“Docket No. 83-0308 SECRETARY OF LABOR, Complainant, v. HAMILTON DIE CAST, INC., Respondent. INTERNATIONAL MOLDERS UNION, Authorized Employee Representative.OSHRC Docket No. 83-0308DECISION Before:\u00a0 BUCKLEY, Chairman; RADER and WALL,Commissioners. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Labor(\”Secretary\”) under the Act and has no regulatory functions.\u00a0 Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).IThe procedural history of this case involves anearlier case with this same employer, Hamilton Die Cast, Inc., 84 OSAHRC ______, 11BNA OSHC 2169, 1984 CCH OSHD ? 26,983 (No. 79-1686, 1984) (\”Hamilton I\”),rev’d and remanded on another issue, No. 84-3664 (6th Cir. Jan. 24, 1986).On March 26, 1979, Hamilton Die Cast, Inc., wasissued several citations with multiple items following an OSHA inspection at its Hamilton,Ohio facility.\u00a0 After Hamilton contested these citations, the case was docketed andis the case we refer to as Hamilton I. Before a hearing was convened, the partiessettled all but two items.\u00a0 One of the unresolved items alleged that Hamilton hadviolated 29 C.F.R. ? 1910.133(a)(1) by not requiring employees to wear eye and face gearto protect against molten aluminum.[[1]]\u00a0 The second unresolved item alleged aviolation of 29 C.F.R. ? 1910.212(a)(1) for Hamilton’s alleged failure to install machineguarding to protect employees from flying hot metal.[[2]]On June 2, 1980, following a hearing on the merits,Administrative Law Judge James D. Burroughs affirmed both items.\u00a0 Hamilton petitionedthe Commission for review of the judge’s decision on both items.On July 1, 1980, former Commissioner Cottine directed review of the judge’s decision.\u00a0 The direction for review in Hamilton I stated:\u00a0 \”Review isdirected only as to the judge’s affirmance of a repeated violation of the machine guardingstandard at 29 C.F.R. ? 1910.212(a)(1).\”In March, 1983, while Hamilton I was pendingon review before the Commission, the Secretary re-inspected Hamilton’s plant. \u00a0 Twocitations were issued.\u00a0 Hamilton contested both and the case was docketed as OSHRCDocket No. 83-0308 (\”Hamilton II\”), the instant case.\u00a0 One of theitems in the present case alleges a violation of the face protection standard at section1910.133(a)(1). The violation alleged by this item was identical to the violation ofsection 1910.133(a)(1) found by the judge but not mentioned in the direction for review inHamilton I.At the hearing in Hamilton II, Hamilton arguedthat it could not be cited for a violation that was essentially identical to an item in HamiltonI which was still before the Commission on review.\u00a0 According to Hamilton, it wasunder no obligation to abate a condition cited in a case that was still underreview.\u00a0 The Secretary contended that he was not barred from citing the employer fora violation of the face protection standard in Hamilton II because the faceprotection item cited previously in Hamilton I had not been directed for reviewand, thus, had become a final order.Judge Burroughs agreed with Hamilton.\u00a0 He reliedon Federal Rule of Civil Procedure 54(b), which states that a court may direct entry offinal judgment on fewer than all claims in a case \”only upon an express determinationthat there is no just reason for delay and upon an express direction for the entry ofjudgment.\”\u00a0 Judge Burroughs concluded that since the direction for review in HamiltonI did not contain the \”express determination\” and \”expressdirection\” required by Rule 54(b), there was no final order as to the face protectionitem.\u00a0 To hold otherwise, the judge reasoned, would be contrary to thelong-established federal policy against piecemeal appeals.On February 21, 1984, after a hearing on theremaining item, which alleged a violation of the protective equipment standard at 29C.F.R. ? 1910.132(a), the judge vacated this item as well as the item that alleged aviolation of the face protection standard.The Secretary filed a petition for review of thejudge’s disposition of the item concerning face protection under section 1910.133 in HamiltonII.\u00a0 He took exception only to the judge’s earlier ruling that the undirectedface protection item in Hamilton I was not a final order.[[3]]\u00a0 This petitionwas granted.IIThe Secretary argues that the judge’s decision mustbe reversed.\u00a0 He cites several grounds for reversal, including various provisions ofthe Act, the Act’s legislative history, the Commission’s Rules of Procedure, Commissionprecedent, and policy grounds.\u00a0 The Secretary’s principal concern is with delayedabatement.\u00a0 He is concerned that the abatement requirement of a citation itemaffirmed by a judge but not specifically directed for review would not become effectiveuntil all items in the case are adjudicated.\u00a0 He reasons that when the Commission’sdirection for review is limited to specific items in a judge’s decision, the itemsaffirmed by the judge but not specified in the direction for review become final andenforceable orders of the Commission.\u00a0 He therefore submits that citation of the faceprotection item in Hamilton II was proper since the face protection item in HamiltonI was affirmed by the judge and was not directed for review.IIIFor the reasons that follow, we hold that when aCommission member directs review of a judge’s decision the entire decision is on review;the failure to direct a particular citation item for review does not make the judge’sdisposition of that item a final order of the Commission.\u00a0 We note at the outset thata clear and consistent resolution of this finality issue is important to ensuring orderlyadjudications under the Act–a matter that has been entrusted by Congress to theCommission.\u00a0 Recurring questions have arisen in our cases as to the finality ofundirected items in cases under review.\u00a0 These questions include whether anundirected item in a case under review may be enforced immediately by the Secretary, whenappellate review of such an item is still available, and whether the Commission still hasthe authority to consider the item if it notices error in the judge’s disposition of thatitem during its review of related items.\u00a0 Because we hold under section 12(j) of theAct and Fed.R.Civ.P. 54(b) that undirected items are not final orders unless theCommission orders otherwise, such items may not ordinarily be enforced or appealed untilthe entire case under review is decided.A.\u00a0 The ActSection 12(j) of the Act, 29 U.S.C. ? 661(i) as amended by P.L. 95-239,95-251 (1978), states:An administrative law judge appointed by theCommission shall hear, and make a determination upon, any proceeding instituted before theCommission and any motion in connection therewith, assigned to such administrative lawjudge by the Chairman of the Commission, and shall make a report of any such determinationwhich constitutes his final disposition of the proceedings.