UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 13559
GEORGE HYMAN CONSTRUCTION COMPANY,
Respondent.

April 26, 1977

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO, Chairman:

This case, like a number of other cases presently on review before the Commissioners, presents the issue of whether Respondent ‘repeatedly’ violated certain safety standards promulgated pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter ‘the Act’). The issue has been comprehensively briefed in this case, and oral argument was had.[1] Unfortunately, the members of the Commission cannot agree on what constitutes a repeated violation, and a definition is therefore not possible at this time. Accordingly, by this document the Commission members express their individual views in separate opinions on the question presented. Under my view, this case should be remanded for additional evidence; Commissioner Cleary would affirm the citations as repeated; and Commissioner Moran would not find the violations to be repeated but would affirm the citations as nonserious. Since a majority of the Commission members do not agree on a disposition, the Commission can take no official action in this case and the Judge’s decision therefore becomes the final action of the Commission. 29 U.S.C. 661(e).

The facts are largely undisputed. Respondent is engaged in the construction business. As the result of an inspection at a worksite in the District of Columbia, Respondent was issued, among other things, six citations, numbered 4 through 9, alleging repeated violations of the Act.[2] Respondent stipulated that the alleged violative conditions existed. The evidence established that Respondent had been issued two prior citations involving each of the standards cited in citations 6 and 8, and one prior citation involving each of the standards cited in citations 4, 5, 7, and 9, which had become final orders before the instant inspection. The prior citations involved different jobsites within a five-mile radius in the District of Columbia and had been issued within a year of the instant citations. The compliance officer testified that the hazards presented by the prior violations were identical to the hazards presented by the instant violative conditions and Respondent did not introduce evidence to the contrary.

Typically, Respondent performs work at twenty to thirty worksites at one time. The worksite at which the instant inspection occurred was to be active for thirty months. Most jobs had a duration of from 18 to 32 months, but some employees worked at more than one site during a year. Respondent employed an overall safety director who inspected each worksite on a weekly or monthly basis. The day-to-day safety supervision was delegated to job superintendents who stayed on one job until it was finished.

Respondent introduced into evidence the Secretary’s Field Operations Manual, which sets out the following guideline for determining whether an alleged violation shall be cited as repeated:

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 business having no fixed establishments (construction, painting, excavation) repeated violations will be alleged based on prior violations occurring anywhere within the same state. Ch. VIII, Sec. B.5.e.

Judge Osterman found the violations to have been repeated based on the guidelines on repeated violations set out in the Secretary’s Field Operations Manual. He determined that the Secretary’s guidelines should be upheld as reasonable. He was further persuaded by the fact that safety and health matters on all Respondent’s sites were under the overall supervision of one safety director, from whom knowledge of all the violations could be imputed to Respondent’s management. He concluded that Respondent should not be permitted to escape its responsibility under the Act simply because it operates numerous worksites, citing to the Commission decision in Bethlehem Steel Corp., 20 OSAHRC 227, BNA 3 OSHC 1520, CCH OSHD para. 19,996 (1975).[3]

The concept of a repeated violation is derived from section 17(a) of the Act, which states:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violations.

The Act does not otherwise define or mention the word ‘repeatedly.’ Nor is there any explicit indication in the legislative history of the Act concerning the intent of Congress in including the word ‘repeatedly’ in section 17(a). In the past, the Commission has determined whether a violation was repeated on a case-by-case basis without developing and consistently applying a rule applicable to all cases. See Bethlehem Steel Corp., supra; General Electric Co., 17 OSAHRC 49, BNA 3 OSHC 1031, CCH OSHD para. 19,567 (1975), rev’d in part on other grounds, 540 F.2d 67 (2nd Cir. 1976); Todd Shipyards Corp., 15 OSAHRC 346, BNA 2 OSHC 1579, CCH OSHD para. 19,272 (1975), pet. for review filed, No. 75-1909 (9th Cir., April 22, 1975).

In determining the nature of a repeated violation, a useful starting point is provided by the decision in Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3rd Cir. 1976) (See n.2, supra.). As an initial matter, the court concluded that a repeated violation must be based on at least two prior violations. In reaching this conclusion, the court noted that the word ‘repeated’ connoted happening more than once, while ‘repeatedly’ connoted a more frequent occurrence. Since section 17(a) uses the word ‘repeatedly,’ the court concluded that a violation falling under that section could not be based on a single prior occurrence. The court also noted that section 17(a) speaks of violations of the ‘requirements of section 5 of this Act,’ as well as violations of standards. Since a violation of section 5 occurs whenever either the general duty clause in section 5(a)(1) or any standard is violated, the court noted that an interpretation of section 17(a) which requires only a single prior violation for a subsequent violation to be classed as repeated would permit a repeated violation to be found whenever an employer commits a second violation of the Act, no matter how unrelated the violations might be.

The court also noted that ‘repeatedly’ as used in section 17(a) is linked to ‘willfully,’ and that the penalties provided for in section 17(a) substantially exceed those permitted for ordinary violations.[4] The court therefore reasoned that a repeated violation, like a willful violation, must consist of particularly flagrant conduct. The court noted that proof of intent was necessary to show a willful violation. It thought that a repeated violation would consist of flagrant conduct similar to a willful violation, but that a repeated violation could be shown by proof of objective facts which would raise an inference of willfulness. Quoting from our decision in General Electric Co., supra, the court concluded that a repeated violation could be shown by objective evidence establishing that the employer demonstrated a flaunting[5] disregard of the requirements of the Act, and that all relevant circumstances surrounding the existence of an alleged repeated violation should be considered in making this determination.

Respondent contends that the Commission should adopt the court’s analysis in Bethlehem Steel while the Secretary urges that we reject the approach taken in that case. The Secretary argues that a repeated violation can be based on a single prior violation. He contends that we should follow the guidelines in his Field Operations Manual in determining whether a violation is repeated.

