Elmont Glass Company, Inc.

Plain-English summary

Elmont Glass Company, a glazing contractor based on Staten Island, New York, was inspected by OSHA and issued two citations in September 1993. The serious citation alleged failure to conduct regular worksite inspections and two aerial-lift hazards (workers not standing firmly on the basket floor and without secured safety belts); a second citation alleged missing material safety data sheets and workers under a glass ceiling panel without hard hats. Before testimony began, the parties reached a stipulated settlement. The two aerial-lift items were combined into a single violation and affirmed, and the remaining items were withdrawn. Administrative Law Judge Michael H. Schoenfeld found the settlement appropriate and incorporated its terms. The company agreed to pay a reduced penalty of $1,200 and to remain in compliance.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.556(b)(2)(iv) and § 1926.556(b)(2)(v) (affirmed as amended); § 1926.20(b)(1), § 1926.59(g)(8), and § 1926.100(b) (withdrawn)
• Outcome: Settled. Aerial-lift items combined and affirmed; other items vacated; $1,200 penalty.
• Key point: The judge approved the parties' stipulated settlement, resolving the case on agreed terms without a merits hearing.

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 2003643419

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        SECRETARY OF LABOR
                    coInplai.mm~
              v.                                                       OSHRC DOCKET
                                                                       NO. 93-2979
        ELMONT GLASS COMPANY, INC.
                     Respondent.


                                NOTICE OF DOCKETMG
                          OF ADMINISTFUTIVE LA’WJUDGE’S DECISION
                The Administrative Law Judge’s Report in the above referenced case was
            docketed with the Commission on June l&1994. The decision of the Judge
            will become a final order of the Commission on July l&l994 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 etition should be received by the Executive Secretary on or before
            July 7 19&kin order to permit sufficient time for its review. See
            Com&ssion Rule 91,29 C.F.R. 2200.91.
               All fiuther pleadings or communicafions regarding this case shall be
            addressed to:
                                   Executive Secretary
                                   Occupational Safety and Health
                                   Review 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 Re ‘onal Trial Liti ation
                            l4
                                   Office of the So%l
                                                    citor, 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
            hamg questions about review nghts may contact the Commission’s Executive
            Secretary or call (202) 606-5400.
                                                   FOR THE CQ-ON                      f”L /


            Date: June 17, 1994

‘DOCKET NO. 93-2979
NOTICE IS GIVEN TO THE FOLIDWING:

Daniel J. Mick, Esq.
Counsel for Re 'onal Trial Iiti ation
Office of the So%l
citor, U.S. DC&
RoomS4004 *
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, wl 0
Re l onal Solicitor
O&e of the Solicitor U.S. DOL
201 brick Room 7Oj
New York, NY 10014

Mr. Anthony J. Merisola
Elmont Glass Company, Inc.
101 Amber Street
Staten Island, NY 10306

Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00107196339:02
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW Co~hdSSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
.

SECRETARY OF LABOR,

   Complainant,

           v.                                     OSHRC Docket No. 93-2979
                                         ..

ELMONT GLASS CO., INC., 00
.0
Respondent. ..
..

Appearances:
Alan L JSammermm Esq. Anthony J. Merisola, President
Office of the Solicitor EC1 safety Sewices Company
U.S. Department of Labor Staton Island, New York
For Complainant For Respondent

Before: Administrative Law Judge Michael H. Schoenfeld

Background and Procedural Historv

   This case arises under the Occupational       Safety and Health Act of 1970,29 U.S.C. 5 6

651 - 678 (1970) (“the Act”).
Having had its worksite inspected by a compliance officer of the Occupational Safety
and Health Administration, Elmont Glass Company, Inc., (‘Respondent”) was issued two
citations on or about September 15, 1993. Citation 1 alleged 3 serious violations of the Act
and proposed penalties of $1500, $1500 and $750 for each violation, respectively. Citation
2 alleged 2 other than serious violations of the Act. and proposed no monetary penalties.
Respondent timely contested. Following the filing of a complaint and answer, the case came
 m
2-

on to be heard on May 11,1993 in New York, New York. No affected employees exercised
their right to party status (Tr. 3).
       The citations issued to Respondent          are as follows:
       Serious item 1 - 29 C.F.R. 6 1926.20(b)(l)         - frequent and regular inspections of the
worksite and equipment        were not conducted by a competent          person designated     by the
employer.      Penalty proposed:    $1500.
           Serious item 2 - 29 CIF.R. 3 1926556(b)(2)(iv)      - employees working in an aerial lift
were not working from a position             standing firmly on the floor of the basket.      Penalty
proposed:     $1500.
           Serious item 3 - 29 C.F.R. 8 1926.556(b)(2)(v) - employees working fiorn an aerial
lift did not have secured safety belts. Penalty proposed: $750.

. Other than serious item 1 - 29 C.F.R. $ 1926.59(g)(8) - Material safety data sheets
for all chemicals used on the site were not available on the site. Proposed penalty: $0.
Other than serious item 2 - 29 C.F.R. 0 1926.100(b) - Employees working under a
glass panel in the ceiling were not wearing hard hats. Proposed penalty: $0.
At the opening of the hearing the parties announced that a stipulated settlement had
been reached that morning prior to going on the record. Under the terms of the agreement
Citation 1, Item 1 and Citation 2, Item 2 were withdrawn. Citation 1, Items 2 and 3 were
combined to reflect one violation (Items 2a and 2b). Citation 2, Item 1 was withdrawn. An
amended penalty of $1,200 was proposed for Item 2 (including parts a and b).
Respondent represented that its employees traveled between work places during their
work shift on August 26,1993, and that Material Safety Data Sheets were available through
facsimile transmission in the event of an emergency.
Based on the above Respondent withdraws its notice of contest and answer as to the
citation and proposed penalty as amended. Respondent affirmatively states that the
violation as amended has been abated and that it will comply with the Act in the future.
Respondent agrees to pay the amended penalty of $1,200 by check made payable to OSHA -
Labor mailed to the OSHA office in New York City. Finally, both parties agree to bear
their own fees and other expenses incurred with any stage of this proceeding.
 Respondent’s representative acknowledged acceptance of the terms of the agreement
(Tr. 5). -
The settlement is found to be appropriate in all respects. Its terms are incorporated
fully herein.

                                  FINDINGS OF FACI’


      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.

                               CONCLUSIONS OF LAW


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

of 0 3(S) of the Occupational Safety and Health Act of 1970, 29 U. S. C. 0 Q 651 - 678
(1970).

      2. The Occupational Safety and Health Review Commission has jurisdiction over the

parties and the subject matter.

      3. Respondent   was in serious violation of the Act in that it failed to comply with the

standards at 29 C.F.R. 0 5 1926.556(b)(2)(iv) and 1926.556(b)(2)(v) (Citation 1, as amended,
Items 2a and 2b). A penalty of $1,200 is appropriate. i

      4. Respondent   was not in violation of the Act as alleged in Citation 1, Item 1, and

Citation 2, Items 1 and 2.
 __
ORDER

     1   l   Citation 1, Item 1 and Citation 2, Items 1 and 2 are VACATED.


     2       Citation 1, Item 2, as amended, is AFFIRMED.


     30      Respondent shall pay a civil penalty of $1,200.

Dated:
Washington, D.C. 1 Judge, OSHRC