\u00a0 The report of theadministrative law judge shall become the final order of the Commission within thirty daysafter such report by the administrative law judge, unless within such period anyCommission member has directed that such report shall be reviewed by the Commission.It is contended that, when review is explicitlydirected on only part of a judge’s report, the report becomes a \”final order\” asto items not specified in the direction.\u00a0 We disagree.\u00a0 Section 12(j) statesonly that a judge’s \”report\” becomes final unless a Commissioner orders review.\u00a0 It is silent on the effect of a direction for review on those items decided in ajudge’s report that are not specified in the direction for review.\u00a0 Inasmuch as itspeaks of the judge’s \”report\” as a single unit, rather than citations orcitation items disposed of by a report, the language of section 12(j) is more supportiveof the conclusion that when review is directed, the entire judge’s decision is before theCommission unless the Commission orders otherwise.[[4]]We note that if an item not specifically mentioned in a direction for review were tobecome final, a party aggrieved by a judge’s disposition of such an item would be requiredto pursue judicial review of this item in the court of appeals at the same time that theremainder of the case was still before the Commission.\u00a0 Otherwise, he would lose hisright to judicial review.\u00a0 Such piecemeal review would be required even though theCommission’s review of a directed item might involve issues common to the item beingconsidered by the appellate court and even though the resolution of the item by theCommission or the court might affect the disposition of the item before the other body.\u00a0 This would obviously create the potential for confusion, overlapping adjudication,and wasted effort that the federal courts intended to avoid by adopting Fed.R.Civ.P.54(b).[[5]]\u00a0 In sum, section 12(j) does not mean that citation items disposed of in ajudge’s report become final because a direction for review limits review to otheritems.[[6]]The Secretary also asserts that the Commission’sinterpretation of section 10(a) of the Act, 29 U.S.C. ? 659(a), supports his view thatunreviewed items in a judge’s decision under review are final and enforceable orders.\u00a0 Section 10(a), together with sections 10(b) and (c), establishes a procedure forthe adjudication of citations by the Commission.\u00a0 Section 10(a) states theconsequence of an employer’s failure to timely contest a citation–it \”shall bedeemed a final order of the Commission and not subject to review by any court oragency.\”[[7]]\u00a0 Section 10(b) states that the Secretary may propose additionalpenalties if an employer fails to abate a condition cited in an uncontested or otherwisefinal citation and that those additional proposed penalties become final if not timelycontested.\u00a0 Section 10(c) requires that the Commission provide an opportunity for ahearing on a contested citation.The Commission has held that uncontested citationitems become final orders at the end of the fifteen working-day contest period, but thisdoes not require us to read section 12(j) to hold that contested items not mentioned in adirection for review become final orders at the end of the thirty-day review period.\u00a0Section 10(a), unlike section 12(j), has no relevance to the problem of piecemealadjudication.\u00a0 It is true that section 10(a) employs piecemeal finality to advancethe public interest in prompt abatement.\u00a0 If an employer contests only some of agroup of citation items, the uncontested ones become final and enforceable under section10(a) while the contested ones remain to be adjudicated.\u00a0\u00a0 However, acountervailing policy arises under section 12(j) that does not arise under section10(a)–the policy of avoiding piecemeal adjudication.\u00a0 Under section 10(a), theproblem of piecemeal adjudication does not arise.\u00a0 If an employer contests only someof the items in a citation, there would not be piecemeal adjudication because only thecontested items would be adjudicated.\u00a0 Uncontested items would become final orders byoperation of section 10(a) because the employer elected not to contest them.Under section 12(j), however, the problem ofpiecemeal adjudication does arise.\u00a0 When a judge issues a decision disposing ofseveral citation items but the Commission sets down for review only some of the judge’sdispositions, the party aggrieved by the judge’s dispositions of the other items mightimmediately seek judicial review of these other items in the court of appeals if they weredeemed to be final.\u00a0 Thus, part of the case might be pending before the Commissionand part before a court of appeals. Inasmuch as this can never happen under section 10(a),we find that the principles that operate under section 10(a) are not analogous here.B.\u00a0 Legislative history of the ActAccording to the Secretary, the legislative historyof the Act demonstrates that items not mentioned in a direction for review should beconsidered final.\u00a0 He relies on the comments of Senator Javits, who effectivelyauthored section 12(j) of the Act.\u00a0 During the debates preceding the passage of theAct, Senator Javits successfully opposed a provision of a committee bill that would haveprovided for mandatory review of judges’ decisions and would have delayed the enforcementof citations until the completion of appellate review.\u00a0 The Secretary notes thatSenator Javits remarked that under the rejected committee bill:[N]o enforceable order to correct a violation would issue until the completion of alladministrative and judicial review proceedings.S. Rep. No. 91-1282, 91st Cong. 2d Sess. at 55(1970), reprinted in Senate Committee on Labor and Public Welfare, 92 Cong. 1stSess. Legislative History of the Occupational Safety and Health Act 194 (1971), and1970 U.S. Code Cong. & Ad. News. 5220. This quoted observation is, however, but afragment of the following lengthier comment by Senator Javits: Under the Committee bill, no enforceable order to correct a violation would issue thecompletion of all administrative and judicial review proceedings.\u00a0 Thiswould involve, at a minimum in a contested case, (1) hearings by a trial examiner, (2)mandatory review of the decision by the Secretary or his designee, and (3) review by aCourt of Appeals.\u00a0 It is doubtful that this process could be completed in less than18 months (two years would be a more realistic estimate) in a seriously contested case.Under my amendment, an enforceable order wouldissue at the end of the administrative review stage, rather than after judicial review(unless the Court of Appeals issued a stay).