Willamette Iron and Steel Company (Commission decision, December 16, 1980)

Plain-English summary

This is the Commission's second decision in the same case, issued almost three years after the first, and it exists because the first one did not count.

Willamette repaired ships at its Swan Island dry dock in Portland, Oregon. It was cited in December 1972 for hoses and welding leads left unelevated and uncovered on the weather deck of the Naeco, in violation of the shipyard housekeeping standard at 29 C.F.R. § 1915.51(a). It did not contest that citation, so it became a final Commission order. In September 1975 an inspection of the New Yorker at the same facility found the maindeck walkways and work areas cluttered with air hoses, welding leads, electrical cords, and debris. The Secretary cited the same standard and called the violation repeated. Willamette admitted the conditions and disputed the characterization.

In January 1978 the Commission had only two sitting members, and they could not agree on whether the violation was repeated. They resolved the impasse by affirming the judge's characterization while giving that part of the decision only the weight of an unreviewed judge's decision. Willamette petitioned the Ninth Circuit. The court never reached the merits. Section 12(f) of the Act lets two members form a quorum but permits official action only on the affirmative vote of at least two, and a split is not that. The court held the disposition was not official Commission action and dismissed the petition.
Willamette Iron and Steel Co. v. Secretary of Labor, 604 F.2d 1177 (9th Cir. 1979), cert. denied. A third member had since been appointed. After certiorari was denied, Willamette wrote to ask whether any further official action was coming. This decision is the answer.

With three members the Commission reconsidered the characterization and applied Potlatch Corp., decided while the appeal was pending. Under
Potlatch a violation is repeated if, at the time of the alleged repeat, there was a Commission final order against the same employer for a substantially similar violation. A prior violation of the same standard makes out the Secretary's prima facie case, which the employer may rebut by showing that the violations arose under disparate conditions or involved different hazards. The employer's attitude, common supervisory control, geographic proximity, elapsed time, and the number of prior violations bear only on the penalty, not on whether the violation is repeated.

Willamette's rebuttal arguments all failed, and each failure is a rule. Substantial similarity does not require identity. Both citations involved a clutter of hoses and welding leads on ship decks creating the same tripping hazard, and the extra cords and debris in the second do not change that. Whether the same individual workers were involved is irrelevant, because
Potlatch already held that common supervisory control does not bear on the repeat question. That the violations were on different ships does not matter, because different worksites are not a relevant factor. That they were on different parts of a deck does not matter either, under FMC Corp. The argument that nearly three years between violations bars a repeat finding, and the argument that repeat requires proof of flouting the Act, were both rejected on Potlatch.

The Commission did not remand for more evidence even though Potlatch came after the hearing. Its usual practice is to give an affected party a chance to meet a new legal test, but Willamette had already argued dissimilarity to both the judge and the Commission, so the defense would not have been tried differently.

Commissioner Barnako applies a different test but agreed on substantial similarity, reaching it through the shared clutter, hazard, and abatement method. He would also let an employer defend by showing good faith steps taken after the final order to prevent recurrence, and would have given Willamette ten days to ask that the case be reopened on that point.

On penalty, the parties had stipulated that $780 was appropriate if the violation were found repeated. The Commission restated that it is not bound by a stipulated penalty though it normally accepts one, and assessed the stipulated $780. Commissioner Barnako agreed on the amount but not on reviewing an agreed penalty at all.

A fourth amendment objection was disposed of in a footnote. The inspection predated Marshall v. Barlow's, Inc., and under Meadows Industries the Commission does not apply an exclusionary remedy retroactively to inspections conducted before Barlow's was announced. Particularity and constitutionality rulings from the 1978 decision were not reopened.

Two features of the extracted text are worth noting for anyone reading the record below. It opens with a retrieval system's document list naming many unrelated employers; the decision itself begins at the Docket No. 15317 heading. And the text is internally inconsistent about the earlier penalty, reciting $200 in its account of the 1978 decision while the penalty discussion addresses the judge's assessment of $400. Both are transcribed as released.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1915.51(a), shipyard housekeeping
• Outcome: Affirmed. The repeated, other than serious violation stands and
  the stipulated penalty of $780 is assessed.
• Key point: A two member split is not official Commission action under
  section 12(f), so the case returned for a real decision. On the merits, substantial similarity under Potlatch turns on the hazard and the standard, not on which ship, which deck, or which crew.

