United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3457
SECRETARY OF LABOR,
OSHRC Docket No. 09-1511
MARTORELL CONSTRUCTION COMPANY
and its Successors,
Christopher L. Green, Attorney; Michael Schoen, Attorney; James E. Culp, Regional Solicitor;
Joseph M. Woodward, Associate Solicitor of Labor for Occupational Safety and Health; Carol A.
De Deo, Deputy Solicitor of Labor for National Operations; U.S. Department of Labor,
For the Complainant
John C. Viggiano, Martorell Construction Company, Galveston, TX
For the Respondent
DIRECTION FOR REVIEW AND REMAND ORDER
Before: ROGERS, Chairman; THOMPSON, Commissioner; and ATTWOOD, Commissioner.
BY THE COMMISSION:
In a Decision and Order dated March 15, 2010, Administrative Law Judge Patrick B.
Augustine affirmed a serious citation issued to Martorell Construction Company (“Martorell”)
and assessed the proposed penalty of $4,500. Martorell timely contested the citation, but failed
to appear at the hearing as scheduled for February 10, 2010. At the hearing, the judge heard
evidence from the Secretary and found in his decision that she had established the alleged
violations, without receiving any evidence or argument from Martorell. Alternatively, the judge
found Martorell in default “in accordance with Commission Rule[s] 64 and 101” based on its
failure to appear at the hearing “without good cause being established[.]”
On April 6, 2010, Martorell, appearing pro se, filed a timely Petition for Discretionary
Review (“PDR”) claiming that its failure to appear at the hearing should be excused because: (1)
it never received any of the written notices of the hearing date that were sent to an address where
“[it] does not receive mail”;
and (2) it “does not remember having received verbal notice of any
trial date” nor does it “remember participating in any pre-trial conference.” For the following
reasons, we direct this case for review and remand it to the judge for further proceedings.
As an initial matter, because the remedy Martorell seeks is to excuse its failure to appear,
we construe its PDR as a request for reinstatement governed by Commission Rule 64, 29 C.F.R.
§ 2200.64, which pertains generally to the failure of a party to appear at a hearing. See New Age,
Inc., 1998 WL 863596 (No. 98-0415, 1998) (construing PDR as request for reinstatement under
Rule 64 where pro se employer failed to appear for hearing and judge affirmed citation based
solely upon Secretary’s evidence). Under Rule 64(b), “[r]equests for reinstatement must be
made, in the absence of extraordinary circumstances, within five days after the scheduled
hearing date.” See also Phila. Const. Equip. Inc., 16 BNA OSHC 1128 n. 1 (No. 92-899, 1993)
(waiving 5-day filing requirement for Rule 64(b) request for reinstatement pursuant to procedure
set forth under Commission Rule 107). In addition, even if a request is timely, a party still must
establish good cause for its failure to appear as set forth under Rule 64(c) (“The Commission or
the Judge, upon a showing of good cause, may excuse such failure to appear.”).
Here, Martorell did not request reinstatement “within five days after the scheduled
hearing date.” Commission Rule 64(b), § 2200.64(b). Thus, on remand, the judge should
provide Martorell with an opportunity to address its failure to timely request reinstatement and,
if appropriate, also provide Martorell with an opportunity to establish good cause for its failure
to appear at the hearing. See New Age, Inc., 1998 WL 863596 (remanding case to judge to
determine whether pro se employer is entitled to a new hearing under Rule 64); Phila. Const.
Equip. Inc., 16 BNA OSHC at 1129 (same); Commission Rule 107, 29 C.F.R. § 2200.107 (“In
special circumstances not contemplated by the provisions of these rules and for good cause
shown, the Commission or Judge may, upon application by any party or intervenor or on their
own motion, after 3 working days notice to all parties and intervenors, waive any rule or make
such orders as justice or the administration of the Act requires.”).
In addressing these issues, the judge should clarify an inconsistency that appears in the
record. In the Complainant’s Stipulation Statement dated January 29, 2010, the Secretary states
that “[r]espondent’s lack of participation is further evidenced by its failure to appear for either of
the Pretrial Telephone Conferences held on December 1, 2009 and January 28, 2010.”
(Emphasis added.) Yet, in his decision, the judge states that “on December 1, 2009, the date of
the [first] pretrial conference . . . . both parties were present.” (Emphasis added.) Moreover, the
judge noted that during the December 1 pretrial conference, (1) “this case was set for trial with
the agreement of the parties for February 10, 2010 with the trial to be held in Houston, Texas”;
and (2) Martorell, when asked, verified its address as the one currently on record.
