You fail to reach an informal settlement agreement with the area director. You f

Question

You fail to reach an informal settlement agreement with the area director. You file a Notice to Contest within the required 15- day period. Your case is assigned to an administrative law judge (ALJ). Prepare a document summarizing the case you will submit to the ALJ. The document should, at a minimum, discuss the following issues: which citations and penalties you would contest, the reasoning behind each contested citation and/or penalty, documents you would bring to the hearing, individuals you would use at the hearing, BOS 3525, Legal Aspects of Safety and Health 3 how the case before the ALJ differs from the informal conference, what information will be presented before the ALJ that was not presented in the informal conference, and what information you would request from OSHA as part of discovery. You must support your actions with reliable sources. Your grade will be based on your ability to present a case to your professor, serving as the ALJ, to reduce or vacate either the severity of some citations or the amount of some penalties. If you simply state that you accept the citations and penalties as written, you will receive a minimal score on the assignment. Your response must be a minimum of two pages in length, using at least one reference. All sources must be cited in the text and on the reference page, using APA style. Information about accessing the grading rubric for this assignment is provided below.

Explanation / Answer

Defence against violations

Citation 1A; whereby welders were exposed to lead levels beyond the permittable levels
PENALTY; $7000
DEFENSE
Welding activities were designated to an independent contractor hence Acme Widget Factory was not liable. The contractor was paid in lumpsum and designated the responsibility of welding and hence was liable since the firm had no supervisory authority. The contractor set his own hours, brought his own tools and equipment, there was no continuous relationship between H& M welders and the company and it can be proven that H& M welders was also working for another company at the time and it was also responsible for paying the employees

DOCUMENTS TO BE PRESENTED IN EVIDENCE
1. An invoice indicating transfer of $ 25000 to H&M welders to procure their welding services for duration of 3 weeks. This will clearly aid in my defence that H&M was an independent contractor and should be held liable for any damages incurred.

2. A copy of the contract between Acme Widget Factory and H&M welders as further proof of H$M being an independent contractor.

WITNESSES
1. Manager of H&M welders to testify on the formulation of the contract and prove it was lawful, there was no coercion, and both parties were willing to enter into the contract
2.Foreman of the project to testify that the equipment belonged to H& M welders and not to Acme Widget Factory hence prove, they were independent contractors. The foreman was also responsible for paying the labourer.
3. A labourer to support the testimony of the manager and the foreman
4. Manager of Acme Widget Factory would also testify to the legality of the contractor
5. One or both of the affected parties affected by lead poisoning to testify to the circumstances under which the poisoning occurred hence free the firm from any liability

HOW THE CASE DIFFERS FROM THE INFORMAL SETTLEMENT
we argued our case at an informal settlement but we did not have enough time to gather our evidence hence the arbitrator proposed the case to go to court. Hence now we have our case together and we can prove the firm is not liable.

DISCOVERY FROM OSHA
Our defence team requires documents indicating the method used for lead testing, the labs which were used and the team which was responsible for the tests to check the reliability of the results.

CITATION 1 ITEM B; Where employees were exposed to lead fumes
PENALTY;$4900
DEFENCE;AN EARTHQUAKE HAD DISTURBED OPERATION OF OUR VENTILATION SYSTEM
An earthquake recently hit the Denver area, it was not severe but was enough to destroy the ventilation system in our buildings as testified to by geologist professor Adam Mathews. The firm was at the time of exposure not aware of this damage and only came to learn of it after the inspection. It should be noted that the firm has never been involved in this kind of negligence previously and it is dedicated to treating its employees with the utmost regard. Hence the firm should not be punished for an act which was beyond its control and also an isolated event.The firm has already started the process of correcting the problem with the engineering controls and is switching to an upgraded system which can absorb shocks

DOCUMENTS TO BE PRESENTED IN DEFENCE
1. Copies of previous year’s certification where the firm has passed the safety standards inspection by the department of labour to show that this is an isolated incidence.
2. An affidavit signed by Professor Adam Mathews to accompany his statement testifying to the damage possible from an earthquake.
3. Invoices to show the firm had procured the necessary equipment before the earthquake.
4. Invoices to show the firm acquired an updated system after occurrence of the earthquake.

