Atec Contracting Corporation (Commission decision, October 21, 1983)

Plain-English summary

Atec was originally cited for three serious excavation and trenching violations with $1,440 proposed. The judge vacated the section 1926.652(b) item, affirmed the other two, and assessed $960. While review of the affirmed items was pending, Atec agreed to withdraw its petition and maintain abatement. The Secretary reduced those two violations from serious to nonserious and eliminated all penalties. The Commission approved the settlement.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.650(f), 1926.651(i)(1), and 1926.652(b).
• Outcome: Two items reclassified as nonserious with no penalty by settlement; third item remained vacated.
• Key point: The reviewed excavation items were resolved through continued abatement, nonserious classification, and elimination of the judge's $960 penalty.

Full text (OSHRC public release)

Docket No. 79-6029

SECRETARY OF LABOR,

Complainant,

v.

ATEC CONTRACTING CORPORATION,

Respondent.

OSHRC Docket No. 79-6029

ORDER

The parties' Stipulation and Settlement Agreement is Approved.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

Dated: OCT 21 1983

RAYMOND J. DONOVAN, SECRETARY OF LABOR

Complainant,

v.

ATEC CONTRACTING CORPORATION,

Respondent.

OSHRC DOCKET NO. 79-6029

STIPULATION AND SETTLEMENT AGREEMENT

I

The parties have reached agreement on a full and complete settlement of the instant matter which is presently pending before the Commission.

II

The parties stipulate as follows:

(a) The Occupational Safety and Health Review Commission (hereinafter "the Commission") has jurisdiction of this matter pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. �651 et seq.) (hereinafter "the Act").

(b) Respondent, Atec Contracting Corporation, is a corporation with its principal place of business located in Washington, D.C.

It is engaged in the business of construction work and during the course of its business its employees perform various tasks in the nature of construction and related work. During the course of its business, respondent uses materials and equipment which it receives from places located outside Washington, D.C. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined by sections 3(3) and 3(5) of the Act, and has employees as defined by section 3(6) of the Act, and is subject to the requirements of the Act.

(c) As a result of an inspection conducted on September 29, 1979, at respondent's work place at Fair Oaks Shopping Center, Fairfax, Virginia, a citation for one serious violation with three items alleging violations of the standards at 29 CFR 1926.650(f), 29 CFR 1926.651 (i)(1) and 29 CFR 1926.652(b) and a Notification of Proposed Penalty assessing a total penalty of 1,440.00 was issued to respondent on October 9, 1979 pursuant to section 9(a) of the Act.

(d) Respondent submitted a Notice of Contest dated October 24, 1979, informing Complainant of its intention to contest the alleged violations and the Proposed Penalty. The Notice of Contest was received by the Richmond, Virginia Area Director, Occupational Safety and Health Administration, on October 29, 1979. Thereafter, the parties duly filed a complaint and an answer.

(e) On May 20, 1980, Commission Administrative Law Judge Benjamin J. Usher held a hearing on Respondent's notice of contest. On July 16, 1981, Judge Usher issued his Decision and Order in which he vacated the serious item alleging violation of 29 CFR 1926.652(b) and affirmed the serious items alleging violation of 29 CFR 1926.650(f) and 29 CFR 1926.651(i)(1). The Judge also assessed a penalty of $960.00. Thereafter, Respondent filed a timely Petition for Review to the Commission and on September 8, 1981, Chairman Rowland granted review on the following issue:

[1] Whether the judge erred in finding Respondent in violation of the Act for failing to comply with the provisions of 29 CFR 1926.651 (i)(1) and �1926.650(f).

III

Now, the Secretary of Labor and Atec Contracting Corporation in order to conclude this matter without the necessity of further litigation or review,stipulate and agree as follows:

IV

Respondent hereby agrees to withdraw its Petition for Review to the affirmance of the Citation for violation of 29 CFR 1926.651(i)(1) and 1926.650(f) and submits that the violations have been abated and shall remain abated.

V

The Secretary hereby agrees to reduce the classification of the violations from serious to non-serious and to eliminate all penalties proposed.

VI

Respondent and Complainant agree that each party shall bear its own costs.

VII

Respondent agrees to post this Stipulation and Settlement Agreement in accordance with Commission Rule 7.

WHEREFORE, the parties request that this Stipulation and Settlement Agreement be approved by the Commission.

ANTONY F. GIL

Attorney for the Secretary of Labor

ANDREW D. NESS, ESQ.

Lewis, Mitchell & Moore

Date this 2nd day of September, 1983.

The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office By e-mail ( [email protected] ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).