LEONE INDUSTRIES, INC.  

OSHRC Docket No. 79-5276

Occupational Safety and Health Review Commission

October 22, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Lawrence E. Baccini, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The Secretary of Labor ("Secretary") cited Respondent, Leone Industries, Inc., for allegedly committing repeated violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act") by failing to comply with the machine guarding standards at 29 C.F.S. § §   1910.212(a)(1) and 1010.219(f)(3).   He proposed penalties of $2800 for the alleged noncompliance with section 1910.212(a)(1) and $1400 for the alleged noncompliance with section 1910.219(f)(3).   Judge Seymour Fier concluded that Respondent failed to comply with the standards, that the violations were serious in nature, and that penalties of $1000 for each violation were appropriate. n1 Because the penalties he assessed were within the limits permitted for violations that are not repeated in nature, n2 the judge did not reach the question of whether the violations were properly classified as repeated. The Secretary petitioned for review of the judge's decision,   [*2]   contending that the judge erred in failing to find the violations repeated. Commissioner Cottine granted the Secretary's petition pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i).   We remand the case to Judge Fier for him to determine whether the violations are properly classified as repeated.

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n1 Respondent has not taken exception to these or any other aspects of the judge's decision.

n2 A penalty of up to $10,000 may be assessed against an employer who willfully or repeatedly violates the Act.   Section 17(a) of the Act, 29 U.S.C. §   666(a).   A penalty of up to $1000 must be assessed for a serious violation.   Section 17(b) of the Act, 29 U.S.C. §   666(b).   For a violation determined not to be serious in nature, a penalty of up to $1000 may be assessed.   Section 17(c) of the Act, 29 U.S.C. §   666(c).

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In order to promote the objectives of the Act, Congress provided an enforcement scheme that includes various categories of violations.   See Crescent Wharf and Warehouse Co., 73 OSAHRC 15/A2, 1 BNA OSHC 1219,   [*3]   1222, 1971-73 CCH OSHD P15,687 at 20,980 (No. 1, 1973).   The categories include willful, repeated, serious, and other than serious violations.   See note 2 supra. Although Congress provided for the potential assessment of penalties higher than $1000 for willful and repeated violations, it also allowed for the possibility that penalties of $1000 or less could be assessed for such violations.   Moreover, Congress provided for the same range of penalties for both serious and other than serious violations.   This indicates that Congress intended for the classification of a violation to have significance beyond the penalty that might be assessed for the violation.

Although various factors enter into penalty assessments for any violation of the Act, n3 and a penalty of $1000 or less may be appropriate in the proper circumstances even for a repeated or a willful violation, the actual classification of such a violation serves to remind the employer of its obligations under the Act and thereby promote the employer's future compliance.   As the Secretary points out in his petition for discretionary review:

As the structure of the Act makes clear, the repeated characterization is meant [*4]   to have a deterrent effect on employers.   That effect does not cease to exist merely because in a given case the penalty assessed is the same as what could have been assessed for a serious or a nonserious violation.   The intangible effect on employers of the repeated characterization cannot be so blithely ignored.

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n3 Pursuant to section 17(j) of the Act, 29 U.S.C. §   666(i), the Commission must consider the gravity of the violation together with the employer's size, good faith, and prior history in determining an appropriate penalty.

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Accordingly, we conclude that the judge erred in failing to determine whether the violations in this case were repeated as alleged.   The case is remanded to the judge for him to make that determination.   The judge's disposition shall be consistent with the Commission's decision in Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979). n4

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n4 Commissioner Barnako adheres to the views expressed in his separate opinion in Potlatch.

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SO ORDERED.