WILLAMETTE IRON AND STEEL COMPANY
OSHRC Docket No. 15317
Occupational Safety and Health Review Commission
January 11, 1978
[*1]
Before CLEARY, Chairman; BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Associate Regional Solicitor, U.S. Deptpartment of Labor
James C. Ingwersen, Guy F. Atkinson Company, for the employer
OPINION:
DECISION
BY THE COMMISSION:
The primary issue is whether Respondent (Willamette) "repeatedly" violated the housekeeping standard at 29 C.F.R. 1915.51(a) by violating that standard on one ship at its dry dock facilities in 1972 and on another ship at the same location in 1975. Judge Jerry W. Mitchell held that the company did commit a repeated violation, and assessed a $400 penalty. The secondary issue is whether that penalty should be modified. Chairman Cleary would affirm the Judge's categorization of the violation as repeated. Commissioner Barnako would find that the violation was nonserious, but not repeated. Both Commission members agree that a $200 penalty is appropriate and modify the penalty to that amount. To resolve that impasse on the classification of the citation, however, the Commission members agree to affirm that portion of the judge's decision and accord it the precedential value of an unreviewed judge's decision. See Life Science Products [*2] Company, 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD para. 22,313 (No. 14910, 1977).
The parties stipulated to the facts. Willamette was first cited for violating the standard n1 on December 8, 1972 while repairing the ship NAECO at the company's Swan Island dry dock facility in Portland, Oregon. The citation alleged that hoses and welding leads on the vessel's weatherdeck were not elevated or covered; the citation became a final order of the Commission after Willamette failed to contest it. n2
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n1 The standard at 1915.51(a) reads:
Good housekeeping conditions should be maintained at all times. Adequate aisles and passageways shall be maintained in all work areas. All staging platforms, ramps, stairways, walkways, aisles, and passageways on vessels or dry docks shall be kept clear of all tools, materials, and equipment except that which is in use, and all debris such as welding rod tips, bolts, nuts, and similar material. Hose and electrical conductors shall be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks.
n2 29 U.S.C. 659(a).
[*3]
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The company was issued the repeated citation on September 24, 1975 after an inspection of the vessel NEW YORKER at the Swan Island facility; the citation alleges that the vessel's maindeck walkways and working areas were cluttered with air hoses, welding leads, electrical cords, and debris. The allegations are admitted by the company. Although the records do not disclose whether the work crews employed on the NEW YORKER were the same as those employed on the NAECO, the same labor crafts under the same management supervision were employed at both times.
Willamette contends that: 1) a repeated violation was not proven because the evidence fails to show a flaunting of the Act's n3 requirements; 2) a repeated violation was not proven because the evidence fails to establish that the 1972 and 1975 violations involved substantially identical circumstances; 3) a repeated violation cannot be found where nearly three years intervene between two violations; 4) the present citation lacks the particularity required by Section 9(a) n4 of the Act because it does not identify the 1972 citation as the basis for the [*4] repeated allegation; 5) the procedures of the Secretary under the Act violated Willamette's rights under Article Ill, Section 2, and the Fourth, Fifth, Sixth, and Seventh Amendments to the Constitution.
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n3 The Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 651 et seq., referred to throughout this decision as the "Act."
n4 Section 9(a) reads, in pertinent part:
. . . Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. . .
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The views of Commissioner Barnako and Chairman Cleary on repeated violations are stated in George Human Construction Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD para. 21,774 (No. 13559, 1977), appeal docketed, No. 77-1591 (4th Cir., May 2, 1977). Commissioner Barnako agrees with Willamette that the violation was not repeated. A repeated violation required facts establishing that Willamette [*5] disregarded the requirements of 1915.51(a) after receiving the 1972 citation. Although an identity of management supervision may frequently show a company's disregard for the requirements of a standard, the identity of supervision here is not dispositive because of the nature of the violation cited. Housekeeping problems are recurrent ones for ship repair companies. It is not always possible, even with diligent effort, to maintain good housekeeping aboard ship. The fact that Willamette was cited for violating the same housekeeping standard twice in some three full years does not indicate that the company disregarded the standard after receiving the 1972 citation.
Chairman Cleary finds that the violation is repeated. He rejects Willamette's contention that the Secretary must prove a repeated violation by showing that the company flaunted the Act's requirements. He also disagrees with the company's contention that the circumstances of the two violations must be substantially identical for the second violation to be repeated. Chairman Cleary finds the violation repeated because the standard first violated in 1972 was again violated in 1975 at the same shipyard. See Bethlehem [*6] Steel Corp., 75 OSAHRC 83/C12, 3 BNA OSHC 1520, 1975-76 CCH OSHD para. 19,996 (No. 8392, 1975), rev'd, 540 F.2d 157 (3rd Cir. 1976). In Chairman Cleary's opinion the three-year interval between violations does not affect the classification of the violation as repeated, but he considers the interval significant in assessing a penalty.
Both Commissioner Barnako and the Chairman reject Willamette's argument that the present citation is not sufficiently particular. The citation adequately describes the nature of the violation and contains a reference to the standard at 1915.51(a). The complaint specified the date of the inspection that preceded issuance of the 1972 citation, as well as the name of the vessel involved in that inspection. We find that the citation and complaint provided Willamette with sufficient notice of the nature of the alleged violation. Todd Shipyards Corp., 77 OSAHRC 74/F14, 5 BNA OSHC 1012, 1976-77 OSHD para. 21,509 (No. 8500, 1977). As for the constitutional issues, the Commission does not have the authority to decide them. See Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1975-76 CCH OSHD para. 20,239 (No. 8454, 1975).
The Secretary [*7] of Labor argues that Judge Mitchell erred in assessing a penalty of $400. The Secretary contends that the parties stipulated to the appropriateness of a $780 penalty, and that the Judge did not have the authority to alter that amount. The Commission, however, is not bound to assess a stipulated penalty, although it will normally do so. Thorleif Larsen & Son of Indiana, Inc., 74 OSAHRC 74/C8, 2 BNA OSHC 1256, 1974-75 CCH OSHD para. 18,826 (No. 370, 1974). Further, the parties in this case stipulated to different penalties for different classifications of violations. They stipulated to $780 for a repeated violation and $200 for a nonserious violation. Since the Commission members are divided on how the violation should be classified, the stipulations of the parties cannot be honored. Instead, the Commission members will use their authority to assess penalties without regard to the stipulations.
Commissioner Barnako and Chairman Cleary agree that a $200 penalty is appropriate. They find the gravity of the violation to be moderate in that housekeeping problems were evident throughout the ship. Also, the three-year interval between violations indicates that Willamette did [*8] not demonstrate bad faith in violating the same standard a second time.
Accordingly, the Judge's ruling that the 1915.51(a) violation was repeated is affirmed. A penalty of $200 is assessed.