AMULCO ASPHALT COMPANY

OSHRC Docket No. 3258

Occupational Safety and Health Review Commission

July 29, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge J. Paul Brenton, dated January 14, 1974, has been before this Commission for review pursuant to 29 U.S.C. 661(i) for more than one year. That decision held that the respondent violated 29 U.S.C. 654(a)(2) by failing to comply with three occupational safety standards pertaining to excavations which are published at 29 C.F.R. 1926.651(c), (i), and (q). Although the respondent was charged with a willful violation pursuant to 29 U.S.C. 666(a) for failing to comply with these standards, the Judge reduced the characterization of the violation to serious as defined in 29 U.S.C. 666(j). He assessed a penalty of $1,000 therefor.

Commissioner Cleary and I agree that the evidence establishes that the respondent violated the cited occupational safety standards. However, we are divided on whether the Judge properly characterized the violation and assessed a penalty appropriate to the character thereof. Rather than further delaying the disposition of this matter until a third member is appointed to the Commission, the Commission as presently constituted agrees [*2] to dispose of the case at this time. Accordingly, the decision of the Judge is affirmed by an equally divided Commission and, as to those points on which we do not agree, this decision has no precedential weight. Neil v. Biggers, 409 U.S. 188 (1972). My views appear in this opinion. Those of Commissioner Cleary are set forth in his separate opinion.

In my opinion, the Judge correctly found that the evidence was insufficient to establish a willful violation. However, since neither the citation for the complaint contains an averment concerning the seriousness of the alleged violation, it is questionable whether a violation of lesser magnitude can be affirmed under another section of the Act which was not mentioned in the charges against the respondent. See 29 U.S.C. 666(b), (c), and (j).

The citation is entitled "Citation for Willful Violation" and describes the respondent's conduct in contravention of the aforementioned standards as willful. A footnote on the citation refers to sections 654 and 666(a) of the Act. The complaint charges that the respondent violated section 654(a)(2) by willfully failing to comply with the standards enumerated in the citation. [*3]

Section 654(a)(2) of the Act provides that "[e]ach employer . . . shall comply with occupational safety and health standards promulgated under this Act." When an employer fails to do so, he violates that provision of the Act.

In section 666, entitled "Penalties," the Act categories violations as willful, serious, and nonserious. n1 A civil penalty of not more than $10,000.00 "may be assessed" for a willful violation. 29 U.S.C. 666(a). The Act further provides that a civil penalty up to $1,000.00 "shall be assessed" for a serious violation and that one up to the same amount "may be assessed" for a nonserious violation. 29 U.S.C. 666(b) and (c).

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n1 This demonstrates that Congress intended that these terms be of primary significance on penalty matters and that the failure of a citation to so classify a violation would not in itself constitute a flaw so fatal as to invalidate the violation. See also Staff of the Senate Comm. on Labor & Public Welfare, 92nd Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 856 (Comm. Print 1971).

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A willful violation is defined as an act or omission which occurs consciously, intentionally, deliberately, or voluntarily, as distinguished from accidentally. Secretary v. Intercounty Construction Corporation, 5 OSAHRC 782 (1973). To establish such a violation, the complainant must prove that the respondent had actual knowledge of the pertinent standard and of the noncompliance therewith. Secretary v. Frank Irey,