\u00a0 Furthermore, the administrative reviewstage itself would be shortened by three to six months in many cases by making review bythe Panel of trial examiners’ decisions discretionary.\u00a0 If review were denied, thetrial examiners’ decision would automatically become the final order of the panel andenforceable as such.(Emphasis added.)Senator Javits’ comments do indicate an intent thatthere should be no delay in the \”resolution of violations\”; however, his concernwas that a citation would not become enforceable under the committee bill until mandatoryreview of a judge’s decision was over and the opportunity for judicial review had beenexhausted.\u00a0 Senator Javits’ comments were not directed to whether individual citationitems decided in a judge’s decision achieve finality in piecemeal fashion. \u00a0 Wetherefore find that the legislative history of section 12(j) does not support a theory ofpiecemeal finality.C.\u00a0 Rules of procedure of the CommissionSection 12(g) of the Act, 29 U.S.C. ? 661(f), statesthat \”[u]nless the Commission has adopted a different rule, its proceedings shall bein accordance with the Federal Rules of Civil Procedure.\”\u00a0 See alsoCommission Rule 2(b), 29 C.F.R. ? 2200.2(b).\u00a0 We must therefore consider whether thefinality question presented here is addressed by the Commission’s rules of procedure.Several Commission rules set forth the procedures tobe followed when Commission review of a judge’s decision is sought. Commission Rule90(b)(3) states that if no Commissioner directs review of a judge’s report within thirtydays, it \”shall become a final order of the Commission.\” \u00a0 Rule 91(c)states that \”[a] petition [for review] shall contain a precise statement of eachportion of the [judge’s] decision and order to which exception is taken . . . . \”Rule 91(d) provides that when the Commission fails to act upon a petition within thereview period, the petition is deemed denied.\u00a0 Rule 92(c) states that: When a petition for discretionary review is granted, review shall be limited to the issuesspecified in the petition, unless the order for review expressly provides differently.None of the Commission’s rules either states orsuggests that items not mentioned in a direction for review are final orders.\u00a0 Theydo not address the question.As Judge Burroughs observed, Rule 90(b)(3) contains\”no reference to the automatic severance of issues if the Commission decides toreview [fewer] than all the issues petitioned by the aggrieved party.\”\u00a0 The sameis true of Rule 91(d).\u00a0 Rule 91(c) states only that a party aggrieved by the judge’sdecision \”should\” specify in its petition for discretionary review thoseportions of a judge’s decision it wishes to be reviewed.\u00a0 Inasmuch as the rule usesthe word \”should,\” it is not a mandatory requirement.\u00a0 Moreover, a requestthat a party specify that which he wishes reviewed is not an indication that what he doesnot mention thereby becomes a final order of the Commission and ripe for judicial review.The same is true of Rule 92(c), which states thatwhen a petition is granted, \”review shall be limited to the issues specified in thepetition, unless the order for review expressly provides differently.\” \u00a0 JudgeBurroughs correctly evaluated this rule:The Secretary misconstrues the purport of CommissionRule 92(c).\u00a0 The purpose of the rule is not to automatically sever issues forpiecemeal appeals to the circuit court.\u00a0 Its primary purpose is to advise the partiesas to what issues will be considered by the Commission and as to the issues to bebriefed.\u00a0 This prevents the parties from wasting their time briefing issues that willnot be considered on review by the Commission.The judge’s view is confirmed by the legislativehistory of the rule.\u00a0 When the Commission proposed the first version of Rule 92(c),it explained that without the rule, \”[t]he parties … and the remaining members [i.e.,those who did not grant the petition] are without guidance as to specific issues to bediscussed or as to any specific, alleged error in the judge’s decision.\”\u00a0 41Fed. Reg. 24724 (1976); see also 41 Fed. Reg. 53015 (1976) (adoptingproposed rule).\u00a0 In short, Rule 92(c) merely regulates briefing practice.The Commission’s application of the rule also bearsthis out.\u00a0 The Commission has on numerous occasions considered issues outside thefour corners of a direction for review for the sake of fairness and uniformity inadjudication.\u00a0 See Dravo Corp., 82 OSAHRC 30\/A2, 10 BNA OSHC 1651,1652-53 n.2, 1982 CCH OSHD ? 26,076, p. 32,809 n.2 (No. 14818, 1982)(after reviewdirected, supplemental briefing order issued specifying additional issues); FarmersCooperative Grain & Supply Co., 82 OSAHRC 59\/C12, 10 BNA OSHC 2086, 1982 CCH OSHD? 26,301 (No. 79-1177, 1982)(issue directed for review was whether judge erred invacating a 5(a)(1) citation; Commission raised issue of potential applicability of certainstandards and later amended citation to allege a violation of standard); John T. Brady& Co., 82 OSAHRC 9\/D10, 10 BNA OSHC 1385, 1982 CCH OSHD ? 25,941 (No. 76-2894,1982)(case decided on grounds other than those included in the direction for review;controlling precedent issued after direction for review), rev’d on other grounds,No. 82-4082 (2d Cir. Oct. 14, 1982); B.J. Hughes, Inc., 82 OSAHRC 17\/D5, 10 BNAOSHC 1545, 1982 CCH OSHD ? 25,977 (No. 76-2165, 1982) (concurring opinion).[[8]]Thus, under our rules, the parties are not expectedto brief issues regarding an item that is not specified in a direction for review. Theitem still remains within the jurisdiction of the Commission, however, and in theCommission’s discretion, may be reviewed after the parties have been afforded anynecessary opportunity to brief the issues it raises.D.\u00a0 Federal Rules of Civil ProcedureInasmuch as no Commission rule addresses the finality issue, we look to theFederal Rules of Civil Procedure.\u00a0 Judge Burroughs concluded that Fed.R.Civ.P. 54(b)addresses the finality question presented by this case.\u00a0 We agree.Federal Rule 54(b) forbids partial judgment in a case involving multiple claims ormultiple parties, except under certain circumstances.\u00a0 The rule states:JUDGMENT UPON MULTIPLE CLAIMS OR INVOLVING MULTIPLEPARTIES. When more than one claim for relief is presented inan action, whether as a claim, counterclaim, cross-claim, or third-party claim, or whenmultiple parties are involved, the court may direct the entry of a final judgment as toone or more but fewer than all of the claims or parties only upon an express determinationthat there is no just reason for delay and upon an express direction for the entry ofjudgment.