SECRETARY OF LABOR,

Complainant,

v.

P. R. Drydock & Marine Terminals, Inc.,

Respondent.

OSHRC Docket No. 90-0194

ORDER

This matter is before the Commission on a Direction for Review entered by Commissioner Donald G. Wiseman on June 4, 1990. The parties have now filed a Stipulation and Settlement Agreement.

Having reviewed the record, and based upon the representations appearing in the Stipulation and Settlement Agreement, we conclude that this case raises no matters warranting further review by the Commission. The terms of the Stipulation and Settlement Agreement do not appear to be contrary to the Occupational Safety and Health Act and are in compliance with the Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement into this order. This is the final order of the Commission in this case. See 29 U.S.C. § 659(c), 660(a) and (b).

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: November 28, 1990

ELIZABETH DOLE, SECRETARY OF LABOR,

Complainant,

v.

P.R. DRYDOCK & MARINE

TERMINALS, INC.,

Respondent.

OSHRC Docket No. 90-0194

STIPULATION AND SETTLEMENT AGREEMENT

In full settlement and disposition of the instant matter, it is hereby stipulated and agreed by and between Complainant, the Secretary of Labor, and respondent, P.R. Drydock & Marine Terminals, Inc., as follows:

1. On March 23, 1989, respondent was issued three citations with a total proposed penalty of $4,800. Company officials first became aware that citations had been issued by virtue of a May 31, 1989 collection letter. On October 19, 1989, respondent submitted a written notice of contest. On April 12, 1990 Commission Judge Paul Tenney issued an Order granting the Secretary's Motion to Dismiss on grounds of untimely filing.

2. The Secretary hereby amends the penalties proposed in connection with Citation No. 1 for serious violations and Citation No. 2 for repeated violation as follows:

No penalties were and are proposed in connection with citation No. 3 for other than serious violations.

3. Respondent hereby withdraws its notice of contest to the citations, and to the proposed penalties as amended above.

4. Respondent states that it has abated each of the cited violations.

5. Respondent hereby consents in advance to any inspection undertaken by the Occupational Safety and Health Administration (OSHA) for the specific purpose of assuring that abatement of the cited violations has been completed.

6. Respondent agrees that within 120 days from the date of this Agreement it will evaluate its facilities, practices and operations for compliance with the Occupational Safety and Health Act and with the standards and regulations promulgated thereunder.

7. Respondent agrees to submit to the San Juan OSHA Area Office $2,400 in full and complete payment of the penalty within 30 days of the date of this Agreement.

8. Complainant and respondent will bear their own litigation costs and expenses.

9. Respondent certifies that a copy of this Stipulation and Settlement Agreement was posted at the workplace on the 1st day of November, 1990, in accordance with Rules 7 and 100 of the Commission's Rules of Procedure. In addition, a copy of this Stipulation and Settlement Agreement was served, by postage prepaid first class mail, on Mr. Guillermo Ortiz, President, International Longshoremen's Association Local 1575, P.O. Box 5042, Puerto de Tierra Station, San Juan, Puerto Rico 00906 on the 1st day of November, 1990.

Dated this 1st day of November, 1990.

P.R. Drydock & Marine                                             
Terminals, Inc.

Robert P. Davis
Solicitor of Labor

Cynthia L. Attwood
Associate Solicitor for
Occupational Safety and Health

Bertil Anderson
Superintendent

Daniel J. Mick
Counsel for Regional
Trial Litigation

SECRETARY OF LABOR

Complainant

v.

P.R. DRYDOCK & MARINE TERMINALS, INC.

Respondent

Docket No. 90-0194

ORDER

1. The Secretary of Labor has filed a Motion to Dismiss Respondent's notice of contest as untimely filed and to affirm the Secretary of Labor's citations and proposed penalties in this case. By order, the parties were advised that the motion would be determined without oral hearing and the parties were afforded an opportunity to file brief written statements of reasons in support or in opposition to the motion.

2. Three citations with total proposed penalties of $4800 were issued to the Respondent employer on March 23, 1989. The citations and notification of proposed penalties were sent to the Respondent employer by certified mail, return receipt requested. The returned certified mail receipt shows that the citations and notification of proposed penalties were addressed Mr. Ramon MacCrohon, President, P.R. Drydock & Marine, Inc. and its successors. The receipt bears the signature or mark of an agent to whom delivery was made on March 30, 1989.

3. Under section 10(a) of the Occupational Safety and Health Act, the contesting employer was allowed fifteen (15) working days after this receipt in which to file an intention to contest the Secretary of Labor's action. The fifteen (15) working-day period expired on April 20, 1989.

4. A debt collection letter was sent to the Respondent employer by certified mail, return receipt requested, on May 31, 1989. According to the postal receipt, the letter was received on June 5, 1989. A comparison of this receipt and that for the citations and notification of proposed penalty suggests that the signature or mark of the employer's agent on both specimens is the same person.

5. By a letter dated October 19, 1989, the Respondent employer mailed a contest letter to the OSHA delinquent accounts director. The letter represented that the citations initially mailed were never received and that some time was expended in searching for the mail documents. It was further represented that the employer did not obtain copies of the citations until October 11, 1989, when they were procured from the local OSHA office. This position is essentially repeated in the employer's April 5, 1990, statement filed in response to my March 30, 1990, order. There is no explanation as to why the same agent for the employer signed for both the debt collection letter and the citations, but only the debt collection letter was accounted for.

6. The Secretary of Labor correctly contends that the service of the citation by certified mail to the Respondent employer at its proper address was reasonably calculated to provide the employer with knowledge of the citation and notification of the proposed penalty. B.J. Hughes. Inc., 7 BNA OSHC 1471, 1474 (Rev. Com. 1979). Moreover, consistent with the concurring opinion in B.J. Hughes the return receipt of the mailing of the citation constitutes a prima facie showing that the employer has received the citations and notification of proposed penalty and it was properly served. The contesting employer has not rebutted this showing; there is no affidavit or other evidence that adequately supports the assertion of the employer that delivery was not achieved. Moreover, due process only requires an agency employ a procedure reasonably calculated to achieve notice; successful achievement is not necessary to satisfy a due process requirement. Katzer Brothers, Inc. v. EPA, 66 Ad. L.2d 654, 839 F.2d 1396 (10th Cir. 1988).

7. The lack of any persuasive evidence concerning the alleged loss of the mailed citations and notification of proposed penalties also supports a conclusion that the Respondent employer has shown no excusable neglect permitting relief under Rule 60(b)(1) of the Federal Rules of Civil Procedure as applied by Commission Rule 2(b). Branciforte Builders, Inc., 9 BNA OSHC 2113 (Rev. Com. 1983).

8. For the foregoing reasons the Secretary of Labor's motion to Dismiss is hereby granted.

PAUL A. TENNEY
Judge, OSHRC

DATED: MAY 02 1990
Washington, D.C.