Thor Construction (ALJ decision, March 6, 1995)

Plain-English summary

Thor Construction was cited for nine serious violations during a structural-steel construction project. Before the hearing, the parties settled seven items by vacating three, reclassifying four as other than serious, and agreeing to $3,000 in penalties. The judge found that several employees worked near the building perimeter more than 25 feet above lower levels without using the safety belts and lanyards provided to them. He also found that taglines were required to control steel beams and rejected Thor's infeasibility and greater-hazard defenses. The two litigated items were affirmed with $2,750 in penalties, bringing the total penalties under the decision and settlement to $5,750.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.105(a); 29 C.F.R. § 1926.751(d).
• Outcome: Mixed. Three settled items were vacated, four were affirmed as other than serious, and the two litigated fall-protection and tagline items were affirmed with $2,750 in penalties.
• Key point: Providing safety belts is not enough when employees do not tie off, and an employer must support infeasibility or greater-hazard defenses with evidence tied to the actual work conditions.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Cents
1120 20th Street, N.W. -
9th Floor
Washington, DC 200364419

SECRETARY OF LABOR
Complainant
v. OSHRC DOCKET
NO. 93-2752
THOR CONSTRUCI’ION
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on Febnrary 3,199s. The decision of the Judge will become a final order of the Commission on March 6, 1995 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.

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. DO5
Room S4004
200 ConstitutionAvenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represint the Department of Labor. hY Party havrng questions about review nghts may contact the Commission’s Executive Secretary or call (202) 606-5400.
FOR TEIE COMMISSION

Date: February 3, 1995
DOCKET NO. 93-2752
NOTICE IS GIVEN TO THE FOLLOWING:

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

Benjamin T. Chinni
Associate Regional Solicitor
OfEice of the Solicitor, U.S. DOL
Federal Office Buildmg, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Patrick H. Bo Esq.
Lane, Alton &% ‘orst
175 South Third Street
Columbus, OH 43215

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

00018014795:05
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 2003643419

SECRETARY OF LABOR,

Complainant,

v. Docket No. 93-2752

THOR CONSTRUCTION, INC,

Respondent.

Appearances:

Elizabeth I1 Ashley, Esq.
Patrick K Born Esq.
Of&e of the Solicitor
Lane, Alton ds Hoist
US Department of Labor
-hunbus, Ohio
For Complainant
For Respondent

Before: Administrative Law Judge Michael H. Schoenfeld

DECISION ANT3ORDER

Bac&round and ProceduralHistorv

This case arises under the Occupational Safety and Health Act of 1970,29 USC. Q 5 651-678 (1970) (“the Act”).
Having had its work&e inspected by a compliance officer of the Occupational Safety and Health Acfministration, Thor Construction, Incorporated, (“Respondent”) was issued one citation alleging 9 serious violations of the Act and proposing a total civil penalty of $14,875. 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 in Columbus, Ohio. No afkcted employees sought to assert party status. Both parties have filed post-hearing brief&.

Complainant alleges and Respondent does not deny that it is an employer engaged in general contracting. It is undisputed that Respondent uses tools, equipment and supplies which have moved in interstate commerce. I find that Respondent is engaged in a business-; affecting interstate commerce.
Iksed on the above finding, I conclude that Respondent is an employer within the meaning of 3 3(5) of the Act.’ Accordingly, the Commission has jurisdiction over the subject matter and the parties.

Discussion
Of the originally alleged 9 serious violations only 2 (Items 7’and 8) remained at issue at the hearing.2

Item 7 - 29 C.F.R. S 1926.1OS(a)(l>
Item 7 of the citation, as amended, alleged that Respondent violated the construction safety standard at 29 C.F.R. 8 1926.105(a) by fkiling to provide fall protection to its employees who were working at the perimeter exterior portion of the building at heights exceeding twenty-five f=t.3

1 Title 29 USC 5 652(S).

2 A partial stipulation and settlement agreement was entered into by the parties prior to the hearing. Only items 7 and 8 were not settled. The frilly executed partial settlement is attached and is incorporated in its entirety. It meets all of the requirements of Rule 100 and accordingly, it is approved.

