Todd Shipyards Corp. v. Secretary of Labor

Decision Date17 November 1978
Docket NumberNo. 76-1336,76-1336
Citation586 F.2d 683
Parties6 O.S.H. Cas.(BNA) 2122, 1979 O.S.H.D. (CCH) P 23,240 TODD SHIPYARDS CORP., Petitioner, v. SECRETARY OF LABOR, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Thomas P. Laffey (argued), of Parker, Milliken, Kohlmeier, Clark & O'Hara, Los Angeles, Cal., for petitioner.

Nancy Southard, Atty. (argued), Dept. of Labor, Washington, D. C., for respondent.

On Petition to Review a Decision of the Occupational Safety & Health Review Commission.

Before CHOY and ANDERSON, Circuit Judges, and PALMIERI *, District judge.

CHOY, Circuit Judge:

This is an appeal from an order of the Occupational Safety and Health Review Commission (OSAHRC) finding that appellant Todd Shipyards Corporation (Todd) had "repeatedly" violated regulations promulgated by the Commission pursuant to the Occupational Safety and Health Act (OSHA). We affirm. 1

I. Statement of the Case

The parties stipulated to the material facts. Todd is a New York based corporation engaged in shipbuilding and ship repair. It operates a shipyard in San Pedro, California, at which all activities concerned in this case occurred.

On March 27, 1974, the Secretary of Labor issued Todd a citation for a "repeat" violation of 29 C.F.R. § 1916.51(b), failing to maintain "good housekeeping conditions." On August 30, 1974, Todd received a citation for a "repeat" violation of 29 C.F.R. § 1916.47(b), failing to provide employees working more than five feet above a solid surface with a proper scaffold or ladder. 2 On October 29, 1974, Todd received a citation for "repeat" violation of § 1916.47(b). Todd did not contest these citations; they became final orders of the Commission. OSHA § 10, 29 U.S.C. § 659.

On January 30, 1975, the Secretary issued two additional citations to Todd for violations allegedly observed by OSHA inspectors during a warrantless search of Todd's San Pedro facility. The first citation alleged a "repeat" violation of § 1916.51(b). The second alleged a "repeat" violation of § 1916.47(b). 3 Todd notified the Commission that it intended to contest the citations under § 10(c) of OSHA, 29 U.S.C. § 659(c), providing for Commission review of citations issued by the Secretary.

The matter came before an administrative law judge who concluded that "repeat" should be struck from both January 30 citations. The judge found that the facts giving rise to the violations of § 1916.51(b) on January 30 were not identical and did not occur on the same vessel as the March 27 violation. Similarly, he found that the facts underlying the violations of § 1916.47(b) on August 27, October 29, and January 30 were not identical and did not occur on the same vessel. Ruling that "repeat" violations must be committed "more than once" and "in a manner which flaunts (sic) the requirements of the Act," the judge concluded that the citations did not manifest a flouting of the Act. Therefore, the January 30 violations could not be "repeat" citations.

The Secretary of Labor then petitioned the Commission to review the decision of the administrative law judge. Considering whether the January 30 "violative conditions . . . were substantially the same" as the earlier violations, the Commission found the judge correct in striking "repeat" from the § 1916.51(b) charge of January 30, but in error in striking "repeat" from the § 1916.47(b) citation. The Commission imposed a fine of $160.00 for the "repeat" violation of § 1916.47(b). Todd appeals the Commission's decision that it "repeatedly" violated § 1916.47(b). 4

II. "Repeat" Citations

Section 17 of OSHA, 29 U.S.C. § 666, provides that the maximum civil penalty for each violation of OSHA standards is generally $1,000. Section 17(a), however, provides that civil penalties up to $10,000 for each violation may be imposed on an employer who "willfully or repeatedly violates" OSHA standards. 5 Congress enacted these fines to encourage employer compliance with OSHA regulations. See S.Rep.No. 91-1282, 91st Cong., 2d Sess., Reprinted in (1970) U.S.Code Cong. & Admin.News 5177, 5177; Conf.Rep.No. 91-1765, 91st Cong., 2d Sess., Reprinted in (1970) U.S.Code Cong. & Admin.News 5228, 5237-38. In establishing the greater penalties of § 17(a), Congress indicated that the repetition of a violation after a citation and small sanction demonstrated that greater penalties were necessary to gain that employer's compliance with OSHA standards. See Conf.Rep.No. 91-1765, Supra; George Hyman Construction Co. v. Occupational Safety & Health Review Commission, 582 F.2d 834 (4th Cir. 1978).

