Vacate

RF-2024-EG419-0033-ADOSH · Arizona Division of Occupational Safety and Health · 2025-03-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

DIVISION OF OCCUPATIONAL SAFETY AND HEALTH OF THE INDUSTRIAL COMMISSION OF ARIZONA,

Complainant,

FLYNN BEC LP,

Respondent.

No. RF-2024-EG419-0033-ADOSH

FINDINGS AND ORDER APPROVING SETTLEMENT AGREEMENT

Honorable Tammy Eigenheer

On December 7, 2023, the Arizona Division of Occupational Safety and Health ("ADOSH" or "Division") conducted an inspection of FLYNN BEC LP ("Respondent" or "Flynn") located at 3062 North Maple Street, Mesa, Arizona 85215 (the "Worksite"). The Division assigned Inspection Number RF-2024-EG419-0033 to this inspection. On June 7, 2024, the Division issued a Citations and Notification of Penalty with two Items under Citation 1 (Items 1a and 1b), and one Item under Citation 2 (Item 1).

Citation 1 Items 1a and 1b were classified as "Serious" with assessed penalties totaling $15,625.00. Citation 2 Item 1 was classified as "Non Serious" with an assessed penalty of $0.00.

Specifically, Citation 1 Item la alleged a "Serious" violation of A.R.S. 23-403.A: "Two employees were required to use a Schechtl Edling press, model #2002, and serial #3557, to fold and crimp sheet metal without being provided machine operator training"; and "Two employees were required to use a Cidan Machinery press, model #K15-30 and serial #50495-10, to fold and crimp sheet metal without being provided machine operator training." Citation 1 Item 1a assessed a penalty of $15,625.00.

Citation 1 Item 1b alleged a "Serious" violation of 29 C.F.R. 1910.212(a)(3)(ii): "Two employees were required to use a Schechtl Edling press, model #2002, and serial #3557, to fold and crimp sheet metal without a point of operation guard in place"; and "Two employees were required to use a Cidan Machinery press, model #Kl5-30 and serial #50495-10, to fold and crimp sheet metal without a point of operation guard in place." Citation 1 Item 1b assessed a penalty of $0.00.

Citation 2 Item 1 alleged a "Non Serious" violation of29 C.F.R. 1910.157(c)(1): "In front of Sunderhaus office: A portable Amerex fire extinguisher, model and serial numbers unknown, was not mounted to be made readily available for employee use." Citation 2 Item 1 assessed a penalty of $0.00.

WHEREAS, Respondent filed a timely notice of contest with respect to the above mentioned Citations and Notification of Penalty, and the Division and Respondent (collectively, "Parties") now desire to settle this matter without the necessity and uncertainty of a formal hearing. The Parties agree that it is in their respective best interests to settle this matter without going through the procedures, time, and expense associated with litigating this matter.

The undersigned, having fully considered the file, records, and all other relevant matters, now enters Findings and Conclusions as follows:

FINDINGS AND CONCLUSIONS

The Parties have filed a Settlement Agreement ("Agreement") resolving all issues and disputes involved in this matter. The Agreement is fully incorporated by reference and made a part of this document.

The Agreement is in furtherance of the purpose of industrial safety and is consistent with the provisions and objectives of the Arizona Occupational Safety and Health Act of 1972 and represents a full and final determination of this matter, eliminating any need for and constituting a waiver of the right to hearing or any alternate determination on the merits of the citations, classifications, and stated penalties, and is hereby approved.

ORDER

IT IS ORDERED that the Division will delete Citation 1 Item la, and delete the penalty in the amount of $15,625.00.

IT IS FURTHER ORDERED that the Division will delete Citation 1 Item 1b, and delete the penalty in the amount of $0.00.

IT IS FURTHER ORDERED that the Division will delete Citation 2 Item 1, and delete the penalty in the amount of $0.00.

IT IS FURTHER ORDERED that a consultant(s) from ADOSH's Consultation Team will visit the Worksite a total of two times by December 31, 2025, to evaluate, at no cost to Respondent, work practices and potential hazards (the "consultation visits"). Each consultation visit will be scheduled at a time mutually agreed upon by the Parties, and the selected date and start time for each visit will be confirmed in an email from ADOSH to Respondent's Branch Manager or Branch Health and Safety Specialist, whose names and email addresses are listed in the Agreement.

IT IS FURTHER ORDERED that the results of any consultation visit, and any condition observed or noted in connection with any consultation visit, will remain confidential and cannot form the basis of any citation, penalty, or enforcement proceeding against Respondent.

IT IS FURTHER ORDERED that Respondent's request in the Agreement to withdraw its Notice of Contest and Request for Hearing with regard to Inspection No. RF-2024- EG419-0033 is granted.

IT IS FURTHER ORDERED that each party is to bear its own attorney's fees and costs.

IT IS FURTHER ORDERED that this matter is vacated from the docket of the Office of Administrative Hearings and the matter is referred back to the Arizona Division of Occupational Safety and Health of the Industrial Commission of Arizona.

NOTICE

Any party dissatisfied with this Decision may request review by the Occupational Safety and Health Review Board by filing a written request with the Administrative Law Judge Division of the Industrial Commission within fifteen (15) days after the mailing of the Decision as provided by Arizona Revised Statutes§§ 23-42l(C) and 23-423(A) and (B). If no such request is made within the time provided, the Decision becomes final.

OFFICE OF ADMINISTRATIVE HEARINGS

By: Hon. Tammy L. Eigenheer

Administrative Law Judge

DATED AND MAILED IN PHOENIX, ARIZONA, THIS 5th DAY OF MARCH, 2025.

BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS

CERTIFICATE OF SERVICE

The attached FINDINGS AND ORDER APPROVING SETTLEMENT AGREEMENT was placed in, and is now a part of, the Office of Administrative Hearings file and was served on the parties named below via mail and/or email on March 5, 2025.

Brian Hudson, Director

Division of Occupational Safety and Health Industrial Commission of Arizona

[email redacted]

Complainant

Christina Lopez, Esq.

Industrial Commission of Arizona

[email redacted]

Attorney for the Industrial Commission of Arizona

Mitchell J. Anderson, Esq. Travis W. Vance, Esq.

Fisher & Phillips L.L.P.

[email redacted]

Attorneys for Respondent

By: OAH Staff