J. M. Martinac Shipbuilding Corp. (Commission decision, June 1, 1978)

Plain-English summary

The Commission affirmed the violation Judge Thomas J. Donegan found but modified his decision to reflect that the item is affirmed as a repeated violation. No penalty was assessed, and the penalty question was not before the Commission.

The hatch. On August 5, 1975 a compliance officer inspected the Bold Adventuress, a 223-foot tuna boat under construction at Martinac's Tacoma, Washington facility. Five citations issued. Only one item was contested: an open hatch, roughly 30 inches by 30 inches, in a port-side compartment, left unguarded. The cited standard, 29 C.F.R. § 1916.43(b), requires that open hatches without coamings at least 24 inches high be guarded to a height of 36 to 42 inches in the working area, except where guarding is impracticable.

Judge Donegan found the violation on an access theory. He accepted that employees were not working "in the vicinity" of the hatch but reasoned, citing Underhill and Gilles & Cotting, that they had access to it.

The Commission affirmed on different reasoning. Work in the compartment itself was nearly finished, with only painting and pick-up remaining, so the compartment was largely uninhabited. But employees worked in a storage area directly beneath the hatch, and the hatch was the only way in or out of that area. It also sat adjacent to the employees' path of travel. Martinac read the standard's reference to the working area to cover only employees working around the opening, which the Commission rejected: that reading would protect only employees "teetering on the edge" of an opening, a result antithetical to the remedial purpose of the Act. The Commission did not reach the argument that the Secretary failed to prove a recognized hazard likely to cause death or serious physical harm, because those are the criteria of the general duty clause in section 5(a)(1) and this case was brought under a specific standard.

Repeated. The judge held the violation was not repeated. He applied the Third Circuit's Bethlehem Steel formulation, which asks for flaunting disregard, and found no showing that the three earlier violations were similar to this one. The Secretary excepted.

Chairman Cleary found the violation repeated under the Commission's own Bethlehem Steel decision. Martinac had three prior final orders for violations of this same standard at different locations on other vessels at its facility, and under the Commission's test that is enough. He cited Todd Shipyards, 566 F.2d 1327, 1331 (9th Cir. 1977).

Commissioner Barnako reached the same result through his own two-prong test from George Hyman Construction Co.: a prior citation that became a final order, plus a substantially similar violation under the control of the supervisory employee responsible for abating the first. The openings were substantially similar because all were deck openings presenting the same falling hazard, notwithstanding differences in their size and type. Responsibility for abatement fell on Mr. Cheesman, business manager and secretary of the Safety Committee, who knew of the three prior citations but was on vacation during this inspection, and on Mr. Borovich, vice president, general superintendent and a member of the Safety Committee. Borovich knew the hatch was open and unguarded, passed it continually, and decided against guarding it because he did not consider it a hazard. A good-faith misconception that conduct is lawful is no defense, by analogy to the treatment of that argument in willful violation cases, as in Western Waterproofing Co., affirmed on this ground by the Eighth Circuit on May 9, 1978. Because the hatch had a hinged cover that was constantly opened and closed, the violation existed only while the cover was left open, the opening unguarded, and employees exposed.

Commissioner Cottine took no part in the decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1916.43(b)
• Outcome: Violation affirmed and the judge's decision modified to affirm the item as repeated. The Secretary did not except to the judge's assessment of no penalty, so no penalty issue was before the Commission.
• Key point: The guarding requirement is not limited to employees working at the edge of an opening; an unguarded hatch that is the sole access to an occupied space below and sits beside the path of travel is covered. Three prior final orders under the same standard, at other locations in the same facility, establish a repeated violation without proof of flaunting disregard.

Full text (OSHRC public release)

Docket No. 14767

J. M. MARTINAC SHIPBUILDING CORPORATION

OSHRC Docket No. 14767

Occupational Safety and Health Review Commission

June 1, 1978

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Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert A. Friel, Assoc. Reg. Sol., USDOL

James F. Henriot, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

This case is on review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970. n1 At issue is whether respondent, J. M. Martinac Shipbuilding Corporation, violated section 5(a)(2) of the Act by noncompliance with 29 CFR �
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1916.43(b), n2 and if so, whether the violation is "repeated." n3 Answering both questions affirmatively, we affirm a "repeated" violation of the standard.

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n1 29 U.S.C. �
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651 et seq (1970), hereinafter "the Act."

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1916.43 Guarding of deck openings and edges.

(b) When employees are working around open hatches not protected by coamings to a height of 24 inches or around other large openings, the edge of the opening shall be quarded in the working area to a height of 36 to 42 inches, except where the use of such guards is made impracticable by the work actually in progress.

n3 See section 17(a) of the Act.

