio unius est exclusio alterius[3] is applicable here and that the omission in section 1916.41(a)(5) of a clause requiring planking flush to a wall indicates the drafter’s intent not to include such a requirement in the standard. Bethlehem notes that the steel erection standard at 29 C.F.R. § 1926.750(b)(1)(i) requires full planking on derricks and erection floors.[4]

In response, the Secretary argues that the standard is applicable and that the gaps violated the requirement in section 1916.41(a)(5) to maintain scaffolding in a safe condition. The Secretary asserts that Bethlehem’s contention that the standard applies only to ‘broken, burned or otherwise defective’ staging is too narrow a construction of the standard and would render the first sentence of the standard redundant with the second. The Secretary contends that such an interpretation is contrary to the settled principle that standards are to be liberally construed to provide maximum protection to employees.

We conclude that the standard is inapplicable. The first sentence of section 1916.41(a)(5) imposes a duty to maintain scaffolds in a safe condition. The second sentence requires employees to replace any burned, broken or defective component of a scaffold. Although the first sentence of the standard used the first sentence of the standard uses the when read as a whole indicates that it was intended to address the structural soundness and integrity of the scaffold. We therefore do not read the word ‘safe’ in the standard as imposing any specific requirement with respect to the permissible distance between a bulkhead and scaffold planking. Accordingly, we reverse that part of the judge’s decision that concludes that Bethlehem was in serious violation of the Act for failure to comply with section 1916.41(a)(5),[5] and vacate items 1(a) through (h) of citation 2 in Docket No. 76–3444 and citation 1 in Docket No. 76–3674.

II

On review the Secretary argues that the judge erred in not characterizing other violations as repeated within the meaning of section 17(a) of the Act, 29 U.S.C. § 666(a). In both cases it was stipulated that each of the alleged repeated violations had been preceded by at least one final order citing Bethlehem for a violation of the same specific standard. There were two previous final orders for violating section 1916.43(c),[6] which requires guardrails on platforms more than five feet above a solid surface; four previous final orders for violating section 1916.41(i)(1),[7] which requires guardrails on scaffolds more than five feet above a solid surface; one previous final order for violating section 1916.41(i)(5),[8] which requires toeboards on scaffolds; three previous final orders for violating section 1916.43(a),[9] which requires covers on manholes and other small openings; and two previous final orders for violating section 1916.51(a),[10] which requires the maintenance of good housekeeping conditions. All of the previous violations occurred within a three-year period at Bethlehem’s Sparrows Point Shipyard and each one had become a final order of the Commission prior to the date of the related alleged repeated violation.

The judge concluded that the violations at issue were not repeated. He relied upon the interpretation of ‘repeatedly’ in Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3d Cir. 1976). There, the Third Circuit held that to find a repeated violation of the Act the record must show that the employer demonstrated a ‘flaunting’ disregard for the Act by, among other things, committing at least two previous violations.

On review, the Secretary argues that ‘the ‘nature and extent’ of the violations at issue in the instant cases, when viewed in the context of [Bethlehem’s] ‘barely tolerable’ past history and lack of good faith, clearly compel a classification of the violations as ‘repeated’ even if the unduly restrictive ‘flaunting’ test is applied.’ Bethlehem maintains that its conduct did not demonstrate a ‘flaunting’ of the Act. Bethlehem argues that it was cited for ‘a relative handful of violations,’ given the dimensions of the vessel, the ever-changing conditions on the vessel and the broad scope of the inspections. Bethlehem also asserts that it cannot be found to have ‘flaunted’ the Act because for many years it has had a safety program that it constantly monitored.

In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23, 294 (No. 16183, 1979), the Commission thoroughly re-examined its precedent on the issue of repeated violations in light of the position taken by the Third Circuit as well as those taken by the Fourth and Ninth Circuits in George Hyman Construction Co. v. OSHRC, 582 F.2d 834 (4th Cir. 1978), and Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327 (9th Cir. 1977). The Commission respectfully declined to follow the Third Circuit’s interpretation. We held that a violation is repeated if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation. Potlatch Corp., 7 BNA OSHC at 1063, 1979 CCH OSHD ¶ 23,294 at p. 28,171. The Commission also held in Potlatch that the Secretary may establish substantial similarity by showing that the past and present violations are for failures to comply with the same standard. The employer may rebut this by proving that the factual circumstances of the present violation are so different from the past violations that the situations cannot be viewed as substantially similar. Potlatch Corp., 7 BNA OSHC at 1063, 1979 CCH OSHD ¶ 23,294 at p. 28,171. See also Bethlehem Steel Corp., 80 OSAHRC 37/A2, 8 BNA OSHC 1309, 1980 CCH OSHD ¶24,412 (No. 76–1481, 1980). In this case, the Secretary established substantial similarity through Bethlehem’s stipulation, noted above, that it had not contested prior citations for failure to comply with the same standards at issue here. Moreover, the record shows that the present and antecedent violations were substantially similar. The Secretary submitted into evidence copies of the uncontested citations. The descriptions of the alleged violations in these citations demonstrate that the present and antecedent violations of the same standards concerned substantially similar conditions and hazards.[11] We therefore find that the violations were repeated.[12]

III

We now turn to the assessment of penalties for the ten repeated violations. In Docket No. 76–3444, the Secretary initially proposed a penalty of $2,000 for each citation involving twenty-nine violations of the standards at sections 1916.43(c), 1916.41(i)(1), 1916.41(i)(5) and 1916.43(a). For the citation involving fifteen violations of the standard at section 1916.51(a), the Secretary proposed a penalty of $400. In Docket No. 76–3674, the Secretary initially proposed a penalty of $4,000 for each citation involving nine violations of the standards at sections 1916.43(c), 1916.41(i)(1) and 1916.41(i)(5); he proposed a penalty of $500 for each citation involving two violations of the standards at sections 1916.51(a) and 1916.43(a).

Although we held in Potlatch that an employer’s flouting of the Act is not a factor in determining whether a violation is repeated, we noted that the employer’s attitude is considered when determining the good faith of the employer under section 17(j).[13] Other factors that bear on the employer’s good faith efforts to comply with the Act are the commonality of supervisory control over the violative conditions, the geographical proximity of the violations, the time lapse between violations, and the number of prior violations. See Potlatch Corp., 7 BNA OSHC at 1064, 1979 CCH OSHD ¶23,294 at p. 28,172.

As to good faith, Bethlehem argues extensively that it has an effective safety program, that Bethlehem has always cooperated with the Occupational Safety and Health Administration (‘OSHA’), and that Bethlehem has corrected safety problems when brought to its attention. In addition, Bethlehem argues that the number of alleged violations of the five standards were few given the numerous opportunities for possible violations on a supertanker. The Secretary argues that the testimony of the union president demonstrates that Bethlehem was aware of most of the violations at issue before the inspection. The union president testified that the union requested OSHA to conduct an inspection because Bethlehem had failed to abate the hazards even after a joint team of union and company safety representatives observed them. The Secretary also relies on the judge’s conclusion that, in view of the system of supervision employed by Bethlehem (assignment of a supervisor to a small work crew working in a limited area with daily viewing of the assigned work area by the supervisor), the supervisors must have been aware of the violative conditions.

Judge Usher concluded that Bethlehem’s good faith ‘leaves much to be desired.’ Although the judge found some merit to Bethlehem’s argument that the number of alleged violations were few given the size of the vessel, he also stated that Bethlehem’s foremen and supervisors were not adequately convinced of the need to promote employee safety and health. He regarded Bethlehem’s safety program as a ‘paper program that needs desperately to be communicated and effectuated.’ The judge also noted that the history of prior violations demonstrated ‘a compliance posture which can be described as barely tolerable.’ The judge found the gravity of all alleged repeated violations to be ‘relatively substantial.’ He found Bethlehem employed approximately 4,000 people at its Sparrows Point Shipyard. We accept Judge Usher’s findings.

Taking all of the above into consideration, we assess the following penalties:

Docket No. 76–3444

Citation 4, item 1. Bethlehem violated section 1916.43(c) at eight locations by not having guardrails on platforms on which employees were exposed to falling hazards. The judge rejected as unproven Bethlehem’s allegation that the cited railings were removed by unauthorized persons without supervisory knowledge. There were two previous final orders for violating this same standard. The Secretary proposed a $2,000 penalty. The judge concluded that the violation was serious and assessed a $1,000 penalty. We modify the judge’s decision and conclude that Bethlehem committed a repeated, serious violation and assess a $2,000 penalty.

Citation 5, item 1. Bethlehem violated the standard at section 1916. 41(i)(1) by failing to provide guardrails on scaffolds at nine locations. The judge rejected Bethlehem’s allegation that the railings were removed by unauthorized persons without supervisory knowledge. There were four previous final orders for violating this same standard. The Secretary proposed a $2,000 penalty. The judge concluded the violation was serious and assessed a $1,000 penalty. We modify the judge’s decision and conclude that Bethlehem committed a repeated, serious violation and assess a $2,000 penalty.

Citation 6, item 1. Bethlehem violated section 1916.41(i)(5) by failing to provide toeboards on scaffolds at five locations. Bethlehem contends that its policy of removing tools and scrap from staging, and not permitting employees to work beneath other employees, reduced the hazard. The judge rejected this argument, however, because he found that Bethlehem’s policy was ineffective as to these instances, that it was not strictly adhered to, and that Bethlehem’s safety program ‘amounts to a paper program.’ We agree with the judge’s view for purposes of setting a penalty. There was one previous final order for violating this standard. The Secretary proposed a $2,000 penalty. The judge concluded the violation was serious and assessed a $1,000 penalty. We modify the judge’s decision and conclude that Bethlehem committed a repeated, serious violation and assess a $1,000 penalty.

Citation 7, item 1. Bethlehem violated section 1916.43(a) by failing to cover manholes and other small openings at seven locations. There were three previous final orders for violating this standard. The Secretary proposed a $2,000 penalty. The judge concluded the violation was serious and assessed a $1,000 penalty. We modify the judge’s decision and conclude that Bethlehem committed a repeated, serious violation and assess a $1,500 penalty.

Citation 8, item 1. Bethlehem violated section 1916.51(a) by failing to maintain good housekeeping conditions at fifteen locations. There were two previous final orders for violating this standard. The Secretary proposed a $400 penalty. The judge concluded that the violation was other than serious and assessed a $400 penalty. We modify the judge’s decision and conclude that Bethlehem committed a repeated, other than serious violation but affirm his assessment of a $400 penalty.

Docket No. 76–3674

Citation 2, item 1. Bethlehem violated section 1916.41(i)(1) by failing to provide guardrails on four scaffolds more than five feet above a solid surface. There were two previous final orders for violating this same standard. The Secretary proposed a $4,000 penalty. The judge concluded that the violation was serious and assessed a $1,000 penalty. We modify the judge’s decision and conclude that Bethlehem committed a repeated, serious violation and assess a $2,000 penalty.

Citation 2, item 2. Bethlehem violated section 1916.43(c) at three locations by not having guardrails on platforms on which employees were exposed to falling hazards. There were two previous final orders for violating this standard. The Secretary proposed a $4,000 penalty. The judge concluded the violation was serious and assessed a $1,000 penalty. We modify the judge’s decision and conclude that Bethlehem committed a repeated, serious violation and assess a $1,500 penalty.

Citation 2, item 3. Bethlehem violated section 1916.41(i)(5) by failing to provide toeboards on scaffolds at two locations. There was one previous final order for violating this same standard. The Secretary proposed a $4,000 penalty. The judge concluded that the violation was neither serious nor repeated and assessed a $500 penalty because ‘there was no direct testimony or valuable opinion evidence regarding the seriousness of the potential hazard.’ We modify the judge’s decision and conclude that Bethlehem committed a repeated, other than serious violation and assess a $600 penalty.

Citation 2, item 4. Bethlehem violated section 1916.51(a) by failing to maintain good housekeeping conditions at one location. There were two previous final orders for violating of this same standard. The Secretary proposed a $500 penalty. The judge concluded that the violation was other than serious and assess a $200 penalty. We modify the judge’s decision and conclude that Bethlehem committed a repeated, other than serious violation and assess a $400 penalty.

Citation 2, item 5. Bethlehem violated section 1916.43(a) by failing to cover an opening in a walking surface. There were three previous final orders for violating this standard. The Secretary proposed a $500 penalty. The judge concluded that the violation was other than serious and assessed a $200 penalty. We modify the judge’s decision and conclude that Bethlehem committed a repeated, other than serious violation and assess a $200 penalty.

