ARVIN MILLWORK COMPANY

OSHRC Docket No. 587

Occupational Safety and Health Review Commission

September 9, 1976

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Robert A. Friel, Assoc. Regional Solicitor, USDOL

Richard B. Eismann, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

This case is before us upon the granting on December 24, 1975, of a petition for discretionary review of Administrative Law Judge Watkins' decision.   The petition, which was filed on behalf of the Secretary of Labor, contained several exceptions dealing for the most part with evidentiary issues.

The Secretary filed on February 23, 1976, a brief in support of his exceptions.   Counsel for respondent in a letter to the Executive Secretary dated February 23, 1976, declined to brief the case, but enclosed a copy of a letter to him from the Secretary's counsel dated February 13, 1976, indicating that it was the Secretary of Labor's position that, although the Administrative Law Judge erred in several respects, the Secretary was specifically not requesting the Commission to affirm the additional penalty that had been proposed in connection with a notice of a failure to abate an earlier uncontested citation.   The citation had alleged a failure to comply with 29 CFR §   1910.23(c)(1) for a failure to protect [*2]   a platform 30 feet above the ground level by guardrails.

Since the Secretary recommends that no penalty be assessed concerning the alleged failure to abate, and has asked for no other corrective order, we decline to pass upon the exceptions and affirm the Judge's order assessing no penalty.