Favrot-Bellows, A Joint Venture

Plain-English summary

OSHA alleged that Favrot-Bellows willfully violated fall-protection requirements stated in the alternative under three construction standards and proposed a $10,000 penalty. The judge instead affirmed a serious violation of 29 C.F.R. § 1926.28(a) and assessed $500. On review, the employer expressly supported the judge's decision, and the Secretary filed no brief. The Commission therefore declined to review the merits and affirmed the judge's disposition. It stated that the affirmed ruling would have the significance of an unreviewed judge's decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.28(a), 29 C.F.R. § 1926.105(a), and 29 C.F.R. § 1926.451(a)(4)
• Outcome: The Commission affirmed a serious § 1926.28(a) violation and a $500 penalty.
• Key point: When the employer supported the judge's disposition and the Secretary did not brief review, the Commission declined merits review and affirmed the judge's decision.

Full text (OSHRC public release)

Docket No. 15095

FAVROT-BELLOWS, A JOINT VENTURE

OSHRC Docket No. 15095

Occupational Safety and Health Review Commission

March 2, 1978

COUNSEL:

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Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

Joe F. Canterbruy, Jr., for the employer

OPINION:

DECISION

A decision of Administrative Law Judge Harold A. Kennedy is before this Commission pursuant to a direction for review "for error" issued by former Commissioner Moran under �
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12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
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651 et seq. Respondent was cited for an alleged willful violation of �
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5(a)(2) of the Act for noncompliance in the alternative with 29 CFR � �
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1926.28(a), 1926.105(a), or 1926.451(a)(4).
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A $10,000 penalty was proposed.
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Judge Kennedy affirmed a serious violation of �
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1926.28(a) and assessed a $500 penalty.

Complainant has not filed a brief on review.
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Respondent has submitted a brief incorporating its post-trial brief, which includes issues subsequently decided adversely to respondent.
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Respondent specifically states, however, that its brief is filed "in support" of the Judge's decision and that, "Respondent has not willfully violated the Act and Judge Kennedy's decision is correct and proper." We regard respondent's submissions as not taking issue with the Judge's disposition.
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Accordingly,
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the Commission will not review the decision.
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See Schultz's, Inc., 78 OSAHRC 16/C14, 6 BNA OSHC 1376, 1977-78 CCH OSHD para. 22,557 (No. 76-1791, 1978); Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4138, 1978); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976).
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The Judge's decision is affirmed and will be accorded the significance of an unreviewed Judge's decision.
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Leone Construction Company, 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
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