Accordingly, we vacate items 1(a) through (h) of citation 2 in Docket No. 76–3444 and citation 1 in Docket No. 76–3674 alleging serious violations of section 1916.41(a)(5). We modify the judge’s decision and characterize as repeated the violations of the standards at sections 1916.43(c), 1916.41(i)(1), 1916.41(i)(5), 1916.43(a), and 1916.51(a). We assess a total penalty of $11,600 for these violations.

SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.,

EXECUTIVE SECRETARY

DATED: FEB 25, 1981

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76–3444
BETHLEHEM STEEL CORPORATION, and LOCAL 33, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, AUTHORIZED EMPLOYEE REPRESENTATIVE
Respondents.

January 9, 1978

DECISION AND ORDER

APPEARANCES:

Howard K. Agran, Esq. Office of the Regional Solicitor U. S. Department of Labor Philadelphia, Pennsylvania for Complainant

Murray N. Shelton, Jr., Esq. Labor Attorney Bethlehem Steel Corporation Bethlehem, Pennsylvania for Respondent

Mr. Murphy Thornton

President, Local 33

I.U.M.S.W.A.

Baltimore, Maryland

for affected Employees

USHER, Judge:

This is a proceeding initiated by the Secretary of Labor, United States Department of Labor, pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter referred to as the Act) seeking affirmance by the Commission of nine Citations which charge six ‘non-serious’ violations, two ‘serious’ violations and six ‘repeated’ violations of Sections 5(a)(1) and 5(a)(2) of the Act, and seeking further to have the Commission assess penalties for these alleged violations totaling $11,200.[14]

The Citations resulted from an inspection of a work site maintained by Respondent aboard a 265,000 ton supertanker (‘Hull 4645’) which was being constructed in a graving dock at Respondent’s Sparrows Point (Maryland) Shipyard. The inspection by Complainant’s agents, Compliance Safety and Health Officers (‘CSHOs’) from the Baltimore office of the Occupational Safety and Health Administration (‘OSHA’) was initiated as the result of a complaint by the union (Local 33, I.U.M.S.W.A.). It commenced on June 28 and was concluded on July 9, 1976. Eight days of inspection were involved. Officials of Respondent’s safety department and several union representatives accompanied the CSHOs during the physical inspection of the workplace.

Respondent filed a timely Notice of Contest which placed in issue all of the Citations as well as Complainant’s Notification of Proposed Penalties. A Complaint and Answer followed pursuant to the Commission’s Rules of Procedure.

The issues were tried before me at Baltimore, Maryland, on January 24, 25, 26, 27 and February 1 and 2, 1977.

The affected employees’ representative (‘the Union’) elected party status through its Executive Secretary, James C. Harmon, on January 21, 1977, and evidence was adduced at the trial by Complainant, Respondent and the Union.

Complainant and Respondent have submitted Post Trial Briefs. The Union has not.

The Issues

The pleadings, evidence adduced by the parties, arguments of counsel and the briefs submitted subsequent to the trial have served to raise the following issues:

1. Whether evidence adduced by the Union should be stricken.

2. Whether Complainant’s Motion to Amend Citation No. 1 (and related portions of the Complaint) to allege violation of an additional safety standard (alternatively to that set forth in Citation No. 1, Item 1) should be granted.

3. Whether Respondent committed any or all of the violations alleged by Complainant;

a. Whether the acts and omissions of Respondent, which are asserted as violative of the provisions of the Act, were ‘isolated incidents . . . considering the dimensions of the ship, the number of employees working on it and their varied changing activities and the consequent number of potential violations;’

b. Whether lack of knowledge of the alleged violative conditions by Respondent’s supervisory personnel precludes a finding of violation;

c. Whether employee failure to abide by safety rules promulgated by Respondent absolves Respondent.

4. If Respondent has violated the Act in any or all of the instances charged by Complainant, whether the violations are properly classified as ‘repeated,’ ‘serious’ or ‘other than serious,’ as defined in Section 17 of the Act.

5. If Respondent has violated the Act in any or all of the instances charged by Complainant, what penalty or penalties are appropriate when due consideration is given to the size of Respondent’s business, the gravity of the violations, Respondent’s good faith attitude (or lack thereof) regarding the safety and health of its employees, and the history of Respondent’s compliance or non-compliance with the provisions of the Act.

Evidence Adduced by Affected Employees’ Representative

Respondent has moved to strike ‘all testimony adduced by [the Union]’ and argues that it should ‘not be considered in the deliberations covering this case.’ Its argument rests on the theory that Section 10(c) of the Act ‘limits employee contests to the reasonableness of the period of time which is fixed in the citation for abatement [and] not only did [the Union] not charge a failure of abatement, in fact abatement was effected shortly after the issuance of the Citation in each and every item covered by the Citation.’ Section 10(c) of the Act provides, in pertinent part:

If an employer notifies the Secretary that he intends to contest a citation issued under section 9(a) or notification issued under subsection (a) or (b) of this section, or if, within fifteen working days of the issuance of a citation under section 9(a), any employee or representative of employees files a notice with the Secretary alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing . . ..

The rules of procedure prescribed by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this subsection. (Emphasis added.)

Thus, the Congressional intent is clearly set forth in the Act. That provision of the law, taken in conjunction with the legislative history, leaves no doubt that affected employees shall be given an opportunity to participate fully as parties in any action brought pursuant to ‘this subsection’ (Section 10(c)) whether initiated by ‘an employer’ or ‘any affected employee or representatives of affected employees.’

Respondent cites Secretary of Labor v. OCAW (Mobil Oil Corporation), OSHRC Docket No. 562, 1 BNA OSHC 1104; Secretary of Labor v. UAW Local 588 (Ford Motor Company), OSHRC Docket No. 2786, 4 BNA OSHC 1243; and Secretary of Labor v. U. S. Steel Corporation, OSHRC Docket Nos. 2975, 4349, 4684, 14999, 4 BNA OSHC 2001, in support of its position. Those decisions stand for entirely different propositions. None are apropos here.

In this instance the Union’s participation as a party was full and complete. It was, indeed, helpful to the trier of fact and was clearly within the intent of Congress as expressed in no uncertain terms in Section 10(c) of the Act.[15]

Respondent’s motion to strike evidence adduced by the Union is denied.

Amendment of Citation and Complaint

In Citation No. 1, Item 1, Complainant has set forth an allegation of violation of Section 5(a)(2) of the Act because of noncompliance with the safety standard codified at 29 CFR 1910.24(h). That regulation provides:

Standard railings shall be provided on the open sides of all exposed stairways and stair platforms. Handrails shall be provided on at least one side of closed stairways, preferably on the right side descending. Stair railings and handrails shall be installed in accordance with the provisions of § 1910.23.

At the conclusion of the presentation of Respondent’s case, Complainant moved to amend that charge to assert ‘in the alternative, a possible violation of 29 CFR 1910.23(d)(1)’ (Tr. 900). That safety standard requires that:

Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified in subdivisions (i) through (v) of this subparagraph, the width of the stair to be measured clear of all obstructions except handrails:

(i) On stairways less than 44 inches wide having both sides enclosed, at least one handrail, preferably on the right side descending.

(ii) On stairways less than 44 inches wide having one side open, at lease one stair railing on open side.

(iii) On stairways less than 44 inches wide having both sides open, one stair railing on each side.

(iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side.

(v) On stairways 88 or more inches wide, one handrail on each enclosed side, one stair railing on each open side, and one intermediate stair railing located approximately midway of the width.

Respondent urges that the standard codified at 29 CFR 1910.24(h) is a ‘specification standard which sets forth the requirements for designing and constructing stairs . . . the stairs were under construction and, therefore, the Standard was met . . . because the railings were to be installed on the stairs according to schedule, just as the Standard requires.’

Although not specifically so stated by Complainant’s counsel, the motion to amend is seemingly grounded on Rule 15(b), Federal Rules of Civil Procedure (Commission Rule 2(b)). However, the record indicates that Respondent did not expressly or impliedly consent to trial of the issues raised by the regulation appearing at 29 CFR 1910.23(d)(1).

It is significant that Complainant did not seek to amend until the conclusion of Respondent’s case in chief on February 1, 1977, more than six months after the issuance of the citation and almost five months after Respondent asserted in its Answer that the wrong standard had been cited.[16] Deliberately or not, Complainant misled Respondent during all of that period when trial preparation was continuing. Prejudice to Respondent under such circumstances is evident.[17]

Complainant’s motion to amend is denied.

Discussion and Evaluation of Evidence of Alleged Violations

Citation No. 1, Items 1(a), 1(b) and 1(c)

Complainant has charged violations because of the lack of a standard railing on the open sides of exposed stairways at three different locations in the ‘deck house’ of the ship. The CSHO testified that he observed these conditions, and Respondent has not sought to rebut that testimony. Respondent argues, however, that the cited standard (1910.24(h)) ‘is a specification standard which sets forth the requirements for designing and constructing stairs... the stairs were under construction . . . the railings were to be installed on the stairs according to schedule . . . and, therefore, the Standard was met.’

The CSHO stated that he observed Respondent’s employees using the unguarded stairs.

Assuming the correctness of Respondent’s argument that the standard in question is a specification standard, its logical intent is to require that its provisions be met before the stairs are put into use by employees. Thus, the employees’ use of the unfinished stairs constituted the obvious hazard sought to be avoided, and a violation of the regulation occurred.

Citation No. 1, Item 2

Respondent is charged with a violation of Section 5(a)(2) of the Act because of its alleged failure to comply with the safety standard codified at 29 CFR 1916.64(a) which requires that chain falls shall be clearly marked to indicate their capacities.

The CSHO observed two of Respondent’s employees using an unmarked chain fall in number 6 wing tank at the time of his inspection. Respondent has not rebutted the CSHO’s assertion, but rather has argued that ‘there were hundreds of chain falls on Hull 4645 [and] . . . it must be concluded that the one instance cited... was an isolated instance and was outside the clear and long established policy . . . to mark chain falls.’

The violation was established. The fact that it may have been an isolated instance has limited merit.

Citation No. 1, Items 3(a), 3(b), 3(c) and 3(d)

Respondent is charged with violating the Act because of its failure to comply with the provisions of the safety standard codified at 29 CFR 1916.64(c) which requires, inter alia, that the upper hooks of chain falls be ‘moused or otherwise secured against coming free of [their] support[s].’ The CSHO testified that he observed 14 different ‘unmoused’ chain falls in four general areas on the ship. Employees of Respondent were working directly beneath or otherwise near the chain falls in question.

Respondent has not denied the basic factual assertions regarding these alleged violations, but rather, has asserted that the chain falls ‘were otherwise secured by positioning the supporting members so that the load was vertical or nearly so.’ Respondent’s witnesses testified that the positioning of the load upon the chain falls rendered the possibility of an accident ‘highly unlikely.’ That assertion was not seriously rebutted by the testimony adduced by Complainant or the Union. The violations were not proved.

Citation No. 1, Item 4

Complainant has charged that Respondent used scaffolding as a point of attachment for lifting devices, viz., chain falls at two locations on the ship. The safety standard in question provides:

Scaffolding shall not be used as a point of attachment for lifting devices, such as tackles, chain falls, and pull-lifts unless the scaffolding is specifically designed for that purpose (29 CFR 1916.64(d)).

The CSHO testified that he saw four one-ton chain falls suspended from scaffolds or ‘staging boards’ and observed Respondent’s employees working with or under the lifting devices. Respondent’s witnesses disputed the assertion that the planking to which the chain falls were attached was scaffolding, and Complainant’s witness was unable to allay that doubt. Except for the asserted fact that one laborer was observed walking (or working) on one of the staging boards in question, Complainant was not able to rebut Respondent’s assertion that the boards were specifically designed to support the lifting devices and were not employee walkways or work stations. The asserted violation was not proved.

Citation No. 1, Item 5

The safety standard set forth at 29 CFR 1961.41(h)(3) requires:

Platform planking shall project beyond the supporting members at either end by at least 6 inches but in no case shall project more than 12 inches unless the planks are fastened to the supporting members.

Complainant has charged that ‘employees were permitted to use staging . . . on which the planking extended four feet beyond the supporting member and was not secured.’ The CSHO testified that he observed one of Respondent’s employees working on planking not constructed in accordance with the cited standard. Respondent’s Supervisor of Safety (at the Sparrows Point Yard) accompanied the CSHO on the inspection tour, and he denied having seen the employee on the planking in question. Furthermore, according to Respondent’s witness, a railing was in place to prevent employee access to the ‘extended area’ and a weight-displacement factor would preclude overturning or tipping the planking. Thus, Respondent urges that no hazard was presented. I disagree. Weighing the credibility of the witnesses, I have concluded that a violation was proved, a hazard existed, and an employee was exposed.

