BRIEFING NOTICE The Commission requests that the parties brief the following issue:
Whether the judge erred in concluding that the diving operation at issue did not constitute "scientific diving" and was therefore subject to the requirements of the cited provisions under 29 C.F.R. Part 1910, Subpart T—Commercial Diving Operations.
The parties are advised that when the merits or characterization of an item are before the Commission for review, the appropriateness of the penalty is also subject to review. Accordingly, the parties may address the amount of the penalty if they so choose.
DECISION Bardav, Inc. owns and operates Martha's Vineyard Mobile Home Park in Corpus Christi, Texas, where two Bardav employees were injured when an excavation caved in. The Occupational Safety and Health Administration conducted an inspection of the worksite and issued Bardav three citations with fourteen items and a total proposed penalty of $50,250. The Secretary withdrew one citation item, and of the remaining items, Administrative Law Judge Patrick B. Augustine vacated five and affirmed eight, for which he assessed a total penalty of $20,675.
DECISION Ryder Transportation Services rebuilds starters and alternators for its vehicles at the Ryder Rebuild Center in Doraville, Georgia. Ryder hired M.C. Dean, an electrical contractor, to perform work at the Center. On August 27, 2009, an M.C. Dean employee working on the roof of the Center fell 26 feet through an unguarded skylight, sustaining fatal injuries. Following an inspection, the Occupational Safety and Health Administration issued Ryder a citation under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, alleging a serious violation of 29 C.F.R. § 1910.23(a)(4), a general industry standard skylight provision. The Secretary proposed a penalty of $5,000.
DECISION At issue on review is a citation issued by the Occupational Safety and Health Administration to the United States Postal Service regarding two OSHA recordkeeping regulations, 29 C.F.R. § 1904.29(b)(2) and (b)(3), alleging a failure to record a work-related illness on the forms required by 29 C.F.R. Part 1904. We conclude that the Secretary has failed to prove a violation of the cited regulations; thus, we vacate the portion of the citation that relates to the alleged failure to record at issue.
DIRECTION FOR REVIEW AND REMAND ORDER Before: ROGERS, Chairman; ATTWOOD and MACDOUGALL, Commissioners. BY THE COMMISSION: In an order dated August 13, 2014, Administrative Law Judge John B. Gatto found Respondent, appearing pro se, to be in default, and accordingly affirmed a one-item serious citation with a total penalty of $2,000. On September 2, 2014, Respondent filed a petition seeking review of the judge's default order. For the following reasons, we direct this case for review, set aside the judge's decision, and remand this case for further proceedings consistent with this opinion.
DIRECTED REVIEW Houston Aquarium, Inc., operates an entertainment complex in Houston, Texas, known as the Downtown Aquarium. In response to an employee complaint, a compliance safety and health officer (CSHO) from the Occupational Safety and Health Administration (OSHA) opened an inspection of the Downtown Aquarium on January 10, 2012. On July 10, 2012, the Secretary issued to Houston Aquarium a Citation and Notification of Penalty alleging serious violations of six subsections of Subpart T, the Commercial Diving Operations standard, 29 C.F.R. §§ 1910.401--.440. Houston Aquarium timely contested the Citation and Notification of Penalty.