\u00a0 In the absence of such determination and direction, any order or otherform of decision, however designated, which adjudicates fewer than all the claims or therights and liabilities of fewer than all the parties shall not terminate the action as toany of the claims or parties, and the order or other form of decision is subject torevision at any time before the entry of judgment adjudicating all the claims and therights and liabilities of all the parties.Rule 54(b) strikes a balance between two conflictinginterests.\u00a0 It preserves the long-standing federal policy against piecemeal appealswhile providing a means for avoiding the injustice that might result if judgment or adistinctly separate claim were delayed until adjudication of an entire case wascomplete.\u00a0 See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 432,76 S.Ct. 895, 898 (1956).\u00a0 See generally 10 C. Wright, A. Miller & M.Kane, Federal Practice & Procedure ? 2654 (2d ed. 1983).We are not unmindful of the Secretary’s concern withprompt abatement.\u00a0 However, the means for obtaining finality provided by Rule 54(b)accommodate the Secretary’s concern that those citation items that truly involve abatementproblems should be enforceable without undue delay.\u00a0 Rule 54(b) provides for theentry of a final judgment on a single claim when four basic conditions are met. \u00a0There must be multiple claims in the case.\u00a0 At least one claim must be decided.\u00a0There must be an \”express determination that there is no just reason fordelay.\”\u00a0 And, there must be an \”express direction for the entry ofjudgment.\”Thus, if the Secretary wishes to enforce an item affirmed by the judge but notspecifically mentioned in a direction for review, he may file a motion under Rule 54(b)requesting that the item in question be severed from the case and adjudged a final order.Similarly, any party who wishes to seek appellate review of an undirected item couldemploy Rule 54(b) to pursue such review.IVWe now apply Rule 54(b) to this case. \u00a0 JudgeBurroughs found that in Hamilton I his disposition of the undirected itemconcerning section 1910.133 had not been severed and declared to be a final order underRule 54(b).\u00a0 Specifically, he found that neither he nor the Commission in HamiltonI had \”direct[ed] the entry of a final judgment as to . . . fewer than all of theclaims . . . upon an express determination that there is no just reason for delay and uponan express direction for the entry of judgment\” within the meaning of Rule 54(b).\u00a0 Judge Burroughs noted:The direction for review by [former] CommissionerCottine was insufficient to grant the [employer] an immediate appeal under Rule 54(b) asto the violation of 29 C.F.R. ? 1910.133 (a)(1).\u00a0 Rule 54(b) requires the court totake two separate steps before an appeal can be perfected.\u00a0 The court must make\”an express determination that there is no just reason for delay\” and it mustmake \”an express direction for the entry of judgment.\”\u00a0 Obviously, thedirection for review did not fulfill these requirements.We agree.\u00a0 We would add that even if thedirection for review in Hamilton I was the equivalent of \”an express directionfor the entry of judgment,\” it could not have met the requirements of section 12(f)of the Act, 29 U.S.C. ? 661(e) because it was the action of only a single Commissionmember.\u00a0 Section 12(f) states that \”official action can be taken only on theaffirmative vote of at least two members.\”\u00a0 Accordingly, we conclude that theitem concerning section 1910.133 in Hamilton I did not become a final Commissionorder when the review period expired.Judge Burroughs recognized that the item in HamiltonI covered the same condition as the face protection item here and vacated the item inthis case.\u00a0 The judge reasoned that because the face protection item in Hamilton Ihad not become a final order of the Commission, the employer was neither required to abatethe cited condition nor pursue an appeal.\u00a0 We agree.\u00a0 Section 10(b) of the Act,29 U.S.C. ? 659(c), provides that an employer who files a notice of contest in good faithis not required to abate the cited condition in the absence of a final Commission order.\u00a0 Inasmuch as the Secretary does not argue that the notice of contest in HamiltonI was filed in bad faith and does not argue that any other special circumstances werepresent here that would warrant overturning Judge Burrough’s conclusion, we adopt thejudge’s view that citation of the same condition under the same standard in this case wasimproper.Accordingly, the judge’s vacation of item three ofthe serious citation is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED:\u00a0 April 22,1986SECRETARY OF LABOR, Complainant, v. HAMILTON DIE CAST, INC.,Respondent, and INTERNATIONAL MOLDERS UNION, Authorized Employee Representative.OSHRC Docket No. 83-0308APPEARANCES: F. Benjamin Riek, III, Esquire, Office of theSolicitor, U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant.Bruce A. Hoffman, Esquire, Graydon, Head and Ritchey,Cincinnati, Ohio, on behalf of respondent.DECISION AND ORDERBurroughs, Judge:\u00a0 Respondent, an Ohiocorporation engaged in the production and sale of aluminum die castings, contests analleged violation of 29 C.F.R. ? 1910.132(a) for failure of a die cast operator and afurnace and pot tender to wear a 100 percent long-sleeved cotton shirt or flame retardantprotective clothing while engaged in work around certain die cast machines.\u00a0 Theviolations allegedly occurred on March 22, 1983, the time of an inspection conducted byIndustrial Hygienist Frank E. Carroll at respondent’s die casting facility in Hamilton,Ohio.As a result of the inspection, respondent was issueda serious citation and \”other\” citation on April 1, 1983. \u00a0 Respondent, byletter dated April 13, 1983, from its counsel, contested all of the allegedviolations.\u00a0 The serious citation alleged violations of the following standards andproposed the penalties indicated: Item No. Standard Assessed Penalty 1a 29 C.F.R. ? 1910.95(a) $700 1b 29 C.F.R. ? 1910.95(k)(3) 2 29 C.F.R. ? 1910.132(a) $700 3 29 C.F.R. ? 1910.133(a)(1) $900 The \”other\” citation alleged a violation of 29 C.F.R. ? 1904.5(c).\u00a0 Nopenalty was proposed for the \”other\” alleged violation.A hearing was initially held in this matter on August10, 1983.\u00a0 At that time, respondent withdrew its notice of contest to items 1a and 1bof the serious citation and to the \”other\” citation.\u00a0 The Secretary agreedto reduce the proposed penalty for items 1a and 1b from $700 to $250 (Tr. 4-5). \u00a0Respondent withdrew its notice of contest with respect to subitems (a) and (b) of item two(Tr. 16, 24).