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On August 5, 1975, the Occupational Safety and Health Administration conducted an inspection of the "Bold Adventuress" a 223 foot tuna boat being constructed by respondent at its Tacoma, Washington facility.
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Five citations alleging various violations were issued.
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Only the �
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1916.43(b) item, along with its proposed penalty, was contested, however.

I

At the hearing the compliance officer, who conducted the inspection, testified that he observed a 30 by 30 inch open hatch in a compartment on the vessel's port side which was not guarded as required by the standard.
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In his decision dated September 16, 1976, Judge Thomas J. Donegan found that, although employees were not working "in the vicinity" of the hatch, a violation was nevertheless established inasmuch as employees had access to the area, citing Secretary of Labor v. O.S.H.R.C. and Underhill Construction Corp., 513 F.2d 1032 (2d Cir. 1975) and Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976).

On review respondent renews its argument that the Secretary failed to establish a violation.
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It argues [*3]
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that the standard is inapplicable inasmuch as it applies, by its terms, only to employees "working around" open hatches while none of its employees were so engaged.
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We reject respondent's contention but for reasons other than those assigned by the Judge.

The record indicates that at the time of the inspection only painting and "pick up" work remained to be done in the compartment containing the open hatch. Therefore the compartment was largely uninhabited.
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Nevertheless, the record also reveals that employees were working in a storage area directly beneath, and only accessible through, this hatch. Moreover, it is undisputed that the hatch was adjacent to the path of travel used by employees to get to areas of the vessel on either side of the compartment.

Respondent's contention that such employees are not within the ambit of the standard is rejected.
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The unreasonableness of respondent's position is made plain by the fact that its argument would leave protected by the standard only employees "teetering on the edge" n4 of the open hatch. Such a narrow interpretation is antithetical to the remedial purposes of the Act, the keystone of which is preventability.
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See Marshall
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v. Western Electric, Inc., 565 F.2d 240, 245 (2d Cir. 1977); GAF Corp., v. O.S.H.R.C., 561 F.2d 913, 915 (D.C. Cir., 1977).
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Respondent's employees, climbing in and out of the hatch and walking through the compartment in close proximity thereto, were exposed to the hazard presented by the open hatch. Under any reasonable interpretation these employees come within the category of employees to whom the standard is addressed.
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Cf. Gelco Builders, Inc., 77 OSAHRC 203/B14, 6 BNA OSHC 1104, 1977-78 CCH OSHD para. 22,353 (No. 14505, 1977). n5

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n4 Brennan v. O.S.H.R.C. and Underhill Construction Corp., 513 F.2d at 1039.

n5 Inasmuch as we affirm a violation of section 5(a)(2) of the Act for noncompliance with �
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1916.43(b), we do not reach respondent's contention that the open hatch was not a "recognized hazard" that was "likely to cause death or serious physical harm" due to the configuration of the compartment. Such criteria are relevant only to a section 5(a)(1) violation, the so-called general duty clause which is not at issue here.
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Turner Company, 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 1558, 1976-77 CCH OSHD para. 21,023, 25,276 (No. 3635, 1976) rev'd and remanded on other grounds 561 F.2d 82 (7th Cir. 1977).

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II

Judge Donegan held that the violation was not "repeated" based upon his determination that there was no "flaunting disregard" of the Act relying upon Bethlehem Steel Corp. v. O.S.H.R.C. and Secretary of Labor, 504 F.2d 157 (3d Cir. 1976), and no showing that respondent's three earlier violations of the standard were similar in nature to the instant one.
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The Secretary excepts to this holding.
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Primarily, he argues that the Bethlehem court employed an erroneous test.
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The proper test, he argues, is that stated in the Commission's decision in that same case n6 later reversed by the court.
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According to the Secretary there is a "repeated" violation under the Commission's decision in Bethlehem Steel Corp.

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n6 75 OSAHRC 83/C12, 3 BNA OSHC 1520, 1975-76 CCH OSHD para. 19,996 (No. 8392, 1975).

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Commissioner Barnako and I hold that respondent repeatedly violated the Act.
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In my opinion there is a repeat violation inasmuch as the [*6]
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facts are similar to Bethlehem Steel Corp. There, the Commission held a violation to be "repeated" when a citation for violation of the ship-repairing housekeeping standard became a final order and a second violation occurred on a different ship in the same port.
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Here, there were three prior final orders for violations of the same standard, albeit at different locations on other vessels, at respondent's facility.
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That is enough.
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See Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327, 1331 (9th Cir. 1977).

