OSHRC Docket No. 79-6060


Before: BUCKLEY, Chairman; RADER and WALL, Commissioners. BUCKLEY, Chairman:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. 659(c).

The Secretary of Labor issued a citation to Burk Well Service Co. alleging that Burk had willfully violated section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1). Administrative Law Judge E. Carter Botkin affirmed the citation and assessed a penalty of $2,000.

On review, Burk makes two arguments. First, it argues that the citation should be vacated because the Secretary failed to introduce any evidence to establish that it was "engaged in a business affecting commerce" within the meaning of section 3(5) of the Act, 29 U.S.C. 652(5). That section states:

Sec. 3 For the purposes of this Act--

* * *

(5) The term 'employer' means a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political sub divisions of a State.

Second, Burk argues that the judge erred in finding the violation to have been willful. We need not address the willfulness issue because we find that the Secretary failed to establish on the record before us that Burk is an employer engaged in a business affecting commerce.

In enacting the Occupational Safety and Health Act, Congress intended to exercise the full extent of the authority granted by the commerce clause of the Constitution. Austin Road v. OSHRC, 683 F.2d 905 (5th Cir. 1982). Accordingly, an employer comes under coverage of the Act by merely affecting commerce; it is not necessary that the employer be engaged directly in interstate commerce. Austin Road, 683 F.2d at 907; United States v. Dye Construction Co., 510 F.2d 78 (10th Cir. 1975). Nevertheless, the Secretary bears the burden of establishing the threshold jurisdictional fact. Although the Secretary's burden of persuasion is a light one, Austin Road, 683 F.2d at 907, he made no effort to meet it here.

In his complaint, the Secretary alleged that Burk produced goods for commerce, or handled or worked on goods that move in interstate commerce, and that Burk was therefore engaged in a business affecting commerce within the meaning of section 3(5) of the Act. Even though Burk specifically denied these allegations in its answer, the Secretary introduced no evidence whatsoever to support them. The record is devoid of any evidence bearing on the jurisdictional question. On the record before us, any finding that Burk's business affects commerce would be mere speculation. To paraphrase the Fifth Circuit in Austin Road, perhaps Burk's business does affect interstate commerce; but that essential fact is not established on the record before us.

Accordingly, the judge's decision is reversed and the citation is vacated.


Ray H. Darling, Jr.
Executive Secretary

DATED: December 12, 1985