Mel Jarvis Construction Company, Inc. (Commission decision, June 10, 1980)

Plain-English summary

Administrative Law Judge John A. Carlson decided several issues in this case. One of them was that Mel Jarvis Construction Company's failure to comply with 29 C.F.R. § 1926.303(b), the guarding requirement for abrasive wheels, was not properly classified as repeated. The Secretary petitioned for review of that ruling alone and the petition was granted.

The Commission did not decide whether the violation was repeated. It remanded, for the same reason it gave in the other repeat cases of this period. The case was tried and decided before Potlatch Corp., which definitively identified when a violation counts as repeated, and which is reinforced by Stearns-Roger, Communications, Inc., and Triple "A" South. A ruling that predates that framework has to be reconsidered under it.

The remand carries the usual fairness instruction for pre-Potlatch trials. If the judge on remand finds that the Secretary made out a prima facie case that the violation is repeated, the judge should also decide whether to give the company an opportunity to present additional evidence on that question.

Two housekeeping points shape the order. The Secretary's petition had also been granted in No. 77-207, but the Commission severed the two cases for decisional purposes under 29 C.F.R. § 2200.9 because they share no common question of fact or law. And the remand does not go back to Judge Carlson, who had transferred to the Mine Safety and Health Review Commission since issuing his decision, so the case goes to the chief judge for assignment to another judge.

Commissioner Barnako again noted that his own test for repeat classification, stated in Potlatch, differs from the majority's and that he still adheres to it. He joined the remand because orderly administration of the Act requires Commission judges to follow Commission precedent.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.303(b)
• Outcome: Remanded. Only the repeat classification is at issue; it returns to a newly assigned judge for a decision and order under Potlatch.
• Key point: The Commission severed this case from No. 77-207 and remanded the repeat-classification issue to the chief judge for assignment to another judge.

Full text (OSHRC public release)

Docket No. 77-671

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

NASHUA CORPORATION

WESTINGHOUSE ELECTRIC CORPORATION

RESEARCH-COTTRELL, INC.

ROCKWELL INTERNATIONAL CORPORATION

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.

BUNKOFF CONSTRUCTION CO., INC.

GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION

HARRIS BROTHERS ROOFING CO.

GENERAL DIVERS COMPANY

ORMET CORPORATION

R. ZOPPO CO., INC.

COEUR D'ALENE TRIBAL FARM

L. A. DREYFUS COMPANY

CMH COMPANY, INC.

BENTON FOUNDRY, INC.

MICHAEL CONSTRUCTION CO., INC.

WHIRLPOOL CORPORATION

BROWN & ROOT, POWER PLANT DIVISION

MARION POWER SHOVEL CO., INC.

ERSKINE-FRASER CO.

MORRISON-KNUDSEN AND ASSOCIATES

THE BOAM COMPANY

DIC-UNDERHILL, a Joint Venture

C. R. BURNETT AND SONS, INC.; HARLLEE FARMS

STRIPE-A-ZONE, INC.

FORTE BROTHERS, INC.

RAYBESTOS FRICTION MATERIALS COMPANY

TEXLAND DRILLING CORPORATION

THE ANACONDA COMPANY, WIRE AND CABLE DIVISION

SAM HALL & SONS, INC.

VAMPCO METAL PRODUCTS, INC.

LEONE INDUSTRIES, INC.

ASARCO, INC.

DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY

PLUM CREEK LUMBER COMPANY

PLUM CREEK LUMBER COMPANY

STEARNS-ROGER, INC.

FERRO CORPORATION, (ELECTRO DIVISION)

AMERICAN PACKAGE COMPANY, INC.

BROWN & ROOT, INC., POWER PLANT DIVISION

FLEETWOOD HOMES OF TEXAS, INC.

DONALD HARRIS, INC.

A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.

ELECTRICAL CONSTRUCTORS OF AMERICA, INC.

DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)

ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY

NAVAJO FOREST PRODUCTS INDUSTRIES

METROPAK CONTAINERS CORPORATION

AUSTIN BUILDING COMPANY

BABCOCK AND WILCOX COMPANY

DARRAGH COMPANY

BABCOCK & WILCOX COMPANY

OTIS ELEVATOR COMPANY

R. ZOPPO COMPANY, INC.

LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS

PENNSYLVANIA POWER & LIGHT CO.

HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY

NORTHWEST AIRLINES, INC.

INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.

GENERAL MOTORS CORPORATION, INLAND DIVISION

WELDSHIP CORPORATION

S & S DIVING COMPANY

SNIDER INDUSTRIES, INC.

NATIONAL STEEL AND SHIPBUILDING COMPANY

MAXWELL WIREBOUND BOX CO., INC.

CONTINENTAL GRAIN COMPANY

MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY

CAPITAL CITY EXCAVATING CO., INC.

GAF CORPORATION

PPG INDUSTRIES (CARIBE) a Corporation

DRUTH PACKAGING CORPORATION

SOUTHWESTERN ELECTRIC POWER COMPANY

TUNNEL ELECTRIC CONSTRUCTION CO.

