A. Schonbek & Co., Inc. v. Donovan, No. 1032

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtBefore TIMBERS and NEWMAN, Circuit Judges, and SOFAER; PER CURIAM
Citation646 F.2d 799
Parties9 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.
Decision Date10 April 1981
Docket NumberD,No. 1032

Page 799

646 F.2d 799
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.
No. 1032, Docket 81-4014.
United States Court of Appeals,
Second Circuit.
Argued April 10, 1981.
Decided April 10, 1981.

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 Commission is...

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11 practice notes
  • Donovan v. Occupational Safety and Health Review Com'n, No. 911
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 19, 1983
    ...F.2d 96, 105 (2d Cir.1981), and its factual findings must be upheld if supported by substantial evidence. A. Schonbek & Co. v. Donovan, 646 F.2d 799, 800 (2d Cir.1981). Upon completion of the enforcement proceeding, an order "affirming, modifying or vacating the Secretary's citation or prop......
  • Modern Drop Forge Co. v. Secretary of Labor, No. 81-1579
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 26, 1982
    ...88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968); H. B. Zachry Co. v. OSHRC, 638 F.2d 812, 815 (5th Cir. 1981); A. Schonbek & Co. v. Donovan, 646 F.2d 799, 800 (2d Cir. In general, the Secretary's standard-setting authority is exercised after substantial prior research, advisory committee review, ......
  • U.S. v. Jones, Nos. 83-5181
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • June 1, 1984
    ...Circuit in Consolidation Coal, supra. 7 Other circuits also have adopted this definition. See, e.g., Schonbek & Co., Inc. v. Donovan, 646 F.2d 799, 800 (2nd Cir.1981) (per curiam); Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1167 (3rd Cir.1980); National Steel & Shipbuilding Co. v. OSHRC,......
  • Commissioner of Labor v. Gary Steel Products Corp., No. 49A02-9309-CV-474
    • United States
    • Indiana Court of Appeals of Indiana
    • November 30, 1994
    ...423; United States v. Dye Construction Co. (10th Cir.1975) 510 F.2d 78, 81-82; and A. Schonbeck & Co., Inc. v. Donovan (2nd Cir.1981), 646 F.2d 799, 4 This statute was recently amended, effective October 1, 1991. With the revised version, the civil penalties for a "serious" violation were i......
  • Request a trial to view additional results
11 cases
  • Donovan v. Occupational Safety and Health Review Com'n, No. 911
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 19, 1983
    ...F.2d 96, 105 (2d Cir.1981), and its factual findings must be upheld if supported by substantial evidence. A. Schonbek & Co. v. Donovan, 646 F.2d 799, 800 (2d Cir.1981). Upon completion of the enforcement proceeding, an order "affirming, modifying or vacating the Secretary's citation or prop......
  • Modern Drop Forge Co. v. Secretary of Labor, No. 81-1579
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 26, 1982
    ...88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968); H. B. Zachry Co. v. OSHRC, 638 F.2d 812, 815 (5th Cir. 1981); A. Schonbek & Co. v. Donovan, 646 F.2d 799, 800 (2d Cir. In general, the Secretary's standard-setting authority is exercised after substantial prior research, advisory committee review, ......
  • U.S. v. Jones, Nos. 83-5181
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • June 1, 1984
    ...Circuit in Consolidation Coal, supra. 7 Other circuits also have adopted this definition. See, e.g., Schonbek & Co., Inc. v. Donovan, 646 F.2d 799, 800 (2nd Cir.1981) (per curiam); Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1167 (3rd Cir.1980); National Steel & Shipbuilding Co. v. OSHRC,......
  • Commissioner of Labor v. Gary Steel Products Corp., No. 49A02-9309-CV-474
    • United States
    • Indiana Court of Appeals of Indiana
    • November 30, 1994
    ...423; United States v. Dye Construction Co. (10th Cir.1975) 510 F.2d 78, 81-82; and A. Schonbeck & Co., Inc. v. Donovan (2nd Cir.1981), 646 F.2d 799, 4 This statute was recently amended, effective October 1, 1991. With the revised version, the civil penalties for a "serious" violation were i......
  • Request a trial to view additional results

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