3 Section 1926.105(a) provides:
safety nets shall be provided when workplaces are more than 25 fwt above the ground or water surfke, or other surkes where the use of ladders, scafEolds,catch platiorms, temporary floorq safety lines, or safety belts is impracticaL The inspecting Compliance Officer testified that on several occasions during the course of his two day inspection he obse~ed employees of Respondent, both welders and connectors, working at or very close to the perimeter of the structural steel bework without any operative means of fall protection. (Tr. 17018,2&22,23,24-25,26-27,33-34,34- 35,36-37). He frequently referred to a videotape he made during his inspection (CX -1). Although welders getting ready to weld or actually welding appeared to the Compliance Officer to be wearing safety belts he testified that the belts were not in use in that they were not tied off ur. 18,21,24,26,28,29,31,32,34). At times, he said, some welders were tied off while working.
Respondent challenges the Secretary’s factual assertions. Respondent does concede that the Compliance Officer’s testimony and videotape shows one employee engaged in conmcting a beam to a column while not using his safety lanyard. (Resp. brieE, p. 3). Respondent maintains that the factual testimony of the Compliance Officer should be disregarded due to lack of credibility. It argues that his failure to take videotape recordings of the employees he claims were unprotected Tom other, better angles of view renders his testimony infirm Respondent makes much of the Compliance Officer’s somewhat hesitant testimony that in places the videotape is less than clear as to whether a par&&r individual is or is not tied off. Moreover, Respondent argues that the Secretary can not make ap&u facie case against Respondent because the Compliance Officer failed to show that the welders were “in factwworking at the outside perimeter of the building. (Resp. brieE, p. 12). Finally, Respondent suggests that the Compliance OfEcer is ‘overzealous” to a degree warranting discounting his testimony. Respondent’s arguments suggest a prejudice or bias to such a degree as to render the testimony of the Compliance testimony inadmissible or, at least, unreliable. I decline to so find and for the reasons which follow, I credit the compliance officer’s testimony.
First, the f&We to document by videotape each and every factual observation made by a compliance officer is to be expect& It is simply impossible to tape every moment of an inspection which could well last several hours over a period of several days. In addition, inexperience in conducting inspections as well as inexperience in operating a video camera could well account for less than clear showing of each and every instance of an alleged 4 violation. The fact that a particular scene at an event being videotaped does not appearin the tape does not necessarilymean that the condition did not exist. Finally, Respondent has shown nothing indicating a bias, prejudice or inability to observe on the part of the Compliance Oflicer.
Respondent also challenges the Compliance officer’s description of many of the
welders as being seen working at the exterior perimeter of the structural steel hework. (Resp. briec Pp. 12-13). Respondent points to testimony fkom two of the employees identified as working at the perimeter. One employee states, on watching the videotape, that he was working from an interior cross beam, not at the exterior perimeter. Another claims that he was “several feet” from the exterior perimeter of the building. Respondent’s claim is rejected, Again, there is no challenge to the claim that at least several employees were observed or videotaped, or both, while working near enough to the exterior perimeter so that a fkll could have propelled them over that edge. Given the cited standard’s applicability and purpose of protecting against just such ~&US,the Compliance Officer’s misjudgment as to precisely how close to the outer edge certain unprotected employees were working is minor in that it has not been shown that they were, in f&t, so f&r away as to preclude their falling off the perimeter should they have slipped and fkllen. Respondent cites testimony by its project Superintendent in support of its contention that its employees were, in fact, tied of& (Resp. brieE, p. 10). I accord less weight to the Superintendent’s testimony than that of the Compliance Ofker. The Superintendent, even in the passage cited by Respondent (Tr. 191), conceded that at least some employees were, at times, working without tying off. Accordingly, I find that several of Respondent’s employees were working within the zone of danger of falling fkom the perimeter while unprotected by an operative safety belt/lanyard or other kind of f&IIprotection.
In general, to prove a violation of a standard, the Secretary must demonstrate by a
preponderance of the evidence (1) that the cited standard applies, (2) non-compliance with the terms of the standard, (3) employee exposure or access to the hazard created by the non-compliance, and (4) the employer knew or, with the exercise of reasonable diligence, could have lmown of the condition.Astm Phannaceutical~ Ii., 9 BNA OSHC 2126, 2129 (No. 7&6247, 1981); Dun-Par EngineeredForm Co., 12 BNA OSHC 1949 (No. 79- 2553), revId & temanded on othergrwutdr, 843 F.2d 1135 (8th Cir. 1988),decision (313
remand
13 BNA OSHC 2147 (1989). The cited standard has had a long and arduous history of litigation. Numerous administrative law judges, review commission members, district judges and courts of appeals judges have had the opportunity to review, discuss and interpret this Standard

