EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of Tri-City Reinforcing Corp. - DAR

The Division established a serious violation of section 1632(I) [floor holes to be protected by rail or cover]. On reconsideration Employer challenged the ALJ’s decision on both substantive and procedural grounds. On reconsideration of the substantive challenges the Board determined that Employer’s asserted lack of control of the work site is not a defense; Employer did not establish an independent employee action defense; Employer’s asserted provision of equivalent protection was not a defense; Employer did not present a logical time defense; Employer did not establish that it had newly discovered evidence; Employer’s hearsay objection to Division testimony is rejected; the civil penalty was properly calculated; and there was no evidence of selective enforcement by the Division against Employer. On reconsideration of the procedural grounds the Board found that the ALJ’s denial of Employer’s motion to continue was proper; Employer waived discovery remedies by failing to move to compel discovery; the Federal Freedom of Information Act (FOAI) does not apply to the Board’s proceeding; and Employer’s failure to receive corrections to the deposition of the Division’s witness did not violate Employer’s due process rights. The decision of the ALJ was affirmed in its entirety.

TRI-CITY REINFORCING CORP. 93-R5D2-3101

June 30,1999