Fern Valley Excavating, Inc. (ALJ decision, April 7, 2008)

Plain-English summary

Fern Valley Excavating was engaged in excavation contracting and landscaping. OSHA investigated an accident at an Ohio jobsite, and the threshold issue was whether Fern Valley employed the workers at the site on the accident date. The judge found that it did not. All four citation items were vacated, and no penalty was assessed. The official release states that relevant transcript excerpts were attached, but the extracted release does not include their substantive text.

Decision snapshot

• Cited standard(s): None identified in the decision
• Outcome: Citation 1, Items 1 through 4 were vacated, and no penalty was assessed.
• Key point: OSHA cannot sustain a citation against a company that was not the employer of the workers at the cited site.

Full text (OSHRC public release)

                                           United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                            1924 Building - Room 2R90, 100 Alabama Street, SW
                                        Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 07-1498
Fern Valley Excavating, Inc.,
Respondent.

Appearances:
Patrick L. DePace, Esquire., U. S. Department of Labor, Office of the Solicitor, Cleveland , Ohio
For Com plainant

      David Le neghan, Esquire, Bro adview H eights, Ohio
      For Respond ent

Before: Administrative Law Judge Stephen J. Simko, Jr.

                                      DECISION AND ORDER

      Fern Valley Excavating, Inc. (Fern Valley) is engaged in excavation contracting and

landscaping. On April 26, 2007, the Occupational Safety and Health Administration conducted an investigation of a jobsite in Parma, Ohio. This investigation concerned working conditions relating to an accident at that worksite on April 26, 2007. Respondent timely filed a notice contesting the citation and proposed penalties. A hearing was held, pursuant to Simplified Proceedings, 29 C.F.R.
§ 2200.200 et seq., in Cleveland, Ohio, on February 5, 2008. The threshold issue to be decided is whether Respondent was the employer of workers on this jobsite on April 26, 2007, the date of this accident. For the reasons that follow, I find Respondent was not an employer on that site on that date. All alleged violations are vacated and no penalty is assessed.

      Excerpts of relevant transcript pages and paragraphs, including findings of fact and

conclusions of law (Tr. 174 - 183), are attached hereto in accordance with 29 C.F.R. § 2200.209(f). FINDINGS OF FACT AND CONCLUSION OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).

                                        ORDER

   Based upon the foregoing decision, it is ORDERED:

   Citation No. 1, Items 1, 2, 3 and 4 are vacated and no penalty is assessed.




                                                        /s/
                                                         STEPHEN J. SIMKO, JR.
                                                        Judge

Date: February 29, 2008

Attachment Tr. 174 - 183

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