The cases in which the Secretary has demonstrated that employees were subjected to the hazard of falls of twenty-Eve feet or more and none of the devices listed in the standard were used have long been regarded as establishing a prima facie case of violation. See, Stute Sheet Metal Co., 16 BNA 1155,1158 (No. 90-1620,1993) and cases cited therein. Cases in which fti protection (usually safety belts and lanyards) was used some of the time but not during the entire work day have been more common In dealing with this situation, the Commission recently held;
[t]o prove that safety nets are required under section 1926.105(- a), the Secretary must show that employees were subjected to fhlls of twenty-Eve feet or more and that none of the other safety devices listed in the standard were practical - meaning that they [were] either not in use or [were] in use but [were] not practical because they [did] not protect against the cited f’all hazard for a substantial portion of the workday. (Citation omittedo)

American Bridge/‘hcon, JX, 16 BNA OSHC 1867, 1868 (No. 91-633, 1994). The Commission went on to state that the cited standard requires fall protection even where the fall hazard exists for a small f&tion of the work day. Id. Under the facts of this case, several employees were subjected to falls of twenty-five feet or more on several occasiofls during a two day inspection, because the safety devices provided to them (belts/lanyards) were not used. No other safety devices were in use at alL Accordingly, I conclude that the Secretary has made a prima facie case of a violation of the cited standard Respondent argues that the use of safety nets or safety belts and lanyards was not farWe on this project (Resp. brief, p. 15). In regard to safety belts and lanyards, Respondent can only point to other instances where evidence demonstrated that under the circumstances of those cases belts and lanyards could not be used for &actions of the working conditions. Respondent does not point to any such evidence in this case. I find that there is no convincing evidence that safety belts and lanyards could not have been used under the circumstances of this case. Respondent’s defense is rejected.
In regard to safety nets, Respondent takes strong issue with the tatimony of Steven Medlock Called as an expert witness by complainant, Mr. Medlock is an OSHA compliance officer with nine years of experience. Complainant proffered Mi, Medlock as an expert witness in the area of fall protection. He was so qualified pursuant to Fed. R. Evid 702. (Tr. 112-119.) I consider Mr. Medlock’s testimony to be of little evidentiaryvalue even though he was qualified as an expert.
The testimony of an expert is not necessarily controlling even if it is unrebutted. united States Steel Corp. v. OSHRC, 537 F.2d 780 (3d Cir. 1976). In cases before the Commission; k]enerally speaking, where employees testify from their own knowledge and experience on matters that pertain to their specific work activities, their testimony should be given greater weight than that of witnesses who do not have first-hand experience with the operation in question.
Con-Agm F%nu Mixling Co., 16 BNA OSHC 1137, 1141 (No. ss-1250, 1993)(citations omitted).
In this case, Mr. Medlock’s “expert’ opinion that safety nets (as well as numerous
other safety devices) could have been used on the building under construction lacks a reasonable rational foundation. It is also contradicted by those with considerable experience in the real world of construction. Mr. Medlock has hardly any experience in construction. (Tr. 139-143). Some of Mr. Medlock’s experience and training may be a sufficient basis for him giving opinion testimony about fall protection generally. The record in this case, however, clearly demonstrates that he had little or no basis to testify as to the practicality of nets (and other devices) under the circumstances at this work site. His sources of knowledge as to the specific conditions at the work site at issue is limited to conversations he had with the inspecting compliance officer, reviewing only part of the inspection file for a brief period, reading the citation and viewing the videotape. (Tr. 119-121,137,145). This witness never saw the building while under construction. He visited it as a completed building only one week before the hearing. Mr. Medlock never saw any sketches, plans or blueprints for the building. He nonetheless offered detailed opinions as to how nets and other safety devices mild have been installed at the project. If there were significant evidence showing that the building under construction was suf!ficientlysimilar to others which Mr. Medlock had studied or had experience with, his opinion testimony might be regarded to have some basis. There is clear, unrebutted evidence, however, that the manner in which this particular building was constructed was atypical in that the configuration of the structural steel was unusual. (Tr. 189-190,237,247-248). Even Mr. Medlock agreed that the feasibility of each particular safety device at a specific location is dependent on the particular conditions at that project. (Tr. 144). Under these circumstances, I find that Mr. Medlock’s opinion testimony as to the feasibility of using myriad safety devices was so lacking in reasoned, rational foundation as to be unreliable. Mr. Medlock’s theoretical testimony regarding the use of nets on this project is also contradictexi by severzil employees who have many years experience in the construction industry. (Tr. 189-190,216,224,237,247-248,255- 256). I assign more probative weight to the cumulative testimony of these experienced employees. Finally, Mr. Medlock’s credibility as a witness is questionable. In is reasonable to anticipate some bias when a full time employee of a party is called as an “expert” by that party, as opposed to the party engaging the services of an independent consultant. Moreover, Mr. Medlock was not called upon to participate in this case in order to prepare for litigation as is the usual expert witness. Mr. Medlock apparently as the area office fall protection coordinator for the Cincinnati OSHA office (EL C-2), took part in the determination to amend this item of the citation in regard to the standard allegedly violaWL (Tr. 120-121). Mr. Medlock’s earlier participation in this case in the role of an OSHA officer participating in prosecutorial type decision making compromises his status as an “expert* as well as his crediiility in general! Considering all of the above factors, I find

