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OSHRC Commission decision Docket 94-1687 Decided December 2, 1994 Settled

Professional Masonry, Inc.

Settlement fixed penalties at $1,600

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This is citable Commission precedent from 1994, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.

Currency note: this decision dates from 1994
The OSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Decision of the Commission
This is a decision of the Occupational Safety and Health Review Commission, the highest level of agency review, citable as Commission precedent. It may have been appealed to a U.S. Court of Appeals after issuance; check subsequent history before relying on it. The full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)

Plain-English summary

An administrative law judge dismissed Professional Masonry's notice of contest after the company did not answer the complaint or respond to a show-cause order. After review was directed, the parties filed a stipulation resolving all outstanding issues. The company represented that all cited violations had been and would remain abated, withdrew its contest, and agreed to pay amended penalties totaling $1,600 in four installments. The Commission incorporated the stipulation, set aside inconsistent parts of the judge's decision, and entered the settlement as its final order. The public release does not identify the cited standards.

Decision snapshot

  • Cited standard(s): Not identified in the public release.
  • Outcome: Settled. Two citation items remained affirmed under the stipulation, with penalties reduced to $500 and $1,100.
  • Key point: A Commission-directed review can conclude through a joint stipulation that replaces inconsistent portions of the judge's ruling and becomes the final order.

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

PHONE:
COM (202) 60%5100
Frs(202)6064100

                                                          ..
                                                          ..
   SECRETARY         OF LABOR,
                                                           ..
                    Complainant,                            ..
                                                             ..
                    v.                                        ..               Docket No. 941687
                                                               ..
                                                                ..
   PROFESSIONAL          MASONRY, INC.,
                                                                 ..
                    Respondent.                                   ..
                                                                   .1




          This matter is before the Commission on a direction for review entered by Stuart E.
   Weisberg, Chairman, on October 17, 1994. The parties have now filed a stipulation and
   joint motion disposing of all outstanding issues.

             Having reviewed the record, and based upon the representations appearing in the
    stipulation and joint motion, we conclude that this case raises no matters warranting further
    review by the Commission. The terms of the stipulation and joint motion do not appear to
    be contrary to the purposes of the Occupational Safety and Health Act of 1970, 29 U.S.C.
    08 651-678, and are in compliance with the Commission’s Rules of Procedure.

            Accordingly, we incorporate the terms of the stipulation and joint motion into this
    order, and we set aside the Administrative Iaw Judge’s decision and order to the extent that
    it is inconsistent with the stipulation and joint motion. This is the final order of the
    Commission in this case.


                                                                 BY DIRECIION       OFTHE COMMISSION




     Dated December 2, 1994
                                                                   Ray H. Darling, Jr.
                                                                   Executive Secretary

Docket No. 94-1687

    NOTICE IS GIVEN TO THE FOLLOWING:


    Daniel J. Mi& Esq.
    Counsel for Regional Trial Litigation
    Office of the Solicitor, U.S. DOL
    Room S4004
    200 Constitution Ave., N.W.
    Washington, D.C. 20210


    Associate Regional Solicitor
    Office of the Solicitor, U.S. DOL
    Chambers Bldg, Highpoint OfEce Center
    Suite 150, 100 Centerview Drive
    Birmingham, AL 35216


    Douglas L Key, Esq.
    Key, Frawley & Bulgarella
    Post office Box 360345
    Birmingham, AL 35236


    Irving Sommer

. Administrative Law Judge
Occupational Safety and Health
. Review Commission
One Lafayette Centre
1120 20th Street, Suite 990
Washington, D.C. 20036-3419
UNITED STATES OF AMERICA

      OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, 1 OSHRC DOCKET NO.
1
Complainant, 1 94-1687
1
v. 1 REGION IV
1
PROFESSIONAL MASONRY, INC., 1
1
Respondent. 1
STIPULATION AND JOINT MOTION

       The parties stipulate and agree as follows:

       10       Complainant    hereby   amends   his    Notifications     of

Penalty for violations alleged in the Citations issued May 18,

1994, so that they are as follows:

  CITATION NO.                   ITEM NO.              PROPOSED PENALTY

            1                       1                       $     500

        2                           1                       $1,100

        2   l   Respondentrepresentsthatallviolations             alleged in

the Citations and Notifications of Penalty issued on May 18, 1994,
have been and will remain abated.

        3   l   Respondentherebywithdrawsthe         Notice of Contest as

to such Citations and Notifications of Penalty. Respondent states

that this withdrawal was not induced by a promise of any other

party hereto except as may appear herein.

