SECRETARY OF LABOR,
Complainant,

v.

BURK WELL SERVICE COMPANY,
Respondent.

OSHRC Docket No. 79-6060


DECISION

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.

FOR THE COMMISSION


Ray H. Darling, Jr.
Executive Secretary

DATED: December 12, 1985

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