AFO, Inc.

Plain-English summary

AFO contested citations alleging willful and serious violations at a Pennsylvania worksite. The parties reached a written settlement under the Commission's settlement rule. The agreement changed Citation 2 items from willful violations to violations under section 17 of the Act while leaving the proposed penalty unchanged. AFO withdrew its contest, certified abatement, and agreed to pay $17,000 without admitting the Secretary's factual allegations or legal theories. Judge Michael H. Schoenfeld approved the agreement and incorporated it into the order.

Decision snapshot

• Cited standard(s): The settlement does not identify the underlying standards.
• Outcome: Settlement approved; classification modified and $17,000 penalty retained.
• Key point: The employer accepted the modified citation and penalty without admitting the underlying allegations.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v. Docket No. 98-0339
AFO, INC.,
Respondent.

Appearances: Maureen A. Russo, Esq. Patrick H. Lewis, Esq.
Office of the Solicitor of Labor Belkin, Billick, Harrold & Wiencek, L.P.A.
US Department of Labor Cleveland, Ohio
For Complainant For Respondent

Before: Michael H. Schoenfeld, Administrative Law Judge

                            DECISION AND ORDER

Background and Procedural History
This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §
651 - 678 (1970) ("the Act").
Having had a worksite in Beaver Falls, Pennsylvania, inspected by a compliance officer of
the Occupational Safety and Health Administration (“OSHA”), A.F.O., Inc. ("Respondent") was
issued two citations alleging both willful and serious violations of the Act. A total penalty of
$17,000 was proposed. Respondent timely contested. The case came on to be heard on October
5, 1998, in Pittsburgh, Pennsylvania. No affected employees sought to assert party status.
Jurisdiction

     Complainant alleges and Respondent does not deny that it is an employer. Respondent

does not deny that it uses tools, equipment and supplies which have moved in interstate commerce
and conducts a business affecting interstate commerce.
I thus find that the Commission has jurisdiction over the parties and the subject matter.

Discussion

     The parties announced at the hearing that in accordance with Commission Rule 100, 29

C.F.R. § 2200.100, a settlement had been reached.
The terms of the settlement have been reduced to writing and have been submitted. The
terms of the settlement meet the requirements of Commission Rule 100(b), 29 C.F.R. §
2200.100(b). Accordingly, the settlement is approved under 5 U.S.C. § 554(c)(1) and
Commission Rule 100. The terms of the stipulated settlement are incorporated, in their entirety,
by reference in this order.

                                                   ____________________________
                                                   Michael H. Schoenfeld

Dated: Judge, OSHRC
Washington, DC

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SECRETARY OF LABOR,
Complainant,

                      v.                          OSHRC DOCKET NO. 98-0339

AFO, INC.,
Respondent.

                   STIPULATION AND SETTLEMENT AGREEMENT
   WHEREAS, the United States Department of Labor has cited Respondent, AFO, INC.

