OSHRC Docket No. 78-4423

Occupational Safety and Health Review Commission

August 31, 1981


Before CLEARY and COTTINE, Commissioners. *

* Chairman Rowland took no part in the decision of this case. Although a new Commissioner possesses the legal authority to participate in pending cases, participation is discretionary and is not required for the agency to take official action. Perini Corp., 78 OSAHRC 43/C5, 6 BNA OSHC 1609, 1611, 1978 CCH OSHD P22,772 at p. 27,494 (No. 13029, 1978) (Commissioner Cottine's separate opinion). See 12(f) of the Act, 29 U.S.C. 661(e). Commissioners Clearly and Cottine reached agreement on the disposition of this case prior to the assumption of office by Chairman Rowland. Participation by Chairman Rowland would therefore have no effect on the outcome of the case and would delay the issuance of the decision. Accordingly, in the interest of efficient decision-making, Chairman Rowland elects not to participate in this case.


Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol., USDOL

Robert G. Brady, for the employer




In this case, former Administrative Law Judge Vernon Riehl determined that Respondent was in violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970, [*2] 29 U.S.C. 651-678, for bypassing ("jumping") the electrical safety devices on Respondent's freight elevator. The judge concluded that the violation was willful and assessed a penalty of $10,000. That decision became a final order of the Commission pursuant to section 12(j) of the Act, 29 U.S.C. 661(i), when no Commissioner directed that the judge's decision be reviewed. On appeal, the United States Court of Appeals for the Eighth Circuit concluded that the violation was serious rather than willful, and remanded the case to the Commission to modify the penalty. St. Joe Minerals Corp. v. OSHRC, No. 1873 (8th Cir. May 6, 1981).

The Commission may, in its discretion, determine the approximate penalty, Western Waterproofing Co. v. Marshall, 576 F.2d 139 (8th Cir. 1978); Long Manufacturing Co. v. OSHRC, 554 F.2d 903 (8th Cir. 1977); J.L. Foti Construction Co., 80 OSAHRC 36/C10, 8 BNA OSHC 1281, 1980 CCH OSHD P24,421 (Nos. 76-4429 & 76-5049, 1980), or remand the case to the judge to determine the penalty. Since the judge who originally heard this case has retired and since the record contains sufficient evidence to render a penalty determination, we conclude that [*3] the Commission should assess the appropriate penalty in this case. See Franklin R. Lacy, 81 OSAHRC 7/A2, 9 BNA OSHC 1253, 1981 CCH OSHD P25,171 (No. 3701, 1981).

In assessing penalties for violations of the Act, the Commission must consider "the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations." Section 17(j) of the Act, 29 U.S.C. 661(i). Here, Respondent employed approximately 700 workers. The evidence establishes that the electrical interlocking devices were bypassed for an extended period, that accidental movement of the elevator was highly probable, and that the resultant injures could be fatal. We therefore conclude that the gravity of the violation is high. The record further shows that Respondent exhibited less than good faith by failing to adequately train its employees and by continuing to operate the elevator despite knowledge of the danger involved. Moreover, Respondent has previously violated the Act. Accordingly, we assess a $1,000 penalty. SO [*4] ORDERED.