UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 10434
DONALD HARRIS, INCORPORATED,
Respondent.

January 3, 1978

DECISION

Before CLEARY, Chairman; and BARNAKO, Commissioner.

BY THE COMMISSION:

A decision of Administrative Law Judge Joseph L. Chalk, dated May 28, 1975, is before the Commission for review pursuant to 29 U.S.C. § 661(i). Although the complainant cited the respondent for a repeated violation of the standard codified at 29 CFR § 1926.451(a)(8) and proposed a penalty of $90 therefor, judge Chalk affirmed a nonserious violation of the standard and assessed a $45 penalty.

On review, the complainant argues that the Judge erred in finding that the violation should not be characterized as a repeated one. Implicit in that argument is a contention that the $45 penalty assessment is inadequate. See J. A. McCarthy, Inc., 76 OSAHRC 65/A2, 4 BNA OSHC 1358, 1976–77 CCH OSHD para. 20,813 (No. 3985, 1976).

The instant citation was issued because several split and damaged planks on a tubular frame scaffolding platform had not been immediately replaced as required by § 1926.451(a)(8). The respondent had previously been cited for two violations of this same standard at other worksites in Pennsylvania. Since the respondent did not contest these violations they became final orders by operation of law. 29 U.S.C. § 659(a).

Irrespective of how a violation is classified, the Commission is required to consider an employer’s ‘history of previous violations’ in assessing penalties. 29 U.S.C. § 666(i). In this case, there is no showing that the instant violation or the prior violations were of high gravity of that the violative conditions existed for a long time. Although the prior violations should have alerted the respondent to the need for vigilance, there is no evidence indicating that the respondent did not make a good faith attempt to avoid reoccurrence of the violation. Considering these circumstances and the entire record in conjunction with all the criteria specified in 29 U.S.C. § 666(i), the Commission finds that a penalty of $45 is appropriate.

In view of the relatively small penalty assessment, the Commission will not address the repeated characterization of the violation. A maximum penalty of $10,000 is authorized for a repeated violation.[1] However, a penalty assessment of $45, or even $90 as proposed by the complainant, is considerably less than the $1,000 authorized for serious or nonserious violations.[2] Therefore, the question of whether the violation should be classified as repeated need not be addressed by the Commission. Penn Central Transportation Co., 77 OSAHRC 15/F4, 4 BNA OSHC 2033, 1976–77 CCH OSHD para. 21,540 (No. 13084, 1977).

Accordingly, the Judge’s decision is affirmed.

FOR THE COMMISSION:

Ray H. Darling Jr.

Acting Executive Secretary

Dated: January 3, 1978

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 10434
DONALD HARRIS, INCORPORATED,
Respondent.

May 28, 1975

APPEARANCES

Joan M. Roller, Esq. For Complainant

Henry G. Beamer, III, Esq. For Respondent

DECISION AND ORDER

Chalk, Judge

Following an inspection of Respondent’s worksite in Mercer, Pennsylvania, by a Department of Labor compliance officer on September 5, 1974, Respondent, on September 23, 1974, was issued a Citation alleging a violation of 29 U.S.C. 654(a)(2), as follows:

‘Repeated’

29 C.F.R. 1926.451(a)(8)[3]

‘Several planks on the tubular frame scaffolding platform in the following location, were split and damaged and were not immediately replaced or repaired:

(a) Northeast corner of Ceramic Studio Room 310 . . .’

A penalty of $90.00 was proposed for this charge.

On October 9, 1974, Respondent contested the charge.[4]

The record establishes, inter alia, that Respondent maintains construction worksites throughout Pennsylvania and West Virginia.

At the hearing, no witnesses were called, as all the facts were stipulated, and Respondent admitted the violation, except for the ‘repeated’ aspect thereof. In this stipulation, it was agreed that Respondent would pay the proposed penalty of $90.00, if the charge were sustained, or a penalty of $45.00, if the charge were not found to be repeated.

All matters that follow appear in the stipulation.

Respondent was previously cited on two occasions, November 20, 1973 and November 27, 1973, for violations of the same standard at two other construction sites in Pennsylvania. These charges were not contested.

The present Citation was issued in accordance with the following excerpt from Labor’s Field Operations Manual, paragraph VIII–12, (1974):

For purposes of considering whether a violation is repeated, citations issued to employers having fixed establishments e. g., factories, terminals, stores) will be limited to the cited establishment. For employers engaged in a business having no fixed establishments (construction, painting, excavation) repeated violations to be alleged based on prior violations occurring anywhere within the same State . . .[5]

Respondent maintains its permanent office in Pittsburgh, Pennsylvania, but as a masonry contractor, its employees work at different construction sites throughout Pennsylvania, as well as West Virginia. When work is completed at a given site, its supervisors and foremen are moved to other sites. When possible, the same procedure is followed with respect to workmen. During the year 1974, Respondent performed work at about twenty-five different worksites in the above two states. A supervisor or foreman may be employed at different worksites during the course of a typical year.