\u00a0 This left subitems (c) and (d) of item two and item three of theserious citation for determination.Item two consisting of subitems (c) and (d) was setforth in the citation in the following manner:29 CFR 1910.132(a):\u00a0 Protective equipment was not used when necessary wheneverhazards capable of causing injury and impairment were encountered:***(c) On March 22, 1983, the operator of Die Cast machine #13 was observed operating themachine and pushing ingots into the furnace next to it and was not wearing a 100% cottonlong sleeved shirt or flame retardant protective clothing.(d) On March 22, 1983, a furnace and pot tender wasobserved placing ingots on top of the furnaces and adding die lubricants to the pots forDie Cast machines #2 and #10 and was not wearing a 100% cotton long sleeved shirt or flameretardant protective clothing.The alleged violation of 29 C.F.R. ? 1910.133(a)(1)(item 3) was described as follows:29 CFR 1910.33(a)(1):\u00a0 Protective face equipmentwas not required where there was a reasonable probability of injury that could beprevented by such equipment:(a) Employees operating Die Cast Machines #2, 10, 11,13, 14 and 15 were wearing their face shields, but did not have them in the down positionto cover their faces and necks.\u00a0 This practice did not protect their faces and necksfrom coming in contact with molten aluminum, while placing ingots into furnaces,transferring molten aluminum and removing hot castings from the Die Cast machines.During the course of the hearing held on August 10,1983, the Secretary moved to amend the descriptions of subitems (c) and (d) of item two ofthe serious citation to delete the reference to a 100 percent cotton long-sleeved shirtand substitute language to indicate that \”the clothing should consist of either 100percent wool clothing or flame retardant clothing suitable for molten aluminumexposure\” (Tr. 6).\u00a0 Respondent objected to the amendment for the reason that the100 percent cotton long-sleeved shirt was required to be worn by employees as a result ofa settlement in a previous OSHA case, docket number 79-1698 (Tr. 6-7).One of the issues in docket 79-1698 involved a repeatviolation of 29 C.F.R. ? 1910.132(a) for failure to provide operators of die castingmachines with \”flame-retardant protective clothing including long-sleeved shirtsand\/on jackets.\”\u00a0 The issue was settled with the stipulation that the die castoperators would \”wear long sleeve cotton shirts\” (Ex. A).\u00a0 The settlementwas approved by an order dated December 11, 1979.The Secretary conceded that the previous settlementwas based on the agreement by respondent to have the die cast operators wear long-sleevedcotton shirts; however, he argues that since 1979 new technology has provided new andbetter clothing and that cotton clothing has been shown to be a hazard for employeesexposed to molten aluminum (Tr. 9).\u00a0 According to the Secretary, sometime in 1980, anew flame retardant clothing was designed for molten aluminum exposure (Tr. 9-10).\u00a0Representatives of the Secretary were unaware of the new clothing at the time of theinspection and closing conference held in this case (Tr. 10, 18-19). \u00a0 Respondentargued that it had no knowledge of any superior fabric and that it was never given anynotice by the Secretary that long-sleeved cotton shirts were no longer acceptable underthe terms of the settlement concluded in docket number 79-1698 in December, 1979.The motion to amend subitems (c) and (d) of item twoof the serious citation was denied (Tr. 19-23).\u00a0 The respondent was never notifiedthat the terms of settlement were no longer the best way of providing protection for itsdie cast operators.\u00a0 Carroll concedes that he was not aware of any better method ofprotection at the time of the inspection and closing conference (Tr. 85). \u00a0 He becameaware of a more suitable fabric in late June or early July, 1983, in a discussion with theSecretary’s counsel (Tr. 85-86).\u00a0 It would be extremely unfair to respondent to allowthe Secretary to abrogate the terms of settlement in docket number 79-1698 after theinspection and then hold them in violation of 29 C.F.R. ? 1910.132(a) at the time of theinspection for having employees wear 100 percent long-sleeved cotton shirts.At the hearing on August 10, 1983, respondent movedto strike item three of the serious citation, which alleged a violation of 29 C.F.R. ?1910.133(a)(1) for failure of employees operating certain die cast machines to wear theirface shields in a down position. Respondent sought dismissal of item three for the reasonthat a final order has not been entered by the Commission on the same standard contestedin docket number 79-1686.\u00a0 Respondent argued that as a matter of law it could not befound to be in violation of 29 C.F.R. ? 1910.133(a)(1) since it did not have to abate thecondition until docket number 79-1686 became a final order of the Commission.Respondent was determined in serious violation of 29C.F.R. ? 1910.133(a)(1) in docket number 79-1686 for failure of the operators of certaindie casting machines to use their face shields.\u00a0 The judge’s decision was issued indocket number 79-1686 on June 2, 1980.\u00a0 The decision affirmed the serious violationof 29 C.F.R. ? 1910.133(a)(1) and a repeat violation of 29 C.F.R. ?1910.212(a)(1).\u00a0 Respondent filed a timely petition for discretionary review on June25, 1980, requesting the Commission to review both issues decided by the Judge.\u00a0 OnJuly 1, 1980, Commissioner Bertram Cottine granted the petition in part under 29 U.S.C. ?661(i) and Commission Rule 92(a), 29 C.F.R. ? 2200.92(a).\u00a0 The direction for reviewstated that review was directed only as to the judge’s affirmance of 29 C.F.R. ?1910.212(a)(1).\u00a0 The case is still pending before the Commission.\u00a0 The Secretaryargued that the judge’s decision in docket number 79-1686 as to the violation of 29 C.F.R.? 1910.133(a)(1) became a final order since direction for review was granted only as tothe violation of 29 C.F.R. ? 1910.212(a)(1).The August 10, 1983, hearing was recessed to affordthe parties an opportunity to brief the issue as to whether item three should bedismissed.\u00a0 On September 10, 1983, a written order was issued discussing the issueand dismissing item three of the citation.\u00a0 This left in issue only subitems (c) and(d) of item two of the serious citation alleging a violation of 29 C.F.R. ? 1910.132(a)for failure of certain employees to wear a 100 percent cotton long-sleeved shirt or flameretardant protective clothing.\u00a0 A hearing was held on this issue on September 20,1983.ALLEGED VIOLATION OF 29 C.F.R. ? 1910.132(a)The question presented by this proceeding is primarily factual and narrow in its scope.