        4   l   Respondent will pay the amended penalty of $1,600 in

four equal installments. The first payment of $400 will be due on

November 15, 1994. The remaining payments of $400 each will be due

on December 15, 1994, January 15, 1995 and February 15, 1995.
50 Affected employees herein are not represented by a

certified bargaining representative.

      60      Each   party     hereby   agrees   to   bear   its      own   fees

(including attorney fees) and other expenses incurred by such party

in connection with any stage of this proceeding.

      7   l   Respondent certifies that on//          -/5-   77                I

notice of the foregoing was given to employees by posting a true

copy (as executed by respondent) of this Stipulation, in accordance

with Commission% Rule 7(g) [29 C.F.R. 2200.7(g)].

      ACCORDINGLY, the parties jointly move the Commission for

an Order appropriate for final disposition of this matter.

      This     #       dayof      A)oll!/qqy                      0



                                           THOMAS S. WILLIAMSON, JR.
                                           Solicitor of Labor

                                           JAYLYNN K. FORTNEY
                                           Regional Solicitor

                                           CYNTHIA WELCH BROWN
                                           AssociateRegionalSolicitor




                                           Att!&neys for the Secretary
                                           of Labor, United States
                                           Department of Labor.

SOL Case No. 9400807
CERTIFICATE OF SERVICE

 I certify that the foregoing Stipulation and Joint Motion was

served on this 22nd day of November, 1994, by mailing a true copy

thereof by postage prepaid, first-class mail, to the following:

                Douglas L. Key, Esquire
                KeYI Frawley, Bulgarella & Key
                Post Office Box 360345
                Birmingham, AL 35236




                (A#sociate Regional Solicitor

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) 6o64oso
COM (202) 606-5100
m(202)-
m (202) 6owmO

            SECRETARY OF LABOR
                        Complainarl~
                  v.                                                     OSHRC DOCKET
                                                                         NO. 94-1687
            PROFESSIONAL MASONRY, INC.
                         Respondent.


                                 NOTICE OF DOCKETING
                           OF ADMINISTRATIVE LAMlJUDGE’S DECISION
                The Administrative Law Judge’s Report in the above referenced case was
            docketed with the Commission on September 16, 1994. The decision of the Judge
            wih become a final order of the Commission on October 17, 1994 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 b the Executive Secretary on or before
            October s 1994 in order to ermit sllfi cient time for its review. See
            Commission Rule 91,29 C.Ip.R. 2200.91.
               All further pleadings or communications regarding this case shah 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 shah also mail a copy to:
                                    Daniel J. Mick, Esq.
                                    Counsel for Regional Trial Liti ation
                                    Office of the Solicitor, U.S. DOY
                                    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
             having questions about review rights may contact the Commission’s Executive
             Secretary or call (202) 606-5400.
                                                   FOR THE COMMISSION

                                                   L?      *, -J-              )/l&a-
            Date: September 16, 1994               Ray H. Darling, Jr.
                                                   Executive Secretary

DOCKET NO. 94-1687
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5&
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Associate Regional Solicitor
Office of the Solicitor
Chambers Bldg., Highpoint Office
Center, Suite 150
100 Ceriterview Drive
Birmingham, AL 35216

Harry E. Townley, III, Esquire
Professional Masonry, Inc.
P.O. Box 170035
Birmingham, AL 35217

Irvin Sommer
Chic f Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00109188094:04
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

  Complainant)

          V.
                                                ;
                                                .     Docket No. 94-1687
                                                .
                                                .

PROFESSIONAL MASONRY, INC .
.

                                                ..
                                   l



 Respondent)
                                                ..
                                                ..


                                         ORDER



    On S/l /94 the        undersigned   issued an ORDER TO SHOW CAUSE to the

Respondent as to why his Notice of Contest should not be dismissed for failure to file

an answer to the complaint as required by the Commission Rules of Procedure. The

Respondent failed to reply to the ORDER. His actions demonstrate either that he has

abandoned the case or treats the Rules of Procedure of the Commission with disdain.

This cannot be countenanced as it seriously impedes the administration of justice.

    Accordingly,       the Notice of Contest filed by the Respondent is dismissed.   The

SecretaryIs citation(s) and proposed penalties are AFFIRMED in all respects.
f“--.
\ A

                                                             I/   I


                                                       IRVING SOMMER
                                                       Judge
         au-*2   .::
         32      *i cTc

DATE:
Washington, D.C.

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