“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14890 CALCEDO CONSTRUCTION CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0March 11, 1977DECISIONBefore BARNAKO, Chairman; MORAN and CLEARY,Commissioners.??????????? Thiscase is before the Commission pursuant to a suasponte order for review. The parties have filed no objections to theAdministrative Law Judge?s decision, either by way of petitions fordiscretionary review or response to the order for review. Accordingly, therehas been no appeal to the Commission, and no party has otherwise expresseddissatisfaction with the Administrative Law Judge?s decision.??????????? Inthese circumstances, the Commission declines to pass upon, modify or change theJudge?s decision in the absence of compelling public interest. Abbott-Sommer,Inc., 3 BNA OSHC 2032, 1975?76 CCH OSHD para. 20,428 (No. 9507, 1976); CraneCo., 4 BNA OSHC 1015, 1975?76 CCH OSHD para. 20,508 (No. 3336, 1976); seealso Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3dCir. 1976). The order for review in this case describes no compelling publicinterest issue.??????????? TheJudge?s decision is accorded the significance of an unreviewed Judge?sdecision. Leone Constr. Co., 3 BNA OSHC 1979. 1975?76 CCH OSHD para.20,387 (No. 4090, 1976).??????????? It isORDERED that the decision be affirmed.?DATED: MAR 11, 1977?FOR THE COMMISSION:?William S. McLaughlinExecutive Secretary(SEAL)?MORAN, Commissioner, Concurring in Part, Dissenting inPart:??????????? Iagree with Judge Osterman?s decision except that I would vacate item 2 ofCitation Number 1 because the evidence establishes that respondent compliedwith the requirements of the cited standard. 29 C.F.R. ? 1926.102(a)(1). Thatstandard provides in pertinent part that:Employees shall be provided witheye and face protection equipment when machines or operations present potentialeye or face injury . . . (Emphasis added.)\u00a0??????????? It isapparent that this standard affords no guidelines as to when eye protectionshould be worn. In effect, the matter of wearing eye protection, once provided,is left to the discretion of the individual employee. Since respondent compliedwith the requirements of the standard by providing eye goggles to itsemployees, the citation should be vacated. See Secretary v. Gumina Building and Construction Company, OSAHRC DocketNo. 6048, April 28, 1976.??????????? Furthermore,for the reasons expressed in my separate opinion in Secretary v. SchultzRoof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976. I disagreewith the manner in which my colleagues are disposing of this case and withtheir views regarding the significance of decisions rendered by ReviewCommission Judges. Since my colleagues do not address any of the matterscovered in Judge Oaterman?s decision, his decision isattached hereto as Appendix A so that the law in this case may be known.?APPENDIX A\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14890 CALCEDO CONSTRUCTION CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 24, 1976DECISION AND ORDERAPPEARANCES:Francis V. LaRuffa,Esquire, Regional SolicitorPhiladelphia, Pennsylvaniaby Stephen D. Dubnoff,Esq.for the Complainant\u00a0Joseph Tomel,Pro Sefor the Respondent\u00a0Osterman, Judge??????????? Thisis a proceeding initiated by the Respondent pursuant to Section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. 659(c) [hereafter theAct] to contest three Citations and a Notice of Proposed Penalty issued toRespondent on or about August 15, 1975. Citation No. 1 charged Respondent witha non-serious violation of 29 CFR 1926.100(a) [failure to provide hard hats]for which a penalty of $410 is sought and a non-serious violation of 29 CFR1926.102(a)(1) [failure to provide eye protection] for which a penalty of $285is sought. Citation No. 2 charged a serious violation of 29 CFR 1926.451(a)(13) [failure to provide access ladder] for which a penaltyof $900 is sought. Citation No. 3 charged a willful violation of 29 CFR1926.451(d)(10) [failure to provide guardrails, etc.,on scaffold] for which a penalty of $3,000 is sought.??????????? Theevidence given at the hearing discloses that on July 31, 1975, the day of the firstinspection, the compliance officer observed that eight of Respondent?semployees who were working at the jobsite were without protective headgear andthat directly above these employees were a number of ironworkers who weresetting steel sheeting on a wall. Respondent?s men below these ironworkers wereexposed to the hazard presented by falling tools, nuts, bolts, etc. (Tr.12?13). Respondent?s witness admitted this fact and testified that he providedhard hats only after he was advised of the inspection (Tr. 61?62).??????????? Thecompliance officer also observed a scaffold approximately 25 feet high onlypartially planked at the top upon which Respondent?s employees were working.The platform also lacked appropriate guardrails and toeboards (Tr. 15?17). Inaddition, the scaffold lacked a ladder for the use of employees required toascend and descend the scaffolding (Tr. 17?19). One of Respondent?s employees,who was not wearing protective goggles and whose eyes were exposed to flyingchips, was observed cutting brick with a saw (Tr. 19?20). All of theseadditional violations were conceded to have been in existence on July 31, theday upon which the first inspection was conducted (Tr. 59?62; 64?65).??????????? Theremaining violation charged is that covered by Citation No. 3 which alleges aserious and willful violation of 29 CFR 1926.451(d)(10). It is alleged that onAugust 6, when the Secretary?s compliance officer returned to the worksite inconnection with another investigation, he again observed one of Respondent?semployees at work on the top level of the improperly guarded scaffolding. Theemployee was pointing up some brick work with grout (Exh.C?1; Tr. 23?29; 36; 