(“Respondent”) with a violation of the Occupational Safety and Health Act (“Act”) of 1970; and
WHEREAS, Respondent has contested this citation and denied the allegations contained in the
Complaint issued by the Complainant, Secretary of Labor (“Complainant”), because it does not believe it
violated the Act and/or believes that it has good and sufficient defenses; and
WHEREAS, no employees or employee representatives have elected party status, and Complainant
and Respondent now desire to settle this matter because Complainant believes that this settlement
effectuates the purposes of the Act and Respondent desires to avoid the costs of protracted litigation;
 NOW, THEREFORE, Complainant and Respondent agree to the full settlement and disposition of
the issues in this proceeding as follows:
1. In connection with Citation No. 2, Items 1a, 1b, and 1c, Complainant hereby modifies the
Citation from a willful violation to a violation under Section 17 of the Act. The penalty proposed for
Citation Number 2, Items 1a, 1b, and 1c shall remain unchanged;
2. Respondent hereby withdraws its notice of contest with respect to the preceding citation
as herein modified;
2a. In connection with Citation Number 2, Items 1a and 1b shall be modified from a willful
violation to a violation under Section 17 of the Act. The proposed penalty for Citation Number 2, Items
1a and 1b shall remain unchanged;
3. Respondent agrees to pay the $17,000.00 penalty assessed, to be paid thirty (30) days after
docketing by the Commission of a final order;
4. Respondent, by its execution of this Stipulation and Settlement Agreement, shall not be
deemed to agree with any factual assertion or legal theory made by the Complainant in this matter;
5. The parties agree that none of the foregoing agreements, statements, stipulations and actions
taken by Respondent shall be deemed an admission by Respondent of the allegations contained in the
citations, notifications of penalty or complaint herein. The parties agree that the Citation and Notification
of Penalty, Complaint, Answer, Stipulated Settlement, Respondent’s Notice of Contest, Respondent’s
Notice of Contest, Respondent’s Withdrawal of its Notice of Contest, Respondent’s failure to continue to
contest, Respondent’s payment of any penalty and the Commission’s final order entered herein shall not
constitute any evidence or admission upon the part of the Respondent, nor is it the parties’intention that
the foregoing document be admitted into evidence, in whole or in part, in any proceeding or litigation in
any Court, agency or forum, except in proceedings brought directly under the Act by the Secretary of
Labor, inasmuch as the contents of the stipulated settlement are for the exclusive benefit of the parties
hereto; nor shall they constitute an admission upon the part of the Respondent that any of the conditions
alleged in the Citations or Complaint existed or were the cause, or a cause, proximate or otherwise, of any
accident, or damages, if any, resulting therefrom;

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6. Respondent avers that the conditions alleged as the basis for the Citation have been abated.
7. Each party agrees to bear its own attorney fees, costs, and other expenses incurred by such
party in connection with any stage of the above-referenced proceeding including, but not limited to, attorney
fees which may be available under the Equal Access to Justice Act, as amended;
8. The parties agree to the entry of a final order consistent with the terms of this agreement;
and
9. Respondent hereby certifies that a copy of this Agreement was posted at its offices on this
26 day of October, 1998.

For Respondent For Complainant

PATRICK H. LEWIS MAUREEN RUSSO
Attorney for Respondent Attorney for Complainant
Belkin, Billick, Harrold & U.S. Department of Labor
Wiencek Co., L.P.A. Room 14480, Gateway Building
Commerce Park IV, Suite 450 3535 Market Street
23240 Chagrin Blvd. Philadelphia, PA 19104
Cleveland, OH 44122 (215) 596-5171
(216) 831-3377
OF COUNSEL:

                                                           DEBORAH R. PIERCE
                                                           Regional Solicitor




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NOTICE

   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 forth should communicate such objection within ten (10) days of the posting of this
Agreement to:

                  The Honorable Michael H. Schoenfeld
                  Administrative Law Judge
                  Occupational Safety and Health Review Commission
                  One Lafayette Centre
                  1120 20th Street, 9th Floor
                  Washington, D.C. 20036-3419

A copy of said objection should also be sent to:

                  Maureen Russo, Trial Attorney
                  U.S. Department of Labor
                  Room 14480, Gateway Building
                  3535 Market Street
                  Philadelphia, PA 19104

and

                  Patrick H. Lewis, Esq.
                  Belkin, Billick, Harrold & Wiencek Co., L.P.A.
                  Commerce Park IV, Suite 450
                  23240 Chagrin Blvd.
                  Cleveland, OH 44122




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CERTIFICATE OF SERVICE

   I hereby certify that on October 26, 1998, a copy of the foregoing fully executed Stipulation of

Settlement and proposed Order was served by U.S. Mail prepaid on:

                  Patrick H. Lewis, Esquire
                  Belkin, Billick, Harrold & Wiencek Co., L.P.A.
                  Commerce Park IV, Suite 450
                  23240 Chagrin Blvd.
                  Cleveland, OH 44122




                                 Maureen A. Russo
                                 Attorney




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