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Ezel / Agency Decisions / 01-0376-alj
OSHRC ALJ decision Docket 01-0376 Decided July 19, 2001 Procedural Judge Michael H. Schoenfeld

RWS Building Company

Citation vacated after the government failed to appear at the hearing

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This order from 2001 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.

Currency note: this decision dates from 2001
The OSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Final order, not Commission precedent
This decision by an OSHRC Administrative Law Judge became a final order of the Commission because no Commissioner directed review (29 U.S.C. § 661(j)). It binds the parties but is not binding precedent in other cases. The full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)

Plain-English summary

OSHA inspected an RWS Building Company construction site in Columbus, Ohio, and issued a four-item citation for alleged construction safety violations. RWS contested and a hearing was set for June 4, 2001. The employer's counsel appeared, but no one from the Secretary of Labor's side showed up, even though the hearing notice had been confirmed and read by the government's counsel. RWS moved for a decision vacating the citation based on that failure to appear. Finding no mitigating circumstances, the judge granted the motion under the Commission's Rule 64. The citation and all proposed penalties were vacated. This was a procedural default against the government, not a ruling on whether the alleged hazards existed.

Decision snapshot

  • Cited standard(s): None identified in this order (the underlying four-item citation is not quoted).
  • Outcome: The citation and all proposed penalties vacated because the Secretary failed to appear at the hearing.
  • Key point: Under Rule 64, a party's failure to appear at a hearing can result in a decision against that party, here vacating OSHA's citation.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION


                                                 :

SECRETARY OF LABOR, :
Complainant, :
:
v. : OSHRC Docket 01-0376
:
RWS BUILDING COMPANY, :
Respondent, :
:

Appearances: No Appearance
For the Complainant

           Douglas J. Suter, Esquire
           Issac, Brant, Ledman & Teetor
           Columbus, OH
                   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"). On January 31, 2001, the Occupational Safety and Health Administration
("OSHA") visited Respondent's work site in Columbus, Ohio. As a result of the inspection, OSHA
issued a citation to Respondent on February 9, 2001, alleging 4 violations of construction safety
standards appearing in Title 29 of the Code of Federal Regulations ("CFR"). Respondent timely
contested the citation. A hearing was held in Columbus, Ohio on June 4, 2001.

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.

Discussion
At the hearing in this matter Respondent appeared through counsel. The date and time for the
hearing were agreed upon during a telephone conference on May 31, 2001 between the parties and
the Administrative Law Judge. At that conference, the parties agreed that if witnesses were not
available for the hearing or if a settlement was not reached by 12:00 noon on Friday, June 1, 2001,
that the hearing would proceed on Monday, June 4, 2001 at 12:00 noon. At 1:02 p.m., on Friday,
June 1, 2001, a Notice confirming the day and date (Monday, June 4, 2001), time (12:00 noon) and
place of the hearing (Franklin County Court, Columbus, Ohio) was sent to each counsel. The
facsimile transmission report, generated automatically by the machine in the office of the Chief
Judge, indicates that transmission of 1:02 p.m., on June 1, 2001, proceeded without fault.
Subsequent conversations between the Administrative Law Judge's Administrative Assistant and
personnel in the office of the Solicitor of Labor in Cleveland, Ohio, not only confirm that the
facsimile notice was not only timely received in the Solicitor's Cleveland office but that, in fact, the
transmission was seen and read by counsel assigned to this matter. Further, Respondent's counsel
confirmed that he had spoken to Complainant's counsel on Friday June 1, 2001, regarding a
settlement offer and there was no indication at that time that the Secretary was considering not
proceeding in this case. No advance notice was afforded to either Respondent or the Commission
that the Secretary was not going to be present at the hearing. Nonetheless, there was no appearance
at the hearing by the Secretary.
At the hearing, Respondent moved for a decision against the Secretary vacating the citation
and the proposed penalties on the grounds that the Secretary failed to appear at the hearing. In the
absence of any mitigating facts or circumstances, the Secretary's failure to appear warrants vacating
the citation and notification of proposed penalty as issued by the Secretary.

                                              -2-
   Pursuant to Rule 64, 29 CFR § 2200.641, Respondent's motion is GRANTED. Accordingly,

the citation and notification of proposed penalty are hereby VACATED.

                                  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.

                                CONCLUSIONS OF LAW
   1. The Occupational Safety and Health Review Commission has jurisdiction over
            the parties and the subject matter.
   2. Respondent was not in violation of the construction safety standards as alleged
            in Citation 1, Items 1, 2, 3 and 4 of the citation issued to it on February 9,
            2001.
   3. The proposed civil penalties are vacated in their entirety.


                                          ORDER
   1. Citation 1, Item 1, 2, and 3 and all associated proposed penalties are VACATED.


                                                   /S/
                                                   Michael H. Schoenfeld
                                                   Judge, OSHRC

Dated: June 18, 2001
Washington, D.C.

   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.

                                             -3-

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