Bethlehem Steel Corp. v. Occupational Safety and Health Review Com'n, 75-2301
| Decision Date | 20 July 1976 |
| Docket Number | No. 75-2301,75-2301 |
| Citation | 540 F.2d 157 |
| Parties | , 4 O.S.H. Cas.(BNA) 1451, 1976-1977 O.S.H.D. ( 20,924 BETHLEHEM STEEL CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Peter J. Brennan, Secretary of Labor, Respondents. |
| Court | U.S. Court of Appeals — Third Circuit |
Denis V. Brenan, and Joseph A. Torregrossa, Morgan, Lewis & Bockius, Philadelphia, Pa., for petitioner.
William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol., Occupational Safety and Health, Washington, D. C., Michael H. Levin, Counsel, Appellate Litigation, Dennis K. Kade, Atty., U. S. Dept. of Labor, Washington, D. C., for Secretary of Labor.
Before VAN DUSEN, GIBBONS and ROSENN, Circuit Judges.
This petition for review of an order of the Occupational Safety and Health Review Commission, dated September 17, 1975, and amended on September 22, 1975, requires us to interpret the meaning of § 17(a) of the Occupational Safety and Health Act, 29 U.S.C. § 666(a), 1 particularly the meaning of the word "repeatedly" in that section. Because we hold that the Commission applied a legally erroneous interpretation of § 666(a) in this case, 2 we grant the petition for review and modify the order of the Commission.
The facts are undisputed. 3 Bethlehem has many facilities throughout the country, employing thousands of persons. One of its facilities is a shipyard, called the "San Pedro Yard," located at Terminal Island, California. At the San Pedro Yard, a wide variety of ship repair and maintenance work is performed. Harbor craft and ocean vessels of all types are continuously brought into the Yard, and after the requested repair and maintenance work is performed, the ships are returned to their owners.
On February 19, 1974, a Compliance Safety & Health Officer conducted an inspection of the U.S.S. Navasota (a Navy oil tanker), which was at the San Pedro Yard for repairs. The Officer found that Bethlehem had permitted a bilge pump and the attached air hoses to obstruct a passageway which was used by the Bethlehem employees installing various valves and pipes and pumping bilge water in the engine area. As the result of this inspection, an amended citation was issued on March 8, 1974, alleging, inter alia, a nonserious violation of 29 C.F.R. § 1915.51(a) and proposing no penalty. The regulation allegedly violated is a housekeeping provision which requires that "(a)dequate aisles and passageways shall be maintained in all work areas." 4
On May 9, 1974, another Compliance Safety & Health Officer conducted an inspection 5 of a vessel, the U.S. Coast Guard Vessel Glacier, docked at the San Pedro Yard for repairs. During the course of his inspection, the Officer observed welding and burning leads, oxyacetylene hoses and other hoses lying on the working surface, obstructing the passageways where welders and fitters were erecting steel bunkheads in the dry stores locker area. As a result of this inspection, a citation was issued on May 16, 1974, alleging a "repeat" violation of the housekeeping regulation, 29 C.F.R. § 1915.51(a). A penalty of $60.00 was proposed for the alleged "repeated" violation.
Bethlehem timely filed with the Secretary of Labor a notification of intent to contest the citation and the proposed penalty of $60.00, thus preserving its right to review 29 U.S.C. § 659(a). Pursuant to 29 U.S.C. § 659(c) and 5 U.S.C. § 554, the Secretary issued a complaint against Bethlehem. The complaint stated that Bethlehem was guilty of "a repeat violation within the meaning of Section 17(a) of the Act, in that (it) had been previously cited for violation of the standard" (29 C.F.R. § 1915.51(a)). App. at 10.
The matter was submitted to an administrative law judge for decision. Bethlehem did not contest that it had violated 29 C.F.R. § 1915.51(a) for the second time at its San Pedro Yard, but it did contend that this second violation did not mean that it "repeatedly" violated the regulation within the meaning of 29 U.S.C. § 666(a). In a stipulation, the parties agreed that the proposed $60.00 fine was reasonable should it be held that Bethlehem's actions fell within the scope of § 666(a), and that a $30.00 fine under § 666(c) 6 would be reasonable in the event that § 666(a) should be found inapplicable.