The Commission is not bound to follow the decision in Bethlehem Steel. See Monroe & Sons, Inc., No. 6031, BNA 4 OSHC 2016, CCH OSHD para. 21,470 (Jan. 21, 1977). The court’s decision is, however, entitled to careful consideration. Having considered the court’s reasoning together with the arguments of the parties, I conclude that in some respects the court’s analysis should be adopted, but respectfully decline to follow the decision in its entirety.

I agree with the Third Circuit’s conclusion that the conduct which a repeated violation encompasses is similar to that which would raise an inference of willfulness. We have previously noted that the civil enforcement provisions of the Act were drafted by Congress to induce voluntary compliance with its provisions, and that the provisions for different types of violations must be read together to further that end. Crescent Wharf and Warehouse Co., 2 OSAHRC 1318, BNA 1 OSHC 1219, CCH OSHD para. 15,687 (1973). A principal tool which Congress provided to further voluntary compliance is the authority to assess penalties for first instance violations. Congress intended that the possibility of such penalties would serve as an incentive for employers to comply with the Act before they were inspected by the Secretary. See Atlas Roofing Co. v. OSHRC, 518 F.2d 990 (5th Cir. 1975), cert. granted, 96 S. Ct. 1458 (1976).

Congress also recognized, however, that the possibility of higher monetary penalties than those provided for first instance violations was necessary to act as an incentive for certain employers to comply. Thus, in section 17(d) of the Act Congress provided that penalties up to $1000 per day could be assessed if an employer failed to abate a violation for which it was cited. Similarly, in section 17(a), Congress provided that an employer who willfully commits a violation could be penalized up to $10,000, or ten times the amount it could be penalized for an ordinary first instance violation. One obvious purpose of providing a higher penalty for a willful violation was the necessity to have a greater incentive to comply on the part of an employer who intentionally permits a violation to exist, as compared to an employer who inadvertently allows a violation to occur.

In my opinion, by linking repeated violations with willful violations in section 17(a), Congress must have thought that a repeated violation was of such a nature that higher penalties than normal were necessary to provide a sufficient incentive for employers to prevent such violations. Thus, an employer who commits a repeated violation must exhibit a degree of disregard of the Act’s requirements similar to an employer who either commits a willful violation or fails to abate a cited violation.

A willful violation occurs when an employer consciously and deliberately decides not to comply. Kent Nowlin Construction, Inc., No. 9483, BNA 5 OSHC 1051, CCH OSHD para. 21,550 (Feb. 15, 1977). A failure to abate also requires a conscious decision in that the employer fails to comply with an order of the Commission of which it has actual knowledge. Thus, these types of violations involve aggravated conduct greater than mere inadvertence or negligence. Since I have concluded that a repeated violation is similar in degree to a willful violation, it must involve a comparable type of aggravated conduct. The distinction between a willful and a repeated violation, as the Third Circuit concluded, is that proof of actual intent is not necessary to establish a repeated violation. Instead, a repeated violation is established by proof of objective facts from which it can be inferred that the employer’s conduct has been of such a nature to constitute disregard of the Act’s requirements.

I therefore reject the test for repeated violations set out in the Secretary’s Field Operations Manual.[6] That test, as applied to employers with both fixed and non-fixed worksites, is purely mechanical and would permit the finding of a repeated violation even if the violation is inadvertent. In my opinion, such a result is contrary to the enforcement scheme established by Congress. In assessing penalties for ordinary violations, one of the factors that must be considered is the employer’s history of violations. 29 U.S.C. 666(i). If a subsequent violation automatically justifies a higher penalty, that can be accomplished within the framework of the Act without subjecting an employer who commits an inadvertent violation to the potential higher penalties intended to apply to employers who disregard the Act.[7]

I disagree, however, with the Third Circuit’s conclusion that a repeated violation must be based on at least two prior violations. A willful violation may be found regardless of whether any prior violation occurred so long as the violation was committed consciously or deliberately. See Intercounty Construction Co., 5 OSAHRC 782, BNA 1 OSHC 1437, CCH OSHD para. 17,044 (1973), aff’d 522 F.2d 777 (4th Cir. 1975). Only a single violation need occur in order for penalties to be assessed for a failure to abate. Thus, to require at least two prior violations for a repeated violation would mean that such a violation could connote a greater degree of disregard of the Act on the part of the employer than a willful violation or a failure to abate. If anything it appears that the opposite should be true.[8]

I do not place any significance on the fact that section 17(a) uses the word ‘repeatedly’ instead of ‘repeated.’ In its original form, section 17(a) referred only to willful violations. ‘Repeatedly’ was added after ‘willfully’ was already present in the section.[9] It thus is more likely that ‘repeatedly’ was used instead of ‘repeated’ simply to be in grammatical conformance with ‘willfully,’ rather than as a conscious choice by Congress to require at least two prior violations.[10] In general, of course, a pattern of conduct in disregard of the Act will be more easily established on the basis of more than one prior violation. I will not, however, foreclose the possibility that a repeated violation may be established on the basis of one prior violation.

As discussed above, employers are expected to comply with the Act regardless of whether they have been inspected or cited for alleged violations, and penalties for first instance violations provide an incentive for such compliance. When an employer has been found to have violated the Act, as evidenced by a final order of the Commission, it is reasonable to expect that employer to take extra precautions to prevent the recurrence of similar violations. The entry of a final order finding a violation provides actual notice to an employer that its compliance program is deficient and that further steps are necessary to prevent substantially similar violations in the future. If the employer fails to take these further steps, then it may be said that the employer is disregarding the Act.[11] In these circumstances, the employer has demonstrated that the penalties provided for first instance violations are not sufficient to produce the incentive necessary to comply, and that the further incentive provided by higher potential penalties is necessary. I would thus find a repeated violation when the circumstances show that an employer who has committed a prior violation has failed to take appropriate steps to prevent recurrences of substantially similar violations.