Accordingly, we direct this case for review and remand the case to the judge for further
proceedings consistent with this opinion.
Thomasina V. Rogers
Horace A. Thompson III
Cynthia L. Attwood
Dated: 4/16/2010 Commissioner
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
DENVER REGIONAL OFFICE
SECRETARY OF LABOR,
v. OSHRC DOCKET
MARTORELL CONSTRUCTION COMPANY, and its
successors, Respondent. §
DECISION AND ORDER
Mr. Christopher L. Green
U.S. DEPARTMENT OF LABOR
OFFICE OF THE SOLICITOR
525 Griffin Street
Dallas, Texas 75202
Office: (972) 850-3119
Fax: (972) 850-3101
No appearance at trial for Respondent
Administrative Law Judge, Patrick B. Augustine
I'll ask the court reporter to reflect my decision and order that I
will dictate onto the record, and my dictation onto the record will constitute the
official findings of the court relating to this case.
The record will reflect that Christopher Green is present on behalf
of the Secretary of Labor. The record will also reflect that Mr. Viggiano, on behalf of
the Respondent, is not present, nor is there any authorized representative of the
Respondent present. It is 24 minutes after nine o'clock Central Standard Time in
Number 1, jurisdiction of this action is conferred upon the
Occupational Safety and Health Review Commission pursuant to Section 10(c) of the
Occupational Safety Act of 1970, 29 U.S.C. 51 et seq., hereinafter, referred to as "the
Number 2, the Court finds that the Respondent is an employer
engaged in the business affecting interstate commerce within the meaning of Section
3(5) of the Act, specifically engaging in residential construction. The residential
construction standards, as cited, will be applicable to this case.
Number 3, the Occupational Safety and Health Administration,
hereinafter, referred to as "OSHA," conducted an inspection of the Respondent's work
or job site on August 12, 2009.
Number 4, as the result of the inspection, OSHA issued a citation and
notification of penalty on August 13, 2009, to the Respondent alleging the violation of
Section 1926.20(b)(2), Section 1926.501(b)(13), and 1926.1053(b)(1) with a proposed
cumulative penalty of $4,500.
Number 5, the Respondent, in a communication dated September
2, 2009, contested the citations and the penalties.
Number 6, the citation and notification of penalty was sent to the
following address: P.O. Box 239, 1718 35th Street,
Galveston, Texas 77550. The Respondent received the notice of citation and notification
of penalty at that address in light of the fact that the Respondent contested the citation and
notification of penalty.
Number 7, in the Respondent's notice of contest, it is noted that the
street address used by the Respondent is 2517 Winnie, Galveston, Texas 77550. All
future correspondence by this Court was sent to that address. Pursuant to the offer of proof
of the Secretary of Labor's
attorney, all correspondence sent by the Solicitor's office was also sent to that address.
Number 8, this case was assigned to OSHRC Judge, Patrick B.
Augustine, on October 15, 2009.
Number 9, all notices and orders sent by OSHRC -- by the OSHRC
judge were sent to the same address noted in the return of contest, which is the Winnie
Street address, and it is further noted that none of the notices or orders have been
returned undeliverable by the United States Postal Service.
Pursuant to the offer of proof of the Secretary of Labor's attorney,
they also testified that all correspondence and communication sent from the Solicitor's
office to the Respondent at that address was also not returned undeliverable by the
United States Postal Service to the Solicitor's office.
Number 10, on October 26, 2009, the Court issued a pretrial
conference call order indicating that a pretrial conference was set for December 1,
Number 11, on December 1, 2009, the date of the pretrial
conference, Michael Schoen, representing the Secretary of Labor and
Mr. Viggiano connected into the conference phone call. So both parties were present.
Number 12, during the conference call, this case was set for trial with
the agreement of the parties for February 10, 2010, with the trial to be held in Houston,
Texas. Thus, the Respondent obtained notice and actively participated in this pretrial
conference call. During the pretrial conference call, the judge asked the Respondent to
verify his address, and the Respondent did not indicate that there was a different address
on file except the Winnie Street address. Also pursuant to the offer of proof of Mr. Green
today of the Solicitor's office, on behalf of the Secretary of Labor, he indicated that he
advised Mr. Viggiano of the date and time of the hearing to be held in Houston, Texas.
Number 13, pursuant to the pretrial conference call, the
Respondent had verbal notice of the time and place of the trial. He also had verbal
notice of the time and place of the trial pursuant to his telephone conversation with
Mr. Green as set forth in Mr. Green's offer of proof to the Court.
