Todd Shipyards Corporation v. Secretary of Labor and the Occupational Safety and Health Review Commission

dissenting:

The Commission found that the petitioner had the status of a repeated violator of the Act and nothing in the record indicates that the Commission ignored that finding in assessing the penalty. I agree with the opinion of the court that it is entirely proper for the petitioner to challenge that determination, and I agree with parts II and IV of the opinion. But in my view this case should be remanded to the Commission for further proceedings with reference to the alleged repeat violations, and I dissent from the decision to affirm .the Commission’s order.

The Administrative Law Judge refused to inquire .whether the violations in question here were substantially similar to the previous violations, and concluded that the petitioner was a repeated violator merely because it had committed the violations “more than once.” On review, the Commission affirmed the finding of repeated violations with the simple observation that “on the same ship herein involved, respondent [previously] failed to comply with the same standards with which it is found in noncompliance here.”

This court affirms the order holding that petitioner is a repeated violator, but declines to state a…

Todd Shipyards (“Todd”) petitioned for review of an order of the Occupational Safety and Health Review Commission (“the Commission”) dated January 31, 1975 imposing fines for several “repeat” violations of the Occupational Safety and Health Act of 1970 (“OSHA”), 29 U.S.C. § 651 et seq. Three issues are presented: (1) whether the citation was issued with “reasonable promptness,” (2) whether these violations were properly classed as “repeated,” and (3) whether a manhole with a six inch coaming was properly regarded as “flush” so as to fall within the scope of 29 C.F.R. § 1915 .-43(a). Under the circumstances of this case, we find no error in the Commission’s ruling. We therefore affirm.

I. The Facts

Todd is a California-based corporation engaged in shipbuilding and ship repair. From January until September 15, 1972, it performed extensive repair and maintenance work on the S/S OREGON MAIL at its shipyards in San Pedro, California. As a result of a routine inspection of the OREGON MAIL on June 5, 1972, the Secretary of Labor (“Secretary”) cited Todd for five nonserious and two repeated violations of mandatory OSHA safety standards, including a failure to provide adequate…

concurring:

I join in the court’s opinion, but wish to add a further observation. Todd has appealed from an order of the Commission assessing fines in the amount of $700, $350 and $350 for repeated violations of regulations promulgated pursuant to OSHA. Although Todd clearly has standing to raise its first and last objections — those based on reasonable promptness and the application of the flush manhole regulation — I question the propriety of its challenging “repeat violation” fines which do not exceed the $1000 limit applicable to both serious and nonserious violations under 29 U.S.C. § 666 (b) and (c).

We are charged with reviewing the order of the Commission. The order is that Todd pay certain fines imposed as a result of OSHA violations. The Commission has authority to set such penalties within the statutory limits after considering the factors *1332 set out in section 666(i). These factors were specifically considered by the administrative law judge who reduced the penalty assessed rather than imposing that initially proposed. The Commission affirmed his order. A reviewing court may upset such a determination only where the Commission’s discretion has been abused. Beall…

566 F.2d 1327 45 A.L.R.Fed. 389, 6 O.S.H. Cas.(BNA) 1227, 1977-1978 O.S.H.D. ( 22,492 TODD SHIPYARDS CORPORATION, Petitioner, v. SECRETARY OF LABOR and the Occupational Safety and Health Review Commission, Respondents. No. 75-1909. United States Court of Appeals, Ninth Circuit. Dec. 13, 1977. Rehearing and Rehearing En Banc Denied Jan. 26, 1978. Thomas P. Laffey (argued), Los Angeles, Cal., for petitioner. Dennis K. Kade, Atty. (argued), Dept. of Labor, Washington, D. C., for respondents. On Petition to Review an Order of The Occupational Safety and Health Review Commission. Before ELY and KENNEDY, Circuit Judges; and FERGUSON, * District Judge. PER CURIAM: 1 Todd Shipyards ("Todd") petitioned for review of an order of the Occupational Safety and Health Review Commission ("the Commission") dated January 31, 1975 imposing fines for several "repeat" violations of the Occupational Safety and Health Act of 1970 ("OSHA"), 29 U.S.C. § 651 et seq. Three issues are presented: (1) whether the citation was issued with "reasonable promptness," (2) whether these violations were properly classed as "repeated," and (3) whether a manhole with a six inch coaming was properly regarded as…