53).??????????? Theevidence with respect to this alleged violation is contradictory. Witnessestestifying for the Respondent stated that all deficiencies in the scaffold hadbeen corrected immediately after the compliance officer?s first visit on July31 (Tr. 48, 53?54); that the scaffolding on the north side of the structure hadbeen partially removed prior to the second visit on August 6; and thatdismantling was being completed on August 6 (Tr. 54). It was also testifiedthat on August 6 the remaining portion of the scaffold, upon which one workmanwas observed, was completely planked (Tr. 57). Exhibit C?1 taken from groundlevel clearly shows the existence of a guardrail on the scaffold platform but,because of the angle at which the photo was taken, does not show the planking.The compliance officer did not climb the scaffold on August 6 to observe theplanking.??????????? Supportfor Respondent?s evidence comes from the testimony of the compliance officerwho stated on direct examination that when leaving the worksite on July 31 hedid observe that ?there were several procedures started to take down thescaffold, so that there was no imminent danger notice needed to be posted atthe site? (Tr. 34). On cross-examination the compliance officer admitted alsothat he could not remember whether the scaffold appeared different on August 6than it had appeared on July 31 (Tr. 44).??????????? TheThird Circuit has defined the term ?willful? as being thedefiance or such reckless disregard ofconsequences as to be equivalent to a knowing and deliberate flouting of the Act, and means more than a mere voluntary action or omissionand involves the element of obstinate refusal to comply.[1]\u00a0??????????? TheFifth Circuit has adopted a somewhat broader definition of the term ?willful?holding it to be anaction taken knowledgeably by one subjectto the statutory provisions in disregard of the actionslegality. No showing of malicious intent is necessary. A conscious,intentional, deliberate, voluntary decision properly is described as willful,?regardless of venial motive.?[2]???????????? Theevidence in this case does not meet the standard for ?willful? set forth ineither circuit. In my opinion the inconclusive record herein does not support afinding that the Secretary has established by a preponderance of the evidencethat Respondent was in ?willful? violation of 29 CFR 1926.451(d)(10) on August 6, 1975. Although this case arose in theSecond Circuit it is my view that the Secretary as a minimum must meet thecriteria set forth by the Fifth Circuit. The Secretary has failed to do so.FINDINGS OF FACT??????????? 1.Respondent corporation is an employer, engaged in commerce as those terms aredefined by Section 3 of the Act and is subject to the jurisdiction of thisCommission.??????????? 2. In1975 Respondent?s gross revenues were approximately $2,000,000, net income wasapproximately $75,000.??????????? 3. OnJuly 31, 1975, Respondent was engaged in the construction of a tramway stationfor the Roosevelt Island Aerial Tramway in New York.??????????? 4. OnJuly 31, 1975, Respondent?s employees were permitted to work without protectiveheadgear in an area where they were subject to the hazard of head injury fromfalling objects.??????????? 5. OnJuly 31, 1975, Respondent?s employees were permitted work on a scaffold forwhich Respondent had failed to provide access ladders on which to ascend anddescend from the scaffold.??????????? 6. OnJuly 31, 1975, one of Respondent?s employees was permitted to operate a masonrysaw for cutting brick without the use of protective goggles.??????????? 7. OnJuly 31, 1975, Respondent?s employees were permitted to work on a scaffoldplatform approximately 25 feet above ground level which was not properlyplanked and was not equipped with appropriate guardrails and toeboards.??????????? 8.The record lacks sufficient evidence to establish that on August 6, 1975,Respondent willfully disregarded the requirements of 29 CFR 1926.451(d)(10).CONCLUSIONS OF LAW??????????? 1. OnJuly 31, 1975, Respondent was in violation of 29 CFR 1926.451(d)(10); 29 CFR 1926.451(a)(13); 29 CFR 1926.100(a); 29 CFR1926.102(a)(1). The first two violations indicated above were ?serious?violations of the standards.??????????? 2.The proposed penalty of $410 and $285 for the violations of 29 CFR 1926.100(a)and 1926.100(a)(1) are reasonable and appropriate and not inconsistent with theprovisions of Section 17(j) of the Act.??????????? 3.The proposed penalty of $900 for the violation of 29 CFR 1926.451(a)(13) is reasonable and appropriate and not inconsistentwith the provisions of Section 17(j) of the Act.??????????? 4. Apenalty of $900 for Respondent?s serious violation of 29 CFR 1926.451(d)(10) on July 31, 1975 is reasonable and appropriate and notinconsistent with the provisions of Section 17(j) of the Act. No violation ofthis standard occurred on August 6, 1975, and the proposed penalty of $3,000 isinappropriate.ORDER??????????? Pursuantto Section 10(c) of the Act and Rule 66 of this Commission?s Rules ofProcedure, it is ORDERED:??????????? 1.That Citation No. 1 and the penalties proposed for this Citation be, and thesame hereby are, AFFIRMED.??????????? 2.That Citation No. 2 and the penalty proposed for this Citation be, and the samehereby are, AFFIRMED.??????????? 3.That the violation charged in Citation No. 3 be, and the same hereby is,reduced from ?Serious Willful? to ?Serious? and a penalty of $900 is assessed.The proposed penalty of $3,000 relating to Citation No. 3 is VACATED.?HENRY K. OSTERMANJudge, OSHRCDated: June 24, 1976?Hyattsville, Maryland?\u00a0\u00a0\u00a0[1] Frank Irey, Jr.,Inc. v. Occupational Safety and Health Review Commission, 519 F.2d 1200,1207 (3rd Cir. 1975).\u00a0[2] IntercountyConstruction Company v. Occupational Safety and Health Review Commission,522 F.2d 777, 779 (4th Cir. 1975).”