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Bethlehem Steel Corp. v. Occupational Safety and Health Review Commission and Peter J. Brennan

filed: July 20, 1976.

BETHLEHEM STEEL CORPORATION, PETITIONER
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION AND PETER J. BRENNAN, SECRETARY OF LABOR, RESPONDENTS



APPEAL FROM OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.

Van Dusen, Gibbons and Rosenn, Circuit Judges.

Author: Van Dusen

VAN DUSEN, Circuit Judge.

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),*fn1 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,*fn2 we grant the petition for review and modify the order of the Commission.

I. THE FACTS

The facts are undisputed.*fn3 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 "adequate aisles and passageways shall be maintained in all work areas."*fn4

On May 9, 1974, another Compliance Safety & Health Officer conducted an inspection*fn5 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)*fn6 would be reasonable in the event that § 666(a) should be found inapplicable.

The principal issue*fn7 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 ...


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