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Guide to E-Z Trial Procedures Appendix 1 - Notice of Contest Appendix 1A. Notice Of Contest To Citation And Proposed Penalties Chandler Concrete Corporation Mr. ABC, Area Director Dear Mr. ABC: This is to notify you that Chandler Concrete Corporation intends to contest all of the items and penalties alleged in the Citation and Proposed Penalty, received February 20, 1994, and dated February 19, 1994 (a copy is attached). Very truly yours, Norman B. Chandler, President Appendix 1B. Notice Of Contest To Proposed Penalties Only A-1 Lumber Company U.S. Department of Labor/ Dear Mr. DEF: I wish to contest the amount of the Proposed Penalties of $1,200 issued September 9, 1994, based on the violations cited by you during your recent inspection. Sincerely, Edgar B. Loomis, Appendix 1C. Notice of Contest By Employee Representative Metal Workers International Union Mr. GHI, Area Director Dear Mr. GHI: We have been authorized by the employee representative, Local 15 of the Metal Workers International Union, to file this notice of contest to the OSHA citations issued on June 2, 1994, against the employer, Carbine Corporation, Columbus, Ohio. The abatement dates of June 27, 1995, for Items No. 1 and No. 3 of the non-serious citation, and January 5, 1995, for Item No. 1 of the serious citation, are unreasonable and will continue to expose workers to safety hazards. Sincerely, William Metz, Director Appendix 2 - Notice of Decision Notice of Decision In Reference To: 1. Enclosed is a copy of my decision. It will be submitted to the Commission's Executive Secretary on January 3, 1995. The decision will become the final order of the Commission at the expiration of thirty (30) days from the date of docketing by the Executive Secretary, unless within that time a member of the Commission directs that it be reviewed. All parties will be notified by the Executive Secretary of the date of docketing. 2. Any party that is adversely affected or aggrieved by the decision may file a petition for discretionary review by the Review Commission. A petition may be filed with the Judge within twenty (20) days from the date of this notice. Thereafter, any petition must be filed with the Review Commission's Executive Secretary within thirty (30) days from the date of the Executive Secretary's notice of docketing. See Paragraph No. 1. The Executive Secretary's address is as follows: Executive Secretary 3. The full text of the rule governing the filing of a petition for discretionary review is 29 C.F.R. 2200.91. It is appended hereto for easy reference, as are related rules prescribing post-hearing procedure. Arlene Alexander December 1, 1994 Appendix 3 - Petition for Discretionary Review U.S. Occupational Safety and Health Review Commission Secretary of Labor, v. OSHRC Docket No. 94-3395 Janeman Roofing, PETITION FOR DISCRETIONARY REVIEW Comes now Respondent, Janeman Roofing Co. (Janeman), being aggrieved by the Decision and Order of the Administration Law Judge in the above-styled matter, and hereby submits its Petition for Discretionary Review pursuant to 29 CFR 2200.91-Rule 91, Rules of Procedure of the Occupational Safety and Health Review Commission. Statement Of Portions Of The Decision And Order To Which Exception Is Taken 1. Janeman takes exception to that portion of the Decision and Order wherein the Administrative Law Judge held Janeman in serious violation of the standard published at 29 CFR 1926.28(a) in applying the "reasonable person" test with regard to such a violation rather than in applying the "ordinary custom and practice of the industry test'' (Judge's Decision pp. 11-13). 2. Janeman takes exception to that portion of the Decision and Order wherein the Administrative Law Judge held Janeman in serious violation of the standard published at 29 CFR 1926.500(g)(1) for the reasons that: (a) The evidence does not support a conclusion that there was a violation of such standard; (b) The impracticality of the requirement of the standard in this case voids its effectiveness. (Judge's Decision at pp. 16 and 17). 3. Janeman takes exception to that portion of the Decision and Order wherein the Administrative Law Judge held that the action of the employee of Janeman who fell to his death was not unpreventable employee misconduct. (Judge's Decision at pp. 9-11). 4. Janeman takes exception to that portion of the Decision and Order wherein the Administration Law Judge held that compliance with the standard published at 29 CFR 1926.500(d)(1) did not create a greater hazard to employees than the manner in which the employees actually performed their respective job tasks (Judge's Decision at pp. 6-8). Statement Of Reasons For Which Exceptions Are Taken 1. In his Decision, the Administrative Law Judge expressly and specifically states that he will not follow the law of the Fifth Circuit Court of Appeals although the Fifth Circuit Court of Appeals is the Appellate Court with jurisdiction over the area of the project. To take such a position is to make it impossible for any employer to determine the requirements of the standard published at 29 CFR 1926.28(a) when operating within the Fifth Circuit Court of Appeals. 