Jimerson Underground

Plain-English summary

A fatal manhole accident involving Jimerson and subcontractor employees led OSHA to issue citations under general industry standards. The Secretary later added alternative allegations under construction standards and the general duty clause. The Commission had already held that Jimerson's work was construction and remanded for a ruling on the amended allegations. The judge clarified that he had granted the amendment but did not decide the alternative allegations or dispose of every contested item. The Commission found the case was not ready for review and remanded it to the Chief Administrative Law Judge for reassignment and resolution of the outstanding issues.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); other construction and general industry standards were not identified by section number in this order.
• Outcome: The Commission remanded for reassignment and a decision on the unresolved alternative construction-standard and general-duty allegations.
• Key point: A judge's decision must resolve every material issue and dispose of each contested citation item before Commission review.

Full text (OSHRC public release)

JIMERSON UNDERGROUND, INC., Docket No. 04-0970

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 04-0970

JIMERSON UNDERGROUND, INC.,

Respondent.

APPEARANCES:

Eve Marie Stocker, Attorney, Charles F. James, Counsel for Appellate Litigation;
Daniel J. Mick, Counsel for Regional Trial Litigation; Joseph M. Woodward,
Associate Solicitor; Howard M. Radzely, Solicitor; Department of Labor,
Washington, DC

For the Complainant

C. Thomas Behrman, Esq.; Robin N. Blanchette, Esq; Simon W. Hendershot, III,
Esq.; Kerr & Hendershot, P.C., Houston, TX

For the Respondent

DIRECTION FOR REVIEW AND REMAND ORDER

Before: RAILTON, Chairman; ROGERS and THOMPSON, Commissioners.

BY THE COMMISSION:

Pursuant to the Commission’s March 3, 2006 decision remanding this case,
Administrative Law Judge Robert A. Yetman issued a decision on remand that was
docketed with the Executive Secretary on January 10, 2007.

As the Commission
requested, the judge clarified in his decision on remand that—during a pre-hearing
telephone conference with the parties on February 11, 2005—he had indeed granted the
Secretary’s motion to amend her citations and complaint to include alternative
allegations. Having already addressed the Secretary’s motion that was, in part, the basis
for the Commission’s remand, Judge Yetman returned this case to the Commission “for
action it deems appropriate.” For the following reasons, we, sua sponte , direct this case
for review and remand it to the Chief Administrative Law Judge for reassignment.

Background

These proceedings arose from a fatal manhole accident involving several
employees of Jimerson Under-Ground, Inc. (“Jimerson”) and its subcontractor.
Subsequent inspections conducted by the Occupational Safety and Health Administration
(OSHA) resulted in OSHA issuing two citations to Jimerson on May 7, 2004, for alleged
violations of various general industry standards. Jimerson timely contested these
citations.

On July 21, 2004, the Secretary filed her complaint, and on August 9, 2004,
Jimerson filed its answer that—in addition to other averments—denied the applicability
of the cited general industry standards to its activities. The matter was then assigned to
Judge Yetman, who subsequently received various pleadings and motions from the
parties. On February 10, 2005, five days before the start of the hearing, the Secretary
filed her Third Motion to Amend the Complaint and Citations. The Secretary sought to
allege, in the alternative, violations of several construction standards, as well as section
5(a)(1) of the Occupational Safety and Health Act (“the Act”), 29 U.S.C. §§ 651-678.

On February 11, 2005, a pre-hearing telephone conference took place between the
parties and the judge during which the Secretary’s motion to amend was discussed.
However, the record did not memorialize Judge Yetman’s ruling—made, according to his
January 10, 2007 decision on remand, during this telephone conference—that the
Secretary’s Third Motion to Amend Complaint and Citations was granted. On August 8,
2005, Judge Yetman issued a decision and order affirming the citations as alleged under
the general industry standards.

