Metro Waterproofing, Inc.

Plain-English summary

Metro Waterproofing’s president, acting without counsel, stipulated that certain violations existed on the inspection date. The judge relied on that stipulation to affirm five citations and assess $17,120 in penalties. A later affidavit asserted that the conditions violated communicated and enforced company rules and raised facts relevant to employer knowledge, employee misconduct, gravity, and good faith. The Commission found that these assertions created questions about the president’s understanding of the stipulation and what issues remained contested. It remanded the consolidated cases for the judge to clarify the disputed issues, take evidence where necessary, and hold a hearing on penalty facts if penalties were the only remaining dispute. The release does not identify the cited standards.

Decision snapshot

• Cited standard(s): None identified in the release.
• Outcome: Five affirmed citations and $17,120 in penalties remanded for further proceedings.
• Key point: A pro se employer’s factual affidavit required inquiry into whether its stipulation conceded knowledge, waived defenses, or resolved the penalty factors.

Full text (OSHRC public release)


Document

UNITED STATES
OF
AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 85– 0 321

OSHRC DOCKET NO. 85– 0 430 (Consolidated)

METRO
WATERPROOFING, INC.,

Respondent.

December 26, 1985

DIRECTION FOR REVIEW AND REMAND ORDER

On November 25, 1985, Administrative Law Judge Brady issued an order in these consolidated cases affirming five citations and assessing a total penalty of $17,120.00. Respondent now petitions for review.

In July, 1985 the Secretary of Labor and Respondent’s president, Mr. Strickland, who was acting pro se, entered into a stipulation that on the day of the inspection certain violations existed at Respondent’s jobsite. The stipulation also set forth certain facts relating to two of the factors the Commission considers in assessing penalties—Respondent’s prior history of violations and its size. The stipulation, however, did not address the elements of the factor of gravity of the violations, including the extent and duration of employee exposure and the likelihood of occurrence of an injury, nor did the stipulation refer to the remaining factor, whether Respondent demonstrated good faith. The stipulation did contain language that the Secretary “fairly and accurately” applied OSHA directives for calculating the recommended penalties.

Shortly after the stipulation was filed with Judge Brady, Respondent’s president submitted to the judge a notarized “Affidavit” in which he contended that the penalties recommended by the Secretary were excessive because the
violative
conditions on the day of the inspection were contrary to Respondent’s communicated and enforced safety rules. In his
affidavit, Mr. Strickland asked the judge to take into consideration Respondent’s safety rules and safety equipment, as well as the fact that Respondent had hired additional safety personnel to inspect daily for safety compliance and enforce Respondent’s safety rules. Mr. Strickland also made representations pertaining to the gravity of one of the violations.

In his decision and order, Judge Brady affirmed the citations on the basis of the stipulation and based his penalty assessment on the allegations in the citations and the facts set forth in the stipulation. He did not hold a hearing to develop evidence relating to the factual matters raised in Mr. Strickland’s affidavit.

The assertions in Mr. Strickland’s affidavit raise a number of factual questions including (a) whether the
violative
conditions were contrary to Respondent’s safety rules; (b) whether Respondent’s safety rules were communicated to Respondent’s employees and enforced; (c) whether Respondent therefore had knowledge of the
violative
conditions; and (d) whether Respondent established the defense of employee misconduct. The assertions of fact in Mr. Strickland’s affidavit also bear on the gravity of the violations and Respondent’s good faith, which in turn bear on the proper penalty amount. Such a submission by one not represented by counsel throws into question Respondent’s understanding of the meaning of the stipulation, particularly the stipulation that the Secretary “fairly and accurately applied” OSHA directives for calculating recommended penalties.
See Wheaton Injection Molding Co ., 82 OSAHRC 26/B11, 10 BNA OSHC 1589, 1982 CCH OSHD ¶ 26,052 (No. 81–1412, 1982).
In addition, the stipulation can be fairly construed as only establishing the existence of
violative
conditions on the day of the inspection, without waiving the element of employer knowledge as part of the Secretary’s burden of proof and without waiving any affirmative defenses Respondent might have to the alleged violations. Under the circumstances, further inquiry into the stipulation and facts is indicated.

Accordingly, we direct review of the judge’s order pursuant to 29 U.S.C. § 661( i ), and remand this case to the judge for further proceedi ngs consistent with this order. 1
We direct the judge to determine what issues, if any, pertaining to the merits of the alleged violations remain in dispute and, in particular, to determine whether Respondent intended to stipulate that it had
knowledge of the violations or intended to raise any affirmative defenses. The judge is to afford the parties an opportunity to present evidence on any unresolved issues and, in the event the judge concludes that the assessment of penalties is the only issue remaining in dispute, he is to hold a hearing on the factual matters raised in Mr. Strickland’s affidavit insofar as they bear on penalty assessment.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

December 26, 1985

[No ALJ decision available.]

"

1
The Secretary has filed a motion to strike a portion of Respondent’s petition for review. Since we do not rely on that portion of the petition to which the Secretary objects, the Secretary’s motion is moot.