Number 14, this Court sent a notice to of trial to the parties on
December 2, 2009, and a notice of place of trial to the parties on February 2, 2010.
Neither the notice of trial nor the notice of location of the trial was returned undeliverable
by the United States Postal Service to the Judge.
Number 15, on January 15, 2010, the Court scheduled a final pretrial
conference on this case prior to it going to trial. A notice of the pretrial conference was
sent to the parties on January 15, 2010, and the notice to the Respondent was not returned
Number 17 [sic], the Respondent failed to participate in the final
pretrial conference call. Madeleine Li from the Solicitor's office attended via
telephonically in that pretrial conference call and indicated that all attempts to contact Mr.
Viggiano, either by phone or by mail, were to no avail.
Number 17, the Court is now in session on February 10, 2010,
Houston, Texas, pursuant to the notice of trial and the notice of trial location.
Number 18, to establish a prima facie violation of the Act, the
Secretary must prove, 1, the standard applies to the cited condition; 2, the terms of the
standard were violated; 3, one or more of the employer's employees had access to the cited
condition; and 4, the employer knew or with the exercise of reasonable diligence could
have known of the violent conditions. Ormet, O-r-m-e-t, Corporation 13 BNA OHSC
2134, 1991 CCH OSHD Page 29,254 (No. 85-0531, 1991).
In regards to Citation 1, Item 1, the Secretary has charged that the
employer did not maintain an inspection program conducted by competent persons that
examined job sites, materials, and equipment on a frequent and regular basis.
Specifically, the regulation states that such programs shall provide for frequent and
regular inspections of the job sites, materials, and equipment to be made by competent
persons designated by the employers.
There is testimony that Mr. Hernandez was the foreman on this
project. The testimony of the compliance officer also indicates that the employees were
exposed to fall hazards of greater than 30 feet. He also testified that the ladders did not
extend more than 3 feet above the landing.
The compliance officer also indicated
in his communications with Mr. Hernandez that he conducted no safety inspections of
the work site on a daily basis, nor was he aware of the requirement to do so. The
compliance officer also testified that there was no evidence of a safety and health
policy. His attempts to secure a copy of the safety and health policy was unsuccessful
and has not been produced by either Mr. Hernandez or Mr. Viggiano.
In communications, the compliance officer indicates that the
extent of the safety program was that they talked to the guys as to the requirements,
but there was no written documentation as to a formal health and safety plan produced
by Mr. Viggiano.
The evidence indicates that there was six employees on site that
day. At various times, four or more were exposed to the cited conditions.
Therefore, as to Citation 1, Item 1, the Secretary's undisputed
evidence established all of the elements necessary for a prima facie violation of 29 C.F.R.
1926.20(b)(2). The activity engaged in could undoubtedly result in serious injury or
In relation to Citation 1, Item 2, the Secretary alleges that each
employee engaged in residential construction activities 6 feet or more above lower levels
was not protected by guardrail systems, a safety net system, or personal fall protection
Specifically, Section 1926.501(b)(13) defines residential
construction, which is applicable in this case as requiring each employee engaged in
residential construction activity as 6 feet or more above lower levels shall be protected
by guardrails, a safety net system, or a personal fall arrest system unless another
provision in paragraph (b) of this section provides for an alternative fall protection
Exception is noted when the employer can demonstrate that it is
infeasible or creates a greater hazard to use those systems. The employer shall develop
and implement a fall protection system which meets the requirements of paragraph "k" of
section 1926.502. The regulation also notes that there is presumption that it is feasible
and will not create a greater hazard to implement at least one of the above listed fall
Accordingly, the employer has the burden of establishing that it is
appropriate to implement a fall protection plan which complies with section
1926.502(k) for a particular workplace situation in lieu of implementing any of those
systems. The evidence indicates that residential construction activities were being
performed at heights greater than 6 feet. The compliance officer set forth the
measurements and how he obtained those measurements in the record upon which the
administrative law judge will give great weight to.
He also indicated that -- Mr. Donnelly indicated that four employees
were working on the roof at the time of the inspection. He also noted in his conversations
with Mr. Hernandez that the equipment necessary to provide fall protection was not on the
premises but was at a different location on the day of the inspection.
The Respondent has not claimed infeasibility or provided proof or
documentation that an alternative personal fall protective system was in place.
Therefore, the Secretary's undisputed evidence established all the elements necessary
for a prima facie violation of 29 C.F.R. 1926.501(b)(13).
