P. Gioioso and Sons, Inc. (Commission decision, April 28, 1978)

Plain-English summary

This is a short decision affirming Review Commission Judge David J. Knight's August 18, 1976 decision. The case reached the Commission only because former Commissioner Robert D. Moran directed review under section 12(j). Neither party asked for review, though Gioioso filed a brief in response to the order.

Gioioso's brief challenged the judge's findings on three affirmed violations: a nonserious violation of 29 C.F.R. § 1926.651(i)(1) as item 2 of citation 1, a serious violation of § 1926.600(a)(6) and § 1926.550(a)(15)(i) as citation 2, and a serious violation of § 1926.651(c), amended from § 1926.651(g), as citation 3.

The Commission declined to disturb any of it. Judge Knight reached his findings after observing the witnesses' demeanor, assessing their credibility and weighing the evidence, and his decision set out the testimonial and demonstrative evidence along with his specific credibility determinations. The factual and legal arguments Gioioso raised on review were the same ones it had made to the judge, which he had already considered. Finding the record fully supported his determinations on the merits, the Commission adopted his findings and affirmed his disposition of the three allegations.

Because neither party took issue with the judge's handling of the remaining alleged violations, the Commission did not review those, and that portion of his decision carries only the significance of an unreviewed judge's decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.651(i)(1), 29 C.F.R. § 1926.651(c), 29 C.F.R. § 1926.600(a)(6), 29 C.F.R. § 1926.550(a)(15)(i)
• Outcome: The judge's decision was affirmed. His findings on the three challenged violations were adopted, and the unchallenged portions carry the weight of an unreviewed judge's decision.
• Key point: Where a judge's findings rest on demeanor and credibility determinations set out in detail, and the arguments on review simply repeat those already considered below, the Commission adopts the findings rather than reweighing the record.

Full text (OSHRC public release)

Docket No. 16215

P. GIOIOSO & SONS, INC.
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OSHRC Docket No. 16215

Occupational Safety and Health Review Commission

April 28, 1978

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Before: Cleary, Chairman; and BARNAKO, Commissioner.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Regional Solicitor

Francesco Gioioso, Treasurer Engineer, P. Gioioso & Sons, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION: An August 18, 1976 decision of Review Commission Judge David J. Knight is before the Commission pursuant to a direction for review issued by former Commissioner Robert D. Moran under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
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651 et seq. Neither party requested review of the Judge's decision, but respondent has filed a brief in response to the order for review.
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In its brief, respondent argues that the record does not support the Judge's findings that it violated the safety standards codified at 29 C.F.R. �
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1926.651(i)(1) [citation for nonserious violation number 1, item 2]; 29 C.F.R. � �
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1926.600(a)(6) and .550(a)(15)(i) [citation for serious violation number 2]; and 29 C.F.R. �
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1926.651(c), amended from �
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1926.651(g) [citation for serious violation number 3].

Respondent's review brief challenges the Judge's findings with respect to the three affirmed violations.
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Judge Knight reached his findings and conclusions [*2]
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after observing the demeanor of the witnesses, evaluating their credibility and weighing the evidence accordingly.
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His decision sets forth in detail the testimonial and demonstrative evidence of record, as well as his specific credibilty determinations.
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In addition, factual and legal arguments presented by respondent on review are the same as those raised before the Judge and duly considered by him.
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The evidence of record fully supports the Judge's determinations on the merits.
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Under these circumstances, we adopt the Judge's findings and affirm his disposition of the three allegations.
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Gulf Oil Company, 77 OSAHRC 216/B10/, 6 BNA OSHC 1240 (No. 14281, 1977); See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD para. 22,481 (No. 14249, 1978); Evansville Materials, Inc., 77 OSAHRC 143/F1, 3 BNA OSHC 1741, 1975-76 CCH OSHD para. 20,187 (No. 3444, 1975).

Since the parties have not taken issue with the Judge's disposition of the remaining alleged violations, the Commission will not review his action on them.
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See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976).
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The portion
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of the Judge's decision pertaining to these alleged violations is accorded the significance of an unreviewed Judge's decision.
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Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

Accordingly, the Judge's decision is affirmed.
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