SECRETARY OF LABOR
Complainant.
v.
QUINN MACHINE AND TOOL INC.,
Respondent.
Docket No. 91-1786

ORDER

This matter is before the Commission on a Direction for Review entered by Chairman Edwin G. Foulke, Jr. on January 21, 1992. 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

Donald G.Wiseman

Commissioner

Velma Montoya

Commissioner

Dated March 18, 1992



UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
LYNN MARTIN,

SECRETARY OF LABOR,UNITED STATES DEPARTMENT OF LABOR
Complainant, V.
QUINN MACHINE & TOOL, INC., and its successors, Respondent.

OSHRC DOCKET No. 91-1786 INSPECTION No. 113343875 REGION III

STIPULATION OF SETTLEMENT

The parties hereto, in order to resolve this case amicably without the necessity of further litigation, hereby agree and stipulate as follows:
1. On June 4, 1991 a citation and notification of penalty was issued to Quinn Machine & Tool, Inc. (Respondent). Respondent filed a notice of contest. The parties then entered into negotiations in order to resolve the case.


2. On September 27, 1991, Judge Michael H. Schoenfeld issued a Notice and Order requiring, inter alia; that the fully executed Stipulation of Settlement be filed on or before October 25, 1991.


3. In discussions between the parties, prior to October 25, 1991, Complainant was advised that an executed Stipulation of Settlement had been mailed by Respondent to Complainant for final signature and filing with the Administrative Law Judge.


4. on October 25, 1991, when the executed Stipulation of settlement had not been received by Complainant, a conference call was placed by the parties to the Office of Administrative Law Judges to explain the status of the settlement. In the absence of the Judge, the parties spoke to a member of the support staff. A letter summarizing the substance of the conference call together with an unsigned copy of the Stipulation of Settlement was mailed to the Administrative Law Judge, requesting an additional extension of time.


5. On November 25, 1991 the Administrative Law Judge issued an Order Vacating the Citation and Notification of Proposed Penalty.

6. Complainant filed a motion for reconsideration which was denied by order dated December 4, 1991.

7. Complainant filed a petition for discretionary review with the Occupational Safety and Health Review Commission ("Commission"). Review was granted by Order dated January 21, 1992.


8. At all times relevant, the parties had agreed upon the terms of a settlement which would resolve this matter. As the parties are in agreement with respect to the terms of settlement, justice would best be served by acceptance of the filing of the fully executed stipulation of Settlement and Proposed Final Order.


9. The Complainant, by her attorneys, hereby moves to amend the Notice of Failure to Abate Alleged Violation and proposed Additional Penalty (hereafter FTA) and Citation and Notification of Penalty issued on June 4, 1991 as follows:

a. FTA Notification

i. Item Nos. 1-1a and 1-1b:
The proposed additional penalty is reduced from $1,800.00 to $720.00
ii. FTA Item Nos. 1-3a and 1-3c:
The proposed additional penalty is reduced from $1,200.00 to $480.00


b. Serious Citation No. 2, Item 1:
The proposed penalty is reduced from $600.00 to $240.00.


As grounds therefor, Complainant avers that upon review of the facts underlying the alleged violations, the proposed amendments are justified and appropriate.


10. Respondent hereby moves the Commission for an Order allowing it to withdraw its Notice of Contest to the Notice of Failure to Abate Alleged Violations and Proposed Additional Penalty and to the Citation and Notification of Proposed Penalty as amended herein, and in support of said motion represents as follows:
a. that the violations alleged have been abated.
b. Respondent agrees to comply with the applicable provisions of the Occupational Safety and Health Act of 1970 and the regulations duly promulgated pursuant thereto.
c. The penalties amended herein ($720.00, $480.00 and $240.00) total $1,440.00. In addition, a penalty of $480.00 resulting from the original inspection (which was not contested) number 113336614, remains unpaid. The total sum of penalties due to be paid by Respondent is thus $1,920.00. Respondent will pay this total penalty amount by making four payments of $480.00 each. Each payment shall be made by a certified check made payable to OSHA-LABOR and forwarded to the Erie Area Office of OSHA, Suite B-12, 3939 West Ridge Road, Erie, Pennsylvania 16506. The first payment shall be made within 30 days of the date this settlement has become a final Order of the Commission. Each of the remaining payments must be made monthly thereafter. Accordingly, the final payment of $480.00 must be made within four (4) months of the date of a final Order herein.
d. that complete abatement of the conditions noted in the Citations as amended has been accomplished.
e. that Respondent has posted its Notice of Content.
f. that a copy of this Stipulation of Settlement has been posted in accordance with the requirements of 29 C.F.R. 2200.100(c) and 29 C.F.R. 2200.7 so as to provide notice to all affected employees at No Longer In Business __ on Jan  28 1992.
g. that Respondent agrees to continue to comply with the applicable provisions of the Act, and the applicable health and safety standards promulgated pursuant to the Act.


