Shank-Ohbayashi, Inc.

Plain-English summary

An ALJ had affirmed two willful underground-construction violations and assessed $11,000, while vacating a general duty clause item and another underground-construction item. The parties settled during Commission review. The Secretary changed the characterization of the two affirmed violations and reduced their combined penalty to $4,400. The employer also withdrew its contests to the previously vacated general duty clause and underground-construction items at $100 each, bringing the total settlement payment to $4,600. Shank-Ohbayashi agreed that the violations had been abated, and the agreement stated that withdrawal of the contests was not an admission of willful conduct. The Commission incorporated the amended and corrected settlement as its final order.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.800(c)(2)(vii), 1926.800(k)(6), and 1926.800(h)(2)(ii); 29 U.S.C. § 654(a)(1)
• Outcome: Settlement approved; four items resolved for a combined $4,600 penalty.
• Key point: The settlement reduced and recharacterized two affirmed underground-construction items while reinstating two previously vacated items at nominal penalties.

Full text (OSHRC public release)

Docket No. 88-2674

SECRETARY OF LABOR,

Complainant,

v.

SHANK-OHBAYASHI, INC.,

Respondent.

OSHRC Docket No. 88-2674

ORDER

This matter is before the Commission on a Direction
for Review entered by former Chairman Linda L. Arey on November 21, 1989. The parties have
now filed an Amended Stipulation and Settlement Agreement.

Having reviewed the record, and based upon the
representations appearing in the Amended Stipulation and Settlement Agreement, we conclude
that this case raises no matters warranting further review by the Commission. The terms of
the Amended Stipulation and Settlement Agreement do not appear to be contrary to the
Occupational Safety and Health Act and are in compliance with the Commission's Rules of
Procedure.

Accordingly, we incorporate the terms of the Amended
Stipulation and Settlement Agreement into this order. This is the final order of the
Commission in this case. See 29 U.S.C. �� 659(c), 660(a) and (b).

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: October 23, 1990

ELIZABETH DOLE, SECRETARY OF LABOR,

Complainant,

v.

SHANK-OHBAYASHI

Respondent.

OSHRC Docket No. 88-2674

NOTICE OF CORRECTION TO STIPULATION AND SETTLEMENT
AGREEMENT

1. The parties in the above-captioned case entered
   into a Stipulation and Settlement Agreement which was signed by Respondent on August 28,
   1990 and then signed by the Secretary on September 4, 1990. The original and four copies
   of the document was mailed to the Occupational Safety and Health Review Commission.

2. Paragraph 10 of the Stipulation and Settlement
   Agreement reads as follows:

3. This Stipulation and Settlement Agreement does not affect the judge's disposition of
   the following citation items:

Citation 1, Items 1(a) and 1(b); Citation 1, Item 2; Citation 1, Item 3; Citation 1, Items
4(a) and 4(b); Citation 1, Items 5(a) through 5(e); Citation 1, Item 6; Citation 2, Items
2(a) and 2(b); Citation 3, Items 1 through 4.

3. The next to the last sentence in Paragraph 10
   should have read, and is hereby corrected to read:

Citation 2, Items 1(a) and 1(b).

4. Respondent has been notified of this correction
   and consents thereto.

ANTONY F. GIL

Attorney for the

Secretary of Labor

ELIZABETH DOLE, SECRETARY OF LABOR,

Complainant,

v.

SHANK-OHBAYASHI

Respondent.

OSHRC Docket No. 88-2674

Stipulation and Settlement Agreement

In full settlement, and disposition of the issues in
this proceeding, it is hereby stipulated and agreed by and between the Complainant,
Secretary of Labor, and the Respondent, Shank-Ohbayashi, that:

1. This case is before the commission upon
   respondent's contest of Citation 2, Items 2(a), 2(b) and 2(c) which alleged willful
   violations of 29 CFR 1926.800(c)(2)(vii) along with a proposed penalty of $10,000, and
   Citation 2, Item 3 which alleged a willful violation of 29 CFR 1926.800(k)(6) along with a
   proposed penalty of $10,000. The citations were affirmed by the Commission's
   administrative law judge, and a penalty of $7,000 was assessed for the violation of
   1926.800 (c)(2)(vii) and $4,000 for the violation of 29 CFR 1926.800(k)(6). (Decision and
   Order, September 27, 1989.) Respondent was also cited in pertinent part, for violations of
   29 U.S.C. 654(a)(1) (Citation 1, Item 7(a) and 29 CFR 1926.800(h)(2)(ii) (Citation 1, Item
   8). These citations items were vacated by the administrative law judge. (Decision and
   Order, September 27, 1989.)

2. The Secretary hereby amends the citation to characterize the violations of 29 CFR
   1926.800(c)(2)(vii) and 29 CFR 1926.800(k)(6) as violations of Section 17 of the
   Occupational Safety and Health Act, 29 U.S.C. � 666.

3. The Secretary hereby amends the proposed penalty
   to a combined total of $4,400 for items 2 and 3 of Citation No. 2.

4. Respondent hereby withdraws its notice of contest
   to Citation 2, Items 2(a), 2(b), and 2(c) and to Citation 2, item 3, and to the
   notification of proposed penalty as amended above in paragraph 3.

5. The Secretary hereby amends the proposed penalty
   in Citation 1, Item 7(a) for violation of the general duty clause, 29 U.S.C. � 654(a)(1)
   to $100.

6. Respondent hereby withdraws its notice of contest
   to Citation 1, Item 7(a) and to the notification of proposed penalty as amended in
   paragraph 5.

7. The Secretary hereby amends the proposed penalty
   in Citation 1, Item 8 for violation of 29 CFR 1926.800 (h)(2)(ii) to $100.

8. Respondent hereby withdraws its notice of contest
   to Citation 1, Item 8 and to the notification of proposed penalty as amended in paragraph
   7.

9. Respondent agrees that the above-mentioned
   violations have been abated.

10. This Stipulation and Settlement Agreement does
    not affect the judge's disposition of the following citation items:

Citation 1, Items 1 (a) and 1 (b); Citation 1, Item 2; Citation 1, Item 3; Citation 1,
Items 4 (a) and 4 (b); Citation 1, Items 5(a) through 5(e); Citation 1, Item 6; Citation
2, Items 2(a) and 2(b); Citation 3, Items 1 through 4.

Nothing set forth in this Stipulation and Settlement
Agreement can be construed as an admission of willful conduct on the part of respondent
for any violation for which a notice of contest has been withdrawn.

11. Respondent agrees to submit to the OSHA Area
    Office $4,600 in full and complete payment of the penalty within 30 days of this
    Agreement.

12. Respondent certifies that a copy of this
    Stipulation and Settlement Agreement was posted at the workplace on the 29th day of August
    1990, in accordance with Rules 7 and 100 of the Commission's Rules of Procedure. There are
    no authorized representatives of affected employees.

13. Complainant and respondent will bear their own
    litigation costs and expenses.

Antony F. Gil
                            Kate
Raabe

Counsel for the
                         Attorney
for Respondent

Secretary of Labor
                    (Shank-Ohbayashi)