However, Respondent’s argument that ‘the 4’ overhang was not a normal practice, it was an isolated incident’ does have merit.

Citation No. 1, Item 6

Complainant has charged that ‘[t]he exposed noncurrent-carrying metal parts of a temporary light . . . were not grounded’ contrary to the requirements of the safety standard codified at 29 CFR 1916.52(c). That standard provides:

[e]xposed non-current-carrying metal parts of temporary lights furnished by the employer shall be grounded either through a third wire in the cable containing the circuit conductors or through a separate wire which is grounded at the source of the current. Grounding shall be in accordance with the requirements of § 1916.72(b).

Complainant’s witness observed a temporary quartz light the ground wire of which was disconnected or ‘hanging loose.’ He assumed from that observation that the light was not grounded, but, as explained by Respondent’s Supervisor of Safety, the light was in fact grounded ‘by means of the metal base [of the light] . . . bolted to the ship’s structure [which] is grounded.’

Perhaps the grounding in this instance was not accomplished in strict accordance with the requirements of the standard or standards in question, but it appears that no hazard resulted. Thus, the violation, if any, would be de minimis.

Citation No. 2, Items 1(a) through 1(h)

In Items 1(a), 1(b), 1(c), 1(d), 1(e), 1(f), 1(g), and 1(h) of Citation No. 2 Complainant has charged ‘serious’ violations of the safety standard which provides that:

[s]caffolds shall be maintained in a safe and secure condition. Any component of the scaffold which is broken, burned or otherwise defective shall be replaced. (29 CFR 1916.41(a)(5)).

Specifically, it is charged that ‘[e]mployees were permitted to use staging that was not being maintained in a safe condition in that the staging was not fully planked . . .’ at eight different locations.

Item 1(a) contains the allegation that there was a one-foot opening between the planking and the bulkhead in the engine room of the ship. The CSHO testified regarding his observation of the condition and identified employees who worked on the staging. A 12–1/2 foot fall awaited the employee who stepped off the end of the planks, according to Complainant’s witness.

Item 1(b) involves staging at the fore peak tank bulkhead 128 where, according to the CSHO, there was a 20-inch gap. A 20-foot fall was described as the hazard for employees who misstepped. The exposed employees were identified.

Item 1(c) involves staging at the No. 7 starboard wing tank bulkhead 66 where a 17-inch opening between the planks and the bulkhead was observed by Complainant’s agent. The possibility of a 35-foot fall to the next lower level was described, and the employee observed working at the location was identified.

At frame 106 in the No. 2 starboard wing tank the CSHO saw a 19-inch opening, 12–1/2 feet long, between the staging boards and the bulkhead (Item 1(d)). The hazard, a 29-foot fall to the area below, was described, and Respondent’s employee working at the scene was identified.

Complainant asserted (as Item 1(e), Citation No. 2) that there was a 2-foot opening between the staging and a handrail at frame 95 in the starboard wing tank. The CSHO testified that he observed the condition, observed an employee working at that location, and noted that if an employee fell from the staging, he would fall approximately nine feet to the surface below.

At frame 114 in the No. 1 port wing tank, the CSHO observed a 15-inch opening between staging and the web bulkhead. That condition is charged as a violation in Item 1(f) of Citation No. 2. A seven-foot fall could have been sustained by the employee, Charles Richardson, who worked at that location on July 2, 1976, according to the testimony.

A 15-inch opening was observed between the staging and bulkhead 82 in the No. 5 wing tank (as charged in Item 1(g)), according to the testimony, and a 16-foot fall could have occurred. Respondent’s employee Song Sosa was seen working at that location.

In Item 1(h), Citation No. 2, Complainant has charged a violation because of a 19-inch gap between the staging boards and the bulkhead in the No. 6 starboard wing tank at bulkhead 74. One of Respondent’s employees was observed working at that location, and a fall of 23 feet to the deck below was described as the hazard presented.

The testimony of Complainant’s agent regarding the allegedly unsafe, insecure and defective scaffolding was supported in part by the testimony of Respondent’s employees, but, more noticeably, it was not materially contradicted by any witness.

Respondent argues that there is no evidence that any of the planks were ‘broken, burned or otherwise defective.’ Thus, Respondent argues ‘that the cited [s]tandard is not applicable to the situation involved . . ..’ The described conditions did, in my opinion, render the scaffolds unsafe and insecure. The missing planks, the gaps and holes did, in fact, present falling hazards, and employees were exposed to those hazards.

The argument adduced by Respondent: ‘there was [sic] over 2,900,000 board feet of staging [on the ship] and the eight items under Citation 2 were the only items for which the Respondent was cited for allegedly defective planking,’ has merit. These conditions may well have been ‘isolated instances’ as Respondent claims. They were, nevertheless, noncompliant with the requirements of the standard and thus, violative of the Act.

The testimony of Respondent’s witness that ‘there was no drop from the staging’ (with respect to the conditions described in Items 1(b), 1(c), 1(d) and 1(e) of Citation No. 2) is not convincing in light of all the testimony to the contrary.

The argument put forth by Respondent’s witnesses that the staging is deliberately arranged to allow gaps for the passing of material through them is likewise unconvincing. The proposition that the standard in question allows for gaps between the scaffold and the bulkhead is rejected as unsound.

Citation No. 3, Items 1(a) through 1(h)

Complainant has charged eight ‘serious’ violations of Section 5(a)(1) of the Act (the so-called ‘general duty’ clause)[18] because of the exposure of employees to allegedly faulty electrical cables and similar electrical hazards.

The general duty clause of the Act prohibits ‘recognized hazards that are causing or are likely to cause death or serious physical harm to employees.’ To establish a ‘serious’ violation Complainant must prove ‘a substantial probability that death or serious physical harm could result . . . unless [Respondent] did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.’ (Section 17(k) of the Act; 29 U.S.C. 666(k).) See National Realty and Construction Company, Inc. v. OSHRC, et al, 489 F.2d 1257 (D.C. Cir., 1973); Secretary of Labor v. Marquette Cement Manufacturing Company, OSHRC Docket No. 4725, —— F.2d ——, CCH OSHD para. 22,099 (2d Cir. August 29, 1977).

Respondent urges that ‘the employee exposure was unforeseeable and not according to instructions [and] there has been a program in effect for many years at the Yard for repairing and maintaining electrical cable.’ It is further argued that Complainant has failed to prove ‘that a hazard existed’ as the result of the presence of the faulty cables.

In Item 1(a) of Citation No. 3 it is charged that the door of a 440-volt transformer box (located on the port side aft of the Main deck) was found open. Complainant failed to prove how the transformer box came to be open, who left it open or how long it had been open. Respondent’s argument that it ‘could have been opened as recently as five minutes earlier’ (before being found in that condition by the CSHO) is well taken. Knowledge of the violation by Respondent has not been proved.

Items 1(b) through 1(h) of Citation No. 3 contain asserted violations of Section 5(a)(1) of the Act because of the presence of 220-and 440-volt cables which were observed laying on the Main deck. The cables were, according to Complainant’s witnesses, ‘frayed,’ ‘deteriorated’ and had ‘poorly insulated’ splices. The testimony establishing these conditions and verifying employee exposure was entirely credible.

That the faulty cables constituted a recognized hazard can hardly be questioned. ‘The potential for injury is indicated on the record . . . and, or course, by common sense . . . [i]t scarcely requires expertise in the industry to recognize [that exposed or partially exposed current-carrying electrical wires] . . . is hazardous.’ Secretary of Labor v. Marquette Cement Manufacturing Company, supra. Furthermore, as was true in Marquette (supra), specific standards prohibit the existence of these very conditions in the construction industry (e.g., see 29 CFR 1926.402(a)(5), 1926.402(a)(7) and 1926.402(a)(10)).

Respondent’s asserted defense that ‘Complainant has failed to describe and demonstrate the feasibility and likely utility of the particular measures or steps [that] should have [been] taken to avoid the Citation . . . ‘is without merit. The obvious answer is more frequent inspection and repair of the cables. The CSHO testified to that.

Finally, the assertion that the employees may have caused the violation—or could have avoided it—is answered by the Circuit Court in Marquette, supra: ‘Even if a hazard is partially caused by an employee’s own conduct, the employer is responsible if he could have prevented it.’

Citation No. 4, Items 1(a) through 1(h)

Eight ‘repeat’ [sic] violations of Section 5(a)(2) of the Act are charged in Citation No. 4 because of Respondent’s alleged noncompliance with the safety standard codified at 29 CFR 1916.43(c). The cited standard reads:

When employees are exposed to unguarded edges of decks, platforms, flats, and similar flat surfaces, more than 5 feet above a solid surface, the edges shall be guarded by adequate guardrails meeting the requirements of § 1916.41(i)(1) and (2), unless the nature of the work in progress or the physical conditions prohibit the use or installation of such guardrails; . . ..

29 CFR 1926.41(i) requires (in pertinent part):

(1) Scaffolding, staging, runways, or working platforms which are supported or suspended more than 5 feet above a solid surface, or at any distance above the water, shall be provided with a railing which has a top rail whose upper surface is from 42 to 45 inches above the upper surface of the staging, platform, or runway and a midrail located halfway between the upper rail and the staging, platform, or runway.

(2) Rails shall be of 2 x 4 inch lumber, flat bar or pipe. When used with rigid supports, taut wire or fiber rope of adequate strength may be used. If the distance between supports is more than 8 feet, rails shall be equivalent in strength to 2 x 4 inch lumber. Rails shall be firmly secured. Where exposed to hot work or chemicals, fiber rope rails shall not be used.

Complainant has asserted that employees were required to work or walk on unguarded elevated catwalks, decks, webs and platforms at eight different locations on Hull 4645. The employees observed by the CSHO in such positions on June 30, July 1, July 2, July 6 and July 7, 1976, were identified by Complainant’s witness. His testimony was corroborated in several respects by the testimony of Respondent’s employees.

Respondent again attempts to trivialize the alleged violations by pointing out that ‘[o]f the 2.9 million board feet of staging [on Hull 4645] the only alleged violations were the eight items listed in Citation No. 4.’ While certainly not a valid defense, that observation may have merit.

Respondent attempted to establish as fact the opinion of several of its witnesses that railings were removed by unauthorized persons (employees) without supervisory knowledge. The assertions were not proven.

It was established, however, that in some instances employees had ‘received safety contacts’ (seemingly a mild reprimand or vague warning) because of working on staging without railings.

According to Respondent’s witnesses the use of safety belts is ‘required where needed,’ and they are ‘available.’ One instance of an employee being ‘knocked off’ because of his failure to use a safety belt was recalled by one of Respondent’s witnesses.

The evidence supports the charges set forth in Citation No. 4. The falling hazards (potential drops of from 10 to 30 feet to surfaces below) were described.

Citation No. 5, Items 1(a) through 1(i)

Repeated violations at nine different locations were charged because of Respondent’s failure to comply with the requirements of the safety standard codified at 29 CFR 1916.41(i)(1).

That standard provides:

Scaffolding, staging, runways, or working platforms which are supported or suspended more than 5 feet above a solid surface, or at any distance above the water, shall be provided with a railing which has a top rail whose upper surface is from 42 to 45 inches above the upper surface of the staging, platform, or runway and a midrail located halfway between the upper rail and the staging platform, or runway.

The testimony of Complainant’s agent and Respondent’s employees served to verify the allegations set forth in the citation. Ten or more employees who worked or walked upon unguarded staging in late June, 1976, were identified.

Respondent again asserted and attempted to establish the defenses raised as to the violations charged in Citation No. 4, viz., the 2.9 million board feet of staging and only nine alleged violations; the company policy regarding the erection of guardrails where needed; the ‘possible’ removal of guardrails by unknown employees without the knowledge of supervisory personnel; the yard’s safety belt practice; and alleged employee misconduct which caused the asserted violations. None of these defenses was established; however the ‘misconduct’ assertion deserves discussion.

It is sufficiently well settled to state as a general proposition:

‘. . . If an employee is negligent or creates a violation of a safety standard, that does not necessarily prevent the employer from being held responsible for the violation. [Citations omitted.] True, an employer is not an insurer under the Act. But an employer is responsible if it knew or, with the exercise of reasonable diligence, should have known of the existence of a serious violation.’

See Secretary of Labor v. Butler Lime and Cement Company, et al., 520 F.2d 1011 (7 Cir. 1975) and cases cited therein. The question of this Respondent’s knowledge, its exercise of reasonable diligence and thus its responsibility is treated hereinafter.

