E. Smalis Painting Co., Inc. (ALJ decision, October 18, 1993)

Plain-English summary

E. Smalis Painting was repainting the Tarentum Bridge in Pennsylvania when OSHA inspected the worksite. OSHA issued three citations alleging one willful, nine serious, and two other-than-serious violations, with proposed penalties totaling $75,000. The parties agreed that the company would withdraw its contest and pay a total penalty of $50,000. The judge affirmed all cited violations, recorded that the penalty had been paid in full, and ordered the company to provide suitable training for affected employees through a certified source.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. §§ 1926.55(a), 1926.55(b), 1926.134(b)(1), 1926.134(b)(2), 1926.134(b)(3), 1926.134(e)(5), 1926.21(b)(3), 1926.28(a), and 1926.50(a)
• Outcome: The company withdrew its contest, all violations were affirmed, and an agreed aggregate penalty of $50,000 was assessed and paid.
• Key point: The settlement resolved all three citations and required both payment and suitable training for affected employees.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

FAX:
PHONE:
COM(202)60+5100
COM (202)6064050
. iTS(202)60&51QQ
fls (202)60&5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0260
E. SMALIS PAINTING CO., INC.
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LA\N JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on September 17, 1993. The decision of the Judge will become a final order of the Commission on October 18, 1993 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 petition should be received b the Executive Secretary on or before October 7, 1993 in order to ermit suf Ilcient time for its review. See Commission Rule 91, 29 C. Fp.R. 2200.91.
All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Revrew 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. DO5
Room S4004
200 Constitution Avenue, N. W.
Washington, D.C. 20210
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 rights may contact the Commission’s Executive Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: September 17, 1993
Ray H. Darling, Jr.
Executive Secretary

DOCKET NO. 93-0260
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Marshall H. Harris, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market Htreet
Philadelphia, PA 19104

Sanford A. Middleman, Esquire
Middleman & Middleman
517 Frick Buildin
Pittsburgh, PA 1R 19 6003

Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

0011604@866: 03

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

FAX:
COM (202)6064050
FTS (202)6064050

.
..
SECRETARY
OF LABOR,
.
Complainant,
..
..
v. .. OSHRC Docket No. 93-0260
.
E. SMALIS PAINTING CO., INC.,
;
..
Respondent.
..

.

Appearances:
Anthony G. O’Malley, Jr., Esq. Sanford A Middleman, Esq.
Office of the Solicitor
Middleman & Middleman
U.S.Department of Labor
Pittsburgh, Pennsylvania
For Complainant
For Respondent

Before: Administrative Law Judge Michael H. Schoenfeld

DECISION AND ORDER

Background and Procedural History

This case arises under the Occupational Safety and Health Act of 1970,29 U.S.C. 0 5 65 1 - 678 (1970) (“the Act”).
Having had its worksite, at which it was repainting a bridge, inspected by a
compliance officer of the Occupational Safety and Health Administration, E. Smalis Painting company, Inc. (“Respondent”) was issued three citations alleging a total of one willful, nine serious and two other than serious violations of the Act. A penalties of $35,000, $38,000 and

$2,000 were proposed for the willful, serious and other than serious violations, respectively. Respondent timely contested. Following the filing of a complaint and answer and pursuant

to a notice of hearing, the case came on to be heard *on August 9, 1993. No affected employees sought to assert party status.

Jurisdiction
Complainant alleges and Respondent does not deny that it is an employer engaged
in bridge painting contracting. It is undisputed that at the time of this inspection Respondent was engaged in repainting the Tarentum Bridge on Route 366 in Tarentum, Pennsylvania. Respondent does not deny that it uses tools, equipment and supplies which have moved in interstate commerce. I find that Respondent is engaged in a business affecting interstate commerce.
Based on the above finding, I conclude that Respondent in an employer within the meaning of 0 3(5) of the Act.’ Accordingly, the Commission has jurisdiction over the subject matter and the parties.

Discussion
Based upon the agreement of the parties (Tr. 71-72) all necessary findings of fact and conclusions of law can be reached. The parties agreed that Respondent would withdraw its notice of contest as to all of the alleged violations and pay an agreed upon total penalty of $50,000. As part of the agreement, Respondent presented to the Secretary’s counsel, and counsel acknowledged the receipt of acertified check made payable to OSHA in the amount of $50,000 (Tr. 73).

FINDINGS OF FACT

All findings of fact necessary for a determination of all relevant issues have been made above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions .of law inconsistent with this decision are hereby denied.

’ Title 29 U.S.C. 5 652(5).

CONCLUSIONS OF LAW

1. Respondent was, at all times pertinent hereto, an employer within the meaning of 0 3(5) of the Occupational Safety and Health Act of 1970, 29 U. S. C. 5 5 651 - 678 (1970).
2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter.
3. The alleged willful violation of 8 5(a)(l) of the Act is AFFIRMED.
4. The alleged serious violation of 8 5(a)(l) of the Act is AFFIRMED.
5. The alleged serious violation of 29 C.F.R. 8 192655(a) is AFFIRMED.
6. The alleged serious violation of 29 C.F.R. 8 1926.55(b) is AFFIRMED.
7. The alleged serious violation of 29 C.F.R. 0 1926.134(b)(2) is AFFIRMED.
8. The alleged serious violation of 29 C.F.R. 0 1926.134(b)(3) is AFFIRMED.
9. The alleged serious violation of 29 C.F.R. 0 1926.134(e)(5) is AFFIRMED.
10. The alleged serious violation of 29 C.F.R. 0 1926.21(b)(3) is AFFIRMED.
11. The alleged serious violation of 29 C.F.R. 8 1926.28(a) is AFFIRMED.
12. The alleged serious violation of 29 C.F.R. 0 1926.50(a) is AFFIRMED.
13. The alleged other than serious violation of 29 C.F.R. 8 1926.134(b)( 1) is AFFIRMED.
14. The alleged other than serious violation of 29 C.F.R. 0 1926.134(b)(2) is AFFIRMED.
15. An aggregate penalty of $50,000.00 is appropriate for the above violations.

I
3

ORDER

1. Each of the citations issued to Respondent on December 17, 1992, are affirmed.
2. An aggregate penalty in the amount of $50,000.00 is assessed therefor. The penalty has been paid in full.
3. Respondent shall provide suitable and appropriate training for its affected employees. Such training shall be provided by any certified source to be selected at the sole discretion of Respondent.

MICHAEL H. SCHOENFELD
-
Judge, OSHRC

Dated: SEP I? w3
Washington, D.C.