Given this congressional purpose, the greater penalties for "repeat" violations should come into play whenever an employer fails adequately to respond to a citation. The recurrence at a given facility of a hazard similar to the one detailed in an earlier citation manifests the employer's failure to respond adequately and the need for greater penalties. See George Hyman Construction Co., 582 F.2d at 837, 841. 6

In the instant case, the Secretary issued an uncontested citation on August 30, warning Todd that it had "(f)ailed to provide a scaffold, sloping ladder or protect employees with a safety belt and life lines" when the regulations required such equipment. On October 29, Todd was cited for failing to provide "scaffolds (or) sloping ladders (or) safety belts and lifelines" when required. On January 30, the Secretary issued the contested citation, finding that Todd had "(f)ailed to provide a scaffold" when required. The Secretary thus found that the same employer had on three occasions failed to provide the same type of safety equipment under similar circumstances at the same facility. The limited sanctions of § 17 had not proved adequate to deter another breach of OSHA regulations. The more severe sanctions Congress provided were thus properly imposed.

Relying on the Third Circuit's decision in Bethlehem Steel Corp. v. Occupational Safety & Health Review Commission, 540 F.2d 157 (3d Cir. 1976), Todd argues that § 17(a) should apply only when an employer has "flaunted" (sic) OSHA standards. In Bethlehem Steel the Secretary had issued a citation for a "repeat" violation of an OSHA regulation. Referring to its earlier definition of the term "willfully" in § 17(a), the court wrote that "the objective conduct which 'repeatedly' encompasses must be similar to that which would raise an inference of willfulness." Id. at 162. The court then concluded that "repeat" should be read to impose the greater penalties of § 17(a) only when the employer has "flouted" OSHA standards through at least three violations of the same regulations. Id. at 162 n. 11.

This court and the Fourth Circuit have rejected both elements of the Third Circuit's definition. Both courts have recognized that "(t)he contention that for a violation to be repeated there must be two or more prior violations rests on a strained semantical argument that, the word repeated in its adverbial form repeatedly could only mean an action which takes place 'again and again.' See Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327, 1330-31 n. 5 (9th Cir. 1977)." George Hyman Construction Co., 582 F.2d at 839. Moreover, both courts have concluded that the Third Circuit's view "essentially equates 'wilful' with 'repeated' while failing to give appropriate weight to the disjunctive 'or.' " Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327, 1331 (9th Cir. 1977). See George Hyman Construction Co., 582 F.2d at 839-40. As the Fourth Circuit wrote: "Congress intended to provide for enhanced penalties when an employer committed recurrent violations that did not necessarily rise to the level of willfulness." George Hyman Construction Co., 582 F.2d at 840. Finally, we noted in Todd Shipyards that adoption of Todd's and the Third Circuit's views would make it "virtually impossible" for the Secretary ever to issue repeat citations, 566 F.2d at 1331 n. 6, thereby undercutting congressional intent in including "repeatedly" within § 17(a). We thus reaffirm our rejection of the Third Circuit's approach.

Citing the Third Circuit's concern in Bethlehem Steel over the magnitude of § 17(a) sanctions, Todd also argues that it would be unfair to impose the severe sanctions upon an employer just because it inadvertently violated a standard it had violated before. 7 We have previously held, however, that a penalty may be assessed only if the employer "knew or should have known of the existence of an employee violation . . . ." Brennan v. Occupational Safety & Health Review Commission, 511 F.2d 1139, 1145 (9th Cir. 1975). Moreover, imposing the § 17(a) fines for repeated though not willful violations is consistent with other penalty provisions of the OSHA. See George Hyman Construction Co., 582 F.2d at 840. And though § 17(a) authorizes imposition of fines up to $10,000, the Commission in its discretion sets the amount of a penalty in each case, "giving due consideration to the appropriateness of the penalty with respect to the size of the business . . . , the gravity of the violation, the good faith of the employer, and the history of previous violations." OSHA § 17(i), 29 U.S.C. § 666(i). Finally, even if as a matter of policy § 17(a) authorizes penalties that are too great, that is an argument that should be addressed to Congress and not to this court.

We conclude that because the January 30 citation involved a recurrence at the same facility of a hazard similar to those described in the earlier citations, Todd had "repeatedly" violated the OSHA standard within the meaning of § 17(a). 8

III. Sufficiency of Notice

Section 9(a) of OSHA, 29 U.S.C. § 658(a), provides in part:

Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the chapter, standard, rule, regulation, or order alleged to have been violated.

Todd argues that the Secretary's citation contravened this section because it...

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