Schimenti Construction Co.

Plain-English summary

OSHA cited Schimenti Construction after inspecting a Hartsdale, New York worksite. The company did not appear for a telephone prehearing conference or respond to requests from the Secretary or the Commission. The judge found that Schimenti abandoned its contest and affirmed two serious electrical violations with penalties of $1,575 and $900. Three other-than-serious violations were also affirmed without penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.404(b)(1)(i), 1926.404(f)(6), 1926.54(b), 1926.54(d), and 1926.452(w)(2)
• Outcome: All five violations were affirmed, with total penalties of $2,475.
• Key point: Failure to participate in the proceeding led the judge to treat the contest as abandoned and affirm the citations.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. DOCKET NO. 03-1486
SCHIMENTI CONSTRUCTION CO.,
Respondent.

APPEARANCES:
Margaret A. Temple, Esq. Matthew C. Schimenti (Pro Se)
Office of the Solicitor of Labor Mount Kisco, NY
U.S. Department of Labor For Respondent
New York, New York
For Complainant

BEFORE: MICHAEL H. SCHOENFELD
Administrative Law Judge

                             DECISION AND ORDER

Procedural History
This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”).
Following an OSHA inspection of a work site in Hartsdale, New York, the Secretary, on or
about July 1, 2003, issued to Schimenti Construction Company, (“Respondent”) two citations
alleging serious and other-than-serious violations of construction safety standards appearing in Part
1926 of Title 29 of the Code of Federal Regulations and proposed civil penalties totaling $ 2,475.00.
Issue has been joined by the filing of timely notice of contest. Despite appropriate notice,
Respondent did not appear for a telephone pre-hearing conference. Nor has Respondent provided any
communication with either the Secretary or the Commission despite requests to do so. Accordingly,
I find that Respondent has abandoned its contest. Thus, all items of the citations and the penalties
proposed are affirmed.

                                 FINDINGS OF FACT

AND
CONCLUSIONS OF LAW

   1. Respondent was, at all times pertinent hereto, an employer within the meaning of section

3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (1970).
2. The Commission has jurisdiction over the parties and the subject matter of this case.
3. Respondent was in violation of section 5(a)(2) of the Act in that it failed to comply with
the standards at 29 CFR §1926.404(b)(1)(i) and 1926.404(f)(6) as alleged in Citation 1,
Items 1 and 2. The violations were both serious within the meaning of section 17(k) of the
Act, 29 U.S.C. § 666(j), for which a civil penalties of $1575.00 and $900.00, respectively, are
appropriate.
4. Respondent was in violation of section 5(a)(2) of the Act in that it failed to comply
with the standards at 29 CFR §1926.54(b); 1926.54(d) and 1926.452(w)(2), as
alleged in Citation 2, Items 1, 2 and 3. The violations were other-than- serious within
the meaning of the Act. No civil penalty was proposed or is assessed.

                                         ORDER
   Citations 1 and 2, issued to Respondent, including the penalties proposed therefor, on
   or about October 21, 2002 are AFFIRMED in their entirety.




                                                   /s/
                                                   Michael H. Schoenfeld
                                                   Judge, OSHRC

Date: October 30, 2003
Washington, D.C.

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