Willamette Iron and Steel Co. v. Secretary of Labor, No. 78-1494

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WALLACE and SNEED; WALLACE
Citation604 F.2d 1177
Parties7 O.S.H. Cas.(BNA) 1641, 1979 O.S.H.D. (CCH) P 23,797 WILLAMETTE IRON AND STEEL COMPANY, Petitioner, v. SECRETARY OF LABOR and Occupational Safety and Health Commission, Respondent.
Docket NumberNo. 78-1494
Decision Date14 August 1979

Page 1177

604 F.2d 1177
7 O.S.H. Cas.(BNA) 1641, 1979 O.S.H.D. (CCH) P 23,797
WILLAMETTE IRON AND STEEL COMPANY, Petitioner,
v.
SECRETARY OF LABOR and Occupational Safety and Health
Commission, Respondent.
No. 78-1494.
United States Court of Appeals,
Ninth Circuit.
Aug. 14, 1979.
Rehearing Denied Sept. 26, 1979.

Page 1178

James C. Ingwersen, South San Francisco, Cal., for petitioner.

Nancy L. Southard, Atty. U. S. Dept. of Labor, Washington, D. C., for respondent.

Petition to Review a Decision of the Secretary of Labor and Occupational Safety and Health Review Commission.

Before WALLACE and SNEED, Circuit Judges, and BLUMENFELD, * District Judge.

WALLACE, Circuit Judge:

Willamette Iron and Steel Co. (Willamette) petitions for review of an order of the Occupational Safety and Health Review Commission (Commission). Willamette attacks only the portion of the Commission order affirming the hearing officer's determination that it had committed "repeated" violations of the Occupational Safety and Health Administration regulations. We have determined that as to that issue we are without jurisdiction. Therefore, we dismiss the petition. 1

I

The parties stipulated to the facts. Willamette was first cited for violating the Occupational Safety and Health Administration's (OSHA) housekeeping standard, 29 C.F.R. § 1915.51(a), on December 8, 1972, while repairing the vessel NAECO at the

Page 1179

company's Swan Island dry dock facility in Portland, Oregon. The citation, which became final when Willamette failed to contest it, 29 U.S.C. § 659(a), alleged that Willamette had failed to elevate or cover various hoses and welding leads on the vessel's weatherdeck.

On September 24, 1975, authorized representatives of the Secretary of Labor issued three further citations against Willamette for alleged violations of various OSHA regulations. The company did not contest one of these citations, and the Secretary of Labor later withdrew another by stipulation. Thus, the controversy here centers on the Secretary's third citation which was for a "repeated non-serious" violation of the housekeeping standard. This citation alleged that on September 16, 1975, a routine inspection of the vessel NEW YORKER at the Swan Island facility had revealed that the vessel's maindeck walkways and working areas were cluttered with air hoses, electrical cords, welding leads, and debris. Pursuant to stipulation, Willamette did not contest the existence of the conditions leading to the September 24 citation, but only the characterization of the violation as "repeated."

Willamette gave appropriate notice of intent to contest the citation and the Secretary of Labor filed a complaint with the Commission. After a hearing, a hearing officer concluded that the citation had been properly characterized as "repeated."

Willamette then brought a petition for discretionary review before the Commission. It raised numerous contentions in support of its argument that its violation was not repeated. The two Commission members who reviewed the case divided on this question. One felt that the violation was properly labeled "repeated"; the other disagreed. The Fifth Circuit had already decided, in Shaw Constr., Inc. v. OSHRC, 534 F.2d 1183, 1185-86 (5th Cir. 1976), that a purported affirmance of a hearing officer's decision by a divided, one-to-one vote was not final, "official" Commission action. In an effort to resolve the impasse, and perhaps with Shaw in mind, the two commissioners agreed to "affirm" the hearing officer's decision in this case regarding classification of the violation as "repeated," but to accord this portion of his ruling only the precedential value of an unreviewed hearing officer's decision. The mandate of the Commission...

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7 practice notes
  • Marshall v. Sun Petroleum Products Co., No. 79-1822
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 11, 1980
    ...vote of only one member, and is therefore not official action under section 661(e). Willamette Iron & Steel Co. v. Secretary of Labor, 604 F.2d 1177 (9th Cir. 1979), cert. denied, --- U.S. ----, 100 S.Ct. 1337, 63 L.Ed.2d 776 (1979); Cox Brothers, Inc. v. Secretary of Labor, 574 F.2d 465 (9......
  • Donovan v. Anheuser-Busch, Inc., ANHEUSER-BUSC
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 20, 1982
    ...(express) the views of the Commissioners, or (declare) Commission policy." Willamette Iron and Steel Co. v. Secretary of Labor, 604 F.2d 1177, at 1180 (C.A. 9 1979) cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 776 (1980); RMI Co. v. Secretary of Labor, 594 F.2d 566, at 571 n.13 (C......
  • Todd Shipyards Corp. v. Black, No. 81-7494
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 4, 1983
    ...In Cox Bros., Inc. v. Secretary of Labor, 574 F.2d 465, 467 (9th Cir.1978), and Willamette Iron & Steel Co. v. Secretary of Labor, 604 F.2d 1177, 1179 (9th Cir.1979), cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 776 Page 1288 (1980), we held that decisions by an equally divided OS......
  • United Steelworkers of America, AFL-CIO-CLC v. St. Joe Resources, AFL-CIO-CL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 6, 1990
    ...Co. v. OSHRC, 582 F.2d 834 (4th Cir.1978), allowing review of divided decisions. See Willamette Iron & Steel Co. v. Secretary of Labor, 604 F.2d 1177 (9th Cir.1979), cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 776 (1980); Cox Bros., Inc. v. Secretary of Labor, 574 F.2d 465 (9th C......
  • Request a trial to view additional results
7 cases
  • Marshall v. Sun Petroleum Products Co., No. 79-1822
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 11, 1980
    ...vote of only one member, and is therefore not official action under section 661(e). Willamette Iron & Steel Co. v. Secretary of Labor, 604 F.2d 1177 (9th Cir. 1979), cert. denied, --- U.S. ----, 100 S.Ct. 1337, 63 L.Ed.2d 776 (1979); Cox Brothers, Inc. v. Secretary of Labor, 574 F.2d 465 (9......
  • Donovan v. Anheuser-Busch, Inc., ANHEUSER-BUSC
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 20, 1982
    ...(express) the views of the Commissioners, or (declare) Commission policy." Willamette Iron and Steel Co. v. Secretary of Labor, 604 F.2d 1177, at 1180 (C.A. 9 1979) cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 776 (1980); RMI Co. v. Secretary of Labor, 594 F.2d 566, at 571 n.13 (C......
  • Todd Shipyards Corp. v. Black, No. 81-7494
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 4, 1983
    ...In Cox Bros., Inc. v. Secretary of Labor, 574 F.2d 465, 467 (9th Cir.1978), and Willamette Iron & Steel Co. v. Secretary of Labor, 604 F.2d 1177, 1179 (9th Cir.1979), cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 776 Page 1288 (1980), we held that decisions by an equally divided OS......
  • United Steelworkers of America, AFL-CIO-CLC v. St. Joe Resources, AFL-CIO-CL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 6, 1990
    ...Co. v. OSHRC, 582 F.2d 834 (4th Cir.1978), allowing review of divided decisions. See Willamette Iron & Steel Co. v. Secretary of Labor, 604 F.2d 1177 (9th Cir.1979), cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 776 (1980); Cox Bros., Inc. v. Secretary of Labor, 574 F.2d 465 (9th C......
  • Request a trial to view additional results

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