Commissioner Barnako would reach the same result.
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In his separate opinion in George Hyman Construction Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD para. 21,774 (No. 13559, 1977) pet. for review docketed, No. 77-1591 (4th Cir. 1977), he held that "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.
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In the Hyman case, Commissioner Barnako noted that the relevant level of supervision responsible for [*7]
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abatement will vary according to the nature of the particular violation.
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Where infractions are local and transitory, Commissioner Barnako would look to first line supervisors since they are usually the only ones who have actual knowledge of the violations.
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On the other hand, where the violations require a higher level of supervision for their abatement, he would look to the activities of higher level supervisors responsible for abatement in order to determine whether the violation is repeat.

In the instant case, the Secretary has clearly established the first part of the two prong test set forth above.
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The question therefore is whether he has met his burden with respect to the second part of the test.
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Commissioner Barnako would hold that he has. n7 Although the violation here was local and transitory in nature, n8 there is no evidence with respect to the authority of first line supervisors to abate the cited conditions.
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However, Commissioner Barnako does not find such lack of evidence fatal to the Secretary's case where as here the evidence establishes higher level supervisors were responsible for abatement of the cited conditions in the initial and subsequent citations.

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n7 Commissioner Barnako would find that the cited condition was substantially similar to the previous conditions for which respondent was cited.
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Even though the openings were of different sizes and types, they were all deck openings and presented the same falling hazard.

n8 The hatch in question had a hinged cover which was constantly opened and closed to accomodate various working conditions; therefore, a violation only occurred during those periods that the hatch was left open and unguarded and employees were exposed.

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Primary responsibility for abatement apparently devolved upon Mr. Cheesman, respondent's business manager and secretary of its Safety Committee.
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Mr. Cheesman knew of the previous three citations and was responsible for obtaining abatement of these conditions.
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Nevertheless at the time of the August 5, 1975, inspection, Mr. Cheesman was on vacation.
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In these circumstances, in Mr. Barnako's opinion, the actions of other employees responsible for safety become more significant.

Mr. Borovich was respondent's [*9]
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vice president and general superintendent.
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As a member of respondent's Safety Committee he was familiar with the safety problems at respondent's worksite.
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Moreover, he was one of several persons responsible for correcting safety hazards and having them corrected.
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Indeed Mr. Borovich knew of the ungarded hatch involved in the instant case.
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He indicated that his work continually took him past the unguarded hatch and that he decided not to have it guarded because he did not consider it a hazard.

Hence the evidence establishes that even though he was vice president, Mr. Borovich inspected the worksite and obtained compliance with safety violations.
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He knew of the cited condition.
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In the face of three previous citations for unguarded openings, respondent's policy on such matters should have been well established and firmly implemented.
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Mr. Cheesman's absence from the site did not change this.

No different result is occasioned because Mr. Borovich's belief that the hatch need not be guarded may have been based in a good faith misconception of the condition.
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In willful cases the Commission has affirmed citations where the employers failed to abate because of misconceptions of its [*10]
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duty pursuant to the standard's requirements.
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In those cases the Commission reasoned that the employer cannot deliberately choose to discregard the requirements of the standard since the standard unambiguously forecloses such discretion.
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Western Waterproofing Co., 77 OSAHRC 25/A2, 5 BNA OSHC 1064, 1977-78 CCH OSHD para. 21,572 (No. 9225, 1977) aff'd on this ground, No. 77-1324 (8th Cir., May 9. 1978).
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Mr. Barnako would apply the same principle to repeat citations.

For the above reasons, Mr. Barnako would hold that respondent failed to take all necessary steps to prevent recurrence of the violation and would affirm the repeated citation.

Accordingly, the Judge's decision is modified to reflect that the item is affirmed as a "repeated" violation. n9

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n9 On review the Secretary does not except to the Judge's assessment of no penalty for the violation.
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Accordingly, the penalty issue is not before us.

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So ORDERED.

Commissioner COTTINE took no part in the consideration or decision of this case for the reasons [*11]
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set forth in his separate opinion.

SEPARATE OPINION

As a new member of the Commission, I must resolve the issue of my participation in pending cases.
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It is also necessary for me to set out the principles guiding my decision on this important issue.

In this case, Chairman Cleary and Commissioner Barnako reached a unanimous decision on the merits before I received my commission on May 1, 1978.
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A decision was already in preparation when I assumed office.
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I have concluded that the wisest exercise of discretion is to decline to participate in this case even though a new Commission member has authority to participate in pending cases.
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It should be emphasized that by declining to participate I express no opinion on the procedural or substantive issues in this case or on the appropriateness of the accompanying order.

Discretion of Commission Members

As a matter of law, it is not necessary for all Commission members to participate for an agency to take official action.
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In Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956), cert. denied, 353 U.S. 917 (1957), the Federal Trade Commission issued a cease-and-desist order with only three of its five members participating.
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The Court of Appeals rejected petitioner's contention that the FTC can act in its adjudicatory capacity only when all members participate, except when there is a vacancy.
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The court ruled that official action can be taken by the majority of the requisite quorum. Also Frischer & Co. v. Corp., 39 F.2d 247 (C.C.P.A. 1930), cited approvingly in FTC v. Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f) of the Occupational Safety and Health Act, 29 U.S.C. �
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661(e), provides:

For the purposes of carrying out its functions under this chapter, two members of the Commission shall constitute a quorum and official action can be taken only on the affirmative vote of at least two members.