In determining what steps are appropriate to prevent violations from recurring, the realities of corporate control and decision making must be considered. We have previously noted that in order to comply with the requirements of the Act, an employer must give adequate safety training to its supervisory personnel. Ocean Electric Corp., 75 OSAHRC 6/C14, BNA 3 OSHC 1705, CCH OSHD para. 20,167 (1975). In general, the supervisor who is responsible for abating a violation can be expected to exert special efforts to prevent the recurrence of similar violations, and an employer can reasonably be expected to instruct its supervisors that such efforts are required. Thus, when a violation recurs in the area of responsibility of a particular supervisor, the inference arises that the employer has failed in its duty to adequately train that supervisor to prevent recurring violations. Thus, I would only infer that an employer has disregarded the Act in committing a subsequent violation when that violation occurs under the responsibility of the same supervisor who was responsible for abating the original violation or violations.

The relevant level of supervision to which I would look will vary according to the nature of the violation. For example, if the violation is of a local and transitory nature, such as a housekeeping violation, the first-line supervisor in charge of the area will generally have the authority to abate, and will often be the only supervisor who can be expected to have actual knowledge of the violation. Thus, for a violation of that nature, I would generally only find a repeated violation when the same first-line supervisor is responsible for the prior violation or violations. By way of contrast, when abatement of a violation requires the authority of a higher level of supervision to correct, that higher level supervisor will be responsible for abatement. For that type of violation, I would find that the Secretary has established a prima facie case for a repeated violation when both the initial and subsequent violation or violations occur within the area of corporate responsibility of that higher level of supervision.

Thus, in my opinion, the Secretary establishes a prima facie case that a violation is repeated when he shows (1) a violation has been cited and has become a final order, and (2) a substantially similar violation occurs under the control of the supervisor who had responsibility for abating the first violation. I stress, however, that the ultimate test for whether an employer has committed a repeated violation is whether, under all the circumstances, an employer can be said to have disregarded the Act by failing to take the necessary steps after the occurrence of the initial violation to prevent its recurrence. Thus, an employer can rebut the Secretary’s prima facie case by showing that it did take such steps or that the circumstances otherwise show that the employer has not disregarded the Act’s requirements.[12]

Turning to the facts of this case, the record as it is presently constituted shows that violations occurring on Respondent’s worksites were substantially similar to prior violations which have become final orders. There is however, no showing as to any of the violations that the same supervisors in charge of any of the worksites when the subsequent violations occurred were also responsible for abating the prior violations. The fact that the same safety director inspected each worksite does not alter this conclusion, as it was not shown that the safety director was responsible for abating the initial violations. Thus, on the record, the Secretary has not established a prima facie case that any of the violations were repeated.

At the time this case was tried, however, the Commission decision in Bethlehem Steel Corp., supra, was the most recent Commission precedent on the subject of repeated violations. Under that decision, the Secretary could not have known that evidence of the type I require would have been relevant. The same is true in numerous other cases now on review involving repeated violations.

I would therefore remand this case in order to permit the parties to present any additional evidence they might wish relevant to the test I have set out above. As indicated in their separate opinions, however, Commissioner Cleary would affirm the Judge’s decision and Commissioner Moran would affirm the violations as nonserious. Accordingly, the Commission can take no official action on the case, and the Judge’s decision becomes the final action of the Commission.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

BY: Gloria W. White

Acting Executive Secretary

DATE: APR 26, 1977

CLEARY, Commissioner:

On April 19, 1976, Administrative Law Judge Henry K. Osterman issued a decision holding that the respondent George Hyman Construction Company had ‘repeatedly’ violated 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter ‘the Act’]. Respondent timely petitioned for review of that decision, and on May 19, 1976, I granted the petition and invited submissions on the primary issue of whether the Administrative Law Judge erred in concluding that the violations at issue in this case are ‘repeated’ within the meaning of section 17(a) of the Act.

In response, both parties have filed briefs. The American Subcontractors Association and the Associated General Contractors of America have filed briefs as amici curiae. Also, the Commission heard extensive oral argument from the parties.

1. Background

On April 2, 1975, Compliance Safety and Health Officers of the Occupational Safety and Health Administration conducted a compliance inspection at 19th and E Streets, Southeast, in the District of Columbia, where George Hyman Construction Company was engaged as the general contractor for the construction of the new District of Columbia Jail. As a result of this inspection, nine citations were issued. Citation number one consisted of 13 items that alleged non-serious violations of the Act. Citations numbered two through nine alleged that George Hyman had repeatedly violated the Act. Only citations four, five, six, seven, eight and nine are at issue here. Respondent has admitted that the Act was violated as alleged by the citations, but contests the characterization of the violation as ‘repeated.’ The parties have stipulated that if respondent is found to have repeatedly violated the Act, the penalties proposed by the Secretary are appropriate. The chart appended to this decision summarizes the basic facts of the present and antecedent violations.

All present and antecedent violations occurred in the District of Columbia, and within a one-and-a-half mile radius of the D.C. Jail site. Each present violation occurred between two-and-one-half and eleven months after its antecedent. Safety and health at all of respondent’s worksites are under the supervision and control of respondent’s safety director who inspects respondent’s worksites on a weekly or monthly basis. Job superintendents report to him on safety and health matters, and he has the authority to issue instructions on these matters to the job safety superintendents.

Before the Administrative Law Judge, the respondent argued primarily that contrary to the view of the Secretary expressed in his enforcement guidelines in the Field Operations Manual, Chapter VIII,12a a repeated violation could not be found if the antecedent violation occurred at another construction worksite. Judge Osterman rejected the argument. He concluded that the Secretary’s enforcement guidelines were reasonable and appropriate. He relied also upon the Commission’s decision in Bethlehem Steel Corporation, 20 OSAHRC 227, BNA 3 OSHC 1520, CCH 1975-76 OSHC para. 19,996 (No. 8932, 1975).

After the review briefs had been received by the Commission, the Third Circuit decided Bethlehem Steel Corporation v. O.S.H.R.C., 540 F.2d 157 (3d Cir. 1976), reversing the Commission’s decision in that case. After the oral argument before the Commission, the parties and the Associated General Contractors filed supplemental briefs discussing the Third Circuit’s decision.