’ In this regard it is noted that Mr. Medlock’s resume identifies three cases in which he testified on fall protection and carry the notation “*Qualified Expert Te~timtimony.~ Of the three ases one, “Baker Concrete Construction” could not be found Another, “Mutual Erectors, Inc.” is Mti Erecto- Ike., 16 BNA OSHC 1650 (No. 92-1799, in which Mr. M&lock was the inspecting compliance officer who was designated an “expert” at the that Mr. Medlock was not a credible witness.
Assigning no weight to Mr. Medlock’s testimony does not, however, esablish any of Respondent’s defenses to the alleged violation. The Secretary has established that employees were subject to falls of twenty-Eve feet or more which could have been protected against had they used the safety belts and lanyards with which they were provided and which, for the most part, they were wearing. There is no showing that the laqards could not have been tied off during the operations observed, The lack of reliable evidence as to the practicality of using any other safety devices is thus irrelevant. Item 7 of the citation is affirmed.
The Secretary proposed a penalty of $1750. Respondent contested the proposed penalty assessment and denied in its answer (1 V) that the proposed penalties were appropriate. The Secretary presented scant evidence as to how the proposed penalty amount was calculated pr. 58-60). Respondent did not crme
the Compliance Of&r as to his penalty proposals. Respondent did not present its own evidence relating to penalty assessment nor did Respondent argue or present reasons in its post-hearing brief that the penalties as proposed were inappropriate. The Commission has held that it is not required “to develop arguments not articulated by the parties whenever exception is taken generally to the size of the penalties asxssed by tie judge.” RobertsPipe&e Cortsftuction, Iizc., 16 BNA OSHC 2029, 2030 (No. 91-2051, 1994). It follows that the Commission’s administrative law judges need not develop those arguments for parties not doing so for themselves. Nonetheless, it is the Commission’s respons~Mity to arrive at an appropriate penalty in light of the statutoryfacctor~?based upon the record made by the parties, while

hearing. The third, “Kokosing,”is Kokosing C&zsb~& Co., Iiw., BNAOSHC 9 (No. 92-2596, September 811994) (ALJ) (directed for review by theommission, October 7,1994). In that case, the administrative law judge concluded that “Mr. Medlock is not a credible witnes~.~ (Slip op. p. 14).