Thus, the unanimous decision already reached in this case satisfies the quorum and official action requirements of the Act and my participation is not necessary for the Commission to carry out its adjudicatory functions in this particular case.

However, it is also settled that a new member of an administrative agency may participate in pending cases.
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For example, a new member of the Civil Aeronautics Board who had not participated in previous proceedings was entitled
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to vote and break an existing tie where he had familiarized himself with the record.
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Western Air Lines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing United Air Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960). n1 In United the court indicated that, where a member voting with the majority without hearing oral argument "had the record before him and the benefit of briefs", there was no abuse of discretion in his participation.
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281 F.2d at 56. There are numerous other cases supporting this holding.
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The clearest statement of law is set forth in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):

The decisions of numerous courts and administrative agencies establish that, even without agreement of the parties, a member of an administrative agency who did not hear oral argument may nevertheless participate in the decision where he has the benefit of the record before him.
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[footnotes omitted]

348 F.2d at 802. n2 See Au Yi Lau v. U.S. Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir. 1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir. 1976). Thus, a new member possesses the necessary authority to participate in all [*14]
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cases pending before the Commission on assuming office.

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n1 A Commissioner may vote simply to avoid an impasse.
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Public Service Commission of State of N.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974). See generally Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result).

n2 The Court distinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.), cert. denied, sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958), because oral argument was statutorily required if a party requested it.
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348 F.2d 798, 802 n. 14.

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Though a new member may participate in all pending cases, particularly those involving an impasse, the decision remains a matter of discretion since adjudicatory decisions may be upheld on a majority of a quorum. In FTC v. Flotill Prod., 389 U.S. 179 (1967), rev'g 358 F.2d 224 (9th Cir. 1966), an FTC member appointed to fill one of two vacancies declined to participate because he had not heard the oral argument. Thus, three [*15]
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of the possible four Commissioners actually participated in the decision.
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As a result, the FTC issued a cease-and-desist order based on the affirmative vote of only two members.
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Despite its obvious impact on the number of members constituting a majority, the Court did not review the exercise of discretion by the new member. Instead, the Court accepted the abstention at face value and upheld the action of the two members of the FTC.
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See also Lapeyre v. FTC, 366 F.2d 117 (5th Cir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965). In addition, administrative decisions involving two or more abstentions have been upheld by reviewing courts without question or comment on the grounds for these abstentions. All that was necessary to sustain the agency decision was a majority of the required quorum. E.g., Greater Boston Television Corp. v. FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971).

Decision Not to Participate

I decline to participate in this case because a majority of the Commission has reached agreement on the merits and my vote would have no effect on the outcome.
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Moreover, in cases where Chairman [*16]
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Cleary and Commissioner Barnako have reached a unanimous decision, my participation would delay the issuance of decisions and conflict with the goal of a prompt and efficient decision-making process.
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See generally Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442, 97 S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir. 1975), citing 5 U.S.C. �
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555(b).
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Since abatement is stayed until the Commission enters a final order, 29 U.S.C. �
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659(b), additional deliberations would delay the control of hazardous working conditions in any case where the Commission has determined that a violation of the Act exists.
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That result would be incosistent with the statutory purpose to assure so far as possible safe and healthful working conditions for every working man and woman.
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29 U.S.C. �
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651(b).

I will, however, participate fully in all cases in which previous Commission deliberations have resulted in a one-to-one deadlock.
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Decisions by an equally divided Commission are without precedential value, e.g., Life Sciences Products Co., 77 OSAHRC 200/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCH [*17]
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OSHD P22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir. Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission's administrative law judges.
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Moreover, these decisions also promote needless litigation in the U.S. Courts of Appeals to decides issues which should initially be determined by the Commission because its members have specialized training, education, and experience in occupational safety and health.
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29 U.S.C. �
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661(a).
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See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; Keystone Roofing Co., Inc. v. OSHRC, supra at 963-964. Administrative resolution of pending issues also promotes a more uniform application and development of occupational safety and health law.
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After reading the record, I will participate in the consideration and decision of these cases.

Conclusion

My decision not to participate in pending cases which have reached a unanimous decision by my colleagues, but to participate in those cases with unresolved issues, promotes the prompt adjudication of cases.
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The full benefit of Commission review is also assured the parties and the public.
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Both of these results are essential to
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protecting the lives, health and safety of American workers and the operation of American business while providing for the effective adjudication of cases by the administrative law judges.
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