2. Discussion.

The arguments before us concern mainly (1) the application of the Secretary’s guidelines for finding ‘repeated’ violations on construction sites; (2) the application of our precedents represented by General Electric Co., 17 OSAHRC 49, BNA 3 OSHC 1031, CCH 1974-75 OSHD para. 19,567 (No. 2739, 1975), rev’d in part on other grounds, 540 F.2d 67 (2d Cir. 1976) and Bethlehem Steel Corp., 20 OSAHRC 227, BNA 3 OSHC 1520, CCH 1975-76 para. 19,996 (No. 8932, 1975); and (3) the Third Circuit’s decision in Bethlehem Steel Corp. v. O.S.H.R.C. and Brennan, 540 F.2d 157 (3d Cir. 1976), reversing the aforementioned Commission decision.

I preface my opinion by observing that in our cases to date the problem of ‘repeated’ violations has been exaggerated in importance. Characterization of a violation as ‘repeated’ expands the Commission’s discretion in penalty assessment. It has no other legal significance. It does not, for example, affect the employer’s duties under section 5(a). Any penalty assessed for a repeated violation must, under section 17(j), be appropriate in light of the employer’s history of previous violations, good faith, size, and the gravity of the violation. If a penalty does not exceed $1,000, but is nevertheless appropriate under section 17(j), it is of no moment that the penalty is characterized as ‘repeated’ or not (see International Terminal Operating Co., Inc., BNA 4 OSHC 2029, CCH 1976-77 OSHD para. 21,499 (No. 13021), 1977)). Compare Bethlehem Steel Corp., supra, wherein the proposed penalty totaled only $60. If the penalty for a repeated violation exceeds $1,000 and is appropriate under section 17(j), the penalty would reflect the Commission’s view that the employer has, for example, not endeavored to prevent repetitious violations or has flouted the Act. I make the observation in this case because none of the proposed penalties exceeds $1,000.

Under the Secretary’s enforcement guidelines, the issuance of citations for repeated violations is generally limited to instances where an employer maintaining a fixed establishment commits a repeated violation at the same establishment. But an employer without a fixed establishment such as one engaged in construction, painting, and excavation work, will be issued a citation for repeated violation if the prior violation occurs anywhere in the same state, and, in the case of a maritime employer, in the same ‘port area.’ Respondent challenges this policy as unlawfully discriminating against construction contractors and argues that it should be treated as if it operated a fixed establishment at each construction site. George Hyman submits that construction worksites are generally active for a period of time substantial enough to permit reinspections, and that construction companies would attempt to avoid citations for repeated violations by forming a separate corporation for each construction project. To illustrate the problems of interpretation that the Secretary’s policy might raise, respondent poses numerous hypothetical situations that might arise in future cases but are not presented here. It also attacks the Secretary’s policy as not worthy of deference because it is not embodied in a regulation and because the opinion of the Secretary is no more than that of any other party. Respondent therefore asks that we declare the Secretary’s policy to be neither ‘necessary nor appropriate’ and adopt a uniform test treating all employers alike.

The First Circuit was recently faced with a similar contention couched in terms of an equal protection argument, and rejected it on the strength of reasoning that is pertinent here. Desarrollos Metropolitanos, Inc. v. O.S.H.R.C., No. 76-1171 (1st Cir., March 23, 1977), aff’g, BNA 4 OSHC 1033, CCH 1975-76 OSHD para. 20,103 (No. 11884, 1975) (Administrative Law Judge). In any event it is not our function in this case to review the warp and woof of the Secretary’s enforcement policy concerning ‘repeated’ violations. We are not concerned with the imaginary cases with combinations of facts that differ from the real case before us.[13] Also, the one-site rule urged by respondent is too rigid to deal with the array of situations existing in the construction industry. See 29 CFR § 1910.12 and § 1904.14; United Telephone of the Carolinas, Inc., BNA 4 OSHC 1644, CCH 1976-77 OSHD para. 21,043 (No. 4210, 1976); Beatty Equipment Leasing, Inc., BNA 4 OSHC 1211, CCH 1975-76 OSHD para. 20,694 (No. 3901, 1976); and New England Telephone & Telegraph Co., BNA 4 OSHC 1839, CCH 1976-77 OSHD para. 21,267 (No. 9627, 1976). See generally Bechtel Power Corp., BNA 4 OSHC 1005, CCH 1975-76 OSHD para. 20,503 (No. 5064, 1976), aff’d per curiam No. 76-1365 (8th Cir., Jan. 25, 1977).

In the real cases that have been before the Commission, it has applied logic not unlike that of the First Circuit in Desarrollos Metropolitanos, Inc. There, the court noted that the statutory goal of employee safety is advanced by increasing the penalties assessed upon employers who repeatedly violate safety requirements, and observed that it is logical to coordinate repeated violations with those portions of a business which have authority over worker safety. Compare the Commission’s decision in General Electric, supra, where in the Schenectady area facilities were considered collectively for the purpose of determining whether a violation was repeated. Similarly, activity in a port area was collectively considered by the Commission in Bethlehem Steel, supra.

The same logic requires greater flexibility in dealing with geographically separate construction sites. The court in Desarrollos Metropolitanos, Inc. described construction sites as ‘movable’ as opposed to ‘fixed’. Our experience suggests that construction sites are not ‘fixed’ in the sense of being permanent, and frequently the same crews, or at least key personnel, work at more than one site.

Here, the jobsites were close in distance (within a one and one half mile radius). A violation at one of them can by any reasonable measurement be considered with subsequent violations[14] at a different site in determining whether there was a ‘repeated’ violation or violations. Also, it is significant, as noted by the Administrative Law Judge, that matters relating to safety and health were under the supervision and control of respondent’s Safety Director, who visited each worksite weekly or monthly.[15]

I turn now to perhaps the major question raised by the Third Circuit’s Bethlehem Steel decision. It is the question of whether the employer must have a particular state of mind or a motive for flouting the Act, or otherwise exhibit an aggravated form of misconduct, in order to have ‘repeatedly’ violated the Act. I find that he need not.

