GENERAL STEEL FABRICATORS

OSHRC Docket No. 76-710

Occupational Safety and Health Review Commission

September 16, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

William J. Lane, Jr., General Steel Fabricators, Incorp., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

The July 7, 1976, decision of Administrative Law Judge Seymour Fier is on review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ["the Act"]. Judge Fier affirmed the six items of a citation for nonserious violations n1 issued to respondent General Steel Fabricators, a steel erection contractor, as a result of an inspection of a construction site in Poughkeepsie, New York.

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n1 The citation alleged the following violations: (1) 29 CFR 1926.350(a)(4) [gas cylinders not secured in a vertical position while being transported in a powered vehicle]; (2) 29 CFR 1926.450(a)(10) [unsecured portable ladder]; (3) 29 CFR 1926.550(a)(4) [hand signals to crane operators not conspicuously posted]; (4) 29 CFR 1926.550(a)(13)(iii) [platforms and walkways on crane not equipped with antiskid surfaces]; (5) 29 CFR 1926.550(a)(14)(i) [fire extinguisher not accessible to crane]; (6) 29 CFR 1926.751(d) [tag lines not used in steel erection]. The Secretary's proposed penalties were zero, $30, $30, zero, zero, and $30, respectively. The Judge assessed a penalty of $100 for each item.

[*2]

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The Judge assessed penalties totaling $600 although the Secretary of Labor had proposed penalties totaling only $90. The increase was predicated largely upon the Judge's taking official notice that he had found this respondent in violation of the Act in a separate matter, docket No. 13646, approximately six months earlier. The Judge concluded that based on the previous violation and what he regarded as respondent's disregard for safety, it required "an affirmative action program of compliance."

Chairman Barnako granted respondent's petition for discretionary review. Respondent takes exception solely to the Judge's penalty assessment. It contends that the Judge exceeded his authority by assessing a penalty "far in excess" of that proposed by the Secretary. It also argues that the penalty has the effect of unlawfully penalizing it for exercising its right to a hearing. It urges that the penalty be reduced to that proposed by the Secretary.

Section 17(j) of the Act vests in the Commission the power of assessing penalties for civil violations of the Act. The section requires that the Commission [*3] consider the appropriateness of the penalty, giving due consideration to the size of the employer's business, the gravity of the violation, the employer's good faith, and its history of previous violations.

Upon contest, the Secretary's proposed penalty is merely advisory to the Commission's penalty determination. Brennan v. O.S.H.R.C. and Interstate Glass Co., 487 F.2d 438, 441-2 (8th Cir. 1973); Long Manufacturing Co., N.C. Inc., 554 F.2d 903, 908 (8th Cir. 1977). A penalty assessed by a Judge or by the Commission may be greater or less than that proposed by the Secretary. Clarkson Constr. Co. v. O.S.H.R.C., 531 F.2d 451, 456 (10th Cir. 1976); California Stevedore and Ballast Co. v. O.S.H.R.C., 517 F.2d 986, 988 (9th Cir. 1975); Robert W. Winzinger, Inc., 76 OSAHRC 88/D13, 4 BNA OSHC 1475, 1976-77 CCH OSHD para. 20,929 (No. 6790, 1976). Thus, to the extent that respondent contends that the Judge is not empowered to assess penalties greater than those proposed by the Secretary, the argument lacks merit.

The Commission has held that in assessing an appropriate penalty the factors set forth in section 17(j) of the Act need not be accorded equal weight. [*4] Depending upon the factual circumstances of a case, one factor may warrant overriding emphasis. Broadview Constr. Co., 73 OSAHRC 1/D9, 1 BNA OSHC 1083, 1971-73 CCH OSHD para. 15,399 (No. 124, 1973); Nacirema Operating Co., 1 OSAHRC B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD para. 15,032 (No. 4, 1972).

The Judge emphasized the fact that, six months earlier in case No. 13646, he had affirmed a citation against respondent. That decision was pending review before the full Commission when the Judge issued the instant decision. n2 Inasmuch as the earlier penalty order was not final, the Judge erred by taking cognizance of it in determining the penalty. Felton Constr. Co., 76 OSHRC 136/C14, 4 BNA OSHC 1817, 1976-77 CCH OSHD para. 21,258 (No. 6759, 1976).

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n2 Judge Fier's decision in docket No. 13646 was issued December 16, 1975. Review was directed by the Commission on January 14, 1976. It is currently on review.

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Rather than remanding the case for penalty assessment, we shall make a determination here. Accu-Namics [*5] v. O.S.H.R.C., 515 F.2d 828 (5th Cir. 1975). The compliance officer, who inspected the worksite, testified how the proposed penalty was determined. He emphasized respondent's safety conscious work practices and its receptive attitude. He also testified that the gravity of the violations was low. We conclude that a $90 penalty comports with section 17(j) and the remedial purposes of the Act. Respondent is a business of moderate size. The gravity of the violations was low. Respondent exhibited a good faith effort to assure the safety of its employees. Finally, as explained above there is no history of violations.

It is ORDERED that the Judge's assessment of $600 be vacated and a penalty of $90 be assessed.