5 Section 17(j) of the Act, 29 U.S.C. 5 666(i), provides;

(‘j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of considering the Secretary’s penalty proposal merely that - a proposal It appears fkom the record that Respondent employs 65 to 75 people and may have as many as 12 projects under way simultaneously. The business as a whole grosses approxi- mateb 9 or 10 million dollars per year. In its geographic area, it is regarded as a middle sized construction company. (Tr. 252). The net worth of Respondent is less than 7 million dollars. (Tr. 253). There is no claim or evidence that Respondent has been cited previously or exhibited anything less than good faith in dealing with OS= While not precisely clear, it appears that several employees were exposed to the fall hazard at various times and at various locations during the inspection. In light of the all of the above and considering that the finding of a serious violation requires the assessment of some monetary penalty up to a maximum of & 7,000$ and emphasizing that neither party contends otherwise, I. conclude that the proposed civil penalty of $1,750 is appropriate for this item.

Item 8 - 29 CF.R 8 1926.751(d).
Section 751(d) states that “tag lines shall be used for controlling loads-” It is undisputed that the Compliance officer obse~ed steel beams being move both fiorn the ground to hi@er elevations for connecting and near the ground for sorting (Wake out’) purposes. (I’r. 46 - 62, EK C-l).
Complainant, in its post-hearing brief, maintains that “the standard presumes the

the business of the employer being charge the gravity of the violatioq the good faith of the employer, and the history of previous violations.

See, also, Ntiemu opemting Company, 1 BNA OSHC 1001 (No. 4,1972).

6 Section 17(b) of the Act, 29 U.S.C. 0 666(b), provides;

(b) Any employer who has received a citation for a serious violation of the requirements of section 5 of this Act, of any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, shall be assessed a civil penalty of up to $7,000 for each such violation. existence of a hazard and mandates the use of tag line&’ (Sec. Brief, p. 19). Also, the Secretary points to the Compliance Officer’s testimony to the effect that ironworkers who were connecting the steel (at heights of approximately 48’ above the ground) had to reach out to control the steel. As to the steel beams in the “shake out,” which were being lifted about 8’ to 10 above the ground, employees on the ground reached out and touched the steel as it was being lowered into place.
At the outset, the Compliance Officer opined that taglines %hould be used whenever steel is being moved.” (Tr. 95). After additional questioning he appeared to agree that tag lines are required where the lifting and moving of steel exposes employees to the hazard of being struck by the steeL (I?. 106). This condition could exist, according to the Compliance Ofticer, only where Were were no employee[s] in the area.” In sum, the Compliance Of&r contr&licted himself and changed his interpretation of the requirements of the cited standard several times while testifying. Nonetheless, Respondent “concedes that the Secretary can maintain its burden of proof in establishing a prima facie violation of this section.” (Resp. brie& p. 22).
Respondent argues, however, that tag lines were used except where infeasible or
where their use created a greater tici. Relying on the administrative law judge’s decision in T7kmuzs Lhd!sbvm Company, Inc., BNA OSHC (No. 92-3815, 1993), Respondent points to the testimony of theironworker crew leader and its crane operator that tag lines were used on some steel while, once several levels of construction were reached, tag lines would have created problems in that ground men would have to take the lines in and around numerous upright steel beams (columns) which could result in snags and tangles. At least one attempt at using a tag line resulted in such a snag. (Tr. 215-16; 232- 33). Thor reasons that three methods of controlling steel being raised were available; by hand, by crane and by tag line. It maintains that it used tag lines then feasible, and when tag lines could not be used, it relied on hand and crane control. Respondent’s defense sounds plausible but is not supported by a preponderance of the evidence of record
In order to prevail on the infeasibility defense an employer must show that 1) compliance with the standard’s requirements would “not be practical or reasonable in the circumstances.” Dun-Par Engineered Form Co., 12 BNA OSHC 1%2, 1966 (No. 82-0928, 1986) and 2) “that an alternative protective measure was used or that there was no feasllble altemative measure.” SkibdModent Manrcfactuting & Welding Op., 15 BNA OSHC 1219, 1228 (No 88-821, 1991). Respondent’s defense &ils here because the evidence does not show that the use of tag lines was not practical or reasonable under the circumstances which eYEistedinthiscase.
First, as to steel being raised to the upper levels and root the fktual testimony on which Respondent relies for its argument that tag lines would get entangled is primarily based on the witnesses assumption that tag lines would have to be long enough to be held by a person on the ground at all times. (Tr. 215-16, 223, 239, 242). This assumption is incorrect. The appropriate length of a tag line depends upon the circumstances under which the steel is being raised and the nature of the hazard the lift presents to employees. L R.
won wad sknq Iiac., BNA OSHC (No. 93-0785, CM 5, 1994). The only
testimony that a shorter tag line might present a problem was speculation by the crane operator that a iive foot tag line hanging down from a steel beam being lifted over other columns presents “a chance it could get hung up on a flange.” (Tr. 239). In fact, Respondent never attempted to use tag lines shorter than 60 feet, (Id.). Respondent presents no evidence that the use of tag lines on the steel being sorted (shake out) was inkas~ible.
Similarly, to the extent that it raises the argument, Respondent has not shown that the use of tag lines would have created a greater hazard’ While it maintains that it would be hwdous for a steel worker acting as a connector to reach and hold a tag line attached to a steel beam in order to guide the beam into place, it concedes that its co~ectors reached and by hand, held on the beams themselves. It presents no reason which would SUPport the conclusion that a connector would have been at greater risk reaching for and holding on to a tag line than he was reaching for and holding on to the beam itself. Respondent’s defenses are rejected. I conclude that Respondent failed to comply with the

