646 F.2d 799 (2nd Cir. 1981), 1032, A. Schonbek & Co., Inc. v. Donovan

CourtUnited States Court of Appeals (2nd Circuit)
Citation646 F.2d 799
Docket NumberDocket 81-4014.,1032
PartiesA. SCHONBEK & CO., INC., Petitioner, v. Ray DONOVAN, Secretary of Labor and Occupational Safety and Health Review Commission, Respondents.
Date10 April 1981

Page 799

646 F.2d 799 (2nd Cir. 1981)

A. SCHONBEK & CO., INC., Petitioner,

v.

Ray DONOVAN, Secretary of Labor and Occupational Safety and

Health Review Commission, Respondents.

No. 1032, Docket 81-4014.

United States Court of Appeals, Second Circuit

April 10, 1981

Argued April 10, 1981.

Decided .

Robert P. Wylie, Plattsburgh, N. Y. (Lewis, Wylie & Lyon, Plattsburgh, N. Y., on brief), for petitioner.

John R. Bradley, Washington, D. C. (T. Timothy Ryan, Jr., Benjamin W. Mintz, Allen H. Feldman, Charles I. Hadden, and Francis V. La Ruffa, Regional Sol., U. S. Dept. of Labor, New York City, on brief), for respondents.

Before TIMBERS and NEWMAN, Circuit Judges, and SOFAER, District Judge. [*]

PER CURIAM:

A. Schonbek & Co., Inc., is a New York corporation engaged in the manufacture of metal lighting fixtures. After an employee had two fingers partially amputated, an Occupational Safety and Health Administration ("OSHA") compliance officer inspected the company's principal place of business at Plattsburgh, New York, where the accident occurred. Several citations were issued to the company at that time.

Citation 2 fined the company $1300 for willfully violating 29 C.F.R. § 1910.212(a)(3)(ii) (1980) by not placing protective guard or barrier devices on the Cowan machine press on which the employee had lost his two fingers. The company appealed this citation. ALJ Furcolo, in an opinion dated June 8, 1977, affirmed the citation, but vacated the characterization of the violation as "willful."

The sole question on appeal of the ALJ's decision to the Commission was whether the violation was willful. On December 30,

Page 800

1980, the Commission reversed the ALJ and ruled that the violation was willful. The Commission found that the Company had not corrected the unsafe situation in the month between the accident and the inspection and that the record showed that the steps taken (including outfitting the die in use at the time of the accident with a plexiglass barrier and retiring it from use) were inadequate. This petition to review followed, pursuant to 29 U.S.C. § 660(a) (1976). We deny the petition to review and affirm the order to the Commission.

The scope of our appellate review is limited. Even if we might reach a different result in a proceeding de novo, we must affirm the decision of the Commission unless it is not supported by substantial evidence. We are persuaded that the decision of the...

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4 practice notes
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 35 Nbr. 3, March 1998
    • 22 Marzo 1998
    ...that no showing of malicious intent is necessary for a finding of a "willful" violation of the OSH Act); Schonbek & Co. v. Donovan, 646 F.2d 799, 800 (2d Cir. 1981) (adopting the administrative definition of willfulness that does not include a finding of malicious intent); Georgia Elec.......
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 36 Nbr. 3, June 1999
    • 22 Junio 1999
    ...F.2d 701, 702 (1st Cir. 1974) (holding finding of willfulness "regardless of venial motive"). (27.) See A. Schonbek & Co. v. Donovan, 646 F.2d 799, 800 (2d Cir. 1981) (adopting, in civil sanction, administrative definition of willfulness that does not include finding of malicious intent......
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 37 Nbr. 2, March 2000
    • 22 Marzo 2000
    ...701, 702 (1st Cir. 1974) (upholding a finding of willfulness "regardless of venial motive"). (27.) See A. Schonbek & Co. v. Donovan, 646 F.2d 799, 800 (2d Cir. 1981) (adopting, in civil sanction, administrative definition of willfulness that does not include finding of malicious intent)......
  • Employment related crimes.
    • United States
    • American Criminal Law Review Vol. 33 Nbr. 3, March 1996
    • 22 Marzo 1996
    ...disregarding is willful violation regardless of good faith belief in alternative measures); A. Schonbek & Co. v. Donovan, 646 F.2d 799, 800 (2d Cir. 1981) (willful violation occurs when there is intentional disregard of, or plain indifference to, statute); Intercounty-Constr. Co. v. Occ......
4 books & journal articles
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 37 Nbr. 2, March 2000
    • 22 Marzo 2000
    ...(1st Cir. 1974) (upholding a finding of willfulness "regardless of venial motive"). (27.) See A. Schonbek & Co. v. Donovan, 646 F.2d 799, 800 (2d Cir. 1981) (adopting, in civil sanction, administrative definition of willfulness that does not include finding of malicious intent......
  • Employment related crimes.
    • United States
    • American Criminal Law Review Vol. 33 Nbr. 3, March 1996
    • 22 Marzo 1996
    ...disregarding is willful violation regardless of good faith belief in alternative measures); A. Schonbek & Co. v. Donovan, 646 F.2d 799, 800 (2d Cir. 1981) (willful violation occurs when there is intentional disregard of, or plain indifference to, statute); Intercounty-Constr. Co. v. Occ......
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 35 Nbr. 3, March 1998
    • 22 Marzo 1998
    ...showing of malicious intent is necessary for a finding of a "willful" violation of the OSH Act); Schonbek & Co. v. Donovan, 646 F.2d 799, 800 (2d Cir. 1981) (adopting the administrative definition of willfulness that does not include a finding of malicious intent); Georgia Ele......
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 36 Nbr. 3, June 1999
    • 22 Junio 1999
    ...702 (1st Cir. 1974) (holding finding of willfulness "regardless of venial motive"). (27.) See A. Schonbek & Co. v. Donovan, 646 F.2d 799, 800 (2d Cir. 1981) (adopting, in civil sanction, administrative definition of willfulness that does not include finding of malicious intent......

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