11. The Notification of Failure to Abate Alleged Violation, Citation and Notification of Proposed Penalty, as amended by this Stipulation, shall become final orders of the Commission.


12. Each party hereby agrees to bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding.


QUINN MACHINE & TOOL, INC.
Marshall J. Breger Solicitor of Labor


N.R. Barthelmes Vice President


Marshall H. Harris
Regional Solicitor


Howard K. Agran Attorney

U.S. DEPARTMENT OF LABOR Attorneys for Complainant.

SECRETARY OF LABOR.

Complainant.
V.
QUINN MACHINE AND TOOL, INC.,

Respondent.

Docket No. 91-1786

ORDER

VACATING CITATION AND NOTIFICATION OF PROPOSED PENALTY


Respondent's notice of contest dated June 28, 1991, was docketed by the Commission on July 31, 1991. Complainant's motion to extend the time to September 25, 1991, within which to file a complaint was granted on September 20, 1991. Included in the Order granting Complainant's motion was the admonition "No further extensions will be granted." (Boldface in original, footnote omitted.)


By correspondence dated September 19, 1991, the Secretary indicated that a settlement between the parties had been agreed upon and that a Stipulation of Settlement had been drawn up for signature. In response to receipt of that correspondence, on September 27, 1991, an order was issued acknowledging receipt by the Commission of the letter and directing that either the settlement or complainant's complaint be filed no later than October 25, 1991. Again, the admonition "No further extensions will be granted" was included. (Boldface in original.) In a conference call on October 25, 1991, the parties asserted that a settlement had been executed but was "possibly lost in the mail." It was stated that another settlement would be filed immediately.


As of November 15, 1991, a month after the conference call, nothing has been filed.

I find on these facts that Complainant's failure to file either a fully executed settlement agreement or a complaint (or a dispositive motion) as directed by the Order of September 27, 1991. constitutes a flagrant failure to plead or otherwise proceed as directed. This is especially so in light of the subsequent telephone conference.


Vacating the citation and notification of proposed penalties is warranted pursuant to Commission Rule 41.[[1]] I further find that such dismissal need not be preceded by the issuance of a Show Cause order delivered by Certified Mail as specified by Rules 41(c) and (d) inasmuch as Complainant was put an the same notice by the conference call. Even if the failure to file the executed settlement lay in Respondent's hands, Complainant would have to proceed by filing a complaint. Indeed, Complainant was directed to do just that by the September 27, 1991 Order. If Respondent was dilatory or obstructive, agreeing to settlement proposals then refusing to execute a stipulation containing the agreed upon terms, it was Complainant's responsibility to proceed by filing a complaint. Complainant's failure to do so is tantamount to an abandonment of its case. Accordingly,
IT IS ORDERED that the citation and notification of proposed penalties issued to Respondent on or about June 4, 1991, are VACATED.


MICHAEL H. SCHOENFELD Judge, OSHRC


SECRETARY OF LABOR,
Complainant.
v.
QUINN MACHINE AND TOOL INC
Respondent.

Docket No. 91-1786

ORDER DENYING COMPLAINANT'S MOTION FOR RECONSIDERATION OF ORDER
VACATING CITATION AND NOTIFICATION OF PROPOSED PENALTY

Complainant's Motion for Reconsideration of the Order Vacating Citation and Notification of Proposed Penalty and for Acceptance of the Filing of a Fully Executed Stipulation of Settlement ("motion") has been reviewed.
I find and conclude that:


1. The "conference call" (motion, 4) did not include the Administrative Law Judge as a participant. Accordingly, it cannot he inferred that any extension of time was granted at that time.


2. The October 25, 1991 letter was not a motion as required by Commission Rule 30(e) and could have been refused for filing under Commission Rule 30(g).


3. Even if the October 25, 1991. letter was regarded as a motion for extension of time it ignored the admonition of September 27, 1991, that "[N]o extensions will be granted." It was thus incumbent on the parties to assure, in advance of the filing date, that a timely filing would occur.


4. The filing of the letter of October 25, 1991, by facsimile transmission at 3:44 p.m., asking for yet more time, on the last date allowed for the filing of the agreement, is inconsistent with the spirit, if not the letter of Commission Rule 5.

Accordingly, Complainant's motion is DENIED.
MICHAEL H. SCHOENFELD Judge, OSHRC
Dated: December 4, 1991 Washington,D.C.

FOOTNOTES

[[1]] As amended, 58 Fed. Reg. 22780-83 (June 4,1990).