George Hyman Const. Co. v. Occupational Safety and Health Review Com'n

• Decision Date: 17 October 1978
• Docket Number: No. 77-1591,77-1591
• Citation: 582 F.2d 834
• Parties: 6 O.S.H. Cas.(BNA) 1855, 1978 O.S.H.D. (CCH) P 22,963 GEORGE HYMAN CONSTRUCTION COMPANY, Appellant, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, etc., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 834

582 F.2d 834

6 O.S.H. Cas.(BNA) 1855, 1978 O.S.H.D. (CCH) P 22,963

GEORGE HYMAN CONSTRUCTION COMPANY, Appellant, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, etc., Appellee.

No. 77-1591.

United States Court of Appeals Fourth Circuit.

Argued April 3, 1978.

Decided Aug. 22, 1978.

As Amended Oct. 17, 1978.

Peter Chatilovicz, Washington, D. C. (Donald W. Savelson, Arent, Fox, Kintner Plotkin & Kahn, Washington, D. C., on brief), for appellant.

Jeffrey L. Berger, Atty., U. S. Dept. of Labor, Washington, D. C. (Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, U. S. Dept. of Labor, Washington, D. C., on brief), for appellee.

E. Carl Uehlein, Jr. and George A. Stohner, Morgan, Lewis & Bockius, Washington, D. C., on brief, for amicus curiae, Associated Gen. Contractors of America, Inc.

Before HAYNSWORTH, Chief Judge, and WINTER and LAY, ^* Circuit judges.

LAY, Circuit Judge.

George Hyman Construction Co. appeals from a decision of the Occupational Safety & Health Review Commission (OSHRC) assessing penalties for repeated violations under the Occupational Safety & Health Act (OSHA), 29 U.S.C. §§ 651-678. Hyman Construction Co. is a large general contractor that performs work at 20 to 30 worksites at any given time. Each job site employs a different job superintendent who normally remains at the site for the life of the project anywhere from 18 to 32 months. Hyman employs a safety director who is responsible for safety programs at all worksites.

During a routine inspection of the Hyman Co. construction site of a new jail in Washington, D. C., from April 2 through April 11, 1975, an OSHA compliance officer noted several, non-serious violations ¹ of crane-safety, guard rail and other standards for which Hyman had been previously cited at other sites in the Washington area. Of the six hazardous conditions observed and cited as repeated violations, four had been cited once before while two had been cited twice before. The prior citations had been issued from 21/2 months to a year prior to the inspection of the worksite and had occurred at projects within one to five miles from the jail worksite. Hyman was therefore charged with repeated violations under 29 U.S.C. § 666(a).

Jurisdiction.

The administrative law judge (ALJ) found the violations to be repeated within the meaning of the Act. The Commission's decision upon review of this finding was divided. Then Chairman Barnako urged that the case be remanded to the ALJ for the taking of additional evidence. ² Commissioner Cleary, now Chairman, voted to affirm the law judge's decision; while Commissioner Moran voted to reverse the law judge on the ground that the violations were not repeated within the meaning of the Act. It has been suggested that in view of the absence of a quorum under § 12(f) of the Act, 29 U.S.C. § 661(e), no final agency action has taken place and therefore no reviewable order has been entered. ³

As a result of the Commission's divided decision Chairman Barnako directed that the ALJ's "decision . . . becomes the final action of the Commission." 5 OSHC at 1318. Although we recognize that there is divided opinion within the Commission regarding the correctness of the ALJ's decision we hold Chairman Barnako's order sufficient to make it reviewable on appeal. ⁴ Unless the order is appealable the employer is placed in a jurisdictional limbo that would prevent him from seeking judicial relief from a possibly erroneous decision of an ALJ. We have grave doubt that Congress intended the quorum requirement of § 12(f) to serve as a bar to judicial review. ⁵

The Enforcement Scheme.

Section 17(a) of the Act, 29 U.S.C. § 666(a), provides:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, of any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, shall be assessed a civil penalty of not more than $10,000 for each violation.

The Secretary has published guidelines in an Occupational Safety & Health Administration "Field Operations Manual" setting forth certain criteria for the determination of a repeated violation. The petitioner, joined in amicus curiae by the Associated General Contractors of America, Inc., challenges these guidelines, particularly with reference to their alleged overall unfairness to the construction industry.

