“Docket No. 4725 MARQUETTE CEMENT MANUFACTURING COMPANY OSHRC Docket No. 4725 Occupational Safety and Health Review Commission November 2, 1977 ?[*1]? Before CLEARY, Chairman; and BARNAKO, Commissioner. COUNSEL: Baruch A. Fellner, Office of the Solicitor, USDOL Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor George W. Moehlehof, for the employer Robert Wynee, President, United Cement, Lime & Gypsum Workers, Local 50, for the employees OPINION: DECISION BY THE COMMISSION: In accordance with the order of the Court of Appeals in Usery v. Marquette Cement Manufacturing Co., No. 76-4083 (2d Cir., August 29, 1977), vacating the Commission’s decision and remanding with instructions, the Secretary’s motion to amend to allege a violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651 et seq. [\”the Act\”] is granted.? A violation of section 5(a)(1) is affirmed on the basis of evidence of record as outlined in the Court’s decision unless, within 10 days from the date of this order, a party requests that it be allowed to submit additional evidence relevant to the section 5(a)(1) allegation. A penalty of $500 is found to comport with the criteria set forth in section 17(j) of the Act and is hereby assessed.? “