WITNESSES
1. Professor Adam Mathews will testify on how earthquakes can affect the ventilation systems of buildings. He is a recognized academic from the University of Colombia. His research is well respected.
2. The affected employee to testify on how the exposure occurred and the general treatment in the firm.
3. The firm’s engineer to testify on our safety standards.

HOW THE CASE DIFFERS FROM THE INFORMAL CONFERENCE
the foundation of our case was on the testimony of Professor Adam Mathews who was unable to attend the meetings since he has a busy schedule. Therefore there was no real evidence to back up our claims hence we were unable to reach an agreement, but for the trial the professor will avail himself hence prove the innocence of the firm on the negligence charge.

DISCOVERY REQUIRED FROM OSHA
The firm’s defence team requires the following;
1. The list of witnesses for the case
2. Individuals involved in the investigation and testing to check their reliability

CITATION I ITEM 2; where employees were not given respirators
PENALTY; $4900
DEFENSE; Voluntary assumption of risk on part of the employee

As far as the firm was concerned workers were assumed to have been using the masks since they had procured them and they were in stock. Hence if the workers were exposed to risk they were responsible since the firm required them to use the masks during operation

DOCUMENTS TO BE PRESENTED
1. Invoices to show procurement of respiratory masks
2. Copy of memo stating that the firm requires wearing masks during operation of activities.
3. Copies of signed contracts by employees indicating clauses where employees are supposed to adhere to the regulations of the firm if they do not they liable for any damage to themselves or to property

WITNESSES
1. Employees who were not wearing masks, to enquire whether they were aware of the firms policy on the issue.
2. Other employees who adhered to policy to show the other employees were being rebellious hence the firm was not liable.
3. The firm’s human resource manager to testify on the conduct of the affected employee and testify on the expected conduct of the employees.
HOW CASE DIFFERS FROM INFORMAL CONFERENCE

During the informal conference the arbitrator refused to accept the notion that the employees were responsible for the violation of the conduct claiming that the our defence was weak but we have solidified our case and can prove the assumption of risk was voluntary on the part of the employees

DISCOVERY FROM OSHA
1. List of witnesses
2. Individuals involved in the investigation to test their reliability
3. Circumstances under which the breach occurred.

CITATION 1 ITEM 3; Failure to provide medical evaluation
PENALTY; $3500
DEFENSE; LACK OF HONESTY IN JOB APPLICATION

During the job application the firm required applicants to have basic knowledge of some basic equipment including a respirator since the firm did not intend to carry out any medical evaluation. The firm also require the employees to have job experience of 3 years further indicating they had the basic knowledge to use the necessary tools and equipment for the job. All the 3 employees claimed to have met these qualifications but the firm has come to learn that they lied on their application and that the 3 of them only graduated high school recently and were in cohorts to get jobs in the firm. The first background checked out and they were all passed, they all claimed to be 25 and college graduates and they had references that helped sell the lie who in real sense are their family members, specifically uncles to the employees. Hence the firm was duped by the 3 young men and the firm had no intention to hire inexperienced workers. Hence the firm was not liable as it acted on good faith.
DOCUMENTS TO BE PRESENTED AS EVIDENCE
1.Copies of the job applications of the 3 applicants to prove the defence’s claim to be true
2.Signed affidavits by the 3 family members who acted as references to 3 young men who were questioned by our investigators and admitted to have only intended to help them procure jobs.

3. Copy of the advertisement that was posted and the qualifications indicated.

WITNESSES
1. The 3 employees to testify on their real age, their intentions in the firm and their work experience
2. The human resource manager to testify on the job recruitment process of the firm and show the firm’s vigilance.

3. The 3 referees who wrote recommendations to support the lies of the 3 employees

HOW THE CASE DIFFERS FROM THE INFORMAL CONFERENCE
At the time of the informal conference the firm’s investigators had not learnt the truth about the lies of the 3 employees hence they could not have presented the case before the arbitrator. Soon as the firm learnt of this gross misconduct we filed the case and increased vigilance in our recruitment process

DISCOVERY FROM OSHA
1. List of witnesses to help the firm prepare the cross examination
2. Individuals involved in the investigation to test their reliability

Alexander,D.B & Hartman L. (1995) Employment laws for business, McGraw hill
Stokes M.(1995) Labour law in contractor's language, McGraw hill.

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