OSHRC ALJ decision Docket 93-0260 Decided October 18, 1993 Settled Judge Michael H. Schoenfeld

E. Smalis Painting Co., Inc.

Bridge-painting citations settled for $50,000

Apply this to your situation

This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.

Currency note: this decision dates from 1993
The OSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Final order, not Commission precedent
This decision by an OSHRC Administrative Law Judge became a final order of the Commission because no Commissioner directed review (29 U.S.C. § 661(j)). It binds the parties but is not binding precedent in other cases. The full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)

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.

Get today's answer for your situation

You just read what one judge decided for one employer in 1993, and it binds only those parties. Ezel checks the current OSHA standards and Commission precedent and answers your specific situation, with citations.

Opens in Ezel Pro. Every answer cites the authority it relies on.