Arvin Millwork Co. (Commission decision, September 9, 1976)

Plain-English summary

An earlier uncontested citation alleged that Arvin Millwork failed to guard a platform 30 feet above ground. OSHA later alleged that the company had failed to abate that condition and challenged several evidentiary rulings by the judge. During Commission review, however, OSHA expressly stated that it was not seeking the additional failure-to-abate penalty. It also requested no other corrective order. The Commission therefore declined to decide the evidentiary exceptions and affirmed the judge's order assessing no penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.23(c)(1)
• Outcome: The judge's order assessing no penalty for the alleged failure to abate was affirmed.
• Key point: The Commission declined to resolve evidentiary issues when OSHA sought neither a penalty nor any other corrective relief.

Full text (OSHRC public release)

Docket No. 587

ARVIN MILLWORK COMPANY

OSHRC Docket No. 587

Occupational Safety and Health Review Commission

September 9, 1976

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
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COUNSEL:

Robert A. Friel, Assoc. Regional Solicitor, USDOL

Richard B. Eismann, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

This case is before us upon the granting on December 24, 1975, of a petition for discretionary review of Administrative Law Judge Watkins' decision.
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The petition, which was filed on behalf of the Secretary of Labor, contained several exceptions dealing for the most part with evidentiary issues.

The Secretary filed on February 23, 1976, a brief in support of his exceptions.
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Counsel for respondent in a letter to the Executive Secretary dated February 23, 1976, declined to brief the case, but enclosed a copy of a letter to him from the Secretary's counsel dated February 13, 1976, indicating that it was the Secretary of Labor's position that, although the Administrative Law Judge erred in several respects, the Secretary was specifically not requesting the Commission to affirm the additional penalty that had been proposed in connection with a notice of a failure to abate an earlier uncontested citation.
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The citation had alleged a failure to comply with 29 CFR �
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1910.23(c)(1) for a failure to protect [*2]
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a platform 30 feet above the ground level by guardrails.

Since the Secretary recommends that no penalty be assessed concerning the alleged failure to abate, and has asked for no other corrective order, we decline to pass upon the exceptions and affirm the Judge's order assessing no penalty.
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