Respondent’s principal argument is that the Secretary’s guideline regarding repeated violations arbitrarily discriminates against employers without fixed worksites, such as construction companies. It argues that there is no rational reason why a construction company with worksites in, for example, Pittsburgh and Philadelphia should be subjected to heavier penalties for the same activities as a manufacturing company with plants in the same two cities.[6]

The Secretary argues that heavier penalties are provided for repeated violations in order to deter employers from exposing their employees to the same hazard for which they were previously cited. He claims that fixed worksites can be regularly visited by compliance officers to determine if the employer is persisting in exposing his employees to the same hazard. Because construction sites exist only for a limited duration, however, and because the construction crew may then begin work at a different location, he argues it is necessary to be able to cite a repeated violation at the new worksite in order to deter the employer from exposing his employees to the same hazard which may have existed at the previous worksite. The Secretary therefore concludes that it is rational to treat employers with fixed worksites differently from those without fixed worksites. He further argues that, to satisfy due process, a classification need not be perfect, but only rationally related to the end it seeks to achieve, citing, inter alia, Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153 (1970), and Richardson v. Belcher, 404 U.S. 78, 92 S. Ct. 245 (1971).

The cases cited by the Secretary involve situations where statutes were found to be not unduly arbitrary or discriminatory. They were decided in accordance with the familiar rule that courts will not review the wisdom, but only the constitutionality, of legislative enactments. Here, however, we are not dealing with a statute, or even a regulation,[7] but simply with the Secretary’s interpretation of a term used in a statute. The Secretary is therefore essentially asking that this Commission give his interpretation of a statutory term a deference comparable to that a court would give to a legislative judgment embodied in a statute.

It is true that courts will give deference to an interpretation by an administrative agency of the statute that the agency administers (NLRB v. Hearst Publications, Inc., 322 U.S. 111, 64 S. Ct. 851 (1944); The Budd Company v. OSAHRC, Nos. 74–1256 and 74–1781 (3rd Cir., March 24, 1975)). But Congress assigned responsibilities under this Act to two agencies: the Secretary of Labor and this Commission. The Secretary promulgates standards and issues citations. The Commission’s role is adjudication. The process of adjudication involves interpretation of the statute; and, where this involves specialized questions of law peculiar to the administration of this Act, it is the Commission’s, not the Secretary’s, interpretation to which a court will defer (Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir., 1974)). In a proceeding before the Commission, the Secretary’s opinion regarding the interpretation of the Act is simply that of one of the parties, and is entitled to no more weight than that of any other party.[8] Thus, the real issue is not whether the Secretary’s guideline is arbitrary, but whether it embodies the correct definition of repeated violation.

The Review Commission has recently adopted the following test for determining whether a violation is properly classified as repeated:

‘The term ‘repeated’ is therefore read to mean happening more than once in a manner which flaunts the requirements of that 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.’ Secretary v. General Electric Company, Docket No. 2739, April 21, 1975 (slip opinion at p. 25).

It is clear that the Secretary’s guideline is inconsistent with this test, for his test is objective-he would classify the instant violation as repeated solely on the fact that Respondent violated the same standard at more than one worksite within the same state. The Commission’s test on the other hand, is subjective-it requires evidence that the instant violation occurred in a manner indicating that Respondent flaunted the requirements of the Act. Thus, for a repeated charge to be sustained, there must be something more than a bare showing of a recurrence of the same violation, as was shown in this case. Here, the void might have been filled had the Secretary shown, for example, that a large percentage of the total number of planks Respondent was using were severely damaged and that the same supervisory personnel were involved in all violations.

