JOHN W. McGOWAN

OSHRC Docket No. 76-1308

Occupational Safety and Health Review Commission

October 25, 1977

� [*1] �

Before: CLEARY, Chairman; and BARNAKO, Commissioner. �

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Norman Winston, Assoc. Regional Solicitor, U.S. Department of Labor

David K. McGowan,for the employer

OPINION:

DECISION

BY THE COMMISSION: This case is before the Commission pursuant to a sua sponte order for review by former Commissioner Moran under 29 U.S.C. � � 661(i). � The parties have not taken issue with the disposition of the case by Review Commission Judge J. Paul Brenton. � In these circumstances, the Commission will not review the case. � See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976). � The Judge's decision is therefore affirmed and will be accorded the significance of an unreviewed Judge's decision. � Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

One additional matter, a motion for costs filed by the respondent, requires resolution. � In its motion, the respondent seeks to be awarded costs in the amount of $3,695.60, its total costs in defense of [*2] � this action. n1 In support of its claim, the respondent argues that the citations were frivolous, the inspecting officer was pursuing a course of harassment, and the action was brought in bad faith.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 This sum includes "attorney fees paid . . .; attorney fees billed but not paid . . .; witness fees for professional services, room and board . . .; copies . . .; [and] stamps."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The respondent was engaged in oil field operations when its work-site was inspected by authorized representatives of the Department of Labor. � The inspection resulted in the issuance of four citations alleging serious violations of the Occupational Safety and Health Act of 1970 n2 and proposed penalties of $700 for each alleged violations. � The respondent contended before the Judge that the violations charged in Citations Nos. 1 and 4 were nonserious in nature and that the penalties were excessive. � It denied the allegations in Citations Nos. 2 and 3. � Judge Brenton affirmed Citation No. 1, in part, as nonserious, vacated Citations Nos. 2 and [*3] � 3, and affirmed Citation No. 4 in part as nonserious and in part as serious. � Total penalties in the amount of $50 were assessed.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 29 U.S.C. � � 651 et seq., 84 Stat. 1590.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The respondent argues that Judge Brenton's opinion is identical to the position taken by respondent throughout the proceedings. � This is not entirely correct in view of Judge Brenton's finding that a portion of Citation No. 4 constituted a serious violation. � However, it is unnecessary for the Commission to reach the merits of the respondent's assertions because it is without authority to assess costs against any party. � General Electric Co., 75 OSAHRC 50/A2, 3 BNA 1031, 1049, 1974-75 CCH OSHD para. 19,567 (No. 2739, 1975), rev'd on other grounds 540 F.2d 67 (2d Cir. 1976).

Accordingly, the respondent's motion is denied. �