In regards to Citation 1, Item 3, the Secretary alleges a violation
of that -- of Section 29 C.F.R. 1926.1053(b)(1) by indicating that portable ladders
were not used for access to an upper landing surface and the ladder side rails did not
extend at least 3 feet above the upper landing surface to which the ladder was used to
Specifically, that regulation requires when portable ladders are used
for access to an upper landing surface, the ladder side rails shall extend at least 3 feet
above the upper landing surface to which the ladder is used to gain access. Or, when such
an extension is not possible because of a ladder's length, then the ladder shall be secured
at its top to a rigid support that will not deflect in a grasping device, such as a grab rail,
shall be provided to and assist employees in mounting and dismounting the ladder. In no
case shall the extension be such that the ladder deflection under a load would, by itself,
cause the ladder to slip off of its support.
The testimony indicated that the compliance officer observed and
assessed that portable ladders were being used for access to the upper landing surface.
One of the exhibits of the Secretary indicates that an employee was actually climbing
either up or down the ladder on the day of the inspection.
Also, the compliance officer testified that the ladder side rails did not
extend at least 3 feet above the upper landing. He indicated, based upon his visual
inspection and also Exhibit C-1 and C-2, that the ladder did not extend at least 3 feet
simply because each rung on the ladder is approximately 14 inches and there is no
documentation in the record which indicates that at least two steps are visible in the
photographs which would indicate that the ladder was in excess of 3 feet above the upper
Also, it was observed that there were two employees on the roof
so, therefore, they would have used the ladder to gain access to and also to get down
from the roof.
So, therefore, the Secretary's undisputed evidence established all of
the elements necessary for a prima facie violation of 29 C.F.R. Section 1926.105(b)(1).
The activity engaged in could undoubtedly result in serious injury or
As alternative findings, the Court will find, A, pursuant to
Commission Rule 64, the failure of the party to appear at the hearing may result in a
decision -- in a decision against the party at the hearing;
B, the Court finds that the respondent had notice of the time, date,
and place of the hearing both from written orders and notices issued which had not
been returned as undeliverable by the Postal Service and from the Respondent's
participation in the pretrial conference in which the trial was set and, also, based upon
a conversation that he had with Mr. Green approximately one week before the trial; C,
attempts by the Secretary of Labor as set forth in these proceedings indicate that the
Respondent has not returned phone calls or responded to communications from the
Secretary of Labor. There is no indication that the Respondent has not received the
notices and orders of this Court or the written communications from the Secretary of
Labor as such no -- as no such orders, notices, or communications have been returned
And, D, the Respondent has failed to appear and to proceed
pursuant to an order of the Court without good cause being established. The Court
deems that the Respondent has abandoned its position and is therefore in default;
E, Therefore, in accordance with Commission Rule 64 and 101, the
Court finds the Respondent's failure to appear at the hearing justifies vacating the
Respondent's notice of contest and affirming the proposed citations as issued.
Philadelphia Construction Equipment, Inc., 16 BNA OSHC 1128, 1993 CCH OSHD
Page 30,051 (No. 92-0899, 1993). The Respondent is therefore declared in default.
Therefore, the notice of contest is dismissed and the following
citations are affirmed. Section 17(j) of the Act requires the Commission to give due
consideration to four criteria when assessing penalties: 1, the size of the employer's
business; 2, the gravity of the violation; 3, the good faith of the employer; and 4, the
employer's prior history of violations. 29 USC 666(j) gravity is the primary
consideration and is determined by the number of employees exposed, the duration of
the exposure, the precautions taken against injury, and the likelihood of an actual
injury. J.A. Jones Construction Co., 15 BNA OSHC 2201, 1993 CCH OSHD Page
29,964 (No. 87-2059, 1993). Based upon the Secretary's undisputed evidence, the
Court finds the proposed penalties for each violation are appropriate.
Based upon the above findings of fact and conclusions of law, it is
ordered that Citation 1, Item 1, is affirmed and a penalty of $1,500 is assessed.
Citation 1, Item 2, is affirmed and a penalty of $1,500 is assessed. Citation 1, Item 3,
is affirmed and a penalty of $1,500 is assessed.
The time is now 9:46 a.m. and the Respondent has not appeared at
any time during these proceedings. The Court directs that the foregoing constitutes its
findings of fact and conclusions of law and its decision and order in this case. The
Court directs the court reporter to submit an official certified transcript of this
proceeding, which will serve as the decision and order of the Judge pursuant to
Commission Rules 90(a) and Sections 209(f). It is so ordered. The Court is
Date HONORABLE PATRICK B. AUGUSTINE