WEATHERBY ENGINEERING COMPANY

JOHNSON STEEL & WIRE CO., INC.

AUSTIN ROAD CO.

MAYHEW STEEL PRODUCTS, INC.

LADISH CO., TRI-CLOVER DIVISION, a Corporation

PULLMAN POWER PRODUCTS, INC.

NATIONAL ROOFING CORPORATION

OSCO INDUSTRIES, INC.

HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY

S.J. GROVES AND SONS COMPANY

CAR AND TRUCK DOCTOR, INC.

PRESTRESSED SYSTEMS, INC.

TEXACO, INC.

GEORGIA HIGHWAY EXPRESS, INC.

RED LOBSTER INNS OF AMERICA, INC.

SUNRISE PLASTERING CORP.

STONE & WEBSTER ENGINEERING CORPORATION

H.B. ZACHRY COMPANY (INTERNATIONAL)

NATIONAL INDUSTRIAL CONSTRUCTORS, INC.

BUSHWICK COMMISSION COMPANY, INC.

CIRCLE T DRILLING CO., INC.

J.L. FOTI CONSTRUCTION COMPANY, INC.

TEXACO, INC.

KENNETH P. THOMPSON CO., INC.

HENRY C. BECK COMPANY

HEATH & STICH, INC.

FARMERS EXPORT COMPANY

FOSTER AND KLEISER

TURNER WELDING & ERECTION CO., INC.

TRI-CITY CONSTRUCTION CO.

THE DURIRON COMPANY, INC.

SAMSON PAPER BAG CO., INC.

MEL JARVIS CONSTRUCTION COMPANY, Inc.

OSHRC Docket No. 77-671

Occupational Safety and Health Review Commission

June 10, 1980

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

John W. Mize, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John A. Carlson is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C.

651-678.

Judge Carlson, among other things, concluded that Respondent's failure to comply with 29 C.F.R.

1926.303(b) was not properly classified as repeated as alleged by the Secretary.

The Secretary's petition for review of this aspect of the judge's decision was granted. n2

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n1 29 U.S.C.

661(i).

The Secretary's petition for review of part of the judge's decision in No. 77-207 was also granted.

Because the two cases do not involve common questions of fact or law, we hereby sever them for decisional purposes.

29 C.F.R.

2200.9.

[*2]

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Since the judge issued his decision, the Commission has definitively identified the circumstances under which a violation is properly classified as repeated. Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979) ("Potlatch"); see Stearns-Roger, Inc., 79 OSAHRC 7 BNA OSHC 1919, 1979 CCH OSHD P24,008 (No. 76-2326, 1979); Communications, Inc., 79 OSAHRC 61/A2, 7 BNA OSHC 1598, 1979 CCH OSHD P23,759 (No. 76-1924, 1979), appeal filed, No. 79-2148 (D.C. Cir. Sept. 27, 1979); Triple "A" South, Inc., 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979).

Thus, the judge's ruling on the repeated issue must be reconsidered under current Commission precedent.

The Commission will remand the case to an administrative law judge to reconsider Judge Carlson's decision on that issue. n3

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n3 This case was tried prior to the issuance of our decision in Potlatch. In cases tried prior to Potlatch but decided under the Potlatch test, when the Commission has concluded that the Secretary established a prima facie case that a violation is repeated in nature, the Commission has considered whether it is appropriate to afford the employer the opportunity to present additional evidence relevant to the repeated issue.

On remand in this case, if the judge determines that the Secretary made out a prima facie case that the violation is repeated, he should, in a similar manner, determine whether to offer Respondent the opportunity to present additional evidence.

See Stearns-Roger, Inc., supra, 7 BNA OSHC at 1924 & n. 15, 1979 CCH OSHD at 29,159 & n. 15; Communications, Inc., supra, 7 BNA OSHC at 1603 & n. 5, 1979 CCH OSHD at 28,813-14 & n. 5.

[*3]

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Accordingly, the case is remanded to the chief judge for assignment to an administrative law judge n4 to issue a decision and order disposing of whether Respondent's noncompliance with 29 C.F.R.

1926.303(b) is properly classified as repeated. n5 SO ORDERED.

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n4 Judge Carlson has transferred to the Mine Safety and Health Review Commission since the issuance of his decision in this case.

n5 In Potlatch, Commissioner Barnako set forth his test for determining the circumstances under which a violation is properly characterized as repeated. That test differs in some respects from that of the Commission majority.

Commissioner Barnako continues to adhere to the position set forth by him in Potlatch. However, he has previously recognized that the orderly administration of the Act requires that the Commission's administrative law judges follow precedents established by the Commission.

Gulf & Western Food Products Co., 77 OSAHRC 72/A2, 4 BNA OSHC 1436 at 1439, 1976-77 CCH OSHD P20,886 at 25,067 (Nos. 6804 & 6805, 1976).

For this reason, he joins with his colleagues in their remand order.

[*4]

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