’ In order to establish the “greater hazard” affirmative defense, an employer must demonstrate by a preponderance of the evidence that (1) the hazards of compliance are greater than the hazards of non compliance, (2) alternative mm of protection are unavailable, and (3) a variance was unavailable or inappropriate. Spancrete Northeasz; Inc., 15 BNA OSHC 1020 (No. 86521, 1991).
 -12-
standard at 29 C.F.R. 5 1926.751(d), as alleged. Accordingly, Item 8 of the citation is AFFNMED.
As to penalty, consideration is given to the factors as discussed relating to item 7.
In addition, based upon the testimony as a whole, I find that the likelihood of an injury occurr@ due to the lack of tag lines is small despite the f&t that if such an incident occurred a connector could have fallen to his death fkom a height of about 40 feet. In addition, at most, four of Respondent’s employees (2 connectors at heights and 2 employees on the ground) were exposed to any hazard co~ectedwiththelack of the use of tag lines, pr. 57). Given the lesser employee exposure both in terms of number of employees affected as well as a lower likelihood of injury, I conclude that a penalty of $1,000 is appropriate for item 8.

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 findiqs of fact and conclusions of law inconsistent with this decision are hereby denied,

CONCIUSIONS OF LAW
1. Respondent was, at all times pertinent hereto, an employer within the meaning of 0 3(S) of the Occupational safety and Health Act of 1970,29 U. S. C g 6 6510 678 (1970).
2 The Occupational safety and Health Review Commission has jurisdiction ovef the parties and the subject matter.
3. Respondent was in violation of the co~truction safety standard at 29 C.F.R 0 1926.105(a) as alleged in item 7 as amended. A civil penalty of $1,750 is appropriate therefor.
4. Respondent was in violation of the comtruction safety standard at 29 C.F.R.
6 1926.751(d) as alleged in item 8 as amended. A civil penalty of $1,000 is appropriate therefor. 1. Item 7 of the citation issued to Respondent on or about September 30, 1993 is AFFIRMED. A civil penalty of $1,750 is assesed therefor.
2. Item 8 of the citation issued to Respondent on or about September 30, 1993 is AFFNMED. A civil penalty of $1,000 is assessed therefor.

MICHAEL H. SCHOENFEE
*2ll9s
Judge, OSHRC .
Dated:
\Nashington, D.C.
U.S. Department of Labor
Office of the Solicitor
881 Federal Office Building
1240 East Ninth Street
Cleveland, Ohio 44199
(216) 522-7546

Reply to the Attention of:

August 24, 1994

-.

Hon. Michael H. Schoenfeld
.-..
I. *’ -.
-.
.-

Administrative Law Judge
‘. -
es

Occupational Safety and
Health Review Commission
One Lafayette Centre
1120 20th Street, XJ?.
Room 980
Washington DC 20036-3419

Re l
0 Secretary of Labor v. Thor Construction Inc., OSHRC Docket No. 93-2752

Dear Judge Schoenfeld:

Enclosed please find a fully executed partial settlement agreement for filing in the above-referenced matter. Thank you
for your cooperation
in this matter.