Section 17(a) permits the assessment of a higher penalty if an employer ‘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 . . ..’ In its Bethlehem Steel decision, the Third Circuit announced that ‘repeatedly’ refers to violations occurring more than twice in a manner that flouts the requirements of the Act. To reach this conclusion, the court made use of standard definitions, legislative history, the test of willfulness based on a flouting of the Act adopted by the Third Circuit in Frank Irey, Jr., Inc. v. O.S.H.R.C., 519 F.2d 1200 (3d Cir. 1975), aff’d on other points, sub nom., Atlas Roofing Co., Inc. v. O.S.H.R.C., 45 U.S.L.W. 4312 (U.S. March 23, 1977) (Nos. 75-746 -748) and the Commission’s decision in General Electric Co., supra. I respectfully decline to follow the opinion of the Third Circuit. It is inconsistent with the Secretary’s enforcement policy approved by the First Circuit in Desarrollos Metropolitanos, Inc.

The legislative history fails to support a restrictive meaning of the term ‘repeated’ or ‘repeatedly.’ It is true, as the Bethlehem court noted, that the original Senate bill, S. 2193, 91st Cong., 1st Sess. (1969), did not provide a civil penalty for either willful or repeated violations, but a criminal penalty for willful violations only. The original version of the House bill, H.R. 16785, 91st Cong., 2d Sess. 26 (1970), and the version reported to the House by the Committee on Education and Labor, provided for a civil penalty for a willful violation only. See H. Rep. No. 91-1291, 91st Cong., 2d Sess. 9 (1970), reprinted in Staff of Senate Comm. on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, 831, 839, 959-960 (Comm. Print 1971), [hereinafter cited as ‘Legis. Hist.’]. The substitute for H.R. 16785 passed by the House, however, provided a civil penalty for both willful violations and repeated violations. Legis. Hist. at 1103. At conference, the conflict was resolved by a compromise in which each house receded somewhat. The house’s provision for a civil penalty for a willful or repeated violation was adopted, and the Senate provision for criminal violations was amended to apply only to those that caused the death of an employee. See Statement of the Managers on the Part of the House, contained in the Conference Report, H. Rep. No. 91-1765, 91st Cong., 2d Sess. 32, 41, (1970), reprinted in Legis. Hist. at 1185, 1194; see also the statement of Congressman Perkins, Legis. Hist. at 1199, 1203.

The court was of the opinion that “willfully’ first appeared in a criminal provision and ‘repeatedly’ was added when that criminal provision was changed to a civil provision.’ 540 F.2d at 161. This, however, is not fully accurate, for as the legislative history shows, the repeated violation was added at an earlier stage to a provision which had always been civil in nature. The genesis of the civil provision for willful violations is in the civil provision in the House-passed bill, not the criminal provision in the Senate bill. It also does not seem reasonable to conclude that the House added ‘repeatedly’ to its civil provision to provide a basis to penalize an employer on the basis of a strong showing of intent that borders upon a showing of motive, or indeed any intent at all. Plainly, intentional violations were to be characterized as ‘willful’ violations. The House Committee report on H.R. 16785 stated that for ‘[o]ther than willful violations, the violator’s intent should not be a pertinent factor in the original assessment of penalties. . . .’ (Emphasis added). H. Rep. No. 91-1291, 91st Cong., 2d Sess. 26 (1970); Legis Hist. at 856. This also coincides with the usual view that in a civil context proof a willful violation requires some showing of intentional conduct. See e.g. Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139 (5th Cir. 1972); Intercounty Constr. Co. v. O.S.H.R.C., 522 F.2d 77 (4th Cir. 1975); cert. denied, 96 S.Ct. 854 (1976); Frank Irey, Jr., Inc. v. O.S.H.R.C., supra.

Thus we may infer that, when the House-passed bill provided a penalty for a ‘repeated’ violation, more likely than not something different from a ‘willful’ violation was intended. Otherwise the addition of ‘repeated’ would be largely a redundancy.

As to intrinsic evidence of statutory construction, I note that the court’s reading of the term ‘repeated’ as meaning three or more violations makes redundant our application of the term ‘history of previous violations’ in section 17(j) of the Act.

My colleagues agree with the Third Circuit that the conduct necessary to support a ‘repeated’ violation is similar to that necessary to support a willful violation. I do not agree. To equate the two types of violations is to make the provision for a ‘repeated’ violation essentially redundant. The Congressional purpose in drafting the ‘repeated’ provision is more reasonably read as a device dealing with repetitive violations that do not necessarily rise to the level of willfulness.

The court’s holding for all practical purposes would read the ‘repeated’ violation out of the Act. If a ‘repeated’ violation must be supported by a showing of two or more violations[16] in a manner that flouts the Act, and proof of a willful violation requires only that an employer flout the Act, there would be no reason to have recourse to the provision for a ‘repeated’ violation, because it would include the elements of a ‘willful’ violation.

Finally, the premise of the court’s definition is the Third Circuit’s decision in Frank Irey. Yet, the Commission has respectfully declined to follow the Frank Irey definition of ‘willfulness’ and has followed contrary views of other circuits. Kent Nowlin Construction, Inc., Nos. 9483 etc. (February 15, 1977).

For the above reasons the Commission’s Bethlehem Steel decision modified General Electric Co., supra. See the Judge’s decision in Desarrollos Metropolitanos, Inc., supra. Whether an employer’s conduct amounts to a flouting of the Act or similar behavior is properly considered in determining the amount of the penalty to be assessed, not whether violations have occurred repeatedly. Id. In this connection, it is significant that section 17(a) does not provide only for the assessment of penalties over a $1,000 to $10,000 for ‘repeated’ violations. There is nothing expressly foreclosing the assessment of a penalty of less than $1,000 for a ‘repeated’ violation when otherwise appropriate under section 17(j).

