California Stevedore & Ballast Co. v. Occupational Safety and Health Review Com'n

• Decision Date: 21 May 1975
• Docket Number: No. 73-3103,73-3103
• Citation: 517 F.2d 986
• Parties: 3 O.S.H. Cas.(BNA) 1174, 1974-1975 O.S.H.D. ( 19,671 CALIFORNIA STEVEDORE AND BALLAST COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 986

517 F.2d 986

3 O.S.H. Cas.(BNA) 1174, 1974-1975 O.S.H.D. ( 19,671

CALIFORNIA STEVEDORE AND BALLAST COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.

No. 73-3103.

United States Court of Appeals Ninth Circuit.

May 21, 1975.

Robert E. Babcock (argued), Portland, Or., for petitioner.

Robert Greenspan, Dept. of Justice (argued), Washington, D. C., for respondent.

OPINION

Before CHAMBERS, DUNIWAY and CHOY, Circuit Judges.

PER CURIAM:

California Stevedore and Ballast Company (Stevedore) unloads cargo from ships in San Francisco. An inspector cited Stevedore on two separate occasions for violation of safety regulations issued pursuant to the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq.

On the first occasion, Stevedore's employees left a hatch beam in place and unsecured while unloading through the hatch, in violation of 29 C.F.R. § 1918.43(e). The inspector issued a citation, inadvertently labeled "non-serious," with a proposed penalty of $300. Stevedore challenged the citation. A hearing examiner refused amendment of the citation to read "serious" and reduced the penalty to $150, the amount which the Secretary's guidelines prescribed for such a non-serious violation. Stevedore petitioned the full Commission (OSHRC) for review. The OSHRC offered Stevedore no comfort; it amended the citation to show a serious violation and reinstituted the originally proposed $300 penalty.

On the other occasion, Stevedore was cited for a non-serious violation of 29 C.F.R. § 1918.41(c) in failing to provide hand rails for longshoremen working on a narrow ledge. The hearing examiner affirmed the proposed $60 penalty. The company appealed to the OSHRC which raised the penalty to $200.

Stevedore petitions for review of both citations and of the amount of the penalties assessed. We affirm.

"Serious" violation

The evidence indicates that the beam's becoming dislodged was not probable. Substantial evidence supported a conclusion, however, that death or serious injury would likely result if the beam should in fact fall. Section 17(k) of OSHA, 29 U.S.C. § 666(j), provides:

(A) serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists . . . in such place of employment . . . .

Stevedore suggests that this language requires the Secretary to prove a substantial probability that the beam could be dislodged as well as that death or serious physical harm would result. The Secretary, on the other hand, interprets the section as requiring only that any accident which should result from violation of a regulation would have a substantial probability of resulting in death or serious physical harm. The Secretary notes that, even under his interpretation, the likelihood of an accident is taken into account in determining the proper proposed penalty.

We concede that section 17(k) is artlessly and ambiguously drafted. Nevertheless, the Secretary's interpretation of the Act is not unreasonable and thus is entitled to a certain deference. Udall v. Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965).

Congress declared its purpose "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . . ." OSHA § 2(b), 29 U.S.C. § 651(b). Congress clearly intended to require employers to eliminate all foreseeable and preventable hazards. National Realty & Construction Co. v. OSHRC, 160 U.S.App.D.C. 133, 489 F.2d 1257, 1265-67 (1973). The original Senate bill treated all violations as "serious." As finally enacted, however, OSHA incorporated a House proposal to leave discretionary penalties for violations "determined not to be of a serious nature." Conf.Rep. No. 91-1765, 1970 U.S.Code Cong. & Admin.News, p. 5237. Congress apparently decided that violation of some regulations might pose so little threat of harm that a penalty should not be mandatory. Where violation of a regulation renders an accident resulting in death or serious injury possible, however, even if not probable, Congress could not have intended to encourage employers to guess at the probability of an accident in deciding whether to obey the regulation. When human life or limb is at stake, any violation of a regulation is "serious." We therefore adopt the Secretary's construction of section 17(k). ¹

Amount of Penalty

For both citations, the OSHRC imposed higher penalties than had been proposed by the Secretary. Congress gave the OSHRC the authority to assess penalties. OSHA § 17(j), 29 U.S.C. § 666(i). The Secretary's proposed penalty is effective only if not contested; once contested, the OSHRC can affirm the proposed penalty, modify it, vacate it, or direct other appropriate relief. The OSHRC thus determines the penalty de novo, considering the proposed penalty as, in fact, only a proposal. Brennan v. OSHRC and Interstate Glass Co., 487 F.2d 438, 441-42 (8th Cir. 1973). See 5 U.S.C. § 557(b); REA Express, Inc. v. Brennan, 495 F.2d 822 (2d Cir. 1974).

Stevedore argues,...