LaForge & Budd Construction Co., Inc.

Plain-English summary

OSHA cited LaForge & Budd Construction Co., Inc. after inspecting an Oklahoma construction project. The Commission reversed an earlier ruling that had suppressed the inspection evidence and remanded the case for a hearing on the merits. The parties then stipulated that a nylon-sling item would be affirmed as other than serious with a $500 penalty and that an excavation item would be affirmed as serious with a $2,000 penalty. The Secretary withdrew three other items, which the judge vacated. The total assessed penalty was $2,500, while the employer preserved the inspection issues it had previously raised.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.251(a)(1), 1926.652(a)(1), 1926.152(a)(1), 1926.350(a)(9), and 1903.2(a)(1).
• Outcome: Mixed. Two stipulated items were affirmed with $2,500 in total penalties, and three withdrawn items were vacated.
• Key point: After the Commission upheld the inspection consent and remanded, the parties resolved the merits by stipulating to two violations while preserving the employer's inspection challenge.

Full text (OSHRC public release)

             “T’,
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             Q           UNITED STATES OF AMERICA       c
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                          One Lafayette Centfe
                    1120 20th Street, N.W. -9th Floor
                       Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-2264
LAFORGE & BUDD CONSTRUCTION COMPANY
Respondent.

                 NOTICE OF DO.CKETING
          OF ADMINISTRATIVE LA’W JUDGE’S DECISION

 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on April 7, 1995. The decision of the Judge
will become a final order of the Commission on May 8, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
April 27, P995 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 c!.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419

Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH.
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210 ,I
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: April 7, 1995
K?H---
Ray H. Darling, Jr.
&4&4-
Executive Secretary
c:;a>
DOCKET NO. 91-2264 --“*
NOTICE IS GIVEN TO THE FOLLOWING:

James E. White, Esq.
Re ional Solicitor
O&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘Sbite 501
Griffin & You Streets
Dallas, TX 752?f2

Thomas M. Moore, Esq.
Moore, Bucher & Momson
9237 Ward Parkway, Suite 300
P.O. Box 8620
Kansas City, MO 64114 8620 r

Stanley M. Schwartz
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242 0791

00107507394 : 06
UNITED STARS OF AMEIWA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
ROOM 7811, FEDERAl BUILDING
1100 COMMERCE STREET
DALLAS, TEXAS X242-0791

PHONE: FAX:
COM (214)?6?d271 COM (214)767-0350
FTS(214)767-52tl Rs (214)767-0350

                                                       ..

SECRETARY OF LABOR, .0
..
Complainant, ..
..
v. .. OSHRC DOCKET NO. 91-2264
.
LAFORGE & BUDD CONSTRUCIION ;
COMPANY, INC.,

                 Respondent.

APPEARANCES:

       Michael H. Olvera, Esquire              Thomas M. Moore, Esquire
       Dallas, Texas                           Kimas City, Missouri
       For the Complainant,                    For the Respondent.

Before: Administrative Law Judge Stanley M. Schwartz

                                     DECISION AND ORDER

       This is a decision on remand from the Occupational                    Safety and Health Review

Commission (“the Commission”) pursuant to its reversing my previous decision in this
matter.
The Occupational Safety and Health Administration (“OSHA”) inspected a
construction project in Shawnee, Oklahoma, on May 29, 1991, resulting in the issuance of
one serious and one “other” citation to Respondent LaForge & Budd. Respondent
contested the citations, and a hearing was held on August 6,1992, pursuant to the company’s
motion to suppress the evidence obtained during the inspection. Based on the evidence
presented during that hearing the undersigned issued a decision on March 1, 1993, which
concluded that under the unique circumstances of this case OSHA had not obtained valid
consent to inspect the worksite and that, consequently, the inspection had not been
conducted in accordance with the Fourth Amendment.
b

                                    f




   The Secretary       petitioned       the Commission    for review of this matter,       and the