\u00a0 Under the terms of the settlement agreement in docket number 79-1698, approved bythe judge on December 11, 1979, the die cast operators were required to wear long-sleevecotton shirts.\u00a0 There is no dispute over the fact that the two employees, DonaldJenkins and Steve Haven, were wearing long-sleeved shirts.\u00a0 The dispute focuses onthe question of whether the shirts were made of cotton or some type of synthetic materialsuch as polyester.\u00a0 The only evidence presented in the case was the testimony ofFrank Carroll, the person who conducted the inspection.\u00a0 Respondent presented noevidence since it concluded that the Secretary had presented insufficient evidence toprove the alleged violations.Carroll testified that Steven Haven, the operator ofdie cast machine number 13, was \”wearing a synthetic poly-blend type shirt that wasopened\” (Tr. 30, 31).\u00a0 When asked how he reached his conclusion, he stated (Tr.31):A\u00a0 From my observations it looked like asynthetic type shirt.\u00a0 It was wrinkle free and it had a shiny appearance and thecloth that it was made out of was very light.\u00a0 It did not have a work-type shirtlook.Q\u00a0 What do you mean by \”work-type shirtlook\”?A\u00a0 It did not look like a work uniform that youwould generally see in an industrial setting, a heavy cotton or cotton polyester blendtype of shirt.\u00a0 It looked like a casual shirt you would see someone wearing during asocial occasion.According to Carroll, Donald Jenkins, the furnace andpot tender assisting the operations of the number two and number ten die cast machines,was also wearing a synthetic or poly-blend type of shirt (Tr. 35-36).\u00a0 Thisconclusion was based on an assumption that was formed from his observation that the shirthad a wrinkle free look, was shiny in appearance and was made of light material (Tr. 36).Carroll did not physically examine the shirts beingworn by Haven and Jenkins.\u00a0 He did not examine the labels on the shirt, and he didnot ask either employee if they were wearing 100 percent cotton or flame-retardant shirts(Tr. 76-77, 82).\u00a0 His conclusions were based solely on his observations of the shirtsas he briefly observed the employees in their work routines (Tr. 77, 82).Carroll indicated that he felt he \”couldvisually observe the difference between a cotton type work shirt and a polyester orpoly-blend synthetic type shirt\” (Tr. 77).\u00a0 Yet, on cross-examination, hedemonstrated a total lack of familiarity with cotton fabrics (Tr. 77-78).\u00a0 He appearsto have concluded the shirts were not 100 percent cotton because they \”did not looklike a work uniform\” (Tr. 31) or \”work shirt that you commonly see in anindustrial environment\” (Tr. 82).The Secretary bears the burden of proving allegedviolations in proceedings before the Commission.\u00a0 Rule 73(a), Commission Rules ofProcedure; Astra Pharmaceutical Products, Inc., 81 OSAHRC 79\/D9, 9 BNA OSHC 2126,1981 CCH OSHD ? 25,578 (No. 78-6247, 1981).\u00a0 He must prove the existence of aviolation by a preponderance of evidence.\u00a0 Dick Corp., 79 OSHRC 101\/E8, 7 BNAOSHC 1951, 1956, 1979 CCH OSHD ? 24,078 at p. 29,252 (No. 16193, 1979); OlinConstruction v. OSHRC, 525 F.2d 464 (2d Cir. 1975).\u00a0 The term \”preponderanceof the evidence\” has been defined by the Commission as \”that quantum of evidencewhich is sufficient to convince the trier of fact that the facts asserted by a proponentare more probably true than false.\”\u00a0 Astra Pharmaceutical Products,Inc., supra, 9 BNA OSHC at 2131, n. 17.\u00a0 In Anaconda Aluminum Co.,81 OSAHRC 27\/A2, 9 BNA OSHC 1460, 1465, 1981 CCH OSHD ? 25,300 (No. 13102, 1981), theCommission indicated that \”the evidence must establish that the existence of the factthe Secretary seeks to prove is more likely than not.\”A \”preponderance of evidence\” should besufficient to convince as to its truth.\u00a0 The evidence, when considered fairly andimpartially, should induce a reasonable belief that the fact in issue is true.\u00a0 Ingeneral, there must be more than a balance of probabilities.\u00a0 The evidence as a wholeshould incline an impartial and reasonable mind to one side rather than the other. \u00a0Where the evidence is equally balanced or the trier of fact is unable to decide thecontroversy either way, judgment must be given against the party upon whom the burden ofproof rests.When the evidence is evaluated, it is just asreasonable to conclude that the shirts were 100 percent cotton as it is to conclude thatthey were made of synthetic material.\u00a0 There is no basis to conclude that oneinference should outweigh all contrary inferences. Carroll’s conclusions were derived froma brief observation of the two employees.\u00a0 He based his opinion on the fact that theshirts were wrinkle free, had a shiny appearance and did not have a work-type shirt look.\u00a0 Cotton fabrics can vary as to the weight of the material.\u00a0 The fact the shirtsmay have been light or had a shiny appearance does not per se mean they cannot be made ofcotton.Carroll was questioned about several different typesof cotton fabrics and displayed a total lack of familiarity with their characteristics(Tr. 77-78).\u00a0 He was unfamiliar with cotton fabrics known as percale, cottonade,chintz and crinoline (Tr. 77-78). There is no evidence of record that he had any degree ofexpertise in recognizing and identifying cotton fabrics.\u00a0 His opinion that the shirtswere made of a synthetic material must be regarded as nothing more than a guess.\u00a0 Thecircumstantial evidence offered by the Secretary, i.e., shiny appearance, wrinklefree and lack of a work-type shirt look, is not so conclusive as to exclude a reasonableinference that the shirts were made of cotton.The Secretary states that the respondent \”maynot argue that there are no violations in this matter simply because Mr. Carroll did notdetermine the exact composition of these shirts.\”\u00a0 It is further pointed outthat respondent offered no testimony to refute Carroll’s observations and conclusionsregarding the type of shirts being worn by Haven and Jenkins.\u00a0 These argumentspresume that the Secretary established a prima facie case with the testimony of Carroll.\u00a0 Until or unless the Secretary establishes a prima facie case, these is no necessityfor an employer to offer any evidence.\u00a0 A prima facie case meets the Secretary’sburden of proceeding, and if no contradictory evidence is presented, it meets theSecretary’s burden of proof.\u00a0 In this case a prima facie case has not beenestablished, the Secretary’s burden has not been met and these was no necessity forrespondent to offer any contrary evidence.Respondent further argues that the evidence is alsoinsufficient to conclude that the shirts that Haven and Jenkins were wearing were notflame retardant.