HENRY C. BECK COMPANY

OSHRC Docket No. 77-963

Occupational Safety and Health Review Commission

June 30, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

E. Lee Haag, III, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Dee C. Blythe is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678.   Judge Blythe, among other things, affirmed a "serious-repeat" citation alleging that Respondent, Henry C. Beck Company, failed to comply with 29 C.F.R. §   1926.28(a) in that it did not require certain employees working on the 5th and 6th levels of a building under construction to use personal fall protection equipment such as safety belts and lanyards.

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n1 29 U.S.C. §   661(i).

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Respondent petitioned for review of the Judge's decision, taking exception to a number of the judge's findings and conclusions.   Commissioner Barnako directed that the judge's decision be reviewed, but his order for review was limited to the following [*2]   issue raised in Respondent's petition: "[w]hether the trial judge committed reversible error in concluding that the violation of 29 C.F.R. 1926.28(a) with respect to the 5th and 6th levels of the building was a repeated violation as alleged." Our review is thus limited to that issue. n2

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n2 In its brief on review, Respondent reiterates a number of exceptions that it had raised in its petition for review but that were not directed for review.   Respondent also asks that the Commission review the judge's determination that a violation of §   1926.28(a) that occurred in the ground level elevator shaft was properly classified as repeated. While stating that it inadvertently failed to raise this issue in its petition for review, Respondent asserts that the Commission should consider it on review as it involves "identical objective facts" as the issue specified in the direction for review.

When an order for review directs that the Commission consider a certain issue or issues raised in a petition for review but is silent as to other issues mentioned in the petition, the petition is denied as to those other issues.   See Commission Rule of Procedure 91(d), 29 C.F.R. §   2200.91(d).   Accordingly, those exceptions that Respondent raised in its petition for review that were not directed for review are not before us.   Moreover, Commission review is limited to those issues directed for review by a Commission Member, whether in response to a petition for review or on the Member's own motion.   See Commission Rule of Procedure 92(c), 44 Fed. Reg. 70,106, 70,111 (1979), to be codified in 29 C.F.R. §   2200.92 [formerly Rule 91a(c), 29 C.F.R. §   2200.91a(c)].   As the direction for review is silent on whether Respondent's noncompliance with §   1926.28(a) at the ground level elevator shaft is properly classified as repeated, that issue is not before us.

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Since the judge issued his decision, the Commission has definitively identified the circumstances under which a violation is properly classified as repeated. Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979) ("Potlatch"); see Stearns-Roger, Inc., 79 OSAHRC 7 BNA OSHC 1919, 1979 CCH OSHD P24,008 (No. 76-2326, 1979); Communications, Inc., 79 OSAHRC 61/A2, 7 BNA OSHC 1598, 1979 CCH OSHD P23,759 (No. 76-1924, 1979), appeal filed, No. 79-2148 (D.C. Cir. Sept. 27, 1979); Triple "A" South, Inc., 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979).   Thus, the judge's ruling on the issue directed for review must be reconsidered under current Commission precedent.   The Commission will remand the case to the administrative law judge to reconsider his decision on that issue. n3

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n3 This case was tried prior to the issuance of our decision in Potlatch. In cases tried prior to Potlatch but decided under the Potlatch test, when the Commission has concluded that the Secretary established a prima facie case that a violation is repeated in nature, the Commission has considered whether it is appropriate to afford the employer the opportunity to present additional evidence relevant to the repeated issue.   On remand in this case, if the judge determines that the Secretary made out a prima facie case that the violation is repeated, he should, in a similar manner, determine whether to offer Respondent the opportunity to present additional evidence.   See Stearns-Roger, Inc., supra, 7 BNA OSHC at 1924 & n. 15, 1979 CCH OSHD at 29,159 & n. 15; Communications, Inc., supra, 7 BNA OSHC at 1603 & n. 5, 1979 CCH OSHD at 28,813-14 & n. 5.

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Accordingly, the case is remanded to the judge to issue a decision and order disposing of whether Respondent's noncompliance with 29 C.F.R. §   1926.28(a) on the 5th and 6th levels is properly classified as repeated. n4 SO ORDERED.

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n4 In Potlatch, Commissioner Barnako set forth his test for determining the circumstances under which a violation is properly characterized as repeated. That test differs in some respects from that of the Commission majority.   Commissioner Barnako continues to adhere to the position set forth by him in Potlatch. However, he has previously recognized that the orderly administration of the Act requires that the Commission's administrative law judges follow precedents established by the Commission.   Gulf & Western Food Products Co., 77 OSAHRC 72/A2, 4 BNA OSHC 1436 at 1439, 1976-77 CCH OSHD P20,884 at 25,067 (Nos. 6804 & 6805, 1976).   For this reason, he joins with his colleagues in their remand order.

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