JOHN W. McGOWAN

OSHRC Docket No. 76-1308

Occupational Safety and Health Review Commission

October 25, 1977

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Norman Winston, Assoc. Regional Solicitor, U.S. Department of Labor

David K. McGowan,for the employer

OPINION:

DECISION

BY THE COMMISSION: This case is before the Commission pursuant to a sua sponte order for review by former Commissioner Moran under 29 U.S.C. 661(i). The parties have not taken issue with the disposition of the case by Review Commission Judge J. Paul Brenton. In these circumstances, the Commission will not review the case. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976). The Judge's decision is therefore affirmed and will be accorded the significance of an unreviewed Judge's decision. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

One additional matter, a motion for costs filed by the respondent, requires resolution. In its motion, the respondent seeks to be awarded costs in the amount of $3,695.60, its total costs in defense of [*2] this action. n1 In support of its claim, the respondent argues that the citations were frivolous, the inspecting officer was pursuing a course of harassment, and the action was brought in bad faith.

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n1 This sum includes "attorney fees paid . . .; attorney fees billed but not paid . . .; witness fees for professional services, room and board . . .; copies . . .; [and] stamps."

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The respondent was engaged in oil field operations when its work-site was inspected by authorized representatives of the Department of Labor. The inspection resulted in the issuance of four citations alleging serious violations of the Occupational Safety and Health Act of 1970 n2 and proposed penalties of $700 for each alleged violations. The respondent contended before the Judge that the violations charged in Citations Nos. 1 and 4 were nonserious in nature and that the penalties were excessive. It denied the allegations in Citations Nos. 2 and 3. Judge Brenton affirmed Citation No. 1, in part, as nonserious, vacated Citations Nos. 2 and [*3] 3, and affirmed Citation No. 4 in part as nonserious and in part as serious. Total penalties in the amount of $50 were assessed.

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n2 29 U.S.C. 651 et seq., 84 Stat. 1590.

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The respondent argues that Judge Brenton's opinion is identical to the position taken by respondent throughout the proceedings. This is not entirely correct in view of Judge Brenton's finding that a portion of Citation No. 4 constituted a serious violation. However, it is unnecessary for the Commission to reach the merits of the respondent's assertions because it is without authority to assess costs against any party. General Electric Co., 75 OSAHRC 50/A2, 3 BNA 1031, 1049, 1974-75 CCH OSHD para. 19,567 (No. 2739, 1975), rev'd on other grounds 540 F.2d 67 (2d Cir. 1976).

Accordingly, the respondent's motion is denied.