SECRETARY OF LABOR,

Complainant,

v.

SHANK-OHBAYASHI, INC.,

Respondent.

OSHRC Docket No. 88-2674

ORDER

This matter is before the Commission on a Direction for Review entered by former Chairman Linda L. Arey on November 21, 1989. The parties have now filed an Amended Stipulation and Settlement Agreement.

Having reviewed the record, and based upon the representations appearing in the Amended Stipulation and Settlement Agreement, we conclude that this case raises no matters warranting further review by the Commission. The terms of the Amended Stipulation and Settlement Agreement do not appear to be contrary to the Occupational Safety and Health Act and are in compliance with the Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Amended Stipulation and Settlement Agreement into this order. This is the final order of the Commission in this case. See 29 U.S.C. 659(c), 660(a) and (b).

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: October 23, 1990


ELIZABETH DOLE, SECRETARY OF LABOR,

Complainant,

v.

SHANK-OHBAYASHI

Respondent.

OSHRC Docket No. 88-2674

NOTICE OF CORRECTION TO STIPULATION AND SETTLEMENT AGREEMENT

1. The parties in the above-captioned case entered into a Stipulation and Settlement Agreement which was signed by Respondent on August 28, 1990 and then signed by the Secretary on September 4, 1990. The original and four copies of the document was mailed to the Occupational Safety and Health Review Commission.

2. Paragraph 10 of the Stipulation and Settlement Agreement reads as follows:

10. This Stipulation and Settlement Agreement does not affect the judge's disposition of the following citation items:
Citation 1, Items 1(a) and 1(b); Citation 1, Item 2; Citation 1, Item 3; Citation 1, Items 4(a) and 4(b); Citation 1, Items 5(a) through 5(e); Citation 1, Item 6; Citation 2, Items 2(a) and 2(b); Citation 3, Items 1 through 4.

3. The next to the last sentence in Paragraph 10 should have read, and is hereby corrected to read:
Citation 2, Items 1(a) and 1(b).

4. Respondent has been notified of this correction and consents thereto.

ANTONY F. GIL
Attorney for the
Secretary of Labor

 

 

ELIZABETH DOLE, SECRETARY OF LABOR,

Complainant,

v.

SHANK-OHBAYASHI

Respondent.

OSHRC Docket No. 88-2674

Stipulation and Settlement Agreement

In full settlement, and disposition of the issues in this proceeding, it is hereby stipulated and agreed by and between the Complainant, Secretary of Labor, and the Respondent, Shank-Ohbayashi, that:

1. This case is before the commission upon respondent's contest of Citation 2, Items 2(a), 2(b) and 2(c) which alleged willful violations of 29 CFR 1926.800(c)(2)(vii) along with a proposed penalty of $10,000, and Citation 2, Item 3 which alleged a willful violation of 29 CFR 1926.800(k)(6) along with a proposed penalty of $10,000. The citations were affirmed by the Commission's administrative law judge, and a penalty of $7,000 was assessed for the violation of 1926.800 (c)(2)(vii) and $4,000 for the violation of 29 CFR 1926.800(k)(6). (Decision and Order, September 27, 1989.) Respondent was also cited in pertinent part, for violations of 29 U.S.C. 654(a)(1) (Citation 1, Item 7(a) and 29 CFR 1926.800(h)(2)(ii) (Citation 1, Item 8). These citations items were vacated by the administrative law judge. (Decision and Order, September 27, 1989.)

2. The Secretary hereby amends the citation to characterize the violations of 29 CFR 1926.800(c)(2)(vii) and 29 CFR 1926.800(k)(6) as violations of Section 17 of the Occupational Safety and Health Act, 29 U.S.C. 666.

3. The Secretary hereby amends the proposed penalty to a combined total of $4,400 for items 2 and 3 of Citation No. 2.

4. Respondent hereby withdraws its notice of contest to Citation 2, Items 2(a), 2(b), and 2(c) and to Citation 2, item 3, and to the notification of proposed penalty as amended above in paragraph 3.

5. The Secretary hereby amends the proposed penalty in Citation 1, Item 7(a) for violation of the general duty clause, 29 U.S.C. 654(a)(1) to $100.

6. Respondent hereby withdraws its notice of contest to Citation 1, Item 7(a) and to the notification of proposed penalty as amended in paragraph 5.

7. The Secretary hereby amends the proposed penalty in Citation 1, Item 8 for violation of 29 CFR 1926.800 (h)(2)(ii) to $100.

8. Respondent hereby withdraws its notice of contest to Citation 1, Item 8 and to the notification of proposed penalty as amended in paragraph 7.

9. Respondent agrees that the above-mentioned violations have been abated.

10. This Stipulation and Settlement Agreement does not affect the judge's disposition of the following citation items:

Citation 1, Items 1 (a) and 1 (b); Citation 1, Item 2; Citation 1, Item 3; Citation 1, Items 4 (a) and 4 (b); Citation 1, Items 5(a) through 5(e); Citation 1, Item 6; Citation 2, Items 2(a) and 2(b); Citation 3, Items 1 through 4.

Nothing set forth in this Stipulation and Settlement Agreement can be construed as an admission of willful conduct on the part of respondent for any violation for which a notice of contest has been withdrawn.

11. Respondent agrees to submit to the OSHA Area Office $4,600 in full and complete payment of the penalty within 30 days of this Agreement.

12. Respondent certifies that a copy of this Stipulation and Settlement Agreement was posted at the workplace on the 29th day of August 1990, in accordance with Rules 7 and 100 of the Commission's Rules of Procedure. There are no authorized representatives of affected employees.

13. Complainant and respondent will bear their own litigation costs and expenses.

Antony F. Gil                             Kate Raabe
Counsel for the                          Attorney for Respondent
Secretary of Labor                     (Shank-Ohbayashi)