Citation No. 6, Items 1(a) through 1(e)

Respondent is charged with repeated violations of the Act because of its alleged failure to comply with the safety standard codified at 29 CFR 1916.41(i)(5) which requires that toeboards be provided on scaffolds and other elevated working platforms when they are necessary to prevent materials and tools from falling on employees below.

The record establishes without contradiction that prices of flatbar, staging brackets, nuts and bolts and scrap material were observed on suspended or elevated staging. Employees were either working or walking upon these surfaces at the time, and coincidentally other employees were exposed to the hazard of these objects falling as they worked below the staging.

Respondent argues that toeboards are required by the standard only ‘when necessary’ to prevent tools and materials from falling on men below. That, of course, is true. The argument that Complainant failed to establish employee exposure is not supported by the record. That Complainant’s witness ‘did not know of any accident which occurred as the result of tools or materials falling off staging’ is impertinent. The obvious intent of the Act is to prevent the first accident. Evidence of a prior accident may serve to prove a hazardous condition, but the fact that no accidents (at a particular work site) are attributable to a given condition, practice or procedure proves nothing.

The ‘unnecessary’ argument is carried a step further when Respondent seeks to establish the existence of a ‘Corporate-wide policy on removing scrap and tools from staging’ and its efforts to enforce that policy. Respondent’s safety policy is addressed elsewhere in this opinion, but it should suffice to observe here that the policy was ineffective at least in those instances cited by Complainant.

Respondent’s ‘policy’ of not allowing its employees to work under other employees was likewise not strictly adhered to, according to the evidence, despite the alleged stopping of work in progress in some such situations.

The assertion by Respondent that the 10 to 40-pound pieces of flatbar and brackets were too heavy to fall or be knocked from the staging lacks merit.

The record supports Complainant’s charge that the missing toeboards were necessary and thus establishes the violations set forth in Citation No. 6.

Citation No. 7, Items 1(a) through 1(g)

The safety standard codified at 29 CFR 1916.43(a) provides:

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 suitable covered or guarded to a height of not less that 30 inches, except where the use of such guards is made impracticable by the work actually in progress.

Complainant has charged seven repeated violations of this standard at separate locations on the ship. He has identified employees whom his agent observed working ‘near,’ ‘next to’ or ‘adjacent to’ the unguarded openings. The testimony of the CSHO was corroborated by employee statements in several instances.

Respondent again raises the ‘isolated instance’ defense and asserts that there are ‘thousands of construction holes on board Hull 4645 [and only] seven . . . construction holes . . . [were] cited.’ While that argument may have some limited merit, it does not alter the facts as proven by Complainant.

The assertion by Respondent that employee exposure was not proven is ill-founded.

Respondent contends that ‘penetrations are made in the deck daily [and] it could very likely be that supervision was not made aware of the particular holes.’ While such an argument may have mitigating value as a defense, it does not serve to negate the charge that the violations existed as the time of the OSHA inspection. Respondent’s knowledge and its duty to know are discussed below.

Citation No. 8, Items 1(a) through 1(o)

The safety standard appearing at 29 CFR 1916.51(a) reads:

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.

Fifteen instances of violation of the quoted standard are charged because ‘[e]mployees were assigned . . . to work . . . where they were subjected to tripping and falling hazards by reason of excessive accumulations of pipe, electric and welding cables, oxygen/acetyline houses, compressed air hoses, ventilation tubing and scrap.’ Specific employees who ‘were working in,’ ‘had to pass through’ or ‘had to walk’ in these cluttered areas were identified. The testimony of the CSHO and several employees established the charge, and photographic evidence corroborated that testimony.

Respondent seeks to defend against these charges by asserting, ‘each employee in the yard is specifically responsible for keeping his or her own work area clean.’ The record establishes employer knowledge of the conditions. Respondent’s supervisory personnel could hardly claim a lack of knowledge in view of the word descriptions of the areas in question and the photographic evidence. Thus employee responsibility, in itself, is not the answer (Secretary of Labor v. Butler Lime and Cement Company, et al., supra.).

The argument that Complainant’s position is unrealistic inasmuch as it ‘would mean hundreds of walkways [and that] . . . would not be possible or practical’ misses the point. The regulation requires that only ‘adequate’ aisles, passageways and work areas be free from unnecessary accumulations of tools, materials and equipment. The asserted violation goes to that end result, and Complainant does not seek more here than the standard requires.

Respondent correctly points out that some (but not all) of the material and equipment which cluttered the areas in question was in use at the time of the inspection. It is that which was not in use that Complainant seeks to have removed.

Respondent rejects the suggestion that it could use ‘trees’ and overhead hooks to elevate hoses and electrical conductors. In some instances perhaps such devices would be impractical or be obstacles to the operation of overhead cranes, as Respondent asserts, but the infeasibility of such means of eliminating tripping hazards in all areas was not shown. Likewise, Respondent has not shown the impossibility of covering hoses and electrical cables by means of crossover planks or molded treadles of some type.

Citation No. 9, Items 1(a), 1(b) and 1(c)

Respondent is charged with permitting employees to use ‘ladders with side rails that did not extend 36 inches above the landing’ at three separate locations. The safety standard in question provides, in pertinent part:

The sides rails of ladders used for access to any level shall extend not less than 36 inches above that level. When this is not practical, grab rails which will provide a secure grip for an employee moving to or from the point of access shall be installed. (29 CFR 1916.42(a)(3).)

The cited violations are characterized as ‘repeat’ [sic].

The record establishes the allegation that in the three locations described there were in use ladders without side rails extending 36 inches above the access levels. However, the unrebutted evidence adduced by Respondent established that there was in each instance a ‘grab rail’ of one sort or another which provided a secure grip for an employee who moved to or from the point of access. Complainant’s witnesses questioned the adequacy of the pipes and other material which provided the grip, but their testimony did not serve as serious refutation of Respondent’s position.

No evidence was adduced by either party regarding the practicability of extending the side rails on the ladders.

Complainant did not prove a violation of the safety standard set forth at 29 CFR 1916.42(a)(3).

Employer Knowledge of Hazardous Conditions; Employee Misconduct; Isolated Instances

It is now well settled that employer knowledge or scienter[19] is an essential element of ‘serious’ as well as non-serious violations.[20] Complainant has the burden of proving that Respondent, through its supervisory personnel, knew or should have known of the violative conditions to which its employees were exposed.[21] In the absence of proof of actual knowledge, constructive knowledge by the employer may be shown through evidence of the absence of an adequate safety program or by a showing that an adequate safety program was inadequately enforced.[22]

If, as Respondent contends, ‘many of the alleged violations . .. existed without supervisory knowledge or control,’ then its safety program must be scrutinized to determine whether that lack of knowledge is attributable to a failure on the part of supervisory personnel to use due diligence to detect safety violations. According to the evidence elicited by Respondent on cross examination of an employee, a supervisor might supervise ‘anywhere from 10 to 25 hourly employees . . . located in one general area.’ Such an ‘area’ was described as being ‘10 times the size of [an average-size courtroom] . . ..’[23] On that basis, it is difficult to conclude that the employer’s representatives would not be aware of such obvious condition as missing guardrails, staging planks and toeboards or uncovered floor openings, strewn cables and hoses and the like.

In assessing the employer’s knowledge of the violations, or lack thereof, its general safety program, the implementation and administration of that program, and the ‘feasible precautionary steps [taken] to prevent the hazard[s]’ must be considered.

The testimony of Respondent’s Corporate Safety Engineer is entirely credible. There can be little doubt from the record that Respondent has demonstrated a real concern for the safety and health of its employees. Whether that corporate concern has found viability at Respondent’s Sparrows Point Shipyard is questionable. The considerable testimony adduced by (and from) the hourly employees leaves doubt concerning the adequacy of the safety program at the shipyard and the communication of that program’s objectives to the hourly employees. See Secretary of Labor v. Enfield’s Tree Service, Inc., OSHRC Docket No. 9118, CCH OSHD para. 21,607. Respondent seemingly would place much of the blame upon the employees and their representatives (the Union). The Union and its members decline to accept any responsibility for wrong-doing and charge that ‘management’ is lax.

I find as a matter of fact that the management at Respondent’s Sparrows Point Shipyard has done little beyond mouthing Respondent’s general safety program. Its safety supervisor, foremen, superintendents, and supervisors spoke garrulously of the safety programs at the shipyard. Their testimony was noticeably pat. It was contradicted in many respects by the patent facts and in almost every respect by the employees’ accounts.

Testimony by Respondent’s witnesses concerning the distribution of safety manuals and their assertions regarding safety conferences with employees (‘safety audits’ and ‘employee-supervisory contacts’) was soundly discredited by employee testimony. These safety measures were shown to be, at best, ‘too little, too late.’

Respondent’s safety program, as described in this record, amounts to a paper program that needs desperately to be communicated and effectuated at the Sparrows Point work site.

Respondent clearly failed in its attempt to prove a ‘lack of supervisory knowledge or control’ of the hazardous conditions. Thus the ‘isolated instance’ assertion must fall as an unproved defense.[24]

Violations—‘Serious,’ ‘Other-than Serious’, ‘Repeated’

The violations charged in Citation No. 1 (Items 1(a), 1(b) 1(c), 2 and 5) are characterized by Complainant as ‘non-serious’ violations because of the absence of a substantial probability that death or serious physical harm could result in the event of an accident caused by the described conditions (Section 17(c), 17(k) of the Act). The proof substantiates that charge.

Citations Nos. 2 and 3 (Items 1(a) through 1(h) of Citation No. 2 and Items 1(b) through 1(h) of Citation No. 3) contain charges of ‘serious’ violations of the Act. According to the record the conditions described in those charges did present a substantial probability of death or serious physical harm in the event of an accident. Thus, the ‘serious’ nature of the violations has been established.

Forty-four ‘repeated’ violations are asserted in Citations Nos. 4, 5, 6, 7 and 8.

Complainant has cited two previous violations of 29 CFR 1916.43(c), four previous violations of 29 CFR 1916.41(i)(1), one previous violation of 29 CFR 1916.41(i)(5), three previous violations of 29 CFR 1916.43(a) and two previous violations of 29 CFR 1916.51(a).[25]On this basis, the violations charged here (in Citations Nos. 4, 5, 6, 7 and 8) are characterized as ‘repeated.’[26]

The Review Commission and the Courts of Appeals have expressed confusingly different interpretations of the word ‘repeatedly’ as used in Section 17(a) of the Act. The appraisal of the Congressional intent is best described by the Third Circuit in Bethlehem Steel Corporation v. OSHRC, et al, 540 F.2d 157 (1976):

The following discussion of § 666(a) by the Commission in an earlier case sets forth what we believe to be an appropriate starting point for the development of a workable definition of ‘repeatedly’:

‘As a starting point, it should be observed that the size of a penalty that can be imposed for a ‘repeated’ violation is ten times that for a singular ‘serious’ violation. Hence, it is obvious that Congress intended to deal with a more flagrant type of conduct than just a single serious violation. Cf. Frank Irey, Jr., Inc. v. OSHRC, . . . which discusses ‘willful’ violations of the Act. These are grouped with ‘repeated’ violations as being the most severe in the hierarchy of civil penalties. The term ‘repeated’ is therefore read to mean happening more than once in a manner which flaunts the requirements of the Act. With a test of whether the requirements of the Act are being flaunted it cannot be said abstractly just how many places of employment or conditions of employment should be considered. Each case must be decided upon its own merits and turn upon the nature and extent of the violations involved.’ (Footnote omitted.)

Thus, as the Circuit Court correctly observed, the Review Commission had previously (in Secretary of Labor v. General Electric Company, OSHRC Docket No. 2739, CCH OSHD para. 19,567 (1975)) agreed that ‘it is obvious that Congress intended [in describing a ‘repeated’ violation] to deal with a more flagrant type of conduct . . . which flaunts the requirements of the Act.’[27]

It is most significant that both the Commission and the Circuit Court agreed that each case must be decided upon its own merits and turn upon the nature and extent of the violations involved.[28] Thus, considering the ‘merits’ of this case, the ‘nature and extent of the violations involved’ and ‘the degree of care of [this] employer in [its] efforts to prevent violations of the type involved,’ I find as a matter of fact and law that the violations listed in Citations Nos. 4, 5, 6, 7 and 8 were not ‘repeated’ violations within the meaning of Section 17(a) of the Act.

