A. Schonbek & Co., Inc. v. Donovan
| Decision Date | 10 April 1981 |
| Docket Number | D,No. 1032,1032 |
| Citation | 646 F.2d 799 |
| Parties | 9 O.S.H. Cas.(BNA) 1562, 1981 O.S.H.D. (CCH) P 25,320 A. SCHONBEK & CO., INC., Petitioner, v. Ray DONOVAN, Secretary of Labor and Occupational Safety and Health Review Commission, Respondents. ocket 81-4014. |
| Court | U.S. Court of Appeals — Second Circuit |
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. *
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 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 Commission is supported by substantial evidence.
Both the Commission and the Occupational Safety and Health Administration define a "willful" violation as one done either with an intentional disregard of, or plain indifference to, the statute. We join those other Courts of Appeals that have approved the administrative definition of willfulness. See, e. g., Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1167 (3d Cir. 1980); National Steel & Shipbuilding Co. v. OSHRC, 607 F.2d 311, 313-16 (9th Cir. 1979); Georgia Electric Co. v. Marshall, 595 F.2d 309, 318 (5th Cir. 1979); Kent Nowlin Construction Co. v. OSHRC, 593 F.2d 368, 372 (10th Cir. 1979); Cedar Construction Co. v. OSHRC, 587 F.2d 1303, 1305 (D.C.Cir. 1979) (per curiam); Empire-Detroit Steel Division v. OSHRC, 579 F.2d 378, 384-85 (6th Cir. 1978); Western Waterproofing Co., Inc. v. Marshall, 576 F.2d 139, 143 (8th Cir.), cert. denied, 439 U.S. 965, 99 S.Ct. 452, 58 L.Ed.2d 423 (1978); Intercounty Construction Co. v. OSHRC, 522 F.2d 777, 779-80 (4th Cir. 1975), cert. denied, 423 U.S....
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