Full text (OSHRC public release)

Docket No. 15317

1 of 202 DOCUMENTS

TURNER COMPANY

A. SCHONBEK & CO., INC.

NORANDA ALUMINUM, INC.

GENERAL MOTORS CORP., GM ASSEMBLY DIV.

ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.

CLEMENT FOOD COMPANY

MILLCON CORPORATION

FWA DRILLING COMPANY, INC.

CCI, INC.

GENERAL ELECTRIC COMPANY

CONSOLIDATED ALUMINUM CORPORATION

THE BRONZE CRAFT CORPORATION

CARGILL, INC.

CHAPMAN CONSTRUCTION CO., INC.

GALLO MECHANICAL CONTRACTORS, INC.

SPECIAL METALS CORPORATION

WILLAMETTE IRON AND STEEL COMPANY

OSHRC Docket No. 15317

Occupational Safety and Health Review Commission

December 16, 1980

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Mr. Robert Friel, Assoc. Solicitor of Labor, USDOL

James C. Ingwersen, Guy F. Atkinson Co., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A Commission decision in this case was issued on January 11, 1978.

Willamette Iron and Steel Co., 78 OSAHRC 3/D8, 6 BNA OSHC 1304, 1978 CCH OSHD P22,482 (No. 15317, 1978).

In that decision, the Commission affirmed the determination by Administrative Law Judge Jerry W. Mitchell that Respondent, Willamette Iron and Steel Company ("Willamette"), had committed a repeated violation of the Occupational Safety and Health Act of 1970, 29 U.S.C.

651-678 ("the Act"), by failing to comply with the standard at 29 C.F.R.

1915.51(a). n1 The Commission assessed a $200 penalty for this violation.

The Commission members, however, could not agree whether the violation should be characterized as repeated. n2 Consequently, the Commission members resolved their impasse on the characterization issue by voting to affirm the judge's characterization of the violation as repeated but accorded that portion of the decision the precedential value [*2]

of an unreviewed judge's decision.

This manner of disposition was consistent with the Commission's disposition of other cases in which there were impasses in the views of the two Commission members.

See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD P22,313 (No. 14910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).

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n1 Section 1915.51(a) provides:

1915.51 Housekeeping.

(a) Good housekeeping conditions shall be maintained at all times.

Adequate aisles and passageways shall be maintained in all work areas.

All staging platforms, ramps, stairways, walkways, aisles, and passageways on vessels or dry docks shall be kept clear of all tools, materials, and equipment except that which is in use, and all debris such as welding rod tips, bolts, nuts, and similar material.

Hose and electric conductors shall be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks.

n2 Because of a vacancy, the Commission was composed of only two members when this case was considered and the January 11, 1978 decision was issued.

[*3]

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Respondent petitioned for review of the Commission's decision in the United States Court of Appeals for the Ninth Circuit, contending that the violation was improperly characterized as repeated. The Ninth Circuit did not reach the merits of Respondent's appeal.

Rather, the Ninth Circuit held that the Commission's disposition of the repeated issue did not constitute official action by the Commission under section 12(f) of the Act, 29 U.S.C.

661(e). n3 Consequently, the Ninth Circuit dismissed Respondent's petition for review. n4 Willamette Iron and Steel Co. v. Secretary of Labor, 604 F.2d 1177 (9th Cir. 1979), cert. denied, 100 S. Ct. 1337 (1980).

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n3 Section 12(f) provides:

For the purpose of carrying out its functions under this Act, 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.

n4 While Respondent's petition for review was pending before the Ninth Circuit, a third member, Commissioner Cottine, was appointed to the Commission.

[*4]

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Following the Supreme Court's denial of certiorari, Respondent filed a letter with the Commission that inquired whether any further "official action" was contemplated in this case.

In response to Respondent's inquiry, we new reconsider whether the violation in this case should be characterized as repeated. n5 In accordance with section 17(j) of the Act, 29 U.S.C.

666(i), we also reassess an appropriate penalty. For the reasons that follow, we conclude that Respondent has committed a repeated, other-than-serious violation of section 1915.51(a), and we assess a penalty of $780.

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n5 In our January 11, 1978 decision, both participating Commission members rejected Respondent's argument that the citation in this case is not sufficiently particular.

Both Commission members also held that the Commission was without authority to rule on Respondent's objections to the constitutionality of the Act.

Respondent did not seek judicial review of these rulings, and the Ninth Circuit did not address these rulings in its opinion.