I note also that the court may have been concerned with the collateral matter of the scope of judicial review of the Commission’s findings under section 17(j). The court was concerned about the breadth of the Commission’s discretion under section 17(j). See 540 F.2d at 161 n.10. I appreciate the court’s concern. But note that Bethlehem Steel involved a proposed penalty of only $60, and I submit that section 17(j) is structured to provide effective judicial review of the Commission’s application of the factors listed therein. Cf. REA Express, Inc. v. Brennan, 495 F.2d 822 (2d Cir. 1974).

I would therefore adhere to the Commission’s decision in Bethlehem Steel and affirm the decision of the Administrative Law Judge.

Appendix

Citation Number	Standard Violated* and Penalty Stipulated	Description of Violation	Antecedent Violations
Four	250(b)(1)$140	material stored within 10 feet of interior wall not higher than material.	citation issued June 12, 1974; not contested. Description: material stacked next to floor opening.
Five	401(a)(1)$90	non-current carrying metal parts of electric heater not grounded	citation issued January 20, 1975; not contested. Description: same type of equipment not grounded.
Six	401(j)(1)$90	temporary lights not guarded in rodman’s office trailer.	citations issued October 3, 1974 and January 20, 1975; neither contested. Description: failure to bulb guards in carpenter office, carpenter’s trailer, storage trailer; and laborers trailer.
Seven	450(a)(5)$340	less than 7 inch clearance behind ladder on crane.	citation issued October 3, 1974; not contested. Description: same on scaffold.
Eight	500(d)(1)$230	failure to have standard guardrail or equivalent.	citations issued on June 12, 1974 and October 16, 1974; neither contested. Description: similar.
Nine	550 (c)(5)$160	crane not operated as prescribed by manufacturer; interlocks did not work and strain gauge not hooked up.	citation issued June 12, 1974; not contested. Description: interlocks on electrical panel doors of crane were inoperative.

MORAN, Commissioner:

The disposition ordered below is incorrect and should be reversed.

The statutory basis for repeated violations is 29 U.S.C. § 666(a) which provides that:

Any employer who willfully or repeatedly violates the requirements of section 654 of this title, any standard, rule, or order promulgated pursuant to section 655 of this title, or regulation prescribed pursuant to this chapter, may be assessed a civil penalty of not more than $10,000 for each violation. (Emphasis added.)

The term ‘repeatedly’ is not defined in the Act and the legislative history is silent on its meaning. Therefore, a reviewing tribunal is left without explicit direction on this matter. Accordingly, it is appropriate to apply the general rule of legislative construction that statutory language should be construed in its usual and conventional sense. United States v. Gilbert Associates, Inc., 345 U.S. 361, 364 (1953).

The drafters of the Act purposefully chose to use the term ‘repeatedly’ as opposed to ‘repeat.’ There is a significant distinction between the two. Webster’s Third New International Dictionary (Unabridged) defines ‘repeat’ as ‘to make or do or perform again.’ However, ‘repeated’[17] is defined therein as ‘renewed or recurring again and again.’ Thus, ‘repeatedly’ is descriptive of a rather persistent course of conduct.

After performing a similar analysis, the United States Court of Appeals for the Third Circuit properly concluded that a single prior noncompliance with a standard does not provide a sufficient predicate for finding that a subsequent noncompliance with the same standard constitutes a repeated violation. Bethlehem Steel Corporation v. OSAHRC, 540 F.2d 157 (3d Cir. 1976). Moreover, the court held that, in view of the substantial penalties provided in § 666(a),[18] complainant must prove not only that an employer violated the same standard on more than one prior occasion, but that the subsequent violation constitutes a ‘flaunting [of] the requirements of the Act.’[19] 540 F.2d at 162. This conclusion is mandated by the fact that prior violations of the same standard do not in and of themselves establish a course of conduct sufficiently grievous to warrant the imposition of the substantial penalties authorized by § 666(a).[20]

Flouting of the requirements of the Act can be proved by showing that an employer has demonstrated a pattern of consciously ignoring a standard after having been cited for noncompliance therewith. In this regard, it is appropriate to consider whether the violative conditions occurred under substantially similar circumstances. Secretary v. Todd Shipyards Corporation, OSAHRC Docket No. 12510, December 22, 1975; Secretary v. Bethlehem Steel Corporation, 20 OSAHRC 227 (1975). The persistent failure of an employer to heed the mandate for corrective action may manifest a blatant disregard for the safety and health of its employees.

In the case before us it is clear that the charges contained in citations 4, 5, 7, and 9 were not repeated because there is no indication that respondent failed to comply with the standards cited therein on more than one prior occasion. However, it is necessary to consider whether respondent flouted the requirements of the Act with respect to citations 6 and 8 because of the existence of two final orders in each instance which pertain to the standards cited in citations 6 and 8.

Although the resultant hazards were alike, there is no evidence of record to indicate that the instant violations occurred under circumstances substantially similar to those involved in the prior citations. There is no evidence that either violation recurred under the auspices of the same supervisor.

Complainant submits that a finding that the violations were repeated is compelled by the fact that overall safety supervision was vested in respondent’s safety director and, therefore, that respondent presumably had centralized control over each site.[21] The facts, however, belie this conclusion. Respondent maintains between 20 and 30 worksites at any given time. Consequently, it is impossible for its safety director to inspect each site more than once a month or to keep apprised of day to day activities. Of necessity, primary safety responsibility is vested in the individual job superintendent who generally remains at the project for its duration.

In light of these facts, it is evident that complainant has failed to establish that respondent has flouted the requirements of the Act. There is no evidence to show that respondent engaged in a pattern of deliberately ignoring a standard after having been previously cited for violations thereof.

Accordingly, the Judge’s decision should be reversed insofar as it characterizes the violations in citations 4 through 9 as repeated. Since the stipulation of the parties establishes that each of these is a nonserious violation, citations 4-9 should be affirmed as such,[22] and the penalty should be reduced accordingly.

[1] In addition to briefs and supplemental briefs by the parties, amicus briefs were submitted by the American Subcontractors Association and the Association of General Contractors of America.

