________________________________
                                :
SECRETARY OF LABOR,             :
                                :
          Complainant,          :
                                :
          v.                    :   OSHRC Docket No.  96-0169
                                :
CMC ELECTRIC, INC.              :
                                :
          Respondent.           :
                                :
INTERNATIONAL BROTHERHOOD OF    :
ELECTRICAL WORKERS, LOCAL 673,  :
                                :
          Authorized Employee   :
          Representative.       :
________________________________:

*/DECISION/*



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

BY THE COMMISSION:

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).



_/s/ _

Thomasina V. Rogers

Chairman





_/s/ _

Gary L. Visscher

Commissioner





_/s/ _

Stuart E. Weisberg

Dated: _September 18, 2000_	Commissioner