See Willamette Iron and Steel Co., 604 F.2d at 1178 n. 1. Consequently, there is no need for the Commission to reconsider Respondent's particularity and constitutionality arguments in this decision.

We note, however, that Respondent argues that it has been subjected to a warrantless inspection in violation of the fourth amendment.

In a case decided after our earlier decision in this case, the Supreme Court held that the Act is unconstitutional insofar as it purports to authorize inspections without a warrant or its equivalent.

Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). However, the inspection here was conducted before Barlow's was decided.

The Commission has held that any remedy which might otherwise be appropriate if an inspection violates the fourth amendment will not be applied retroactively to inspections that occurred before the decision in Barlow's was announced.

Meadows Industries, Inc., 79 OSAHRC 107/E9, 7 BNA OSHC 1709, 1979 CCH OSHD P23,847 (No. 76-1463, 1979).

Accordingly, even if the inspection failed to conform to the fourth amendment tests later set forth in Ballow's, Respondent would not be entitled to exclusion of the evidence.

[*5]

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The parties stipulated to the facts.

Respondent was first cited for violating 29 C.F.R.

1915.51(a) on December 8, 1972, while repairing the ship Naeco at the company's Swan Island dry dock facility in Portland, Oregon.

The citation alleged that hoses and welding leads on the vessel's weather deck were not elevated or covered.

This citation became a final order of the Commission after Respondent failed to contest it. n6

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n6 29 U.S.C.

659(a).

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The company was issued the repeated citation at issue in this case on September 24, 1975 after an inspection of the vessel New Yorker at the Swan Island facility.

The citation alleges that the vessel's maindeck walkways and working areas were cluttered with air hoses, welding leads, electrical cords, and debris. The allegations are admitted by Respondent.

The parties stipulated that although the records do not disclose whether the work crews employed on the New Yorker were the [*6]

same as those employed on the Naeco, the same labor crafts under the same management supervision were employed at both times.

From this stipulated record, Respondent contends that Judge Mitchell erred in finding that the violation in this case was repeated, while the Secretary argues in support of the judge's finding of a repeated violation.

II

During the period in which Respondent's petition for review was pending before the Ninth Circuit, the Commission defined the circumstances under which a violation is properly classified as repeated. Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979) ("Potlatch").

In Potlatch, we set forth the following test for determining whether a violation is repeated:

A violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.

7 BNA OSHC 1063, 1979 CCH OSHD p. 28,171. Under this analysis, proof that an employer has committed a prior violation of the same standard constitutes a prima facie showing by the Secretary of substantially similar violations.

[*7]

The employer may then rebut showing by offering evidence that the violations occurred under disparate conditions or involved different hazards. Factors such as the employer's attitude, the Commonality of supervisory control over the violative conditions, the geographical proximity of the violations, the time lapse between violations, and the number of prior violations are relevant only to determining an appropriate penalty. n7

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n7 In this case, Respondent contends that a repeated violation was not proven because the evidence fails to show a flouting of the Act's requirements.

It also argues that a repeated violation cannot be found where nearly three years intervene between the two violations.

These contertions are rejected for the reasons stated in Potlatch.

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In this case, Respondent was previously cited for violating the same standard.

The citation had become a final order of the Commission prior to the issuance of the present citation.

The Secretary's prima facie case therefore is established.

Respondent [*8]

argues that a repeat violation cannot be found since the "requisite identicality or substantial similarity between the allegedly repetitious violations does not exist." In particular, it points out that there is no evidence that the work crews employed at the time of both inspections were composed of the same individuals.

It also notes that the inspections took place aboard different ships, and that the earlier citation alleged a localized violation on a weather deck while the later citation described a more generalized situation with violations of the standard at several locations aboard the ship.

To serve as a basis for a repeated classification, a prior violation or violations need not be identical but only substantially similar to the present violation.

We conclude that the evidence establishes that the antecedent and present violations are substantially similar. As discussed previously, the same hazard - a tripping hazard - is the subject of both violations.

Both the antecedent and present violations involve a clutter of hoses and welding leads on the decks of the ships. While the present violation also includes electrical cord and debris, the presence of these additional [*9]

materials in the clutter does not alter the similarity of the two violations.

We also reject Respondent's argument that the violations are not substantially similar because there is no evidence that the work crews at the time of the two inspections were composed of the same individuals.

As stated in Potlatch, commonality of supervisory control over the violative conditions does not bear on whether a particular violation is repeated. From this, it follows that a dissimilarity in the composition of the work crews also is not a relevant consideration.

