Burk Well Service Company

Plain-English summary

OSHA cited Burk Well Service for a willful violation of the general duty clause, and the judge affirmed the citation with a $2,000 penalty. Burk had specifically denied that it was engaged in a business affecting commerce, a fact required for coverage under the Act. The Commission explained that the Secretary’s burden on this issue was light but still required evidence. Because the Secretary introduced no evidence bearing on commerce, the Commission could not make the required jurisdictional finding. It reversed the judge and vacated the citation without reaching whether the alleged violation was willful.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: Willful citation and $2,000 penalty vacated.
• Key point: When an employer denies that its business affects commerce, the Secretary must introduce some evidence establishing coverage under the Act.

Full text (OSHRC public release)

Docket No. 79-6060

SECRETARY OF LABOR,

Complainant,

v.

BURK WELL SERVICE COMPANY,

Respondent.

OSHRC Docket No. 79-6060

DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners. BUCKLEY, Chairman:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.
� 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ��
651-678 ("the Act"). The Commission is an adjudicatory agency, independent of
the Department of Labor and the Occupational Safety and Health Administration. It was
established to resolve disputes arising out of enforcement actions brought by the
Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the
Act, 29 U.S.C. � 659(c).

The Secretary of Labor issued a citation to Burk Well Service Co. alleging that Burk had
willfully violated section 5(a)(1) of the Act, 29 U.S.C. � 654(a)(1). Administrative Law
Judge E. Carter Botkin affirmed the citation and assessed a penalty of $2,000.

On review, Burk makes two arguments. First, it argues that the citation should be vacated
because the Secretary failed to introduce any evidence to establish that it was
"engaged in a business affecting commerce" within the meaning of section 3(5) of
the Act, 29 U.S.C. � 652(5). That section states:

Sec. 3 For the purposes of this Act--

(5) The term 'employer' means a person engaged in a business affecting commerce who has
employees, but does not include the United States or any State or political sub divisions
of a State.

Second, Burk argues that the judge erred in finding the violation to have been willful. We
need not address the willfulness issue because we find that the Secretary failed to
establish on the record before us that Burk is an employer engaged in a business affecting
commerce.

In enacting the Occupational Safety and Health Act, Congress intended to exercise the full
extent of the authority granted by the commerce clause of the Constitution. Austin Road v.
OSHRC, 683 F.2d 905 (5th Cir. 1982). Accordingly, an employer comes under coverage of the
Act by merely affecting commerce; it is not necessary that the employer be engaged
directly in interstate commerce. Austin Road, 683 F.2d at 907; United States v. Dye
Construction Co., 510 F.2d 78 (10th Cir. 1975). Nevertheless, the Secretary bears the
burden of establishing the threshold jurisdictional fact. Although the Secretary's burden
of persuasion is a light one, Austin Road, 683 F.2d at 907, he made no effort to meet it
here.

In his complaint, the Secretary alleged that Burk produced goods for commerce, or handled
or worked on goods that move in interstate commerce, and that Burk was therefore engaged
in a business affecting commerce within the meaning of section 3(5) of the Act. Even
though Burk specifically denied these allegations in its answer, the Secretary introduced
no evidence whatsoever to support them. The record is devoid of any evidence bearing on
the jurisdictional question. On the record before us, any finding that Burk's business
affects commerce would be mere speculation. To paraphrase the Fifth Circuit in Austin
Road, perhaps Burk's business does affect interstate commerce; but that essential fact is
not established on the record before us.

Accordingly, the judge's decision is reversed and the citation is vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED: December 12, 1985