Easthaven Masonry, Inc.

Plain-English summary

Easthaven Masonry requested the Commission's simplified E-Z Trial procedure for a scaffold case. The Secretary objected only that some discovery might be needed, and the Chief Administrative Law Judge denied the request. The Commission held that the stated need for discovery was not enough on the existing record because limited discovery may be allowed in an E-Z Trial case. It granted interlocutory review because Easthaven could not receive meaningful relief after a conventional trial had already occurred. The case was remanded for further proceedings consistent with the order.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(e)(1), 1926.451(f)(7), and 1926.451(g)(1).
• Outcome: Interlocutory review granted and case remanded.
• Key point: A general assertion that discovery may be required does not by itself justify denying E-Z Trial because the simplified procedure permits judge-controlled discovery.

Full text (OSHRC public release)

                                   United States of America
           OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                              1120 20th Street, N.W., Ninth Floor
                                 Washington, DC 20036-3419




                                                  :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 98-1871
:
EASTHAVEN MASONRY, INC., :
:
Respondent. :
:

ORDER GRANTING PETITION FOR INTERLOCUTORY REVIEW AND REMAND

    Easthaven Masonry, Inc. (Easthaven) requested E-Z Trial proceedings in this case as

provided for in Commission Rules 200-211, 29 C.F.R. §§ 2200.200-211. The Secretary objected.
The Chief Administrative Law Judge denied the request because “under the particular
circumstances of this case . . . E-Z Trial would be inappropriate.”
Easthaven has filed a petition for interlocutory review, to which the Secretary has not
responded, objecting to the Chief Judge’s order and noting that it has not received any prior
citations. After reviewing the record, we grant the petition inasmuch as it appears that the Chief
Judge’s action was not warranted based on the present record.
The Secretary’s ground for objection to the request is simply that she “believes that the
issues in this matter will require some discovery.” The Commission notes that, on its face, this
would not be a sufficient ground for denying a request in a case such as this one which appears
to be otherwise appropriate for E-Z Trial. We also note that the rules allow limited discovery in
E-Z

                                                                         1999 OSHRC No. 3

2

Trial cases with the permission of the judge. Commission Rule 208, 29 C.F.R. § 2200.208
(“Discovery, including requests for admissions, will only be allowed under the conditions and time
limits set by the Judge.”). See also Commission Rule 200(a)(4), 29 C.F.R. § 2200.200(a)(4).
Without more than is on this record, we are unable to agree that E-Z Trial is not appropriate.
Moreover, interlocutory review is appropriate here as the Commission would not be able to
accord Easthaven redress at a later point in the proceedings, i.e., once the case has been tried
pursuant to the conventional rather than E-Z Trial procedure.
Accordingly, we grant Easthaven’s petition for interlocutory review and remand this case
for further proceedings consistent with this opinion.
So ordered.

Date: February 3, 1999 /s/
Stuart E. Weisberg
Chairman

                                                /s/
                                                Thomasina V. Rogers
                                                Commissioner

98-1871

NOTICE IS GIVEN TO THE FOLLOWING:

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

William E. Everheart, Acting Regional Solicitor
Beverlei E. Colston, Attorney
Office of the Solicitor, U.S. DOL
Suite 501
525 S. Griffin Street
Dallas, TX 75202

Pete Binion
Director of Occupational
Health and Safety
Easthave, Inc.
8723 Easthaven
Houston, TX 77075
January 7, 1998

Mr. Ray H. Darling
Executive Secretary
Occupational Safety and Health Review Commission
One Lafayette Centre
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419

Dear Sir,

After our phone conversation earlier this week I contacted the office of the solicitor in Dallas and
relayed the information concerning Easthaven Masonry. Ms. Beverlei Colston is the law clerk
handling the case and is out of the office until Monday. The secretary has placed the file on her
desk for review on Monday.

In addition, I would like for you to consider the petition for discretionary review as a petition for
interlocutory review of the Judges decision to deny E-Z Trial in the case of

Secretary of Labor Complainant

v. OSHA Docket No. 98-1871

Easthaven Masonry Respondent
8723 Easthaven
Houston, TX 77075

Statement Of Portions OF The Decision And Order To Which Exception Is Taken

Easthaven Masonry takes exception to that portion of the Decision and Order denying the request
for E-Z Trial.

Statement Of Reasons For Which Exceptions ARE Taken

1. Neither Easthaven Masonry or its ownership has received prior OSHA citations and believes
   it should be considered for E-Z Trial consideration.

2. The scaffold cited under 29 CFR 1926.451 (e)(1), (f)(7) and (g)(1) was in the process of being
   dismantled. The employee observed climbing down the scaffold had been directly ordered
   not to work or climb on the scaffold and was in direct violation of Easthaven Masonry
   company orders and not a willful violation by Easthaven Masonry.

For the reasons cited herein, Easthaven Masonry hereby submits that the Occupational Safety and Health
Review Commission should direct review of the Decision and Order of the Administrative Law Judge.
Respectfully,

/s/
Pete Binion
Safety Director

cc: Ms. Beverlei Colston
Office of the Solicitor
525 S. Griffin Street, Suite 501
Dallas, TX 75202

Judge Irving Sommer
OSHRC
One Lafayette Centre
1120 20th Str. N.W. 9th
Washington, DC 20036-3419

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