BRIEFING NOTICE The Commission requests that the parties brief the following issues:
(1)
Did the judge err in affirming Citation 1, Item 1, which alleged a violation of 29C.F.R. § 1910.1200(h)(1) (hazardous chemical information and training)? Inaddressing this question, the parties are asked to discuss:
(a)
the material safety data sheets for the substances at issue which set forththe chemical manufacturers’ hazard determinations (see 29 C.F.R.§ 1910.1200(d)(1) (hazard determination)); and
(b)
the training documents which Respondent claims show that its employees received hazardous chemical training on the substances at issue.
FINAL ORDER Administrative Law Judge James R. Rucker, Jr. issued a Decision and Order in
this case affirming two citation items at issue, and that decision was directed for review
on September 11, 2012. On October 31, 2012, the Secretary notified the Commission by
letter of her decision to withdraw with prejudice the two citation items affirmed by the
judge. This withdrawal resolves all issues in this case. Cuyahoga Valley Ry. Co. v. United
Transp. Union, 474 U.S. 3 (1985) (holding that Secretary’s discretion to withdraw
citation is unreviewable). Because the Secretary has withdrawn all citation items in this
case, the Commission vacates the Administrative Law Judge’s Decision and Order.
SO ORDERED.
DECISION AND ORDER This proceeding is before the Occupational Safety and Health Review Commission ("the Commission") pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §651 et seq. ("the Act"). The Occupational Safety and Health Administration ("OSHA") conducted an inspection of a Lakeside Construction, L.L.C. ("Lakeside" or "Respondent") worksite located at 3631 Furcula Drive, Coeur d' Alene, Idaho on September 14, 2011. As a result of that inspection, OSHA issued a Notice of Citation and Proposed Penalty ("Citation") to Respondent alleging three serious violations of the Act. Respondent timely contested the Citation. The matter was assigned to Simplified Proceedings, suspending complaint and answer requirements. Commission Rule 203(a), 29 C.F.R. §2200.203(a).
DECISION AND ORDER M & J Painting Company, Inc. (M&J; or Respondent) is in the bridge-painting business and maintains its principal office in Campbell, Ohio. Beginning about August 2010 and continuing through September 2011 and thereafter, M&J; did cleaning and painting work on the Charles M. Braga Jr. Bridge (Braga Bridge), located in Fall River, Massachusetts. (Tr. 370).
In August 2010, the Occupational Safety and Health Administration (OSHA) inspected M&J;’s Braga Bridge worksite. As a result, on October 25, 2010, OSHA issued one six-item serious citation and one single-item other-than-serious citation, to M&J.; Item 5 of Serious 2
Citation 1 alleged a violation of 29 C.F.R. § 1926.502(d)(8), as to horizontal lifelines.(CX-1).
ORDER OF DISMISSAL OF LATE NOTICE OF CONTEST This matter is before the Occupational Safety and Health Review Commission (the Commission) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (the Act).
On July 23, 2012, the Solicitor of Labor, by Attorney Jeffrey Rogoff, filed a "Motion to Dismiss Respondent's Late Notice of Contest." The Respondent, appearing pro se through a non-lawyer representative, did not file a response to the motion within the time specified by Commission Rule 40(c), 29 C.F.R. § 2200.40(c). Consequently, by order dated August 16, 2012, the Respondent was directed to show cause why it had not filed a response to the motion, and further to include therein an explanation why the Respondent believes the Secretary's motion should be denied.
DECISION AND ORDER This late notice of contest proceeding is before the Review Commission pursuant to § 10(a) of the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. § 659(a). The Secretary of Labor moves to dismiss, as untimely, the notice of contest filed by J4 Welding Inc. (J4W) on February 7, 2012, as to a serious citation issued on February 4, 2011, by the Occupational Safety and Health Administrative (OSHA). The citation was issued to J4W after an OSHA inspection of a remodeling project at commercial strip mall in Coral Springs, Florida, on October 4, 2010. J4W’s contest was filed approximately 12 months after receipt of the citation.