UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 

SECRETARY OF LABOR,

Complainant,

v.

 

HENSEL PHELPS CONSTRUCTION CO.,

Respondent.

 

DOCKET NO. 15-1638

 

 

 

 

 

 

 

 

Appearances:

 

Michael D. Schoen, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas

    For Complainant

 

  Michael V. Abcarian, Fisher & Phillips, LLC, Dallas, Texas

    For Respondent

 

Before: Administrative Law Judge Brian A. Duncan

 

 

DECISION AND ORDER

  This case was remanded by the Commission and the United States Court of Appeals for the 5th Circuit. Acosta v. Hensel Phelps Construction Co., 909 F.3d 723 (5th Cir. 2018). In that decision, the 5th Circuit reversed its historical position on multi-employer liability under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., established thirty-seven years earlier in Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981). The 5th Circuit has now unequivocally held that “the Secretary of Labor has the authority under section 5(a)(2) of the Occupational Safety and Health Act, 29 U.S.C. § 654(a)(2), to issue citations to controlling employers at multi-employer worksites for violations of the Act’s standards.”

  Accordingly, for the reasons stated in my April 28, 2017 Decision and Order, Citation 1, Item 1 is AFFIRMED as an other-than-serious violation of the Act, and a penalty of $12,471 is ASSESSED.1

SO ORDERED.

          /s/ Brian A. Duncan         

Judge Brian A. Duncan

          U.S. Occupational Safety and Health Review Commission

Date:  February 20, 2019

Denver, Colorado

"

 

 

1 The parties agreed, that should Citation 1, Item 1 be affirmed in this case, it should be reclassified to an other-than-serious violation with a revised penalty amount of $12,471.00. (Stip. 127).