E. Smalis Painting Co., Inc.
Bridge-painting citations settled for $50,000
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This order from 1993 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.
Plain-English summary
E. Smalis Painting was repainting the Tarentum Bridge in Pennsylvania when OSHA inspected the worksite. OSHA issued three citations alleging one willful, nine serious, and two other-than-serious violations, with proposed penalties totaling $75,000. The parties agreed that the company would withdraw its contest and pay a total penalty of $50,000. The judge affirmed all cited violations, recorded that the penalty had been paid in full, and ordered the company to provide suitable training for affected employees through a certified source.
Decision snapshot
- Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. §§ 1926.55(a), 1926.55(b), 1926.134(b)(1), 1926.134(b)(2), 1926.134(b)(3), 1926.134(e)(5), 1926.21(b)(3), 1926.28(a), and 1926.50(a)
- Outcome: The company withdrew its contest, all violations were affirmed, and an agreed aggregate penalty of $50,000 was assessed and paid.
- Key point: The settlement resolved all three citations and required both payment and suitable training for affected employees.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
PHONE:
COM(202)60+5100 COM (202)6064050
. iTS(202)60&51QQ fls (202)60&5050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0260
E. SMALIS PAINTING CO., INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LA\N JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on September 17, 1993. The decision of the Judge
will become a final order of the Commission on October 18, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before
October 7, 1993 in order to ermit suf Ilcient time for its review. See
Commission Rule 91, 29 C. Fp.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N. W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
Date: September 17, 1993 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 93-0260
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Marshall H. Harris, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market Htreet
Philadelphia, PA 19104
Sanford A. Middleman, Esquire
Middleman & Middleman
517 Frick Buildin
Pittsburgh, PA 1R 19 6003
Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
0011604@866: 03
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
COM (202)6064050
FTS (202)6064050
.
..
SECRETARY OF LABOR,
.
Complainant, ..
..
v. .. OSHRC Docket No. 93-0260
.
E. SMALIS PAINTING CO., INC., ;
..
Respondent. ..
.
Appearances:
Anthony G. O’Malley, Jr., Esq. Sanford A Middleman, Esq.
Office of the Solicitor Middleman & Middleman
U.S.Department of Labor Pittsburgh, Pennsylvania
For Complainant For Respondent
Before: Administrative Law Judge Michael H. Schoenfeld
DECISION AND ORDER
Background and Procedural History
This case arises under the Occupational Safety and Health Act of 1970,29 U.S.C. 0 5
65 1 - 678 (1970) (“the Act”).
Having had its worksite, at which it was repainting a bridge, inspected by a
compliance officer of the Occupational Safety and Health Administration, E. Smalis Painting
company, Inc. (“Respondent”) was issued three citations alleging a total of one willful, nine
serious and two other than serious violations of the Act. A penalties of $35,000, $38,000 and
$2,000 were proposed for the willful, serious and other than serious violations, respectively.
Respondent timely contested. Following the filing of a complaint and answer and pursuant
to a notice of hearing, the case came on to be heard *on August 9, 1993. No affected
employees sought to assert party status.
Jurisdiction
Complainant alleges and Respondent does not deny that it is an employer engaged
in bridge painting contracting. It is undisputed that at the time of this inspection
Respondent was engaged in repainting the Tarentum Bridge on Route 366 in Tarentum,
Pennsylvania. Respondent does not deny that it uses tools, equipment and supplies which
have moved in interstate commerce. I find that Respondent is engaged in a business
affecting interstate commerce.
Based on the above finding, I conclude that Respondent in an employer within the
meaning of 0 3(5) of the Act.’ Accordingly, the Commission has jurisdiction over the
subject matter and the parties.
Discussion
Based upon the agreement of the parties (Tr. 71-72) all necessary findings of fact and
conclusions of law can be reached. The parties agreed that Respondent would withdraw its
notice of contest as to all of the alleged violations and pay an agreed upon total penalty of
$50,000. As part of the agreement, Respondent presented to the Secretary’s counsel, and
counsel acknowledged the receipt of acertified check made payable to OSHA in the amount
of $50,000 (Tr. 73).
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.
’ Title 29 U.S.C. 5 652(5).
CONCLUSIONS OF LAW
1. Respondent was, at all times pertinent hereto, an employer within the meaning
of 0 3(5) of the Occupational Safety and Health Act of 1970, 29 U. S. C. 5 5 651 - 678
(1970).
2. The Occupational Safety and Health Review Commission has jurisdiction over the
parties and the subject matter.
3. The alleged willful violation of 8 5(a)(l) of the Act is AFFIRMED.
4. The alleged serious violation of 8 5(a)(l) of the Act is AFFIRMED.
5. The alleged serious violation of 29 C.F.R. 8 192655(a) is AFFIRMED.
6. The alleged serious violation of 29 C.F.R. 8 1926.55(b) is AFFIRMED.
7. The alleged serious violation of 29 C.F.R. 0 1926.134(b)(2) is AFFIRMED.
8. The alleged serious violation of 29 C.F.R. 0 1926.134(b)(3) is AFFIRMED.
9. The alleged serious violation of 29 C.F.R. 0 1926.134(e)(5) is AFFIRMED.
10. The alleged serious violation of 29 C.F.R. 0 1926.21(b)(3) is AFFIRMED.
11. The alleged serious violation of 29 C.F.R. 8 1926.28(a) is AFFIRMED.
12. The alleged serious violation of 29 C.F.R. 0 1926.50(a) is AFFIRMED.
13. The alleged other than serious violation of 29 C.F.R. 8 1926.134(b)( 1) is
AFFIRMED.
14. The alleged other than serious violation of 29 C.F.R. 0 1926.134(b)(2) is
AFFIRMED.
15. An aggregate penalty of $50,000.00 is appropriate for the above violations.
I 3
ORDER
1. Each of the citations issued to Respondent on December 17, 1992, are affirmed.
2. An aggregate penalty in the amount of $50,000.00 is assessed therefor. The
penalty has been paid in full.
3. Respondent shall provide suitable and appropriate training for its affected
employees. Such training shall be provided by any certified source to be selected at
the sole discretion of Respondent.
MICHAEL H. SCHOENFELD -
Judge, OSHRC
Dated: SEP I? w3
Washington, D.C.
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