SECRETARY OF LABOR,

	

 

                      Complainant,

	

 

v.

	

DOCKET NO. 02-2018

MJP CONSTRUCTION CO., INC.,

	

 

                      Respondent.

	

 



APPEARANCES:

Margaret A. Temple, Esq.

Office of the Solicitor of Labor

U.S. Department of Labor

New York, New York

            For Complainant

	

Joseph P. Paranac, Jr.

St. John & Wayne, L.L.C.

Newark, New Jersey

            For Respondent


 

BEFORE:       MICHAEL H. SCHOENFELD

                        Administrative Law Judge

 

 

/DECISION AND ORDER /

 

Procedural History

            This proceeding is before the Occupational Safety and Health
Review Commission (“the Commission”) pursuant to section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 /et seq/.
(“the Act”).

            Following an OSHA inspection of a work site in Hoboken, New
Jersey, the Secretary, on or about October 21, 2002, issued to MJP
Construction Company, Inc., (“Respondent”) two citations alleging
willful and serious violations of construction safety standards
appearing in Part 1926 of Title 29 of the Code of Federal Regulations
and proposed civil penalties totaling $ 65,000.

            Issue has been joined by the filing of timely complaint and
answer. The parties entered into settlement discussions. Counsel of
record for Respondent has filed a statement that Respondent “has gone
out of business,” and that Respondent “does not intend to further defend
against the complaint.” The Secretary has filed a Motion to Dismiss
Respondent’s Notice of Contest, on the grounds that Respondent has “[i]n
essence...abandoned this case.” Respondent has abandoned its case.

 

/Jurisdiction/

 

            Complainant alleges and Respondent did not deny that in its
construction business it used tools, equipment and supplies which moved
in interstate commerce. I thus find that Respondent engaged in a
business affecting interstate commerce.

            Based on the above finding, I conclude that Respondent, at
all pertinent times, was an employer within the meaning of § 3(5) of the
Act. Footnote <javascript:WPShow('WPFootnote1',%20WPFootnote1%20)>
Accordingly, the Commission has jurisdiction over the subject matter and
the parties.

 

/Discussion/

 

            Respondent has voluntarily abandoned its case. Accordingly,
the allegations of the complaint are deemed to be admitted in their
entirety. Accordingly, all items of the citations and the penalties
proposed are affirmed.

 

/FINDINGS OF FACT/

/AND/

/CONCLUSIONS OF LAW/

 

            1. Respondent was, at all times pertinent hereto, an
employer within the meaning of section 3(5) of the Occupational Safety
and Health Act of 1970, 29 U.S.C. §§ 651-678 (1970).

            2. The Commission has jurisdiction over the parties and the
subject matter of this case.

3. Respondent was in violation of section 5(a)(2) of the Act in that it
failed to comply with the standard at 29 CFR §1926.1052(c)(1)(i) as
alleged in Citation 1, Item 1. The violation was serious within the
meaning of section 17(k) of the Act, 29 U.S.C. § 666(j), for which a
civil penalty of $2,000 is appropriate.

4. Respondent was in violation of section 5(a)(2) of the Act in that it
failed to comply with the standard at 29 CFR §1926.501(b)(1) as alleged
in Citation 2, Items 1a, 1b, 1c and 1d. The violations were willful
serious within the meaning of section 17(a) of the Act, 29 U.S.C. §
666(a), for which a total civil penalty of $63,000 is appropriate

 

ORDER

Citations 1 and 2, issued to Respondent, including the penalties
proposed therefor, on or about October 21, 2002 are AFFIRMED in their
entirety.

 

 

 

 

                                                                                    /s/

                                                                                    Michael
H. Schoenfeld

                                                                                    Judge,
OSHRC

Date: October 30, 2003

                        Washington, D.C.