\u00a0 Carroll acknowledged that he did not know if the shirts worn byHaven and Jenkins would have burned if they had been subjected to a flame (Tr. 79-80, 82).\u00a0 The alleged violations are vacated.The Secretary proposed a penalty of $700 for the serious violation of 29 C.F.R. ?1910.132(a).\u00a0 Respondent conceded subitems (a) and (b), but the parties reached nostipulation as to the amount of penalty to be assessed.\u00a0 The two violations resultedfrom the fact that the operator of die cast machine number 11 and a furnace and pot tenderobserved at die cast machine number 16 were performing their duties while wearingshort-sleeved shirts.\u00a0 The two employees were exposed to burns from molten aluminum.The Commission is the final arbiter of penalties inall contested cases.\u00a0 Secretary v. Occupational Safety and Health Review Commissionand Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973).\u00a0 Under section17(j)[[*\/]] of the Act, the Commission must find and give \”due consideration\” tothe size of the employer’s business, the gravity of the violation, the good faith of theemployer, and the history of previous violations in determining the assessment of anappropriate penalty.\u00a0 The gravity of the offense is the principal factor to beconsidered.\u00a0 Nacirema Operating Company, Inc., 72 OSAHRC 1\/B10, 1 BNA OSHC1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).\u00a0 In this case, two employees wereexposed to possible burns from molten aluminum for the duration of their work shift.\u00a0 A penalty of $350 is assessed for the violations.FINDINGS OF FACT1.\u00a0 Industrial Hygienist Frank Carroll commenced an inspection ofrespondent’s plant on March 21, 1983 (Tr. 14).2.\u00a0 On March 22, 1983, Carroll commenced his inspection in the die castmachine area of respondent’s plant (Tr. 21).3.\u00a0 The operator of die cast machine number 13, Steve Haven, and thefurnace tender and pot boy, Donald Jenkins, assisting the operators of die cast machinenumbers 2 and 10, were wearing light long-sleeved shirts (Tr. 23, 31, 34, 35-36, 75).4.\u00a0 The shirt being worn by Steve Haven had a shiny appearance and waswrinkle free (Tr. 31).\u00a0 The shirt had a casual look as opposed to a work uniform look(Tr. 31).5.\u00a0 The shirt being worn by Donald Jenkins had a wrinkle-free look andwas shiny in appearance.\u00a0 It had a light look and did not appear like a workshirt.\u00a0 The look resembled that of a casual shirt (Tr. 36-37, 82).6.\u00a0 Carroll did not examine the shirts worn by Haven and Jenkins.\u00a0He visually observed the shirts (Tr. 76, 77).7.\u00a0 Carroll was unaware of whether the shirts worn by Haven and Jenkinswere flame retardant.\u00a0 He assumed the shirts were made of some synthetic material andwould burn (Tr. 79-80).8.\u00a0 Carroll was unaware of the exact material composition of the shirtsworn by Haven and Jenkins (Tr. 80-81).9.\u00a0 Carroll was not familiar with the characteristics of cotton fabricsknown as percale, cottonade, chintz, and crinoline (Tr. 77-78).10.\u00a0 Employees working around the die cast machines are exposed to thepossibility of molten aluminum coming in contact with their clothing and skin (Tr. 31-32,33, 36). \u00a0 The molten aluminum contained in the furnaces is at least 1200 degreesFahrenheit (Tr. 27).11.\u00a0 Respondent has in the past had employees in the die cast departmentburned by molten aluminum (Ex. 2; Tr. 33-34, 40-41, 42, 43, 44-45).CONCLUSIONS OF LAW1.\u00a0 Respondent, at all times material hereto, was engaged in a businessaffecting commerce within the meaning of the Act.2.\u00a0 Respondent, at all times material hereto, was subject to therequirements of the Act and the standards promulgated thereunder. The Commission hasjurisdiction of the parties and the subject matter herein.3.\u00a0 On March 22, 1983, Steve Haven, operator of die cast machine number13, and Donald Jenkins, the furnace tender and pot boy assisting the operators of die castmachines number 2 and 10, were wearing light long-sleeved shirts that had a wrinkle freeand shiny appearance.4.\u00a0 The evidence is insufficient to establish a prima facie case thatthe shirts worn by Haven and Jenkins were not 100 percent cotton.5.\u00a0 Subsections (c) and (d) of item two, alleging a violation of 29C.F.R. ? 1910.132(a), of the serious citation issued to respondent on April 1, 1983, arevacated.ORDER Based upon the settlement stipulation of the parties, the findings of factand conclusions of law for the issues in dispute, it isORDERED:\u00a0 1.\u00a0 That respondent’s motion to withdraw itsnotice of contest to items 1a and 1b of the serious citation and to item one of the\”other\” citation, both of which were issued on April 1, 1983, is grantedpursuant to the terms of the agreement reached between the parties (Tr. 4-5, August 10,1983, hearing);2.\u00a0 That items 1a and 1b of the serious citation are affirmed and apenalty of $250 assessed for the violations (Tr. 4);3.\u00a0 That item one of the \”other\” citation is affirmed and nopenalty assessed for the violation;4.\u00a0 That respondent’s motion to withdraw its notice of contest tosubitems (a) and (b) of item two of the serious citation is granted;5.\u00a0 That subitems (a) and (b) of item two of the serious citation areaffirmed and a penalty of $350 assessed for the violations;6.\u00a0 That subitems (c) and (d) of item two of the serious citation arevacated; and7.\u00a0 That item three of the serious citation and the penalty proposed forthe alleged violation are vacated in accordance with the order issued on September 7,1983.Dated this 21st day of February, 1984.JAMES D. BURROUGHSJudgeFOOTNOTES: [[1]] Section 1910.133(a)(1) states:Protective eye and face equipment shall be requiredwhere there is a reasonable probability of injury that can be prevented by suchequipment.\u00a0 In such cases, employers shall make conveniently available a type ofprotector suitable for the work to be performed, and employees shall use such protectors.\u00a0 No unprotected person shall knowingly be subjected to a hazardous environmentalcondition.\u00a0 Suitable eye protectors shall be provided where machines or operationspresent the hazard of flying objects, glare, liquids, injurious radiation, or acombination of these hazards.[[2]] Section 1910.212(a)(1) states:One or more methods of machine guarding shall beprovided to protect the operator and other employees in the machine area from hazards suchas those created by point of operation, in-going nip points, rotating parts, flying chipsand sparks.