Fixed and Non-Fixed Worksites.

A specific challenge is made to that portion of the guidelines which differentiates between fixed and non-fixed worksites. The guideline, as applied by the Secretary and adopted by the ALJ, reads in part:

e. For purposes of considering whether a violation is repeated, citations issued to employers having fixed establishments (e. g., factories, terminals, stores) will be Limited to the cited establishment. For employers engaged in businesses having no fixed establishments (construction, painting, excavation) repeated violations will be alleged based on prior violations occurring anywhere within the same State.

Field Operations Manual, ch. VIII, § (B)(5)(e) (emphasis in original).

The petitioner urges that the Act evidences no legislative intent to discriminate between fixed and transient employers. Thus it urges that the criteria for a repeated violation should be uniformly applied regardless of whether the situs of work is fixed or not, and accordingly that a penalty should only be imposed for a violation recurring at the same job site. Hyman further argues that job superintendents change and work forces become diversified at different jobs and that it is irrational to assess penalties when corporate responsibility varies from site to site. Hyman likewise urges that the guideline requiring that the violations must occur in the same state is arbitrary and irrational. ⁶ We respectfully must disagree.

As petitioner acknowledges, the Secretary's guidelines have been attacked before. In Desarrollos Metropolitanos v. OSHRC, 551 F.2d 874, 876 (1st Cir. 1977), a constitutional challenge was advanced along lines similar to those urged upon this court. In rejecting the contention that the guidelines violate the due process clause, the First Circuit stated:

There is clearly a reasonable basis for the distinction between permanent and transient work sites. A company with floating work sites will have little incentive to ensure full compliance with safety standards at each new job site from the outset if it has one almost free bite at the apple at each such site. The Commission quite reasonably concluded that an additional incentive was not needed in the case of employers with stable work sites. Because this latter group of employers will envision continuous operations spanning a long period of time, they will have every incentive to comply fully with the standards. We recognize that the classification is not precise, but it is a rational one and that is all that is required for it to pass Constitutional muster.

Petitioner urges that its challenge to the Secretary's guidelines is based upon statutory interpretation and is therefore distinguishable from the broadside constitutional attack confronted in Desarrollos. Nonetheless, we find nothing which militates against the Commission's adoption of this guideline as a reasonable interpretation under the Act. An agency has wide latitude in setting up an enforcement scheme that will best serve the convenience of the agency as long as the scheme is a rational one in light of the statute's overall purpose. Cf. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965).

The validity of the state boundary provision contained in the guidelines is not factually before us since all of Hyman's construction sites were located in the District of Columbia. ⁷

Repeated Violations.

We now come to the more difficult issue which divided the Commission; that is, setting forth an acceptable and proper basis for determining what constitutes a repeated violation under the Act. Although we have previously interpreted "willfully" under 29 U.S.C. § 666(a), See Intercounty Construction Co. v. OSHRC, 522 F.2d 777, 779-80 (4th Cir. 1975), Cert. denied, 423 U.S. 1072, 96 S.Ct. 854, 47 L.Ed.2d 82 (1976), we have not addressed the question of what constitutes a repeated violation under the Act.

Several plausible suggestions have been proposed by the parties and the individual Commissioners. There appears to be little agreement regarding the efficacy and acceptability of any one of the approaches. The Secretary's guidelines adopt a per se approach that permits finding a repeated violation even though the infraction is inadvertent or accidental.

The guidelines read:

a. Violation of any standard regulation, rule, order or the general duty clause may be cited as repeated under Section 17(a) where, upon reinspection, another violation of the Previously cited section of a standard, regulation, rule, order or condition violating the general duty clause is found.

b. Repeated violations differ from willful Violations in that they may result from an inadvertent, accidental or ordinarily negligent act. A willful violation need not be one for which the employer has been previously cited. Where a repeated violation also meets the criteria for willful, a citation for willful violation will be issued.

Field Operations Manual, ch. VIII, § (B)(5)(a), (b) (emphasis in original).

The petitioner asserts that only those violations which demonstrate that the employer has "flaunted" the requirements of the Act should be cited as repeated violations. In so doing, Hyman urges that we adopt the Third Circuit's construction of 29 U.S.C. § 666(a), which, in effect, equates a repeated violation with a willful one. In Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3d Cir. 1976), the Third Circuit rejected the Secretary's guidelines and held that an employer cannot...