[2] The citations alleged violations of 29 C.F.R. 1926.250(b)(1), 1926.401(a)(1), 1926.401(j)(1), 1926.450(a)(5), 1926.500(d)(1), and 1926.550(c)(5).

[3] The Commission’s decision insofar as it found a repeated violation was reversed on judicial review. Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3rd Cir. 1976).

[4] For a serious violation, a penalty of up to $1000 must be assessed. 29 U.S.C. 666(b). For a violation not of a serious nature, a penalty of up to $1000 may be assessed. 29 U.S.C. 666(c).

[5] The word ‘flaunting’ as applied to section 17(a) of the Act was first used by the Third Circuit in determining whether a violation was properly classified as willful. Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (3rd Cir. 1974), aff’d enbanc, 519 F.2d 1215 (1975), cert. granted on other grounds, 96 S. Ct. 1458 (1976). The court stated that ‘willfulness connotes defiance or such reckless disregard of consequences as to be equivalent to a knowing, conscious, and deliberate flaunting of the Act.’ 519 F.2d at 1207. The Commission introduced a ‘flaunting’ test in General Electric Co., supra, but applied that test to find a repeated violation under circumstances where the ‘reckless disregard’ mentioned by the Third Circuit could not be said to exist. Thus, the word ‘flaunting’ cannot be said to have a well-defined meaning as applied to section 17(a), and I think it best to avoid the use of that term.

[6] In Desarrollos Metropolitanos, Inc. v. OSHRC, No. 76-1171 (1st Cir., March 23, 1977), the court held that the Secretary’s guidelines, insofar as they distinguish between employers with fixed and transient worksites, do not violate the Constitutional guarantee of equal protection of the laws. It also ruled that there is no constitutional infirmity concerning the Secretary’s guidelines insofar as they distinguish between construction work predicated on whether it is performed intra or interstate.

The First Circuit was concerned only with the rationality of the Secretary’s guidelines insofar as they distinguish between different classes of employers. The court was not faced with, and did not decide, whether those guidelines embody the appropriate test for repeated violations. Thus, the court did not purport to apply principles of statutory construction in order to determine the proper meaning of ‘repeatedly’ as used in section 17(a). Under these circumstances, I do not think that the court’s decision in Desarrollos is instructive concerning the issue before the Commission in this case.

[7] The only instance in which this is not true is when a penalty of $1000 has been assessed for a first instance violation. It has been our experience, however, that such instances are extremely unusual, and I do not think it is necessary to give special consideration to such a rare occurrence in devising an appropriate test for repeated violations. On the other hand, it has also been our experience that, as in this case, the Secretary usually proposes penalties for alleged repeated violations well below the $1000 limit for ordinary violations. Thus, in most cases involving violations which the Secretary alleges to be repeated, the penalty which the Secretary thinks is appropriate could be assessed even if the violation is not found to be repeated.

[8] Pursuant to section 17(e) of the Act, a willful violation may result in criminal liability. Criminal penalties are not, however, provided for repeated violations. Thus, a willful violation may require a greater degree of fault than a repeated violation. Similarly, the potential daily penalties for failure to abate a violation may greatly exceed the penalty for a repeated violation. It would therefore be unreasonable to establish a test for repeated violation which involves greater disregard of the Act than a failure to abate

[9] The Senate bill (S. 2193) provided at section 15(c) for a criminal penalty for any employer who willfully violated the Act. See Staff of the Senate Subcommittee on Labor, 95nd Cong., 1st Sess., Legislative History of the Safety and Health Act of 1970, p. 566 (Comm. Print 1971). The original House bill (H.R. 16785) did not contain a criminal provision, but provided for a civil penalty of up to $10,000 against an employer who ‘willfully’ violated a standard. Id. at pp. 746,959. The amended version of the bill passed by the House included section 17(a) in its present form. Id. at p. 1103. Thus, the word ‘willfully’ in the original House bill became ‘willfully or repeatedly’ in the final House version. The conference committee bill which was ultimately enacted into law included the House’s civil penalty provision in section 17(a) and a modified version of the Senate’s criminal penalty provision in section 17(d). Id at pp. 1170-1171.

[10] The Third Circuit was concerned that if a repeated violation could be based on a single prior violation, then a repeated violation could occur within the literal terms of section 17(a) even if the two violations were completely unrelated. I note, however, that it has not been the Secretary’s policy to cite employers for repeated violations based on unrelated prior violations. Thus, at present the difficulty foreseen by the court is only theoretical, and does not present a significant problem in interpreting section 17(a).

[11] If a violation is not substantially similar to a prior violation(s) an inference that the employer has disregarded the Act cannot be drawn. In this circumstance, the prior violation(s) cannot be said to have put the employer on notice that special efforts were necessary to avoid the subsequent violation. Of course, in all cases the history of violations must be considered in assessing penalties. 29 U.S.C. 666(i). See p.9, supra.

[12] Respondent contends that there should be a one-year limitation for use of a prior violation as a basis for a repeated violation. I do not think such a limitation is appropriate. A substantial time lag between violations is, of course, one factor which may be considered in determining whether the circumstances exhibit a disregard of the Act. To establish rigid rules concerning the factors which enter into whether the employer has disregarded the Act would ultimately reduce the inquiry to a mechanical one. As discussed above, I do not think a mechanical approach is appropriate.

I also note that I would not distinguish between employers with fixed and non-fixed worksites. Since the ultimate question is whether the employer has exhibited a disregard of the Act, the same test is appropriate for both.

12a See note 3 of the Judge’s decision quoting the guidelines.

[13] For this reason we are not concerned here with the issue of whether the Commission should continue to require, as would the Secretary, that an employer previously violated the same standard. Each standard here has been violated twice, and with respect to citations six and eight, three times.

[14] Note in addition that the violations involved occurred within the same year.