The ‘nature and extent’ of the violations charged and, indeed, the ‘degree of care of the employer’ must be measured by all of the facts adduced. It is significant, as Respondent argues, that ‘[o]f the 2.9 million board feet of staging (Tr. 555), the only alleged violations were eight items listed in Citation No. 4,’ ‘the nine items in question [in Citation No. 5]’ and the missing toeboards at five locations as described in Citation No. 6. Likewise, ‘[o]f the thousands of construction holes on board Hull 4645 (Tr. 199, 617, 810)’ only seven were found to be unguarded or uncovered. The 15 ‘housekeeping’ violations charged in Citation No. 8 do not evidence a ‘nature and extent . . . which flaunts the requirements of the Act’ (Secretary of Labor v. General Electric Company, supra).

The violations listed in Citations Nos. 4, 5, 6, 7 and 8 have been characterized by Complainant as ‘repeat’ [sic], but no determination regarding the ‘serious’ or ‘other-than-serious’ nature of these conditions has been made.

As to each instance describe in Citations Nos. 4, 5, 6 and 7 the evidence substantiates a finding of serious violation. The employees exposed to the falling hazards which formed the bases for Citations Nos. 4 and 5 doubtless would have sustained serious physical harm or death in the event of an accident. The surfaces below to which employees might have fallen were 7 to 49 feet from where employees worked. The tools and material described in Citation No. 6 weighed (by Respondent’s estimates) from 15 to 45 pounds. Had these items been kicked from the unguarded staging, resulting serious physical harm or death certainly could have resulted. Likewise, a fall into or through the unguarded openings described in Citation No. 7 would more than likely have caused serious physical harm.

The breaches of the ‘housekeeping’ standard set forth in Citation No. 8 could have caused injury to employees—in the event of a tripping or falling hazard—but the likely result of such an accident cannot be considered to be serious physical harm or death. Those violations can best be described as ‘other-than-serious.’

Penalties

Complainant has recommended that the following penalties be assessed:

Citation No.	Item	Proposed Penalty
1	1	$ 90
	2	0
	3	75
	4	75
	5	100
	6	60
2	1	1,000
3	1	1,000
4	1	2,000
5	1	2,000
6	1	2,000
7	1	2,000
8	1	400
9	1	400
	Total	$11,200

The penalty proposals set forth for the ‘nonserious’ violations described in Citations Nos. 1 and 8 are well founded and, according to the evidence, were calculated with due regard for the criteria set forth in Sections 17(c) and 17(j) of the Act.

Section 17(b) of the Act mandates a penalty of not more than $1,000 for each serious violation, and the assessment of penalties shall be made with due consideration for the size of Respondent’s business, its good faith and the history of its previous violations.

Respondent is the Nation’s second largest steel producer. The size of its business warrants no favorable financial consideration in the assessment of penalties.

The record in these proceedings clearly establishes the fact that the ‘good faith’ of Respondent (insofar as its Sparrows Point Shipyard is concerned) leaves much to be desired if the employees there are to be assured safe and healthful working conditions. The parent firm doubtless encourages a ‘good faith’ attitude toward the safety and health of its employees; however, the record demonstrates much needs to be done to convince the bottom-line foremen and supervisors at this facility of the importance of this goal and the serious intent of management.

The recorded history of violations at the Sparrows Point Shipyard for the period November, 1973 to June, 1975, reveals a compliance posture which can be described as barely tolerable. (See Joint Stipulation No. 1.) Respondent can hardly claim a penalty consideration on the basis of its history.

The gravity (danger or threat) of the violations described in Citations Nos. 2 through 7 is relatively substantial. Each condition posed a threat of serious injury, perhaps death. The likelihood of such an accidental injury by reason of the violative conditions was exacerbated by the number of occurrences. In all 60 separate instances of violation are described in Citations Nos. 2, 3, 4, 5, 6, 7 and 8.

Giving due consideration to all the criteria set forth in Section 17 of the Act, a $1,000 penalty for the violations described in Citations Nos. 2 through 7 is not inappropriate.

FINDINGS OF FACT

A preponderance of the probative evidence of record, taken in its entirety, compels the following findings of fact:

1. Respondent, Bethlehem Steel Corporation, is a Delaware corporation which owns and operates a shipyard at Sparrows Point, Maryland.

2. Respondent employs employees in the business of steel manufacture, steel erection, shipbuilding and ship repair which is carried on throughout the Nation with the use of goods, materials and equipment from extrastate sources.

3. Respondent, one of the largest independent steel manufacturing firms in the United States, employs approximately 100,000 employees and grosses in excess of $2 billion annually.

4. During June and July 1976, Respondent maintained its principal office at Bethlehem, Pennsylvania and was engaged in shipbuilding operations at a work site at Sparrows Point, Maryland.

5. During June and July 1976, Respondent employed approximately 4,000 employees at the aforementioned work site.

6. Respondent’s compliance status since enactment of the Act compares favorably with other employers in the steel industry, but the record discloses numerous violations; its ‘good faith’ attitude regarding the safety and health of its employees at Sparrows Point can be questioned.

7. On or about June 24, 1976, Respondent’s employees were exposed to the hazard of falling from staging which was not maintained in a safe condition.

8. On or about June 24, 1976, Respondent’s employees were exposed to the hazard of electrocution or burning as the result of having to work with equipment powered with exposed electrical parts, worn and frayed electrical cables and cables with poorly insulated splices.

9. On or about June 24, 1976, Respondent’s employees were required to work on elevated decks, platforms, staging and similar surfaces the edges of which were unguarded, and they were thus exposed to failing hazards.

10. On or about June 24, 1976, Respondent’s employees were required to work below suspended staging which was not equipped with toeboards to prevent tools and materials thereon from being kicked or knocked to the areas below; and the employees were thus in danger of being struck by such falling objects.

11. On or about June 24, 1976, Respondent’s employees were required to work near unguarded or uncovered manholes and similar openings and were thus exposed to falling hazards.

12. On or about June 24, 1976, Respondent’s employees were exposed to tripping and falling hazards because of an excessive accumulation of pipe, tubing, and debris in work areas and passageways at the work site.

13. On or about June 24, 1976, Respondent’s employees were:

a. permitted to use stairways which were not equipped with railings;

b. permitted to use a chain fall which was not marked as to its capacity; and

c. permitted to use scaffolding, the planking of which extended four feet beyond the supporting member.

CONCLUSIONS OF LAW

1. Jurisdiction of the parties and of the subject matter herein is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act.

2. At all times relevant hereto, Respondent was an employer engaged in business affecting commerce within the meaning of Section 3(5) of the Act and as such was subject to the requirements of Sections 5(a)(1) and 5(a)(2) of the Act.

3. On or about June 24, 1976, Respondent violated the provisions of Section 5(a)(1) of the Act; and it violated Section 5(a)(2) of the Act by failing to comply with the safety standards codified at 29 CFR 1910.24(h), 1916.64(a), 1916.41(h)(3), 1916.41(a)(5), 1916.43(c), 1916.41(i)(1), 1916.41(i)(5), 1916.43(a), and 1916.51(a) as charged by Complainant in Citations Nos. 1, 2, 3, 4, 5, 6, 7 and 8 (dated July 23, 1976).

4. The violations charged by Complainant in Citation No. 1 (Items 1, 2 and 5) and in Citation No. 8 were ‘other than serious’ as defined in Section 17 of the Act.

5. The violations charged by Complainant in Citations Nos. 2, 3, 4, 5, 6 and 7 were ‘serious’ as defined in Section 17 of the Act.

6. The violation charged by Complainant in Item 6 of Citation No. 1 was de minimis.

7. None of the violations charged by Complainant in the citations issued on July 23, 1976, was ‘repeated’ as defined in Section 17 of the Act.

8. The penalties assessed herein for the aforesaid violations were computed with due consideration of the criteria set forth in Section 17 of the Act and are as follows:

Citation No.	Item	Penalty
1	1	$ 90
	2	0
	5	100
2	1(a) through 1(h)	1,000
3	1(b) through 1(h)	1,000
4	1(a) through 1(h)	1,000
5	1(a) through 1(i)	1,000
6	1(a) through 1(e)	1,000
7	1(a) through 1(g)	1,000
8	1(a) through 1(o)	400
	Total Penalties	$6,590

ORDER

Upon consideration of the aforegoing findings and conclusions, it is hereby ORDERED that

Citation No. 1 (Items 1, 2 and 5), Citation No. 2 (Items 1(a) through 1(h)), Citation No. 3, (Items 1(b) through 1(h)), Citation No. 4, (Items 1(a) through 1(h)), Citation No. 5, (Items 1(a) through 1(i)), Citation No. 6, (Items 1(a) through 1(e)), Citation No. 7, (Items 1(a) through 1(g)), and Citation No. 8 (Items 1(a) through 1(o)) all issued to Respondent by Complainant on July 23, 1976, are AFFIRMED as ‘serious’ or ‘other than serious violations;’ Citation No. 1, (Item 6) is AFFIRMED as a ‘de minimis’ violation; and Citation No. 1 (Items 3(a), 3(b), 3(c) and 3(d), 4(a) and 4(b)), Citation No. 3 (Item 1(a)) and Citation No. 9 (Items 1(a), 1(b) and 1(c)), issued to Respondent by Complainant on July 23, 1976, are VACATED; and a total penalty of $6,590 is ASSESSED.

BENJAMIN G. USHER

Judge, OSHRC

Dated: January 9, 1978

Hyattsville, Maryland

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76–3674
BETHLEHEM STEEL CORPORATION, and LOCAL 33, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, AUTHORIZED EMPLOYEE REPRESENTATIVE
Respondents.

January 11, 1978

DECISION AND ORDER

APPEARANCES:

Howard K. Agran, Esq. Office of the Regional Solicitor U. S. Department of Labor Philadelphia, Pennsylvania for Complainant.

Murray N. Shelton, Jr., Esq. Labor Attorney Bethlehem Steel Corporation Bethlehem, Pennsylvania for Respondent

Mr. Murphy Thronton

President, Local 33

I.U.M.S.W.A.

Baltimore, Maryland

for Affected Employees

USHER, Judge:

This is a proceeding initiated by the Secretary of Labor, United States Department of Labor, pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter referred to as the Act) seeking affirmance by the Commission of three Citations which charge three ‘non-serious’ violations, one ‘serious’ violation and 12 ‘repeated’ violations of Section 5(a)(2) of the Act, and seeking further to have the Commission assess penalties for these alleged violations totaling $14,325.

The Citations resulted from an inspection of a work site maintained by Respondent aboard a 265,000 ton supertanker (‘Hull 4645’) which was being constructed in a ‘wet dock’ at Respondent’s Sparrows Point (Maryland) Shipyard. The inspection by Complainant’s agents, Compliance Safety and Health Officers (‘CSHOs’) from the Baltimore office of the Occupational Safety and Health Administration (‘OSHA’), was initiated to determine whether abatement of previously cited hazards had been accomplished.[29] The inspection was commenced on August 3 and concluded on August 6, 1976. Officials of Respondent’s safety department and several union representatives accompanied the CSHOs during the physical inspection of the workplace.

Respondent filed a timely Notice of Contest which placed in issue all of the Citations as well as Complainant’s Notification of Proposed Penalties. A Complaint and Answer followed pursuant to the Commission’s Rules of Procedure.

The issues were tried before me at Baltimore, Maryland, on February 14, 15 and 17, 1977.

The affected employees’ representative (‘The Union’) elected party status through its Executive Secretary, James C. Harmon, on January 21, 1977, and evidence was adduced at the trial by Complainant, Respondent and the Union.

Complainant and Respondent have submitted Post Trial Briefs. The Union has not.

The Issues

The pleadings, evidence adduced by the parties, arguments of counsel and the briefs submitted subsequent to the trial have served to raise the following issues.[30]

1. Whether evidence adduced by the Union should be stricken.

2. Whether Respondent committed any or all of the violations alleged by Complainant;

a. whether the acts and omissions of Respondent, which are asserted as violative of the provisions of the Act, were ‘isolated incidents . . . considering the dimensions of the ship, the number of employees working on it and their varied and changing activities and the consequent number of potential violations;’

b. whether lack of knowledge of the alleged violative conditions by Respondent’s supervisory personnel precludes a finding of violation;

c. whether the employees’ alleged failure to abide by safety rules promulgated by Respondent absolves Respondent.

3. If Respondent has violated the Act in any or all of the instances charged by Complainant, whether the violations are properly classified as ‘repeated,’ ‘serious’ or ‘other than serious,’ as defined in Section 17 of the Act.

