UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

________________________________________
SECRETARY OF LABOR,				
		Complainant,				

				

	v.					OSHRC Docket 00-1939
							
TALON ERECTORS, INC.,				
		Respondent,				
________________________________________

                                                                                    

Appearances:



	Theresa C. Timlin, Esquire
	Office of the Solicitor
	U.S. Department of Labor
	Philadelphia, PA
		For the Complainant

	No Appearances
        	For the Respondent

BEFORE:	 MICHAEL H. SCHOENFELD
	 Administrative Law Judge

**

*DECISION AND ORDER*

/*Background and Summary of Procedural History*/

This case arises under the Occupational Safety and Health Act of 1970,
29 U.S.C. §§ 651-678 (1970) ("the Act"). Between July 5 and July 12,
2000, the Occupational Safety and Health Administration ("OSHA") visited
Respondent's work site in Breinigsville, Pennsylvania. As a result of
the inspection, OSHA issued a citation to Respondent on August 30, 2000,
alleging a violation of a construction safety standard appearing in
Title 29 of the Code of Federal Regulations ("CFR"). Respondent timely
contested the citation. A hearing was held in Washington, D.C., on
January 10, 2000.



/*Jurisdiction*/

It is alleged and undenied that at all relevant times Respondent has
been an employer engaged in construction. There is no dispute that
Respondent uses goods or materials which have moved in interstate
commerce. I find as fact that Respondent is engaged in a business
affecting interstate commerce.

Based on the above finding, I conclude that Respondent is an employer
within the meaning of section 3(5) of the Act. Accordingly, the
Occupational Safety and Health Review Commission ("the Commission") has
jurisdiction over the parties and the subject matter./**/



*/Facts/*

At the hearing in this matter the Secretary appeared through counsel.
Despite several notifications as to the date, time and place of the
hearing including two facsimile notices, one certified return-receipt
mail notice and several telephone calls to an answering machine at the
phone number on Respondent's stationery, Respondent failed to appear at
the hearing.

The Secretary, moved for a decision against Respondent affirming the
citation and the proposed penalty on the grounds that Respondent failed
to appear at the hearing. In the absence of any mitigating facts or
circumstances, Respondent's failure to appear warrants affirmation of
the citation and notification of proposed penalty as issued by the
Secretary.

Pursuant to Rule 64, 29 CFR § 2200.64^(1) <#N_1_>, the Secretary's
motion is GRANTED. Accordingly, the citation and notification of
proposed penalty are hereby affirmed.



/*FINDINGS OF FACT*/



All findings of fact necessary for a determination of all relevant
issues have been made above. Fed. R. Civ. P. 52(a). All proposed
findings of fact and conclusions of law inconsistent with this decision
are hereby denied.





/*CONCLUSIONS OF LAW*/



1. The Occupational Safety and Health Review Commission has jurisdiction
over the parties and the subject matter.



2. Respondent was in violation of the construction safety standard at 29
CFR

§ 1926.704(a) as alleged in Citation 1, Item 1, of the citation.



3. The violation is serious within the meaning of the Act.



4. A civil penalty of $2,000.00 is appropriate.





*ORDER*

**



1. Citation 1, Item 1, is AFFIRMED.

2. A civil penalty of $2,000.00 is assessed.









/s/

__

_

Michael H. Schoenfeld

Judge, OSHRC

Dated: January 22, 2001

Washington, D.C.

1. Rule 64 provides:

(a) /Attendance at hearing./ The failure of a party to appear at a
hearing may result in a decision against that party.

_