United States of America 


OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 


 1120 20th Street, N.W., Ninth Floor 


 Washington, DC 20036-
3457 


 


 

SECRETARY OF LABOR, 

 

 Complainant, 

 

 v. 

 

Mid South Waffles, Inc., 

d/b/a Waffle House #1283, 

 

 Respondent. 

 

 

 

OSHRC Docket No. 13-1022 



 

BRIEFING NOTICE 

 

The Commission requests that the parties brief all issues identified in Respondent’s Petition 
for Discretionary Review and, specifically: 

 

1. With respect to Citation 1, Item 1, whether the judge erred by finding that the Secretary 
established recognition of the cited hazard; in particular, whether Respondent’s practice 
of emptying the grease trap was evidence of its recognition of the hazard. 


 

2. With respect to Citation 1, Item 1, whether the judge erred in finding that the Secretary 
established Respondent had constructive knowledge of the violative condition. In 
addressing this issue, the parties are asked to discuss the court’s holding in ComTran 
Group, Inc. v. U.S. Dep’t of Labor, 722 F.3d 1304 (11th Cir. 2013), and the conclusion 
that the Secretary must meet his prima facie burden of establishing knowledge by 
“do[ing] more than merely point[ing] to the misconduct” of a supervisor. Specifically, 
discuss whether the judge erred by imputing constructive knowledge of the alleged 
hazardous condition from the night shift manager to Respondent. 


 

3. With respect to characterization and penalties, should the judge’s decision be affirmed? 


 

All briefs are to be filed in accordance with Commission Rule 93.1 The first brief is to be 
filed within 40 days of this notice. A party who does not intend to file a brief must notify the 

1 The Commission requests that all briefs include an alphabetical table of authorities with 
references to the pages on which they are cited, and that an asterisk be placed in the left-hand 
margin of the table to indicate those authorities on which the brief principally relies. The 
Commission also requests that copies of cited authority, other than statutes, case law, law journal 


articles, and legal treatises, be provided to the Commission and to the opposing party. Parties 
should be cautioned that these materials will be considered only if appropriate. 

Commission in writing setting forth the reason therefor within the applicable time for filing 
briefs, and shall serve a copy on all other parties. The time for filing briefs (or similar notices of 

intent) of opposing parties shall commence on the date of service. 

 

BY DIRECTION OF THE COMMISSION 

 

 

 

Dated: February 3, 2015 ___/s/__________________________ 

John X. Cerveny 

Executive Secretary 

 


DOCKET NO. 13-1022 

 

NOTICE IS GIVEN TO THE FOLLOWING: 

 

Charles F. James, Counsel for Appellate Litigation 

Heather R. Phillips, Counsel for Appellate Litigation 

Office of the Solicitor, U.S. DOL 

Room S4004 

200 Constitution Ave., N.W. 

Washington, D.C. 20210 

 

J. Larry Stine 

Wimberly, Lawson, Steckel, Schneider & Stine, P.C. 

Lenox Towers 

3400 Peachtree Rd, N.E., Suite 400 

Atlanta, GA 30326-1107