4. If Respondent has violated the Act in any or all of the instances charged by Complainant, what penalty or penalties are appropriate when due consideration is given to the size of Respondent’s business, the gravity of the violations, Respondent’s good faith attitude regarding the safety and health of its employees, and the history of Respondent’s compliance or noncompliance with the provisions of the Act.

Evidence Adduced by Affected Employees’ Representative

Respondent has moved to strike ‘all testimony adduced by [the Union] and argues that it should ‘not be considered in the deliberations covering this case.’ Its argument rests on the theory that Section 10(c) of the Act ‘limits employee contests to the reasonableness of the period of time which is fixed in the citation for abatement [and] not only did [the Union] not charge a failure of abatement, in fact abatement was effected shortly after the issuance of the Citation in each and every item covered by the Citation.’

Section 10(c) of the Act provides, in pertinent part:

If an employer notifies the Secretary that he intends to contest a citation issued under section 9(a) or notification issued under subsection (a) or (b) of this section, or if, within fifteen working days of the issuance of a citation under section 9(a), any employee or representative of employees files a notice with the Secretary alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing . . ..

The rules of procedure prescribed by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this subsection. (Emphasis added.)

The Congressional intent is clearly set forth in the Act. That provision of the law, taken in conjunction with the legislative history, leaves no doubt that affected employees shall be given an opportunity to participate as parties in any action brought pursuant to ‘this subsection’ (Section 10(c)) whether initiated by an employer, affected employees or by a representative of affected employees.

Respondent cites Secretary of Labor v. OCAW (Mobil Oil Corporation), OSHRC Docket No. 562, 1 BNA OSHC 1104; Secretary of Labor v. UAW Local 588 (Ford Motor Company), OSHRC Docket No. 2786, 4 BNA OSHC 1243; and Secretary of Labor v. U. S. Steel Corporation, OSHRC Docket Nos. 2975, 4349, 4684, 14999, 4 BNA OSHC 2001 in support of its position. Those decisions stand for entirely different propositions. None are apropos here.

In this instance the Union’s participation as a party was full and complete. It was, indeed, helpful to the trier of fact and was clearly within the intent of Congress as expressed in no uncertain terms in Section 10(c) of the Act.[31]

Respondent’s motion to strike evidence adduced by the Union is denied.

Discussion and Evaluation of the Evidence

Citation No. 1

The cited standard (codified at 29 CFR 1916.41(a)(5)) requires the maintenance of scaffolds ‘in a safe and secure condition,’ and it is alleged that scaffolding in the #3 starboard wing tank was not fully planked so that it abutted the bulkhead. According to the evidence, there was an 18-inch gap which allowed for a 50-foot fall by a welder and an electrician who were observed working on the scaffold.

Respondent’s evidence does not serve to rebut the factual assertions made by Complainant. Rather, Respondent argues that the standard in question does not require that scaffolding abut the bulkhead. Respondent argues that it is impossible to comply with the standard because of the need for an access area through which to pass necessary materials. Respondent further asserts that it would create a greater hazard to cut the staging boards to allow such access. These defenses are not supported by the evidence adduced. The ‘impossibility of performance’ and ‘greater hazard’ defenses must be affirmatively proven by Respondent. (Dorey Electric Company v. OSHRC, 553 F.2d 357 (4 Cir. 1977)). Its burden has not been met.

The standard requires the maintenance of scaffolds in a ‘safe... condition.’ Scaffolds with 18-inch gaps or openings into which an employee might step (and fall 50-odd feet) are not ‘safe.’

Respondent’s argument that the one scaffold violation cited represents an ‘isolated instance’ inasmuch as there are ‘many millions of board feet of staging’ on the ship may have merit, but it does not excuse the violation or otherwise eliminate the hazard as charged.

Citation No. 2, Items 1(a), 1(b), 1(c) and 1(d)

Complainant has charged four violations of the safety regulation codified at 29 CFR 1916.41(i)(1) which requires the guarding (by standard guardrail) of suspended scaffolds, staging, runways and working platforms.

The four locations described in the citation were in the forward fuel oil tank and the port fuel oil tank. In two locations, according to the evidence, employees working on the unguarded staging were exposed to 60-foot falls. One of the unguarded scaffolds was 23 feet above the next lower surface, and the fourth platform (staging) presented a 6-to-10 foot falling hazard, according to the testimony of Complainant’s witnesses. Complainant asserts that two of the suspended working surfaces were totally unguarded while the others (described in Items 1(b) and 1(d)) were equipped with inadequate railings.

Respondent argues that it has a policy of providing proper railings for all working surfaces suspended five or more feet above solid surfaces, and that in the four ‘isolated instances’ cited by Complainant the railings had either been removed ‘to permit . . . employees to complete their job’ or ‘for materials to be passed to employees working on the job.’ It is also suggested, though not proven, that the guardrails were removed by unauthorized employees ‘contrary to established yard policy.’

Respondent has also put forth the ‘supposition that the handrailing [in one instance] could have been removed shortly before the inspection without supervisory knowledge.’

In addition to the ‘isolated instance’ defense, Respondent argues that employer knowledge (through its supervisory personnel) has not been proven in each instance.

Basically, Respondent has not locations identified, and their by Complainant that the suspended platforms or scaffolds lacked guardrails, but rather has denied that the platforms were working surfaces and contends that, therefore, employees were not exposed to falling hazards.

Complainant’s proof established the violations. Employees were observed working in each of the four locations identified, and their exposure to the falling hazards has been shown.

Citation No. 2, Items 2(a), 2(b) and 2(c)

Respondent is charged with having allowed its employees to be exposed to falling hazards by reason of their working on unguarded flats or platforms which were 13 to 60 feet above the next lower surface. The CSHO testified that he observed four named employees working under such hazardous conditions in the forward fuel oil tank and in the #7 center tank of the ship on August 3, 1976. In one instance, the unguarded working surface was only five feet wide.

Respondent argues that there was evidence that guardrails had been installed at the three locations in question, but had been removed (perhaps ‘rather recently’) before the inspection. Respondent has reasserted its contention regarding the company’s policy that employees are not allowed to work on unguarded raised platforms and denies supervisory knowledge of the cited conditions. Finally, Respondent contends that these instances of violation of the standard (29 CFR 1916.43(c)) are ‘isolated instances’ because ‘only three alleged violations were cited out of the infinite number of possibilities . . ..’

Significantly, Complainant’s assertion that the cited conditions existed at the time of the inspection has not been refuted. While there may well be merit to the somewhat extenuating circumstances pleaded by Respondent, the violations have been proved.

Citation No. 2, Items 3(a) and 3(b)

The safety standard codified at 29 CFR 1916.41(i)(5) requires:

When necessary, to prevent tools and materials from falling on men below, toeboards of not less than 1 x 4 inch lumber shall be provided.

Respondent emphasizes ‘when necessary’ and argues 1) employees ‘are not required to work underneath each other,’ and 2) employees working on such surfaces are instructed to remove scrap material and tools. Complainant’s charge that at two locations aboard Hull 4645 employees were in fact observed working below staging on which there were pieces of discarded flat bar and scrap is unrefuted. The staging was not equipped with toeboards and the hazard has been established. The wearing of hardhats (an additional defense asserted by Respondent) may reduce that hazard, but the elimination of the hazard can be effected only by compliance with the cited standard.

Respondent’s practice of requiring employees to remove tools and scrap material from overhead scaffolds and platforms is creditable. Nevertheless, that practice was not followed at the described locations on the day in question, and employees were observed working ‘underneath each other’ while materials remained on the overhead surfaces. The use of toe-boards was, therefore, ‘necessary.’

Respondent argues at length that ‘further hazards would be created by requiring the toeboarding of all staging . . . because toeboard would be piled on the staging while installation was taking place . . ..’ The ‘greater hazard’ defense is an affirmative one (Dorey Electric Company v. OSHRC, supra.), and Respondent did not meet its burden of proof. The accumulation of ‘huge bundles’ of toeboards in work areas clearly need not occur. The erection of toeboards as required by the standard, while perhaps an inconvenience, can certainly be accomplished in a safe manner as is presumably the erection of the staging itself.

Citation No. 2, Item 4

Complainant has charged a ‘housekeeping’ violation because of the accumulation of ‘scrap material, piping and staging boards’ in a work area or passageway in the forward fuel oil tank. A welder employed by Respondent testified that he was required to work in the mist of the rubble which, according to the witness, had been allowed to remain in place for more than a week.

Respondent defends by asserting that the accumulation of scrap pipe resulted from ‘wilfull [sic] damage’ by employees who cut usable pipe and pilled it where it was found by the CSHO. That assertion, while not effectively contradicted, was likewise not proven to a certainty.

Respondent denies supervisory knowledge of the existing condition, but that assertion is effectively countered by the testimony of the employee who stated that his supervisor did in fact have knowledge.

Likewise, Respondent’s argument that the area was not a work area or passageway is adequately rebutted by employee testimony.

The argument that the described condition was an ‘isolated instance’ does, however, merit consideration.

Citation No. 2, Item 5

The CSHO testified that he observed an employee walking within several feet of a partially unguarded opening in violation of the safety standard codified at 29 CFR 1916.43(a). The hazard, an eight-foot fall through the hold, was described.

Respondent’s witness testified that the opening was ‘partially guarded,’ an obvious admission that it was partially unguarded as charged. The plant safety engineer further testified that there was ample room to pass the opening without falling into it. In other words, an employee need not walk into the hole. These assertions do not effectively deny the violation or the existence of the hazard.

The fact that Respondent does have an affirmative policy of covering construction holes is not disputed. Likewise, its argument that only one of ‘thousands of construction holes’ aboard Hull 4645 was found uncovered is entitled to consideration. Those facts do not, of course, eliminate the violation on the ‘isolated instance’ theory as Respondent contends.

Citation No. 2, Item 6

The safety standard codified at 29 CFR 1916.42(a)(3) requires, in pertinent part, that:

[p]ortable ladders shall be lashed, blocked or otherwise secured to prevent their being displaced . . .

The CSHO testified that one of Respondent’s electricians used a ladder in the forward fuel oil tank on Hull 4645, and he ‘thinks [it] became displaced, [and he] had to jump clear over it.’[32] The witness continued (seemingly) to speculate that the ladder was lashed on only one side.

The CSHO’s testimony is contradicted by one of Respondent’s safety engineers, Richard Bruce Hibler, Mr. Hibler was present at the time the CSHO inspected the ladder in question, and he ‘saw that it was [properly] lashed.’ His testimony is quite positive. Compared with that of the CSHO (as to the condition of this ladder), it is considerably more credible.

Complainant has failed to prove the charged violation.

Citation No. 3, Items 1(a), 1(b) and 1(c)

The safety standard codified at 29 CFR 1916.36(b)(4) requires that ‘welding cables in poor repair not be used.’ The unrefuted testimony of Respondent’s Supervisor of Safety and that of its Temporary Light Department Supervisor established that the cables referred to in Items 1(b) and 1(c) were not welding cables. They were electrical cables being used to power a ventilation fan and other electrical equipment. Respondent argues that the cited standard is inapplicable. It is.

Complainant has not sought to amend the Citation. Respondent was prejudiced by having prepared to defend a charge brought under a safety standard which has different requirements than that dealing with electrical power cables.

According to the testimony the cable described in Item 1(a) of Citation No. 3 was in fact a welding cable. The CSHO and two of Respondent’s employees testified regarding the ‘poor repair’ of the cable. Bare conductors were exposed, and the cable arcked to the metal deck when an employee stepped upon it.

Respondent’s assertion that the defect was ‘not obvious’ to supervisory personnel is not persuasive. An improved inspection system would doubtless disclose all such hazardous conditions.

Respondent argues that ‘of the 150,000 feet of welding cable on Hull 4645 only one defect was found.’ That argument is entitled to considerable weight. The maintenance policy for the repair of welding cable would appear to be relatively effective.

Employer Knowledge of Hazardous Conditions; Employee Misconduct; Isolated Instances

It is now well settled that employer knowledge is an essential element of a ‘non-serious’ violation as well as a ‘serious’ violation.[33] Complainant has the burden of proving that Respondent through its supervisory personnel knew or should have known of the violative conditions to which its employees were exposed.[34] In the absence of proof of actual knowledge, constructive knowledge by the employer may be shown by evidence of the lack of an adequate safety program or by a showing that an adequate safety program is inadequately enforced.[35]

If, as Respondent contends, ‘many of the alleged violations . .. existed without supervisory knowledge or control,’ its safety program must be scrutinized to determine whether that fact is attributable to a failure on the part of supervisory personnel to use due diligence to detect safety violations. According to the evidence elicited from Respondent’s Safety Engineer, Richard Bruce Hibler, on cross examination, a supervisory employee supervises eight to ten hourly employees. He sees each employee and his working conditions about twice each day.[36] From that testimony it is difficult to conclude that the employer’s representatives would not be aware of such obvious conditions as missing guardrails, staging planks, and toeboards, or uncovered floor openings, strewn cables and hoses, and the like. The witness stated that the supervisor ‘should and he probably would know . . . where the man is working, what the location looks like.’

