Talon Erectors, Inc.

Plain-English summary

OSHA inspected Talon Erectors' construction site in Breinigsville, Pennsylvania, and issued a citation alleging a violation of 29 C.F.R. § 1926.704(a). The order does not describe the cited physical condition. Talon timely contested the citation but did not attend the hearing despite certified mail, fax notices, and several telephone calls. With no mitigating facts before him, the judge granted the Secretary's motion for a decision against the company under Commission Rule 64. The violation was affirmed as serious, and the proposed $2,000 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.704(a)
• Outcome: Affirmed. The violation was affirmed as serious by default, with a $2,000 penalty.
• Key point: A party that fails to attend a scheduled Commission hearing after repeated notice may have the citation and proposed penalty affirmed against it.

Full text (OSHRC public release)

                     UNITED STATES OF AMERICA
         OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION


                                                 :

SECRETARY OF LABOR, :
Complainant, :
:
v. : OSHRC Docket 00-1939
:
TALON ERECTORS, INC., :
Respondent, :
:

Appearances:

           Theresa C. Timlin, Esquire
           Office of the Solicitor
           U.S. Department of Labor
           Philadelphia, PA
                  For the Complainant

           No Appearances
                 For the Respondent

BEFORE: MICHAEL H. SCHOENFELD
Administrative Law Judge

                              DECISION AND ORDER

Background and Summary of Procedural History
This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-
678 (1970) (“the Act”). Between July 5 and July 12, 2000, the Occupational Safety and Health
Administration (“OSHA”) visited Respondent’s work site in Breinigsville, Pennsylvania. As a result
of the inspection, OSHA issued a citation to Respondent on August 30, 2000, alleging a violation
of a construction safety standard appearing in Title 29 of the Code of Federal Regulations (“CFR”).
Respondent timely contested the citation. A hearing was held in Washington, D.C., on January 10,
2000.
Jurisdiction
It is alleged and undenied that at all relevant times Respondent has been an employer
engaged in construction. There is no dispute that Respondent uses goods or materials which have
moved in interstate commerce. I find as fact that Respondent is engaged in a business affecting
interstate commerce.
Based on the above finding, I conclude that Respondent is an employer within the meaning
of section 3(5) of the Act. Accordingly, the Occupational Safety and Health Review Commission
(“the Commission”) has jurisdiction over the parties and the subject matter.

Facts
At the hearing in this matter the Secretary appeared through counsel. Despite several
notifications as to the date, time and place of the hearing including two facsimile notices, one
certified return-receipt mail notice and several telephone calls to an answering machine at the phone
number on Respondent’s stationery, Respondent failed to appear at the hearing.
The Secretary, moved for a decision against Respondent affirming the citation and the
proposed penalty on the grounds that Respondent failed to appear at the hearing. In the absence of
any mitigating facts or circumstances, Respondent’s failure to appear warrants affirmation of the
citation and notification of proposed penalty as issued by the Secretary.
Pursuant to Rule 64, 29 CFR § 2200.641, the Secretary’s motion is GRANTED.
Accordingly, the citation and notification of proposed penalty are hereby affirmed.

                                    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.

    1
        Rule 64 provides:
             (a) Attendance at hearing. The failure of a party to appear at a
             hearing may result in a decision against that party.

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CONCLUSIONS OF LAW

     1. The Occupational Safety and Health Review Commission has jurisdiction over
            the parties and the subject matter.


     2. Respondent was in violation of the construction safety standard at 29 CFR
            § 1926.704(a) as alleged in Citation 1, Item 1, of the citation.


     3. The violation is serious within the meaning of the Act.


     4. A civil penalty of $2,000.00 is appropriate.




                                          ORDER


     1. Citation 1, Item 1, is AFFIRMED.
     2. A civil penalty of $2,000.00 is assessed.




                                                                  /s/

                                                    Michael H. Schoenfeld
                                                    Judge, OSHRC

Dated: January 22, 2001
Washington, D.C.

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