[15] I add parenthetically that I disagree with the Chairman’s view that a violation can be found to be ‘repeated’ only when an antecedent violation occurred under the responsibility of the same supervisor. This would create a legal, straightjacket for the Secretary’s proof even under the Chairman’s general test for a ‘repeated’ violation of whether the employer failed to take the necessary steps for preventing recurrence of the antecedent hazard. We should resist the temptation to lay down a principle that could become a useless platitude when confronted with adjudicative facts. Also, an important consideration should be that this course may discourage the centralization and coordination of safety practices and responsibilities by construction employers. This result would be inconsistent with the statutory purpose of encouraging employers to perfect existing programs for providing safe working conditions. See 29 U.S.C. section 651(b)(1). Moreover, the First Circuit in upholding the Secretary’s enforcement guidelines, implicitly rejected this element of proof because it requires an increased OSHA staff to determine after each inspection whether the safety program of that employer was centralized or delegated before it could propose an appropriate penalty. ‘This’, the court noted, ‘would inflate the cost of administering the program without realizing any benefit in carrying out the legislative goals (emphasis added).’ Desarrollos Metropolitanos, Inc., supra.

[16] I agreed with the Chairman’s discussion on the issue of whether the second of two violations may be considered ‘repeated.’

[17] Repeatedly is the adverbial form of repeated.

[18] The maximum penalty that can be imposed upon one found to have repeatedly violated the Act is ten times that which can be assessed for a nonaggravated serious or nonserious violation. 29 U.S.C. § 666(b) and (c). The significance of these differences in penalty amounts was discussed at some length in Frank Irey, Jr., Inc. v. OSAHRC, 519 F.2d 1200, 1207 (3d Cir. 1974).

[19] The ‘flaunting’ test was originally laid down by this Commission in Secretary v. General Electric Company, 17 OSAHRC 49, 65 (1975). Since the term ‘flouting’, however, is more appropriately descriptive of the conduct intended, its usage in the future is warranted.

[20] I agree with Chairman Barnako’s analysis of the decision in Desarrollos Metropolitanos, Inc. v. OSAHRC, No. 76-1171 (1st Cir., March 23, 1977), as reflected in footnote 6 of the lead opinion.

[21] See Secretary v. General Electric Company, supra.

[22] Cf. Secretary v. Colorado Pike Lines, Inc., OSAHRC Docket No. 2805, December 31, 1975.

[23] Respondent has withdrawn its notice of contest as to Items 1, 3, 4, 5, 7, 8, 9, 10, 11, 12, and 13 of Citation 1. Complainant vacated Item 6 of Citation 1.

Complainant has also vacated repeated Citations 2 and 3 and amended repeated Citation 7 as follows:

Citation 7, Item 1 (paragraph XXIV of the Complaint) alleges a repeated violation of 29 CFR 1926.450(a)(5), ANSI A 14.3–1956 Safety Code for fixed ladders, Sections 4.1.2, 4.1.3 and 5.4. Citation 7, Item 1 and paragraph XXVII of the Complaint are amended so as to allege a non-serious violation within the meaning of 17(c) of the Act with respect to sections 4.1.2 and 4.1.3 of ANSI A 14.3–1956 . . ..

Since respondent only contested the repeated nature of Citation 7 Item, it must be deemed admitted in all other respects.

By letter dated March 12, 1976, Respondent has withdrawn its contest of Item 2 of Citation number 1. See also Stipulation, J–15; Tr. 3–5; Secretary’s Brief, p 2.

[24] The standards involved herein are the following:

Citation No. 4—29 CFR 1926.250(b)(1)

Citation No. 5—29 CFR 1926.401(a)(1)

Citation No. 6—29 CFR 1926.401(j)(1)

Citation No. 7—29 CFR 1926.450(a)(5)

Citation No. 8—29 CFR 1926.500(d)(1)

Citation No. 9—29 CFR 1926.550(c)(5)

On June 12, 1974, Respondent was cited for a violation of 29 CFR 1926.250(b)(1) which occurred in Washington, D. C. Respondent did not contest this Citation which thereafter became the final order of this Commission. (Items 128–131, Complainant’s Request for Admissions; Respondent’s Answer to Complainant’s Request, Items 128–131).

On January 20, 1975, Respondent was cited for a violation of 29 CFR 1926.401(a)(1) which occurred in Washington, D. C. Respondent did not contest this Citation which became the final order of this Commission. (Items 136–139, Complainant’s Request for Admissions; Respondent’s Answer to Complainant’s Request, Items 136–139).

On October 3, 1974, and again on January 20, 1975, Respondent was cited for a violation of 29 CFR 1926.401(j)(1) which occurred in Washington, D. C. Respondent did not contest these citations which became the final orders of this Commission (Items 140–147, Complainant’s Request for Admissions; Respondent’s Answer to Complainant’s Request, Items 140–147).

On October 3, 1974, Respondent was cited for a violation of 29 CFR 1926.450(a)(5) which occurred in Washington, D.C. Respondent did not contest the citation which became the final order of this Commission (Items 148–151, Complainant’s Request for Admissions; Respondent’s Answer to Complainant’s Request, Item 148 admits a violation of 29 CFR 1926.450(a)(5) but denies that Section 5.4 of the ANSI Code was involved. Respondent admits Items 149–151).

On June 12, 1974, and again on October 16, 1974, Respondent was cited for violations of 29 CFR 1926.500(d)(1) which occurred in Washington, D. C. Respondent did not contest the Citations which became the final order of this Commission (Items 152–159, Complainant’s Request for Admissions; Respondent’s Answer to Complainant’s Request, Items 152–159).

On June 12, 1974, Respondent was cited for a violation of 29 CFR 1926.550(c)(5) which occurred in Washington, D. C. Respondent did not contest the Citation which became the final order of this Commission (Items 160–163, Complainant’s Request for Admissions; Respondent’s Answer to Complainant’s Request, Items 160–163).

[25] The Secretary’s Field Operations Manual, Chapter VIII, B.5.e., in effect on the inspection date, provides as follows:

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 in businesses having no fixed establishments (construction, painting, excavation) repeated violations will be alleged based on prior violations occurring anywhere within the same State.