Donald W. Thompson, Inc. (ALJ decision, February 13, 1995)

Plain-English summary

Donald W. Thompson, Inc. contested two OSHA citations and went to a hearing. Before evidence was taken, the Secretary withdrew Item 1 of the serious citation. The judge affirmed the three remaining serious items, finding that unguarded rebar and contact with a radial-saw blade could cause serious physical injury, and assessed penalties of $100, $100, and $75. The judge also affirmed one other-than-serious item without a penalty. He denied the company's motion for reconsideration because the compliance officer's testimony established the violations and no witness with firsthand knowledge of the inspected conditions contradicted it.

Decision snapshot

• Cited standard(s): The public release does not identify the standards by number.
• Outcome: Mixed. One serious item was withdrawn, three serious items were affirmed with $275 in total penalties, and one other-than-serious item was affirmed without a penalty.
• Key point: Uncontradicted compliance-officer testimony supported the remaining items where the employer offered no witness with firsthand knowledge of the inspected conditions.

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 2003-l 9

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-0742
DONALD W. THOMPSON, INC.
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 January 12, 1995. The decision of the Judge will become a final order of the Commission on February 13, 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 b the Executive Secretary on or before February P 1995 in order to ermit sdi cient. time for its review. See Commission Rule 91,29 C.F.k 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 Litigation
Office of the Solicitor, U.S. DOL
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 having questions about review nghts may contact the Commission’s Executive Secretary or call (202) 606-5400.

FOR THE COMMISSION

Date: January 12, 1995
DOCKET NO. 94-0742
NOTICE IS GIVEN TO THE FOLLOWING:

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

Robert Friel, Es .
Assoc. Re ‘onal 1 elicitor
Office of i!iie Solicitor, U.S. DOL
1111 Third Avenue, Suite 945
Seattle, WA 98101

Deborah L. Sather, Esq.
Stoel Rives Boley Jones & Grey
900 SW Fifth Avenue Suite 2300
Portland, OR 97204

James H. Barkley
Administrative Law Jud e
Occupational Safety an tf Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO ir0204 3582

00110506409:10
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1244 N. Speer Bouievard
Room 250
Denver, Colorado 802044582

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET
NO. 94-0742
DONALD W. THOMPSON, INC.,

Respondent.
I

APPEARANCES:

For the Complainant:
Cathy L Barnes, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle, WA

For the Respondent:
Deborah L Sather, Esq., Portland, OR

DECISION AND ORDER
This matter was duly brought before the Commission by Respondent’s
notice of
contest. The matter was set for hearing and tried on October 19, 1994.
Prior to the taking of evidence, Complainant withdrew Item 1 of Citation 1. At the conclusion of the hearing, findings of fact and conclusions of law were made with respect to the existence of ;he violations remaining at issue and the appropriate penalty. Findings were not made with respect to the serious characterization
of Items 2, 3 and 4 of Citation No. 1.
These findings are made now. Impalement
on the unguarded rebar would cause serious
physical injury, as would contact with the blade of the radial saw.
Respondent’s October 31, 1994 Motion for Reconsideration is without merit, and is
DENIED. The Compliance Officer’s testimony establishes the cited violations. No witnesses with first hand knowledge of the worksite conditions during the inspection contradicted the CO’s testimony.
 - 2-

In accordance with the finding of fact entered into the transcript and those above, it is:
ORDERED:
1 l Item 2 of Serious Citation 1 is AFFIRMED and a penalty of $100 is ASSESSED.
2 l Item 3 of Serious Citation 1 is AFFIRMED and a penalty of $100 is ASSESSED.
3. Item 4 of Serious Citation 1 is AFFIRMED and a penalty of $75.00 is ASSESSED.
4. Item 1 of Other Citation 2 is AFFIRMED. No penalty is ASSESSED.

Dated: January 6, 1995