SECRETARY OF LABOR,
Complainant,

v.

MARTIN WRIGHT ELECTRIC COMPANY
Respondent.

OSHRC DOCKET NO. 84-1115

ORDER

The parties' Stipulation and Settlement Agreement as to the serious citation is approved. The administrative law Judge's decision is therefore set aside as to the serious citation alleging a violation of 29 C.F.R.§1926.500(d)(1). The settlement agreement makes no mention of the citation for an other than serious violation of 29 C.F.R. § 1926.400(h)(1). The judge's decision to vacate that citation is affirmed.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

Dated: September 15, 1986



WILLIAM E. BROCK, SECRETARY OF LABOR,
Complainant,

v.

MARTIN WRIGHT ELECTRIC CO.,
Respondent.

OSHRC DOCKET No. 84-1115

STIPULATIONS AND SETTLEMENT AGREEMENT

I

The parties have reached agreement on a full and complete settlement of the instant matter which is currently pending before the Commission.

II

The parties stipulate as follows:

(a) The Occupational Safety and Health Review Commission (hereinafter "the Commission") has jurisdiction of this matter pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. § 651 et seq.) (hereinafter "the Act").

(b) Respondent, Martin Wright Electric Co., is a corporation with its place of business located in San Antonio, Texas. It is engaged in the business its employees perform various tasks in the nature of installing electrical equipment. During the course of its business, respondent uses materials and equipment which its receives from places located outside San Antonio, Texas. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined by section 3(3) and 3(5) of the Act, and has employees as defined by section 3(6) of the Act, and is subject to the requirements of the Act.

(c) As a result of an inspection conducted on September 26, 1984, at respondent's workplace at the Carlyle condominium project, San Antonio, Texas, a citation alleging one serious violation of the standard at 29 CFR 1926.500(d)(1), with a Proposed Penalty of $250.00 and a citation alleging one non-serious violation of 29 CFR 1926.400(h)(1), with, no Proposed Penalty, was issued to respondent on October 17, 1984 pursuant to section 9(a) of the Act.

(d) Respondent submitted a notice of contest dated October 30, 1984, informing Complainant of its intention to contest the alleged violations and the Proposed Penalty. The notice of contest was received by the Austin, Texas Area Director, Occupational Safety and Health Administration, on November 1, 1984. Thereafter, the parties duly filed a complaint and an answer.

(e) On March 22, 1985, a hearing was held before Commission Administrative Law Judge Stanley M. Schwartz on respondent's notice of contest. On June 27, 1985, Judge Schwartz issued his Decision and Order in which he affirmed the serious citation alleging a violation of 29 CFR 1926.500(d)(1) and vacated the non-serious citation alleging a violation of 29 CFR 1926.400(h)(1). The Judge also assessed a penalty of $75.00. Thereafter, respondent filed a timely Petition for Discretionary Review to the Commission and on August 21, 1985, Commissioner Rader granted review of the issues raised in respondent's petition. The Commission issued a Briefing Notice on April 30, 1986. Respondent submitted its brief to the Commission on June 6, 1986.

III

Now, the Secretary of Labor and Martin Wright Electric Co., in order to conclude this matter without the necessity of further litigation, stipulate and agree as follows:

IV

Respondent hereby states that the alleged violation of 1926.500(d)(1) has been abated and that the worksite at issues is no longer in existence.

V

The Secretary hereby withdraws its Citation for alleged violation of 1926.500(d)(1), with prejudice, issued to respondent on October 17, 1984. The Secretary believes that the judge's decision was correctly decided. However, particularly in view of the fact that the worksite which was the subject of the citation is no longer active, the Secretary
has determined that further litigation of this case is not merited. Accordingly, the Secretary requests the Commission set aside the judge's decision.

VI

Respondent and Complainant agree that each party shall bear its own costs.

VII

Respondent agrees to post this Stipulation and Settlement Agreement in accordance with Commission Rule 7.

WHEREFORE, the parties request that this Stipulation and Settlement Agreement be approved by the Commission.

ORLANDO J. PANNOCHIA
Attorney for the Secretary of Labor.

PAY SARY CHURAK, ESQ. Tom Jospeh, P.C.

The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).