2. The evidence of the record supports that the job being performed by the employee who fell would have taken only 10 to 15 minutes and that while properly performing it he was in absolutely no danger of falling even though he was within 2 1/2 feet of the edge. On the contrary, however, it would have taken 3 to 4 man-hours to erect guardrails working right at the edge of the perimeter. To require guardrails to be erected in such a situation voids the effectiveness of the standard published at 29 CFR 1926.500(d)(1). 3. It is uncontroverted in the record that no one knows why the employee who fell was at the edge of the unguarded floor. There was nothing for him to do, he should not have been there, and his being there was in direct violation of Janeman's work rule prohibiting being near the edge of an unguarded floor without any work task to do. This work rule was understood by the Janeman employees and it was enforced consistently and uniformly. 4. Erecting guardrails along the perimeter of the unguarded floor would create a greater hazards to employees. Employees would have been working right at the edge of the unguarded floor in erecting and taking down guardrails for up to 7 man-hours to guard an employee performing 10 to 15 minutes worth of work 3 feet from the unguarded edge with no danger of falling. For the reasons stated herein, Janeman Roofing Co. hereby submits that the Occupational Safety and Health Review Commission should direct review of the Decision and Order of the Administrative Law Judge. Respectfully submitted, By _________________________ Appendix 4 - Direction for Review U.S. Occupational Safety and Health Review Commission Secretary of Labor, v. OSHRC Docket No. 94-3395 Janeman Roofing, DIRECTION FOR REVIEW Pursuant to 29 U.S.C. § 66(j) and 29 C.F.R. § 2200.92(a), the report of the Administration Law Judge is directed for review. Based on a preliminary examination of the record and the report, the issues to be considered are: (1) Whether the judge erred in concluding that the deceased would have been exposed to the hazard of a fall even if he had performed the work in the manner intended by Janeman. (2) Whether the judge erred in rejecting the contention that the deceased's failure to perform his work in the proper manner was shown to have been unpreventable? The parties are also requested to consider whether as opposed to a defense based on unpreventability, the Secretary as part of his case affirmatively established knowledge of the violation by Janeman. The parties' attention is directed to the judge's finding of fact no.5 regarding knowledge; the parties are requested to address the significance of this finding in terms of the question of whether Janeman knew or reasonably could have known that the deceased would come closer to the edge than the distance necessary for the performance of the work. (3) Whether the judge erred in rejecting Janeman's contentions that compliance with the requirements of section 1926.500(g)(1) in the circumstances of this case would have been impractical or unreasonable and would have exposed other employees to hazards. (4) Should section 1926.28(a) be interpreted to require the use of personal protection equipment only where the use of such equipment is customary in the employer's industry, unless the employer otherwise has actual knowledge of a need to use such equipment? (5) Assuming section 1926.28 (a) is to be interpreted in this manner, does the evidence in this case show a violation of that standard? (6) Should the citation have been vacated on the ground that Janeman as a subcontractor at the worksite neither created nor controlled the hazardous condition, was not responsible for providing guardrail protection, and took other reasonable measures to protect its employees? This briefing order to follow may designate additional issues. COMMISSIONER Dated: Appendix 5 - Notice of Withdrawal Appendix 5A. Notice of Withdrawal U.S. Occupational Safety and Health Review Commission Secretary of Labor, v. OSHRC Docket No. 94-0123 Chandler Concrete Corporation, Respondent's Withdrawal of Notice of Contest Respondent, Chandler Concrete Corporation, by the undersigned representative, hereby withdraws its Notice of Contest in the case with the docket number above, pursuant to 29 CFR 2200.102 of the Rules of Procedure for the Commission. Jane Chandler, Vice President Appendix 5B. Certificate of Service CERTIFICATE OF SERVICE I certify that a copy of Respondent's Withdrawal of Notice of Contest has been served on complainant this 30th day of March, 1994, by serving a copy by certified mail, return receipt requested to: Mr. ABC Jane Chandler, Vice President
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