In assessing the employer’s knowledge of the violations, or lack thereof, its general safety program, the implementation and effectuation of that program, and the feasible precautionary steps taken to prevent the hazards must be considered.

While it might be inferred from the record as a whole that this corporate Respondent does in fact have a genuine concern for the safety and health of its employees, there is clearly a doubt whether that corporate concern has found viability at the Sparrows Point Shipyard. The considerable testimony adduced by (and from) the hourly employees creates such a doubt. Respondent has attempted to place much of the blame for unsafe conditions upon the employees and their representative (the Union). The Union and its members have refuted Respondent’s assertion in that regard. (See Secretary of Labor v. Butler Lime and Cement Company, supra, at 1017).

I find as a matter of fact that the management at Sparrows Point has not done all that is possible to effect the corporate safety program. Its witnesses testified at length regarding safety at the shipyard. That testimony resembled rote. It was contradicted in some respects by the patent facts adduced by Complainant and in almost every respect by the employees’ testimony.

The testimony of Respondent’s witnesses concerning the distribution of safety manuals to employees and the testimony relating to safety conferences with employees (‘safety audits’ and ‘employee-supervisory contacts’) was discredited in large measure.

According to the record evidence, Respondent’s safety program is basically a paper program. Proper implementation and effectuation at Sparrows Point are needed.

Respondent has failed to prove a ‘lack of supervisory knowledge or control’ of the hazardous conditions, and the ‘isolated instance’ defense must fall when all the facts are weighed.

Violations—‘Serious,’ ‘Other-than Serious,’ ‘Repeated’

The violation charged in Citation No. 3 (Item 1(a)) was asserted as a ‘non-serious’ violation because it presented no substantial probability of resulting death or serious physical harm in the event of an accident caused by the described conditions (Sections 17(c), 17(k) of the Act). The proof substantiates that charge.

Citation No. 1 contains a charge of ‘serious’ violation of the Act. According to the record the condition described in that charge did present a substantial probability of death or serious physical harm in the event of an accident. Thus the ‘serious’ nature of the violation has been established.

Eleven violations are asserted in Citation No. 2 (excepting Item 6(a)). Complainant has cited two or more previous violations of each of the Safety standards set forth in Citation No. 2, viz., 29 CFR 1916.41(i)(1), 1916.41(i)(5), 1916.43(a), 1916.43(c), 1916.51(a).[37] Thus, the violations charged in Citation No. 2 are characterized by Complainant as ‘repeated.’[38]

The Review Commission and the Courts of Appeals have expressed confusingly different interpretations of the word ‘repeatedly’ as used in the Act. One appraisal of the Congressional intent is set forth by the Third Circuit in Bethlehem Steel Corporation v. OSHRC, et al, 540 F.2d 157 (1976):

The following discussion of § 666(a) by the Commission in an earlier case sets forth what we believe to be an appropriate starting point for the development of a workable definition of ‘repeatedly’:

As a starting point, it should be observed that the size of a penalty that can be imposed for a ‘repeated’ violation is ten times that for a singular ‘serious’ violation. Hence, it is obvious that Congress intended to deal with a more flagrant type of conduct than just a single serious violation. Cf. Frank Irey, Jr., Inc. v. OSHRC, . . . which discusses ‘willful’ violations of the Act. These are grouped with ‘repeated’ violations as being the most severe in the hierarchy of civil penalties. The term ‘repeated’ is therefore read to mean happening more than once in a manner which flaunts the requirements of the Act. With a test of whether the requirement of the Act are being flaunted it cannot be said abstractly just how many places of employment or conditions of employment should be considered. Each case must be decided upon its own merits and turn upon the nature and extent of the violations involved. (Footnote omitted.)

Thus, as the Circuit Court correctly observed, the Review Commission had previously (in Secretary of Labor v. General Electric Company, OSHRC Docket No. 2739, CCH OSHD para. 19,567 (1975)) agreed that ‘it is obvious that Congress intended [in describing a ‘repeated’ violation] to deal with a more flagrant type of conduct . . . which flaunts the requirements of the Act.’[39]

As recently as October 25, 1977, the Review Commission failed to agree as to the meaning of ‘repeatedly.’ Commissioner Barnako would evaluate Respondent’s good faith; Chairman Cleary presumably would not (Secretary of Labor v. Seattle Stevedore Co., OSHRC Docket Nos. 9114, CCH OSHD para. 22,277).

It is most significant that the Commission and the Circuit Court have agreed that each case must be decided upon its own merits and turn upon the nature and extent of the violations involved.[40] Considering the ‘merits’ of this case, the ‘nature and extent of the violations involved’ and ‘the degree of care of [this] employer in [its] efforts to prevent violations of the type involved,’ I find as a matter of fact and law that the violations listed in Citation No. 2 were not ‘repeated’ violations within the meaning of Section 17(a) of the Act.

The ‘nature and extent’ of the violations charged and, indeed, the ‘degree of case of the employer’ must be measured in light of all the facts adduced. It is significant, as Respondent argues, that ‘[i]n view of the numerous opportunities for possible violations that are inherent in the construction of a ship . . . the relative handful of alleged violations actually cited by the Complainant do not constitute constant or frequent violations . . ..’ The 13 violations proved here do not evidence a ‘nature and extent . . . which flaunts the requirements of the Act’ (Secretary of Labor v. General Electric Company, supra).

The violations listed in Citation No. 2 have been characterized by Complainant as ‘repeated,’ but no determination regarding the ‘serious’ or ‘other-than-serious’ nature of these conditions has been made.

Each of the conditions described in Items 1(a) though 1(d) and in Items 2(a) through 2(c) presented the hazard of a fall from scaffolding, staging or other raised or suspended surfaces. In three of the instances falls from 60-foot heights to hard surfaces below might have occurred; from one of the locations an employee could have fallen in excess of 20 feet; two of the unguarded platforms were described as 13 feet above the next lower surface; and one staging area was six to ten feet high. In the event of a fall from any of these locations serious physical harm would likely result. A fall from a height of 60 feet would most likely result in serious physical harm, if not in death.

The evidence regarding the conditions described in Items 3(a) and 3(b) is considerably vague insofar as the size, shape and weight of the scrap material (flatbar) is concerned. Likewise, the distances between the workmen below and the loose objects above were only roughly estimated. There was thus no direct testimony or valuable opinion evidence regarding the seriousness of the potential hazard, i.e., whether serious physical harm was or was not a substantially probable result. The violations should, therefore, be classified as ‘other-than-serious.’

The ‘housekeeping’ violation set forth as Item 4 of Citation No. 2 was likewise not described with sufficient particularity to allow for an accurate determination as to the seriousness of the hazard presented. It will be considered as an ‘other-than-serious’ violation.

According to the testimony the partially covered manhole described in Item 5 of Citation No. 2 presented a hazard of falling eight feet to the next solid surface below. The Commission has held that a ‘seven to nine-foot’ fall presents the ‘possibility’ but not a ‘substantial probability’ of resulting death or serious physical harm.[41] Giving Respondent the benefit of that precedent (while recognizing arguably contrary conclusion), the violation will be characterized as ‘other-than-serious.’

Penalties

Complainant has recommended that the following penalties be assessed:

Citation No.	Item	Proposed Penalty
1	1	$ 1,000
2	1	4,000
	2	4,000
	3	4,000
	4	500
	5	500
	6	250
3	1	75
	TOTAL	$14,325

The penalty proposal set forth for the ‘serious’ violation described in Citation No. 1 is well founded and, according to the evidence, was calculated with due regard for the criteria set forth in Sections 17(b) and 17(j) of the Act.

Section 17(b) of the Act mandates a penalty of not more than $1,000 for each serious violation, and the assessment of penalties shall be made with due consideration for the size of Respondent’s business, its good faith and the history of its previous violations.

Respondent is the Nation’s second largest steel producer. The size of its business warrants no favorable financial consideration in the assessment of penalties.

The record in these proceedings clearly establishes that the ‘good faith’ of Respondent (insofar as its Sparrows Point Shipyard is concerned) leaves much to be desired if the employees there are to be assured safe and healthful working conditions. The parent firm doubtless encourages a ‘good faith’ attitude toward the safety and health of its employees; however, the record demonstrates much need to be done to convince its bottom-line foremen and supervisors at this facility of the goal and intent of management.

The recorded history of violations at the Sparrows Point Shipyard for the period November 1973 to June 1975, reveals a compliance posture which can best be described as average. Respondent can hardly claim a penalty consideration on the basis of its history of compliance.

The gravity (danger or threat) of the violations described in Citation No. 2, Items 1 and 2, is relatively substantial. Those conditions posed a threat of serious injury, perhaps death. The likelihood of such an accidental injury by reason of the violative conditions was exacerbated by the number of occurrences. The conditions described in Citation No. 2, Items 3, 4 and 5 were ‘non-serious’ and the gravity (exposure of employees) was less evident.

Giving due consideration to all the criteria set forth in Section 17 of the Act, a $1,000 penalty is assessed for Citation No. 1 and for Items 1 and 2 of Citation No. 2. A $500 penalty is assessed for Item 3, Citation No. 2; and a $200 penalty is assessed for Item 4 and 5, Citation No. 2. No penalty is assessed for Citation No. 3.

FINDINGS OF FACT

A preponderance of the probative evidence of record, taken in its entirety, compels the following findings of fact:

1. Respondent, Bethlehem Steel Corporation, is a Delaware corporation which owns and operates a shipyard at Sparrows Point, Maryland.

2. Respondent employs employees in the business of steel manufacture, steel erection, shipbuilding and ship repair which is carried on throughout the Nation with the use of goods, materials and equipment from extrastate sources.

3. Respondent, one of the largest independent steel manufacturing firms in the United States, employs approximately 100,000 employees and grosses in excess of $2 billion annually.

4. During August 1976, Respondent maintained its principal office at Bethlehem, Pennsylvania and was engaged in shipbuilding operations at a work site at Sparrows Point, Maryland.

5. During August 1976, Respondent employed approximately 4,000 employees at the aforementioned work site.

6. Respondent’s compliance status since enactment of the Act compares favorably with other employers in the steel industry, but the record discloses numerous violations; its ‘good faith’ attitude regarding the safety and health of its employees at the Sparrows Point Shipyard can be questioned.

7. On or about August 3, 1976, Respondent’s employees were exposed to the hazard of falling from scaffolds which were not maintained in a safe condition.

8. On or about August 3, 1976, Respondent’s employees were required to work on elevated decks, platforms, staging and similar surfaces the edges of which were unguarded, and they were thus exposed to falling hazards.

9. On or about August 3, 1976, Respondent’s employees were required to work below suspended staging which was not equipped with toeboards to prevent tools and materials thereon from being kicked or knocked to the areas below, and the employees were thus in danger of being struck by such objects.

10. On or about August 3, 1976, one of Respondent’s employees was required to work near a partially unguarded or uncovered manhole and was thus exposed to a falling hazard.

11. On or about August 3, 1976, Respondent’s employees were exposed to tripping and falling hazards because of an excessive accumulation of pipe, staging boards and scrap material in work areas or passageways at the work site.

12. On or about August 3, 1976, Respondent’s employees were exposed to the hazard of burning as the result of having to work near a welding cable with partially exposed current conductors.

CONCLUSIONS OF LAW

1. Jurisdiction of the parties and of the subject matter herein is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act.

2. At all times relevant hereto, Respondent was an employer engaged in business affecting commerce within the meaning of Section 3 (5) of the Act and as such was subject to the requirements of Section and 5(a)(2) of the Act.

3. On or about August 3, 1976, Respondent violated the provisions of Section 5(a)(2) of the Act by failing to comply with the safety standards codified at 29 CFR 1916.36(b)(4), 1916.41(a)(5), 1916.41(i)(1), 1916.41(i)(5), 1916.43(a), 1916.43(c) and 1916.51(a) as charged by Complainant in Citation No. 1 (Item 1), Citation No. 2 (Items 1(a), 1(b), 1(c), 1(d), 2(a), 2(b), 2(c), 3(a), 3(b), 4(a) and 5(a)) and Citation No. 3 (Item 1(a)) all dated August 12, 1976.

