On Petition for Review from the Occupational Safety & Health Review Commission
(District: 93-3274) Argued Monday, June 24, 1996
BEFORE: ALITO, McKEE and GARTH, Circuit Judges
(Opinion filed July 29, 1996)
The Secretary of Labor's petition for review of the decision of the Occupational Safety and Health Review Commission ("Commission") *fn1 presents the question of whether respondent D.M. Sabia Company ("Sabia") committed a "repeated" violation of a safety standard within the meaning of 29 U.S.C. Section(s) 666(a). Applying the definition of "repeated" announced in Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3d Cir. 1976), the Commission concluded that Sabia had not committed a "repeated" violation.
The Secretary contends that we are neither bound by Bethlehem nor bound by that court's 1976 definition of the term "repeated" as that term then appeared in the text of 29 U.S.C. Section(s) 666(a).
Sabia, on the other hand, argues that Bethlehem controls the decision in this case and cannot be overruled by us as a subsequent panel of this court. *fn2
In Bethlehem, we held that the Secretary, in order to establish a "repeated" violation, under the Occupational Safety and Health Act of 1970 ("Act"), 29 U.S.C. Section(s) 651 et seq., must prove that the employer had violated an Occupational Safety and Health Administration (OSHA) standard on at least two previous occasions; and that the employer had "flaunted" the requirements of the Act. Id. at 162. In 1990, however, 29 U.S.C. Section(s) 666(a) was amended. In light of that amendment, the rationale and logic of Bethlehem, while binding until the 1990 amendment, thereafter did not retain the requisite precedential authority that would preclude us from taking a fresh look at the nowamended section 666(a).
Our fresh look has resulted in a new definition: we now deem an OSHA violation to be "repeated" "if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation." Secretary of Labor v. Potlatch Corp., 7 O.S.H. Cas. (BNA) 1061, 1063 (Rev. Comm'n 1979). Applying this interpretation, we conclude that Sabia committed a "repeated" violation. Accordingly, we will reverse.
The Commission had jurisdiction under 29 U.S.C. Section(s) 659(c). We have appellate jurisdiction over the Commission's final order under 29 U.S.C. Section(s) 660.
The Commission's findings of fact must be upheld if supported by substantial evidence in the record as a whole. 29 U.S.C. Section(s) 660(a); D. Harris Masonry Contracting, Inc. v. Dole, 876 F.2d 343, 344 (3d Cir. 1989). Legal conclusions may be set aside if they are "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." 5 U.S.C. Section(s) 706(2)(A); Atlantic & Gulf Stevedores v. OSHRC, 534 F.2d 541, 547 (3d Cir. 1976). In addition, we must defer to an agency's reasonable interpretation ...