On September 9, 2005, this case was directed for review and came before the
Commission for the first time. In our decision dated March 6, 2006, we found that:
(1) Jimerson’s activities constituted “construction work” and therefore, were governed by
the construction standards; and (2) “nothing in the record [] show[ed] that the judge ever
ruled on the Secretary’s motion to amend” her complaint and citations to allege, in the
alternative, that Jimerson violated provisions of the construction standards and section
5(a)(1) of the Act. Jimerson Under-Ground, Inc., 21 BNA OSHC 1459 (No. 04-0970,
2006). Thus, we remanded the case to the judge to rule on the Secretary’s motion to
amend and to conduct any further proceedings as necessary.

Discussion

Upon consideration of the judge’s January 10, 2007, decision on remand, we
conclude that this matter is not ripe for review by the Commission. Whenever a judge
files a decision with the Executive Secretary for docketing, Commission Rule 90(a)
requires, in relevant part, the following:

The decision shall . . . include findings of fact, conclusions of law, and the
reasons or bases for them, on all material issues of fact, law or discretion
presented on the record. The decision shall include an order affirming,
modifying or vacating each contested item and each proposed penalty, or
directing other appropriate relief.

29 C.F.R. § 2200.90(a). While Judge Yetman’s remand decision clarified that he had in
fact ruled on the Secretary’s motion to amend, it nonetheless failed to resolve all the
issues the Commission placed before the judge on remand.

Specifically, the judge’s decision and order neither addressed nor analyzed the
Secretary’s alternative allegations under the construction standards, as well as section
5(a)(1) of the Act, in view of our holding that the originally cited general industry
standards did not apply to the cited conditions because Jimerson was engaged in
“construction work.” We, thus, have little choice but to determine that the judge’s
decision on remand fails to satisfy the requirements for a decision as set forth in
Commission Rule 90(a). See Pettey Oil Fields Serv., Inc. , 21 BNA OSHC 1638, 1639
(No. 05-1039, 2006). Therefore, the judge’s decision should not have been filed for
docketing with the Executive Secretary.

Accordingly, we direct review of this case and remand the matter to the Chief
Administrative Law Judge for assignment and resolution of the outstanding issues
consistent with this opinion.

SO ORDERED.

__/s/______

W. Scott Railton

Chairman

__/s/______

Thomasina V. Rogers

Commissioner

__/s/______

Horace A. Thompson III

Dated:   February 8, 2007                                              Commissioner

Phone: (303) 844-3409                                                                                              Fax: (303) 844-3759

SECRETARY OF LABOR,  

Complainant,

v.

OSHRC DOCKET NO. 04-0970

JIMERSON UNDERGROUND, INC.,

and its successors,

Respondent.

DECISION AND ORDER

The Commission has remanded this matter to the undersigned for a ruling on Complainant's
motion to amend the citation and complaint filed on February 10, 2005; five days prior to the hearing
scheduled to commence on February15, 2005. On Friday, February 11, 2005, a telephone conference
was held between the parties and the undersigned (TR 12) at which time arguments were heard from
both parties with respect to the motion to amend. The motion was granted at that time and Respondent
filed a written amended answer to the amended complaint on February14, 2005. (TR 10, 19, Exhibit J-29). Respondent denied the allegations contained in the amended complaint. Thus, the Commission
now seeks a ruling which was made prior to the hearing and known by both parties prior to the commencement of the hearing.

Moreover, both parties presented their respective cases based upon the
knowledge that Complainant's motion to amend the citation and complaint had been granted. Indeed,
the Commission, in its briefing order issued pursuant to the notice of direction for review, raised as an
issue to be discussed by the parties, whether Respondent was engaged in construction; the issue which
was included in the motion to amend as an alternative pleading to the general industry allegation.
Since the motion was granted on February 11, 2005, the file is returned to the Commission for action it
deems appropriate.

SO ORDERED.

/s/  

Date: January 10, 2007

Robert A. Yetman

Judge, OSHRC