\u00a0 Examples of guarding methods are–barrier guards, two-hand trippingdevices, electronic safety devices, etc. [[3]] We note that the Sixth Circuit evidently rejected this line of argument in HamiltonI, No. 84-3664 (6th Cir. Jan. 24, 1986). After the Commission vacated the citationitem concerning section 1910.212(a)(1) in Hamilton I, Hamilton petitioned the SixthCircuit for review of the remaining section 1910.133(a)(1) face protection item. \u00a0Hamilton had awaited the Commission’s decision on the directed machine guarding itembefore seeking appellate review of the face protection item.\u00a0 The Secretary moved todismiss the petition for review of this latter item.\u00a0 He contended that since it hadnot been directed for review by the Commission, the item had become final; therefore,Hamilton’s appeal to the Sixth Circuit was untimely because it had not been filed withinsixty days of the date the judge’s disposition of the item had allegedly become a finalorder.\u00a0 See 29 U.S.C. ? 660(a).\u00a0 The Sixth Circuit summarily denied the motion.[[4]] See Schiavone Construction Co., 84 OSAHRC ___, 12 BNA OSHC 1105, 1110 n.8.1985 CCH OSHD ? 27,145, p. 35,041 n.8 (No. 80-914, 1984)(view of Chairman Buckley), and CurtBullock Builders, Inc., 85 OSAHRC ___,12 BNA OSHC 1283, 1285 n.5, 1985 CCH OSHD ?27,238, p. 35,166 n.5 (No. 82-65, 1985) (view of Chairman Buckley).\u00a0 Cf. Dun-ParEngineered Form Co., 84 OSAHRC ___, 11 BNA OSHC 1912, 1913-14, 1984 CCH OSHD ?26,883, p. 34,432-33 (No. 79-2553, 1984)(Rowland, Chairman, dissenting)(although directionlimited review to consideration of judge’s penalty assessment, Commission has authority toconsider underlying question of whether a violation was proven); Accu-Namics, Inc. v.OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert. denied, 425 U.S. 903, 96 S.Ct.1492 (1976) (\”although the Commission invited submission on two questions, thiscannot be construed as a limitation on its review power\”).[[5]] Cases that have proceeded on the assumptionthat undirected items are final, enforceable orders have engendered considerable confusionfor parties before the Commission as well as for appellate courts. \u00a0 For example, in Gates& Fox, Docket No. 78-2831, the employer’s petition for review was granted.\u00a0Some, but not all, of the items decided by the judge were specified in the February, 1980direction for review.\u00a0 In April, 1980, Gates petitioned the D.C. Circuit for reviewof those items that were not specified in the Commission’s direction for review.\u00a0 Italso sought court review of a companion case, Docket No. 78-2830, an unreviewed judge’sdecision which had become a Commission final order in its entirety.\u00a0 On July 30,1980, the Commission, in passing on a motion by Gates to stay payment of the penalty inDocket No. 78-2831, ruled that it lacked jurisdiction over the case because the Commissionhad certified the record to the court of appeals on June 6, 1980.\u00a0 About two weeksearlier, unbeknownst to the Commission, the court of appeals, in an order that was notreceived by this agency, stayed proceedings before it in Commission Docket Nos. 78-2830and 78-2831 \”pending completion of administrative review before the Commission in itsDocket No. 78-2831.\”\u00a0 After learning of the D.C. Circuit’s stay order, theCommission issued another order in which it retained jurisdiction so that the items onreview could be decided.\u00a0 The Commission decision on this item subsequently wasrendered and appealed to the D.C. Circuit by the employer in December, 1984.\u00a0 Thus,in addition to the December, 1984 appeal, the two previously stayed appeals that weredocketed in 1980 now are pending before the D.C. Circuit.[[6]] Simplex Time Recorder Co., 83 OSAHRC___, 11 BNA OSHC 1758 (Nos. 82-12 & 82-301, 1983)(severance order and judge’sdecision), aff’d, 766 F.2d 575 (D.C. Cir. 1985), and Cardinal Operating Co.,83 OSAHRC 41\/A2, 11 BNA OSHC 1675, 1983 CCH OSHD ? 26,652 (No. 80-1500, 1983), do notsuggest a contrary view.\u00a0 In Simplex, a consolidated case, the Commissionissued an order of severance in which it severed all items in the case that were notspecifically directed for review and stated that the severed items were \”deemed\”final orders.\u00a0 Simplex does not provide that undirected items automaticallybecome final.\u00a0 If the items not specified in the Simplex direction for reviewbecame final \”by operation of law,\” a severance order would have beenunnecessary.\u00a0 In any event, Simplex did not consider the effect ofFed.R.Civ.P. 54(b), which we view as governing this situation.\u00a0 In CardinalOperating, the Commission stated only that \”[t]he issues involved in Cardinal’spetition [which was denied in its entirety by the Commission] have been appealedseparately to the Sixth Circuit Court of Appeals.\”\u00a0 The Commission did notcomment on the propriety of the employer’s appeal.We acknowledge that in a footnote in CapaldiBrothers Corp., 77 OSAHRC 193\/B13, 5 BNA OSHC 2066, 2067 n.3, 1977-78 CCH OSHD ?22,291, p. 26,844 n.3 (No. 14817, 1977), the Commission stated that the judge’sdisposition of a citation item that was not included in the direction for review \”isthe final order of the Commission.\”\u00a0 We also note that RSR Corp. v. Donovan,733 F.2d 1142 (5th Cir. 1984), could be read to support Capaldi.\u00a0 However, the RSRcourt did not discuss section 12(j) of the Act, and neither the parties, the court, northe Commission in RSR and Capaldi considered the effect of Fed.R.Civ.P.54(b).\u00a0 In light of our discussion here and the federal rule, we overrule Capaldi tothe extent that is inconsistent with this decision.[[7]] Section 10(a) states:If, within fifteen working days from the receipt ofthe notice issued by the Secretary the employer fails to notify the Secretary that heintends to contest the citation or proposed assessment of penalty, and no notice is filedby any employee or representative of employees under subsection (c) of this section withinsuch time, the citation and the assessment, as proposed, shall be deemed a final order ofthe Commission and not subject to review by any court or agency. (Emphasis added by Secretary.)[[8]] See also Supplemental BriefingOrder dated October 17, 1985, in L.E. Myers Co., 12 BNA OSHC 1609, 1986 CCH OSHD ?27,476 (No. 82-1137, 1986); Supplemental Briefing Order dated October 3, 1985 in Nu-WayMobile Home Manufacturing, Inc., 12 BNA OSHC 1670, 1986 CCH OSHD ? 27,489 (No.80-7082, 1986); Supplemental Briefing Order dated February 13, 1984, in City Oil WellService Co., 12 BNA OSHC 1249, 1985 CCH OSHD ? 27,229 (No. 81-1797, 1985), appealfiled, No. 85-4376 (5th Cir. June 4, 1985).[[*\/]] Section 17(j) of the Act states:The Commission shall have authority to assess allcivil penalties provided in this section, giving due consideration to the appropriatenessof the penalty with respect to the size of the business of the employer being charged, thegravity of the violation, the good faith of the employer, and the history of previousviolations.”