SECRETARY OF LABOR,             :
          Complainant,          :
          v.                    :   OSHRC Docket No.  96-0169
CMC ELECTRIC, INC.              :
          Respondent.           :
          Authorized Employee   :
          Representative.       :


Before: ROGERS, Chairman; VISSCHER and WEISBERG, Commissioners.


This case is before the Commission pursuant to a remand order from the United States Court of Appeals for the Sixth Circuit. CMC Elec., Inc. v. OSHA, No. 99-3801 (6th Cir. July 19, 2000). In its initial decision in this case, the Commission affirmed several items of a citation issued by the Secretary to CMC Electric, Inc. ("CMC"). CMC Elec., Inc., 18 BNA OSHC 1737, 1999 CCH OSHD 31,817 (No. 96-169, 1999). On appeal, the Sixth Circuit affirmed the Commission's decision in part, modified Serious Citation 1, Item 2(a), and vacated Serious Citation 1, Item 4(c). The court remanded the case for the Commission to reassess its penalties accordingly.

Serious Citation 1, Item 2 alleged violations of 29 C.F.R.  1926.50(b) and (c) for CMC's failure to provide, prior to commencement of the project, for prompt medical attention in case of serious injury. The Commission had assessed a penalty of $3,000 for this item. On appeal, the court held that CMC was in violation for only two days instead of the three found by the Commission, and remanded this issue to the Commission for our determination of the appropriate penalty. When determining an appropriate penalty, the Commission must consider the size of the employer, its safety history and good faith, and the gravity of the violations. Section 17(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C.  666(j). The gravity of a violation is the most significant consideration in assessing a penalty and "depends on such matters as the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury would result." J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214, 1991-93 CCH OSHD  29,964, p. 41,033 (No. 87-2059, 1993). We note that while the duration of employee exposure was reduced by the court from three days to two days, all of the other elements of the gravity analysis, as well as the remaining section 17(j) factors, remain the same. Accordingly, we find that a penalty of $2,250 is appropriate.

Items 4(a), (b), and (c) alleged violations of three sub-parts of 29 C.F.R.  1926.416 concerning work near energized power lines. The Commission had affirmed all three sub-items and assessed the proposed combined penalty of $4,200. On appeal, the Secretary withdrew item 4(c) and the court vacated it and remanded the issue of the appropriate penalty for the two remaining sub-items. Based on the penalty factors we have previously discussed, we find that a penalty of $2,800 is appropriate.

Accordingly, a penalty of $2,250 is assessed for Serious Citation 1, Item 2(a) and a combined penalty of $2,800 is assessed for Serious Citation 1, Items 4(a) and (b).


Thomasina V. Rogers



Gary L. Visscher



Stuart E. Weisberg

Dated: September 18, 2000 Commissioner