The Secretary bears the burden of proving all elements of his charge (see Secretary v. Warner Brothers, Inc., 14 OSAHRC 474 (1974), and cases therein). As he has failed to meet that burden in this case, the repeated aspect of the charge cannot be sustained.[9]

Additionally, I am persuaded that the Secretary’s guideline regarding repeated violations is indeed arbitrary in the manner in which it treats employers with and without fixed worksites differently (see Dandridge v. Williams, supra; Scheider v. Rusk, 377 U.S. 163, 84 S. Ct. 1187 (1964); Bolling et al v. Sharpe et al, 347 U.S.: 497, 74 S. Ct. 693 (1953); Nebbia v. People of State of New York, 291 U.S. 502, 545, Ct. 505 (1934); Smith v. Cahoon, 283 U.S. 553, 51 S. Ct. 582 (1931). The Secretary attempts to justify his guideline on the basis that it is necessary to deter employers from persisting is exposing their employees to the same hazard. Assuming that this objective can be achieved in this manner, it is not clear why employees of some employers are entitled to more protection than others. The Secretary’s definition would not permit the issuance of a repeated citation to an employer with two fixed worksites under conditions where the employer flaunts the requirements of a standard by violating it at one worksite after having been found to have violated it at the other. Such a violation would be ‘repeated’ under the Commission’s test, but not the Secretary’s.

Furthermore, the instant enforcement proceeding demonstrates the irrationality of the guideline. As the Secretary states in his brief:

‘. . . by grouping repeated violations in the same category as willful violations, Congress was indicating that it considered repeated violations very grave offenses.’

Despite the fact that the Secretary ostensibly considers the violation in this case to be ‘very grave’, he proposed only a $90 penalty. If he thought this penalty was justified, he could have recommended it even if the violation was simply classified as nonserious. Among the factors to be considered in any penalty assessment are the employer’s prior history of violations and his good faith. If an employer persistently violates a standard, these factors may justify a higher than usual penalty even if the violation is not classified as repeated. Thus, the present enforcement proceeding does not support the notion that citing repeated violations in accordance with the Secretary’s guideline is necessary or appropriate to adequately protect employees.

III

Upon review of the entire record, I reach the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. At the time and place in question, Respondent’s employees utilized a scaffolding platform containing several split and damaged planks.

2. On two previous occasions at different worksites in Pennsylvania, Respondent had been cited because its employees utilized scaffolding platforms containing split and damaged planks, citations which Respondent did not contest.

3. The citation for repeated violation in this instance was issued in accordance with the guideline contained in Paragraph VIII–12 of the Secretary’s Field Operations Manual promulgated in 1974.

CONCLUSIONS OF LAW

1. That this Commission has jurisdiction over the cause.

2. That Respondent violated Section 5(a)(2) of the Act at the time and place in question by not complying with 29 C.F.R. 1926.451(a)(8).

3. The violation did not occur in a manner which flaunted the requirements of the standard, and is therefore not ‘repeated’ within the meaning of Section 17(a) of the Act.

Only so much of Citation number 1 as alleged a nonserious violation of 29 U.S.C. 654(a)(2) by not complying with 29 C.F.R. 1926.451(a)(8) is affirmed. A penalty of $45.00 is assessed therefor.

So ORDERED.

JOSEPH L. CHALK

Judge, OSAHRC

Dated: May 28, 1975

Washington, D.C.

[3] This standard provides:

Any scaffold including accessories such as braces, brackets, trusses, screw legs, ladders, etc. damaged or weakened from any cause shall be immediately repaired or replaced.

[4] Respondent did not contest another Citation issued as a result of the same inspection.

[5] The distinction between fixed establishments and otherwise did not appear in Labor’s Compliance Operations Manual (1972) superseded by that cited above.

[6] The maximum possible penalty for a repeated violation is $10,000. For serious and nonserious violations, $1000 is the maximum penalty that may be assessed.

[7] Judicial review of a regulation would involve the same criteria as that of a statute (Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S. Ct. 463 (1949).

[8] Where the issue is the interpretation of a standard which the Secretary has promulgated, one court has held that the Secretary’s interpretation is conclusive if it is reasonable (Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir., 1974)). Another court has held, however, that it is the Commission’s interpretation of a standard which is entitled to judicial deference (Brennan v. OSAHRC (Ron M. Fiegen, Inc.), No. 74–1643 (8th Cir., April 18, 1975)). Regardless of which of these views is correct, the present case is distinguishable. The view that the Secretary’s interpretation is entitled to deference is based on the assumption that, as the promulgator of the standard, he is presumably familiar with its intent (Brennan v. Southern Contractors Service, supra. The same rationale is not applicable when it is the statute which is to be interpreted.

[9] The Secretary cites Secretary v. Vappi & Co., Inc., Docket No. 8282, January 7, 1975, in which Judge Worcester found a repeated violation on facts similar to those in this case. That case, however, is now under review by the Commission, and cannot therefore be considered persuasive authority. Additionally, Judge Worcester’s decision was rendered prior to the Commission’s decision in Secretary v. General Electric Co., supra, and would appear to be inconsistent with the test set forth in that case.