The principal issue 7 before the administrative law judge, then, was whether § 666(a) applied to the undisputed facts of this case. That section provides:
"Any employer who willfully or repeatedly violates the requirements of section 654 of this title, any standard, rule, or order promulgated pursuant to section 655 of this title, or regulations prescribed pursuant to this chapter, may be assessed a civil penalty of not more than $10,000 for each violation."
The administrative law judge held that "Congress reasonably intended only to embrace repeated instances of the same violation within the $10,000 range" under § 666(a), and that this case involved a different violation, though of the same regulation. Secretary v. Bethlehem Steel Corp., 20 OSAHRC 227, 239 (1974).
The Secretary of Labor filed a petition for discretionary review of the administrative law judge's decision with the Occupational Safety and Health Review Commission. The Commission granted review, and on September 17, 1975, reversed the administrative law judge. It held that the employer's state of mind was not relevant to a finding of a "repeated" violation within the meaning of § 666(a), and that a "repeated" violation occurred when the same regulation was violated for a second time, though the two violations were not factually identical. 20 OSAHRC 227, 229-30 (1975). The Commission accepted the stipulation of the parties and assessed a fine of $60.00.
Bethlehem has filed with this court a timely petition for review of the Commission's order and we have jurisdiction. 29 U.S.C. § 660(a).
Resolution of this case rests on the construction given the word "repeatedly" in § 666(a). This is a question of law, and our review is necessarily broad. As this court stated in Frank Irey, Jr., Inc. v. O. S. H. R. C., 519 F.2d 1200, 1206 (3d Cir. 1974): 8
"(I)t is the duty of the courts to interpret the statute under which the agency functions and to determine whether the agency is acting within the congressional purpose."
Our starting point is with the word "repeatedly" itself, though the meaning of a word in a statute cannot be determined in isolation. Webster's Third Edition does not define "repeatedly," but it states that the word is the adverbial form of the adjective "repeated." That adjective is defined as follows:
The usage examples given by the dictionary for the first definition can easily be converted to examples of the use of "repeatedly" while retaining the sense of the original phrase e. g., "he is absent repeatedly." The usage examples given for the second definition cannot be so altered. This is illustrated by the following sentences:
It is a repeated speech.
It is an often repeated speech.
It is a speech made repeatedly.
The first sentence uses "repeated" in the sense of the dictionary's second definition the speech has been given before, perhaps only once before. Adding the adverb "often" to modify the adjective "repeated" makes the second sentence mean "the speech is given many times." The third sentence shows that "repeatedly" is the equivalent of "often repeated," or, in other words, the plain and ordinary meaning of the word "repeatedly" is "constantly, frequently."
The Secretary contends that the statute facially permits a far broader interpretation of "repeatedly" than the one applied by the Commission in the instant case (that is, an employer must violate the identical standard of regulation more than once in order to be guilty of a "repeated" violation), and therefore the Commission's interpretation is "a fortiori rational." The Secretary points out that § 666(a) provides in part that:
"Any employer who . . . repeatedly violates the requirements of section 654 of this title . . . may be assessed a civil penalty of not more than $10,000 for each violation."
Section 654 provides:
"(a) Each employer
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this chapter."
The literal words of the statute, as understood by the Secretary, would permit the finding of a § 666(a) violation whenever the general duty to provide a work place free from serious, recognized hazards has been violated more than once, no matter how factually unrelated the two infractions may be. More strikingly, note that § 654 is violated each time any safety standard is violated, no matter how unserious the violation might be. Thus, the Secretary contends that the literal terms of § 666(a) would be applicable if two unrelated standards were violated in unrelated circumstances. The Secretary seems to recognize that this extremely harsh interpretation could not have been intended by Congress.
The Commission's interpretation of "repeatedly" as requiring that the same standard or regulation must be violated twice before § 666(a) applies certainly narrows the potential reach of § 666(a), but it reads out of the statute entirely the reference to § 654. Rather than being "a fortiori correct," the Commission's interpretation requires plain statutory language to be ignored in order to prevent an absurd result.
Our court has interpreted § 666(a) previously, but the case dealt with the definition of "will...
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