4. The violation charged by Complainant in Citation No. 1 was ‘serious,’ as defined in Section 17 of the Act.

5. The violations charged by Complainant in Citation No. 2, Items 1 and 2, were ‘serious’ as defined in Section 17 of the Act.

6. The violations charged by Complainant in Citation No. 2, Items 3, 4 and 5 and in Citation No. 3 were ‘other than serious,’ as defined in Section 17 of the Act.

6. None of the violations charged by Complainant in the Citations issued on August 12, 1976, was ‘repeated’ as defined in Section 17 of the Act.

7. The penalties assessed herein for the aforesaid violations were computed with due consideration of the criteria set forth in Section 17 of the Act and are as follows:

Citation No.	Item	Penalty
1	1	$1,000
2	1(a) through 1(d)	1,000
	2(a) through 2(c)	1,000
	3(a) through 3(b)	500
	4(a)	200
	5(a)	200
3	1(a)	none
	TOTAL	$3,900

ORDER

Upon consideration of the aforegoing findings and conclusions, it is hereby ORDERED that

Citation No. 1 (Item 1), Citation No. 2 (Items 1(a) through 1(d), 2(a) through 2(c), 3(a) and 3(b), 4(a) and 5(a)) and Citation No. 3 (Item 1(a)) all issued to Respondent by Complainant on August 12, 1976, are AFFIRMED. Citation No. 2, (Item 6), and Citation No. 3 (Items 1(b) and 1(c)) issued to Respondent by Complainant on August 12, 1976, are VACATED; and a total penalty of $3,900 is ASSESSED.

BENJAMIN G. USHER

Judge, OSHRC

Dated: January 11, 1978

Hyattsville, Maryland

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* Commissioner Barnako did not participate in this decision.

[1] Inasmuch as these two cases present the same questions of law, arise out of similar facts, and stem from an inspection and follow-up inspection of the same supertanker, we consolidate the cases for review under Commission Rule 9, 29 C.F.R. § 2200.9.

[2] Section 1916.41(a)(5) states:

§ 1916.41 Scaffolds or staging.

(a) General requirements.

(5) Scaffolds shall be maintained in a safe and secure condition. Any component of the scaffold which is broken, burned or otherwise defective shall be replaced.

[3] A maxim of statutory construction meaning that the expression of one thing is the exclusion of another. BLACK’S LAW DICTIONARY 521 (5th ed. 1979).

[4] Section 1926.750(b)(1)(i) states:

§ 1926.750 Flooring requirements.

(b) Temporary flooring—skeleton steel construction in tiered buildings. (1)(i) The derrick or erection floor shall be solidly planked or decked over its entire surface except for access openings. Planking or decking of equivalent strength, shall be of proper thickness to carry the working load. Planking shall be not less than 2 inches thick full size undressed, and shall be laid tight and secured to prevent movement.

[5] The record does not support an amendment of the pleadings under Rule 15 of the Federal Rules of Civil Procedure. Neither party has made a motion under Fed. R. Civ. P. 15(a) to allege a violation of another standard and the record does not demonstrate that a violation of another standard has been tried by the express or implied consent of the parties under Fed. R. Civ. P. 15(b).

[6] Section 1916.43(c) states:

§ 1916.43 Guarding of deck openings and edges.

(c) When employees are exposed to unguarded edges of decks, platforms, flats, and similar flat surfaces, more than 5 feet above a solid surface, the edges shall be guarded by adequate guardrails meeting the requirements of § 1916.41(i)(1) and (2), unless the nature of the work in progress or the physical conditions prohibit the use or installation of such guardrails.

[7] Section 1916.41(i)(1) states:

§ 1916.41 Scaffolds or staging.

(i) Backrails and toeboards. (1) Scaffolding, staging, runways, or working platforms which are supported or suspended more than 5 feet above a solid surface, or at any distance above the water, shall be provided with a railing which has a top rail whose upper surface is from 42 to 45 inches above the upper surface of the staging, platform, or runway and a midrail located halfway between the upper rail and the staging, platform, or runway.

[8] Section 1916.41(i)(5) states:

§ 1916.41 Scaffolds or staging.

(i) Backrails and toeboards.

(5) When necessary, to prevent tools and materials from falling on men below, toeboards of not less than 1 x 4 inch lumber shall be provided.

[9] Section 1916.43(a) states:

§ 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, except where the use of such guards is made impracticable by the work actually in progress.

[10] Section 1916.51(a) states:

§ 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.

[11] Even though this case was heard and decided by the judge before our decision in Potlatch, we conclude that Bethlehem’s defenses would not have been tried differently had Potlatch been issued before the hearing. Therefore we do not offer Bethlehem an opportunity for a remand with respect to the repeated violations. See, e.g., Truland-Elliot, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976–77 CCH OSHD ¶ 20,908 (No. 11259, 1976).

[12] The Third Circuit noted in Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160 (3d Cir. 1980), that under the Act, an employer may seek review in one of three circuits: the circuit in which the violation occurred; the circuit in which the employer’s principal office is located; and in the District of Columbia Circuit. 29 U.S.C. § 660(a). The Secretary may seek review in the circuit in which the violation occurred or in which the employer has its principal office. 29 U.S.C. § 660(b). Inasmuch as Bethlehem’s principal office is located in the Third Circuit, Bethlehem may well appeal our characterization of violations as repeated to the Third Circuit, which adopted a different definition of ‘repeatedly’ in Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3d Cir. 1976). On the other hand, if we decided this case adversely to the Secretary, we would expect him to appeal to the Fourth circuit—the circuit in which the violations occurred—because that circuit has adopted a definition of ‘repeatedly’ that is congruent with that in our Potlatch decision. See George Hyman Constr. Co. v. OSHRC, 582 F.2d 834 (4th Cir. 1978); Potlatch, 7 BNA OSHC at 1064, 1979 CCH OSHD ¶23,294 at p. 28,171.

In Raybestos Friction Materials Co., 80 OSAHRC ——, 9 BNA OSHC 1141, 1980 CCH OSHD ¶ 24,910 (No. 80–8793, 1980), we noted that the Commission, as an agency with national jurisdiction, may find it difficult to apply the law of a single circuit where venue for an appeal would lie in several circuits. We are mindful of the Third Circuit’s definition of ‘repeatedly.’ In view of our dilemma here, however, we will, as in Raybestos, follow our own precedent.

[13] Section 17(j), 29 U.S.C. § 666(i), provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and history of previous violations.

[14] Nine Citations were issued. Citation No. 1 lists 12 instances of alleged violative conduct which are characterized as ‘other than serious.’ These alleged violations are grouped as nine items. Citations Nos. 2 and 3 enumerate 16 instances of violative conduct which Complainant asserts as ‘serious’ violations. They are grouped as Items 1(a) through 1(h) in Citation No. 2 and as Items 1(a) through 1(h) in Citation No. 3. Citations Nos. 4, 5, 6, 7, 8, and 9 list 47 acts or omissions which Complainant alleges as ‘repeated’ violations.

In all, 75 separate violations are charged.

[15] See also Commission Rule 20(a); 29 CFR 2200.20(a).

[16] Inasmuch as an amendment of the citation is tantamount to the issuance of a new citation, the amendment is barred by the six-month limitation set forth in Section 9(c) of the Act.

[17] If ‘prejudice . . . to preparation of the opposing party’s case’ is involved, the amendment is not proper without ‘a continuance’ of the trial (Secretary of Labor v. All-State Industries, Inc., OSHRC Docket No. 15522, CCH OSHD para. 22,174, September 20, 1977). Considering Complainant’s dereliction in this instance and his clear duty to seek an early resolution of the issues raised in proceedings under the Act, he can hardly espouse delay by continuance.

[18] Section 5(a)(1) (29 U.S.C. 654(a)(1)):

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

[19] ‘. . . previous knowledge of a state of facts which it was [its] duty to guard against, and [its] omission to do which has led to the [violation] complained of.’ (Blacks Law Dictionary, Fourth Revised Edition, 1968.)

[20] See, e.g., Secretary of Labor v. Rockwell International, et al., 540 F2d 1283 (6 Cir. 1976); Secretary of Labor v. OSHRC (Hendrix), 511 F2d 1139 (9th Cir. 1975).

[21] National Realty and Construction Company v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).

[22] Secretary of Labor v. Butler Lime and Cement Company, supra; Ames Crane and Rental Service, Inc. v. Secretary of Labor, et al., 532 F.2d 123 (8 Cir. 1976).

[23] See Tr. 477, 478; but, see Respondent’s witness’ testimony that a supervisor has ‘an average [of] between 10 and 15’ hourly employees to direct (Tr. 835).

[24] Respondent asserts as a defense ‘that the inspection of Hull 4645 came as an afterthought following an inspection of Hull 4644 that revealed no violation.’ I fail to perceive the merit in that contention.

[25] Respondent has been cited for violation of 29 CFR 1916.51(a) on three prior occasions, but only two of the earlier citations, have become final orders of the Review Commission.

[26] Section 17(a) of the Act provides that

[a]ny 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. (29 U.S.C. 666(a).)

[27] Cf. Secretary of Labor v. Bethlehem Steel Corporation, OSHRC Docket No. 8392, CCH OSHD para. 19,996 (1975). There the Commission concluded that a second violation can constitute a ‘repeated’ violation regardless of the ‘particular state of the employer’s mind.’

[28] 15

Or as the Court observed:

The mere occurrence of a violation of a standard or regulation more than twice does not constitute that flaunting necessary to be found before a penalty can be assessed under § 666(a). What acts constitute flaunting of the requirements of the Act must be determined, in the first instance, by the Secretary and the Commission . . .. Among the factors the Commission should consider when determining whether a course of conduct is flaunting the requirements of the Act are the number, proximity in time, nature and extent of violations, their factual and legal relatedness, the degree of care of the employer in his efforts to prevent violations of the type involved, and the nature of the duties, standards, or regulations violated.

[29] A related case (OSHRC Docket No. 76–3444) resulted from a June 28—July 9, 1976, inspection of the same ship which was then being constructed in the ‘graving dock’ at the Sparrows Point Shipyard.

[30] The record made in OSHRC Docket No. 76–3444, as well as the briefs filed therein have, by stipulation of the parties, been incorporated in this case and made a part hereof.

[31] See also Commission Rule 20(a); 29 CFR 2200.20(a).

[32] The record does not disclose clearly whether the CSHO witnessed the occurrence or learned of it through hearsay. It is likewise not clear when the incident happened.

Without objection, Complainant’s counsel asked the witness: ‘. . . what do you think happened when [the employee] used it?’ The witness replied: ‘The ladder became displaced.’

[33] See, e.g., Secretary of Labor v. Rockwell International, 540 F.2d 1283 (6 Cir. 1976); Secretary of Labor v. OSHRC (Hendrix), 511 F.2d 1139 (9th Cir. 1975).

[34] National Realty and Construction Company v. OSHRC, 489 F.2d 1257 (D. C. Cir. 1973).

[35] Secretary of Labor v. Butler Lime and Cement Company, 520 F.2d 1011 (7 Cir., 1975); Secretary of Labor v. Ames Crane and Rental Service, Inc., 532 F.2d 123 (8 Cir. 1976).

[36] See Tr. 380.

[37] The citations issued on prior occasions resulted from inspections on other hulls; but all previous violations occurred at the Sparrows Point Shipyard.

[38] Section 17(a) of the Act provides that

[a]ny 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. (29 U.S.C. 666(a).)

[39] Cf. Secretary of Labor v. Bethlehem Steel Corporation, OSHRC Docket No. 8392, CCH OSHD para. 19,996 (1975). There the Commission concluded that a second violation can constitute a ‘repeated’ violation regardless of the ‘particular state of the employer’s mind.’

[40] Or as the Court observed:

The mere occurrence of a violation of a standard or regulation more than twice does not constitute that flaunting necessary to be found before a penalty can be assessed under § 666(a). What acts constitute flaunting of the requirements of the Act must be determined, in the first instance, by the Secretary and the Commission . . .. Among the factors the Commission should consider when determining whether a course of conduct is flaunting the requirements of the Act are the number, proximity in time, nature and extent of violations, their factual and legal relatedness, the degree of care of the employer in his efforts to prevent violations of the type involved, and the nature of the duties, standards, or regulations violated. Bethlehem Steel Corporation v. OSHRC, et al., (supra at 162).

[41] See Secretary of Labor v. Tacoma Boatbuilding Company, Inc., OSHRC Docket No. 6, 1 BNA OSHC 1309 (1973).