The only other distinctions between the antecedent and present violations are that they took place aboard different ships and that they existed in different locations on board the two ships. In Potlatch, we held that the fact that the violations occurred at different worksites is not a relevant factor in determining whether a violation is repeated. The Commission also has held that it is irrelevant that the violations occurred at different locations on board a ship. FMC Corp., 79 OSAHRC 41/C6, 7 BNA OSHC 1419, 1979 CCH OSHD P23,631 (No. 12311, 1979).

See also J. M. Martinac Shipbuilding Corp. v. Marshall, [*10]

7 BNA OSHC 2120 (9th Cir. Jan. 16, 1980) (designated by court as not for publication) (evidence that violations occurred over a five-year period on different ships and in different locations does not bar finding that violations were substantially similar for purposes of characterizing a violation as repeated).

For the same reasons, we reject the argument that the antecedent violation is not substantially similar because it occurred on weather decks and the present violation occurred on decks elsewhere on a different ship. Accordingly, we conclude that Respondent's violation of 29 C.F.R.

1915.51(a) is repeated as alleged in the citation. n8

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n8 This case was tried and decided prior to our decision in Potlatch. Usually when there has been a significant intervening change in law between the hearing and our decision on review in a case, we will offer the affected party an opportunity to present additional evidence relevant to the newly established legal test or defense.

Truland-Elliott, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976-77 CCH OSHD P20,908 (No. 11259, 1976).

However, Respondent argued the dissimilarity in the violations in its brief to the judge and to the Commission.

Under these circumstances, we conclude that the defense in this case would not have been tried any differently had Portlatch been issued before the hearing.

Therefore, a remand is not necessary.

See FMC Corp., supra; Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1979 CCH OSHD P23,440 (No. 76-1480, 1979).

Commissioner Barnako's test for establishing a repeated violation differs from his colleagues.

Potlatch, supra (concurring and dissenting opinion).

Commissioner Barnako agrees that the Secretary has established substantial similarity, but he reaches this conclusion because both citations involve similar clutter on ship decks and the same hazard and method of abatement.

Commissioner Barnako would permit an employer, by way of defense, to show that it took good faith steps after the entry of a final order to prevent the recurrence of a substantially similar violation.

Respondent offered no evidence relevant to this defense.

However, since this case was tried prior to the issuance of Potlatch, supra, Commissioner Barnako would afford Respondent an opportunity to present evidence as to this defense.

Therefore, he would enter a conditional order, affirming the judge's holding that the violation was repeated, but would afford Respondent 10 days from the issuance of the decision to request that the case be reopened for additional evidence on the good faith efforts defense.

See Stearns-Roger, Inc., 79 OSAHRC 104/G8, 7 BNA OSHC 1919, 1979 CCH OSHD P24,008 (No. 76-2326, 1979) (concurring opinion); Triple "A" South, Inc., 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979) (concurring and dissenting opinion).

[*11]

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III

The Secretary of Labor argues that Judge Mitchell erred in assessing a penalty of $400.

The Secretary points out that the parties stipulated to the appropriateness of a $780 penalty if the violation were found to be repeated. He contends that the judge did not have the authority to alter that amount.

As we stated in our earlier decision in this case, the Commission is not bound to assess a penalty in the amount stipulated, although it will normally do so.

See also Thorleif Larsen & Son of Indiana, Inc., 74 OSAHRC 74/C8, 2 BNA OSHC 1256, 1974-75 CCH OSHD P18,826 (No. 370, 1974).

We have determined, however, that in this case the assessment of the stipulated amount of $780 would best effectuate the purposes of the Act.

Coasequently, a penalty of that amount is assessed. n9

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n9 Commissioner Barnako agrees that $780 is an appropriate penalty. However, for the reasons stated in Triple "A" South, Inc., supra (concurring and dissenting opinion), he does not join with the majority's conclusion that where all parties have agreed upon the appropriateness of a penalty the Commission nevertheless should review the stipulated penalty to determine if it is consistent with the criteria of the Act.

E.g., Williams Enterprises of Georgia, Inc., 79 OSAHRC 92/A2, 7 BNA OSHC 1900, 1979 CCH OSHD P24,003 (No. 13875, 1979) (concurring and dissenting opinion).

[*12]

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Accordingly, the judge's decision finding a repeated, other-than-serious violation of the Act for failure to comply with the standard at 29 C.F.R.

1915.51(a) is affirmed.

A penalty of $780 is assessed.

SO ORDERED.