Dempsey Darcy Oldsmobile
Penalties reduced for good faith and inspection history
Apply this to your situation
This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Dempsey D'Arcy Oldsmobile purchased the assets of a dealership after OSHA had cited the prior owner. OSHA later cited the new company for conditions that had not been corrected, and the parties settled the violations but disputed the penalty amounts. The judge found that the company deserved additional credit because it cooperated, promptly spent about $28,000 on abatement, and had not itself undergone the earlier inspection. The judge modified the seven item penalties to a total of $3,325.
Decision snapshot
- Cited standard(s): None specified in the decision
- Outcome: Seven settled citation-item penalties modified to total $3,325
- Key point: Good-faith and history adjustments were warranted because the new owner promptly corrected conditions and was distinct from the previously inspected employer.
Full text (OSHRC public release)
. .
, UNITE0 STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006- 1246
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-1501
DEMPSEY DARCY OLDSMOBILE
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATTIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on February 12, 1993. The decision of the Judge
will become a final order of the Commission on March 15, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
March 4, P993 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 cp.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Mshington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room sJoo4
LOI)Constitution Avenue, N.W.
WashIngton, D.C. 20210
If a Direction for Revxu 1s iwed bv the Commission, then the Counsel for
Regional Trial Litir;ltwrl ~111represent ‘the Department of Labor. Any party
having questions about rc:~~ctwrights may contact the Commission’s Executive
Secretary or call (202) G4-7950.
FOR THE COMMISSION
Date: February 12, 1993
DOCKET NO. 924501
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, ES&
Counsel for Re 'onalTrial Liti ation
Office of the So%l
citor, U.S. DOY
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
John H. Secaras, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
230 South Dearborn St.
Chicago, IL 60604
Thomas P. Dempse , President
Dempsey D’Arcy 0 Ydsmobile
1520 West Jefferson Street
Joliet, IL 60435
Sidney J. Goldstein
Administrative Law Jud e
Occupational Safety an d Health
Review Comrnisslon
Room 250
1244 North S eer Boulevard
Denver, CO f 0204 3584
00102402385 :05
UNITED STATESOf AMERICA
occuPATIONAL SAFETY AND HEALTH REVI EWC OMMISSION
1244 N. S?EER 80ULEVARD
ROOM 250
DENVER, COLORADO 802044582
. FAX
PHONE
COM (303) 844-3759
COM (303) 644-2281
ns (303) 844-37s
ns (303) 844-2281
.
I
SECRETARY OF LABOR, I
Complainant, I
I
v. I OSHRC Docket No. 924501
I
DEMPSEY D’ARCY OLDSMOBILE, 1
Respondent. I
APPEARANCES:
m A Alexander, Esq., Office of the Solicitor,
. U.S. Department of Labor, Chicago, Illinois
‘ThomasP. Dempscy,ppl,se, Dempsey, D’Arq Oldsmobile,
Joliet, Illinois
Before: Administrative Law Judge Sidney J. Goldstein
DECISION AND ORDER .
This matter arises under Section 10(c) of the Occupational Safety and Health Act
of 1970 and involves the application of the penalty provision of this law. After one of its
compliance offkers inspected a workplace of the Respondent, the Occupational Safety
and Health Administration concluded that the Company was in violation of various safety
regulations adopted under the Act and issued a citation for the alleged infractions. The
Respondent disagreed with the citation and submitted a notice of contest. After a Com-
plaint and Answer were filed with this Commission, the matter was set for hearing. Prior
to the hearing date the parties settled all matters relating to the citation with the excep-
tion’of the penalty, and the hearing was therefore confined to this issue only.
The facts a= not in substantial dispute and may be briefly stated. On May 8,
191, a compiiancc officer for the Administration inspected an employing unit known as
the Graham Oldsmobile dealership in Joliet, Illinois. The following month the Agency
issued citations to tbat company for alleged violations of safety regulations adopted under
the Act.
In September, 1991, the Respondent, a new corporation, with independent officers
and investors, purchased the fixed assets of the Graham entity and commenced business
as Dempsey D’Arcy Oldsmobile Dealership. At that time the new ownership and man-
agement did not know of the citations issued to the Graham people.
On March 12 and 13, 1992, the property was reinspected by OSHA, and those
previous alleged violations which were not corrected were the subject of a citation issued
to Dempsey D’Arcy. The Respondent filed a notice of contest but nevertheless cooper-
ated with the Administration and promptly commenced the abatement of the alleged
violations and corrected the infractions at an approximate cost of $28,000.00. In the
assessment of the proposed penalties, the Administration gave credit for various factors,
but no credit was given for good faith because of the lack of a written safety and health
program. Also, there was no credit or benefit based .upon history since there had been a
previous inspection of the premises.
With respect to penalties, Section 17(j) of the Act provides:
The Commission shall have authority to assess all civil penalties provided in
this section, giving due consideration to the appropriateness of the penalty
with respect to the size of the business of the employer being charged, the
gravity of the violation, the good faith of the employer, and the history of
the previous violations.
As noted, the Administration gave no credit in the assessment of penalties on the
basis of good faith of the employer because there was no written safety and health pro-
gram and allocated no credit for history inasmuch as there had been a previous inspec-
tion of the dealership.
I believe that the failure to have a written safety and health program should not
be the sole consideration in granting credit for good faith in the penalty assessment.
Where an employer demonstrates a sensitivity for the safety of its employees in the
prompt abatement of the alleged safety violations and cooperates with the
c
Administration, incurring substantial expenditures in the process, some credit should be
advanced in the penalty process. Further, while there had been a previous inspection of
the dealer&p property, the Respondent had no previous inspection, and credit should be
accord4 on this basis. As a result, there should be additional adjustments to the pro-
posed penalties. The penalties are therefore modified as follows:
Citation No. 1 - Item 1 - $600.00
Item 2 - 325.00
Item 3 - 600.00
Item 4 - 300.00
Item 5 - 300.00
Item 6 - 600.00
Item 7 - 600.00
Judge, OdHRC
Dated: February 5, 1993
.
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