Sincerely,

BENJAMIN To CHINNI
Associate Regional Solicitor

ELIZABETH R. ASHLEY
Trial Attorney

cc: Patrick Boggs

SOL:ERA:ba
SOL NO. 20403
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

~~ ~~

0
0

SECRETARY OF LABOR,
0
0
Complainant,
0
0 OSHRC
0 Docket No.
v. 0 93-275&L-
0
O
Region V
THOR CONSTRUCTION INC., l
0

Respondent.
0
0

0
0

.
PARTIAL STIPULATION - SETTLEMENT AGREEMENT

 The     parties        hereby   enter into this partial              stipulation   and

settlement agreement which disposes of specific issues set forth

between the Complainant, Secretary of Labor, and the Respondent,

Thor Construction Inc., that:

1 0- The Secretary agrees to vacate and dismiss Item Nos. 1, 2

and 5 of Citation No. 1.

 2 0 .- Item No.         3 of Citation No, 1 shall be amended                    to and

affirmed as an other than serious violation.

 3 0','Item No.          4 of Citation No. 1 sh.all be amended                   to and

affirmed as an other than serious violation.

 4 0-. Item No.           6 of Citation No. 1 shaii                 be amended   to and

affirmed as an other than serious violation.

 50      Item No.         9 of Citation No. 1 shall be amended                   to and

affirmed as an other than serious violation.

 60      The     total    penalty          due for the affirmed        items outlined

above in paragraphs 2-5 is $3,000.00 which the Respondent agrees to

pay to the Complainant when this agreement becomes a final order of

the Review Commission.
 70 Respondent hereby withdraws its notice of contest with

respect to Citation No l 1 I Items 1-6 and 9 and the proposed

penalties associated with those items as as modified by the terms

of this Agreement.

8 l Respondent represents that the conditions described in the

affirmed items of the citations referred to in this Agreement have

been abated.

9 l The parties agree to the entry of a final order consistent

with the terms of this Agreement.

10 0 Each party hereby agrees to bear its own fees and other

expenses incurred by such party in connection with the items

resolved in this partial settlement agreement.

  11 0         The    terms     and conditions           of this      Partial    Settlement

Agreement are a comprised settlement of disputed claims, the

validity, existence and merits of which are expressly denied by the

Respondent. It is understood and agreed by the parties hereto that

this Partial Settlement Agreement including any and all statements,

stipulations and actions taken by Respondent hereunder, does not

constitute and shall not be construed as an admission by the

Respondent of the allegations contained in the citations at issw

in this proceeding.
The agreements, statements, stipulations, and

actions taken herein by Respondent are made solely for the purpose

of settling this matter economically and amicably and they shall

not be used for any other purpose except for subsequent proceedings

and matters between the parties arising directly under the

Occupational Safety and Health Act of 1970.

2
 12 0 Respondent certifies that a copy of this Agreement will

be posted at its Columbus, Ohio facility this ,33, day of
&d
I 1994 to afford notice to its affected

FOR RESPONDENT:-
FOR COMPLAINANT:
I cl l&h&
ELIZ%BETH i. ASHLE93
Attorney for Compl&ant
Lane, Alton & Horst
UoSe Department of Labor
175 South Third Street
881 Federal Office Building
COlumbUS, Ohio 43215-5100
1240 East Ninth Street
Cleveland, Ohio 44199

OF COUNSEL:

THOMAS S. WILLIAMSON, JR.,
Solicitor of Labor

JOHN H. SECARAS
Regional Solicitor

BENJAMIN To CHINNI
Associate Regional Solicitor
Any party (including any authorized employee representative of

affected employees and any affected employee not represented by an

authorized representative) who has any objection to the entry of an

order as set should communicate such objections within ten (10)

days of the posting of this Agreement to:

Hon. Michael H. Schoenfeld
Occupational Safety and Health
Review Commission
One Lafayette Center
1120 20th Street, N.W.
Room 980
Washington, D.C. 20036-3419

A copy of said objection should also be sent to:

Elizabeth R. Ashley
U.S. Department of Labor
881 Federal Office Building
1240 East Ninth Street
Cleveland, Ohio 44199