Henry C. Beck Company (Commission decision, June 30, 1980)

Plain-English summary

Administrative Law Judge Dee C. Blythe affirmed a citation against Henry C. Beck Company classified as serious and repeated. The charge was noncompliance with 29 C.F.R. § 1926.28(a), the construction personal protective equipment standard, because the company did not require employees working on the 5th and 6th levels of a building under construction to use fall protection such as safety belts and lanyards.

The company petitioned for review and took exception to a range of the judge's findings. Commissioner Barnako directed review, but deliberately narrowed it to one question: whether the judge committed reversible error in concluding that the § 1926.28(a) violation on the 5th and 6th levels was repeated.

That narrowing did most of the work in this decision. The company's brief on review reargued exceptions that had not been directed, and asked the Commission to also examine the repeat classification of a separate § 1926.28(a) violation in the ground level elevator shaft, conceding it had failed to raise that one in its petition but arguing the facts were identical. The Commission refused. Under Commission Rule 91(d), 29 C.F.R. § 2200.91(d), when a direction for review names some issues from a petition and is silent on others, the petition stands denied as to the rest. Under Rule 92(c) review is confined to issues a Member actually directs. The elevator shaft question was therefore not before the Commission at all.

On the one issue that was before it, the Commission did not decide whether the violation was repeated. It noted that after the judge issued his decision, the Commission had definitively settled when a violation counts as repeated in Potlatch Corp., reinforced by Stearns-Roger, Communications, Inc., and Triple "A" South. The judge's ruling predated that framework and had to be reconsidered under it, so the case was remanded for a new decision and order on the repeat classification for the 5th and 6th levels.

The remand came with a fairness instruction. Because the case was tried before Potlatch issued, the judge was told that if he finds the Secretary made out a prima facie case that the violation is repeated, he should also decide whether to give the company an opportunity to put on additional evidence on that question, consistent with how the Commission handled the same timing problem in Stearns-Roger and Communications, Inc.

Commissioner Barnako noted that his own test for repeat classification, set out in Potlatch, differs in some respects from the majority's and that he still holds it. He joined the remand anyway, on the ground that orderly administration of the Act requires Commission judges to follow Commission precedent.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.28(a)
• Outcome: Remanded. The repeat classification for the 5th and 6th levels was sent back to the judge for reconsideration under Potlatch, with the underlying violation undisturbed.
• Key point: Commission review reaches only the issues a Member actually directs, and a petition is denied as to any issue the direction passes over in silence.

Full text (OSHRC public release)

Docket No. 77-963

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

OSHRC Docket No. 77-963

Occupational Safety and Health Review Commission

June 30, 1980

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

E. Lee Haag, III, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Dee C. Blythe 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 Blythe, among other things, affirmed a "serious-repeat" citation alleging that Respondent, Henry C. Beck Company, failed to comply with 29 C.F.R.

1926.28(a) in that it did not require certain employees working on the 5th and 6th levels of a building under construction to use personal fall protection equipment such as safety belts and lanyards.

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n1 29 U.S.C.

661(i).

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Respondent petitioned for review of the Judge's decision, taking exception to a number of the judge's findings and conclusions.

Commissioner Barnako directed that the judge's decision be reviewed, but his order for review was limited to the following [*2]

issue raised in Respondent's petition: "[w]hether the trial judge committed reversible error in concluding that the violation of 29 C.F.R. 1926.28(a) with respect to the 5th and 6th levels of the building was a repeated violation as alleged." Our review is thus limited to that issue. n2

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n2 In its brief on review, Respondent reiterates a number of exceptions that it had raised in its petition for review but that were not directed for review.

Respondent also asks that the Commission review the judge's determination that a violation of

1926.28(a) that occurred in the ground level elevator shaft was properly classified as repeated. While stating that it inadvertently failed to raise this issue in its petition for review, Respondent asserts that the Commission should consider it on review as it involves "identical objective facts" as the issue specified in the direction for review.

When an order for review directs that the Commission consider a certain issue or issues raised in a petition for review but is silent as to other issues mentioned in the petition, the petition is denied as to those other issues.

See Commission Rule of Procedure 91(d), 29 C.F.R.

2200.91(d).

Accordingly, those exceptions that Respondent raised in its petition for review that were not directed for review are not before us.

Moreover, Commission review is limited to those issues directed for review by a Commission Member, whether in response to a petition for review or on the Member's own motion.

See Commission Rule of Procedure 92(c), 44 Fed. Reg. 70,106, 70,111 (1979), to be codified in 29 C.F.R.

2200.92 [formerly Rule 91a(c), 29 C.F.R.

2200.91a(c)].

As the direction for review is silent on whether Respondent's noncompliance with

1926.28(a) at the ground level elevator shaft is properly classified as repeated, that issue is not before us.

[*3]

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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 issue directed for review must be reconsidered under current Commission precedent.

The Commission will remand the case to the administrative law judge to reconsider his 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.

[*4]

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Accordingly, the case is remanded to the judge to issue a decision and order disposing of whether Respondent's noncompliance with 29 C.F.R.

1926.28(a) on the 5th and 6th levels is properly classified as repeated. n4 SO ORDERED.

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n4 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 P20,884 at 25,067 (Nos. 6804 & 6805, 1976).

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

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[*5]

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