Stripe-A-Zone, Inc.

Plain-English summary

Stripe-A-Zone installed ceramic traffic buttons and stripes on a federally funded Texas highway project. OSHA issued four citations concerning traffic-control procedures, practices, and training. The company argued that Department of Transportation authority displaced OSHA jurisdiction, and the judge dismissed the case. The Commission vacated that order because the judge supplied no findings of fact, legal conclusions, specific precedent, or adequate explanation for the dismissal. Because the 1978 inspection had already led to three Commission remands without a merits hearing, the Commission directed the judge to make the required findings and proceed to a hearing on the citations. The release does not identify the cited standards or penalties.

Decision snapshot

• Cited standard(s): None identified in the release.
• Outcome: Dismissal vacated and case remanded for findings and a hearing on the merits.
• Key point: A jurisdictional dismissal must include factual findings and legal reasoning, especially where the underlying citations have never been heard.

Full text (OSHRC public release)

Docket No. 79-2380

SECRETARY OF LABOR,

Complainant,

v.

STRIPE-A-ZONE, INC.,

Respondent.

OSHRC Docket No. 79-2380

DECISION

Before: BUCKLEY, Chairman; CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.
� 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ��
651-678 ("the Act"). The Commission is an adjudicatory agency, independent of
the Department of Labor and the Occupational Safety and Health Administration. It was
established to resolve disputes arising out of enforcement actions brought by the
Secretary of Labor ("Secretary") under the Act and has no regulatory functions.
See section 10(c) of the Act, 29 U.S.C. � 659(c).

This case arises from an inspection of Respondent, Stripe-A-Zone, Inc.
("Stripe-A-Zone"), by the Secretary of Labor when Respondent was engaged in
installing ceramic buttons and stripes in a traffic zone on a highway pursuant to a
contract between Stripe-A-Zone and the Texas State Department of Highways and Public
Transportation. Federal funds from the U.S. Department of Transportation ("DOT")
were used to finance the project. The Secretary cited

Stripe-A-Zone for four violations of the Act, all related to traffic safety control
procedures, practices and training.

In its answer and its Motion to Dismiss filed with Administrative Law Judge Louis G.
LaVecchia, Stripe-A-Zone asserted that DOT exercises statutory authority to prescribe or
enforce safety standards concerning the working conditions involved in the citations.
Stripe-A-Zone contended that, under section 4(b)(1) of the Act,[[1]] the Secretary was
without authority to issue the citations. The Secretary opposed the Motion to Dismiss,
arguing that section 4(b)(1) does not apply since Stripe-A-Zone has no Federal obligation
to comply with DOT traffic safety standards or regulations. Judge LaVecchia granted
Stripe-A-Zone's Motion to Dismiss, concluding that "the argument made by the
respondent comports with the position taken by the Review Commission in pertinent
decisions."

The judge's dismissal order was not accompanied by any findings of fact or conclusions of
law. Aside from a general reference to Commission precedent which did not mention any
specific cases, the judge's order did not give any reason supporting the conclusion that
the citations should be dismissed. In granting the Motion to Dismiss, the judge should
have provided findings of fact and a sufficient statement of reasons or a basis for his
decision. Section 10(c) of the Act, 29 U.S.C. � 659(c); section 8(b) of the
Administrative Procedure Act, 5 U.S.C. � 557(c); Commission Rules 66(i) and 90(a), 29
C.F.R. �� 2200.66(i) and 2200.90(a); P & Z Co., 77 OSAHRC 211/F5, 6 BNA OSHC 1189,
1977-78 CCH OSHD, � 22,413 (No. 76-431, 1977). See also Syntron, Inc., 82 OSAHRC 39/E9,
10 BNA OSHC 1848, 1982 CCH OSHD � 26,145 (No. 81-1491, 1982). We therefore vacate the
decision and remand this case to the judge for appropriate findings of fact and
conclusions of law.

On remand, the judge should also hold a hearing on the merits of the Secretary's
citations. The inspection in this case occurred on November 6 through November 13, 1978.
This is the third time that the case has been before the Commission and no hearing on the
merits has yet been held.[[2]] Because of the amount of time that has passed since the
inspection, and to prevent further delay, on remand the parties should proceed to a
hearing on the merits.

Accordingly, the judge's order is vacated and the case is remanded for further proceedings
consistent with this opinion.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED: FEB 8 1985

FOOTNOTES:

[[1]] Section 4(b)(1) of the Act, 29 U.S.C. � 653(b)(1), provides in
pertinent part:

Nothing in this chapter shall apply to working conditions of employees with respect to
which other Federal agencies. . . . exercise statutory authority to prescribe or enforce
standards or regulations affecting occupational safety or health.

[[2]] In addition to the order now on review, Judge LaVecchia previously
granted two other motions to dismiss filed by Stripe-A-Zone. In each case the Commission
reversed these rulings and remanded the case to the judge for further proceedings.
Stripe-A-Zone, Inc., 80 OSAHRC 111/D12, 9 BNA OSHC 1040, 1980 CCH OSHD � 24,912 (No.
79-2380, 1980), petition for review dismissed on other grounds, 643 F.2d 230 (5th Cir.
1981) (denial of motion to dismiss which alleged that the citations were barred by res
judicata); 82 OSAHRC 31/E13, 10 BNA OSHC 1694, 1982 CCH OSHC � 26,069 (1982) (denial of
motion to dismiss which alleged that the citations were not issued with reasonable
promptness).