Commission directed review on April 7, 1993. On September 21, 1994, the Commission
issued its decision, wherein it reversed the undersigned, finding that valid consent had been
obtained, and remanded the case for a hearing on the merits. The case was initially set for
hearing on December 20, 1994, but was reset for February 15, 1995, due to Respondent’s
requests for continuance. Prior to that date, the parties notified the undersigned that they
had reached a stipulated agreement which obviated the need for a hearing, and, in an order
dated February 14, 1995, the hearing was canceled. The order also noted that upon receipt
of the stipulation a final decision and order would be issued which would encompass the
merits of the citations as well as the Commission’s ruling which would allow Respondent, if
it so desired, an expeditious means of appealing any adverse issues to the appropriate court
of appeals.
The parties submitted an executed joint stipulation on February 22,1995, the specific
terms of which are as follows:
This matter comes on for hearing before the Honorable Stanley M. Schwartz
subject to zill of the issues heretofore raised by Respondent in its Motion to
Suppress and To Exclude, all of which are re-stated and re-affirmed by
Respondent. Subject to those issues raised but denied by the Occupational
Safety and Health Review Commission, Respondent agrees that the Secretary
would be able to show:
1) Jurisdiction of this proceeding is conferred upon the Occupational Safety
and Health Review Commission, hereinafter referred to as the Commission,
by Section 10(c) of the Act, 29 USC. 0 659(c).
2) Respondent is an employer engaged in a business affecting commerce
within the meaning of Section 3(5) of the Act, 29 U.S.C. 0 652(S).
3) That Respondent was in violation of 29 CFR 1926.251(a)(l) regarding
conditions related to a nylon sling. (Citation No. 1, Item 2)
4) That Respondent’s employees were exposed to the hazard created by the
violation of 29 CFR 1926.251(a)( 1).
5) That Respondent had knowledge of the conditions which led to the
citation for violation of 29 CFR 1926.251(a)(l).
3

   6) That the violation of 29 CFR 1926251(a)( 1) should be considered an other
   than serious violation with a penalty of $500 based on the following
   considerations:    the size of the employer’s business, the gravity of the
   violation, good faith of the employer, and prior history of violations.
   7) That Respondent was in violation of 29 CFR 1926.652(a)(l)            regarding
   conditions related to an excavation. (Citation No. 1, Item 4)
   8) That Respondent’s employees were exposed to the hazard created by the
   violation of 29 CFR 1926.652(a)(l).
   9) That Respondent had knowledge of the conditions which led to the
   citation for violation of 29 CFR 1926.652(a)(l).
   10) That the violation of 29 CFR 1926.652(a)(l) should be considered a
   serious violation with a penalty of $2OOO based on the following
   considerations:    the size of the employer’s business, the gravity of the
   violation, good faith of the employer, and prior history of violations.
   The Complainant hereby withdraws Citation No. 1, Item Nos 1 and 3, and
   Citation No. 2, Item 1.
   Respondent elects not to adduce any evidence but instead to rely on the issues
   raised previously in its Motion to Suppress and to Exclude Evidence.

                                 Conclusions of Law

   1. Respondent,    LaForge & Budd Construction       Company, Inc., is engaged in a

business affecting commerce and has employees within the meaning of section 3(5) of the
Act. The Commission has jurisdiction of the parties and of the subject matter of the
proceeding.
2. Respondent was in “other” violation of 29 C.F.R. 8 1926251(a)(l).
3. Respondent was in serious violation of 29 C.F.R. 0 1926.652(a)(l).
4. Respondent was not in violation of 29 C.F.R. 68 1926.152(a)(l), 1926.350(a)(9)
and 1903.2(a)( 1).

                                         Order

   On the basis of the foregoing Findings of Fact and Conclusions             of Law, it is

ORDERED that:
1. Items 1 and 3 of serious citation 1 are VACATED.
4

    2. Item 2 of serious citation 1 is AFFIRMEZDas an “other” violation, and a pm,

of $500.00 is assessed.
3. Item 4 of serious citation 1 is AFFIRMED, and a penalty of $2@00.~ is assessed.
4. Item 1 of “other” citation 2 is VACATED.

Date: MAR2 ? ‘535