MARQUETTE CEMENT MANUFACTURING COMPANY

OSHRC Docket No. 4725

Occupational Safety and Health Review Commission

November 2, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

George W. Moehlehof, for the employer

Robert Wynee, President, United Cement, Lime & Gypsum Workers, Local 50, for the employees

OPINION:

DECISION

BY THE COMMISSION:

In accordance with the order of the Court of Appeals in Usery v. Marquette Cement Manufacturing Co., No. 76-4083 (2d Cir., August 29, 1977), vacating the Commission's decision and remanding with instructions, the Secretary's motion to amend to allege a violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ["the Act"] is granted. A violation of section 5(a)(1) is affirmed on the basis of evidence of record as outlined in the Court's decision unless, within 10 days from the date of this order, a party requests that it be allowed to submit additional evidence relevant to the section 5(a)(1) allegation.

A penalty of $500 is found to comport with the criteria set forth in section 17(j) of the Act and is hereby assessed.