SECRETARY OF LABOR,

	

 

Complainant,

	

 

v.

	

 

CEASAR MARQUEZ, and its successors,


                                     Respondent.

	

    OSHRC DOCKET NOS. 04-0967

                                              04-0610

 

	

 



DECISION AND ORDER

            This matter (Docket No. 04-0967) arose as a result of a
serious citation issued to Respondent on April16, 2004. A timely notice
of contest, complaint and answer were filed and the matter was scheduled
for trial. A second case involving Respondent (Docket No. 04-0610)
issued on March 26, 2004, was originally assigned to Judge Sidney J.
Goldstein. At the request of the parties and in the interest of judicial
economy, that case was reassigned to the undersigned for litigation.
Footnote <javascript:WPShow('WPFootnote1',%20WPFootnote1%20)> By order
dated August 3, 2004, the hearings for both cases were cancelled based
upon the representations of the representatives for both parties that
the cases had been settled. The parties were directed to file settlement
documents by September 3, 2004.

            By motion dated September 15, 2004, Complainant seeks orders
vacating Respondent’s notices of contest and affirming the citations
issued to Respondent in both cases. In support of these motions,
Complainant states that an oral agreement for both cases was reached
with Respondent’s counsel and settlement agreements were mailed to
Respondent’s counsel for signature. According to Complainant, the
settlement agreements were not returned because Respondent’s counsel was
unsuccessful in contacting his client. Accordingly, Complainant seeks to
vacate Respondent’s notices of contest and affirm the citations on the
ground that Respondent has abandoned his defenses for both matters.

            In response to Complainant’s motions, Respondent’s counsel
agrees with Complainant’s recitation of the facts leading to the oral
settlement agreements and states that his client issued instructions to
him to settle both cases “as economically as possible.” However,
Respondent’s counsel states that the last communication that he had with
his client was during June 2004. Therefore, he is without specific
authorization to sign the proposed settlement agreements on behalf of
his client. Counsel states that he made several attempts to contact his
client by telephone and certified mail without success. During a
telephone conference between the parties and the undersigned,
Respondent’s counsel speculated that Respondent may have returned to
Mexico. Footnote <javascript:WPShow('WPFootnote2',%20WPFootnote2%20)> In
any event, Respondent’s counsel indicated that he had exhausted every
method to contact his client in an attempt to either have Respondent
sign the agreements or to obtain authorization to sign on his behalf.
However, despite counsel’s unsuccessful attempts to contact his client,
he states that it is his belief that Respondent intends to contest the
citations in these matters and opposes Complainant’s motions to vacate
the notices of contest and affirm the citations.

            Despite the dedicated and persistent efforts of counsel to
represent Respondent’s interests in these matters, the record supports
the conclusion that Respondent, Ceasar Marquez, as the employer to whom
citations were issued, has abandoned the defenses to which he is
entitled by filing notices of contest. Furthermore, the record supports
the conclusion that scheduling and conducting a hearing would be an
exercise in futility since Respondent’s whereabouts are not known and
notice of the time and place of the hearing could not be accomplished.

            Accordingly, in view of Respondent’s abandonment of his
defenses to these matters, (a) the notice of contest dated May 28, 2004,
as to Docket No. 04-0967 is vacated and Serious Citation No. 1 issued
April 16, 2004, IS AFFIRMED and a penalty in the amount of $5,600 is
assessed thereto; (b) the notice of contest received by the Secretary of
Labor on April 12, 2004, as to Docket No. 04-0610 is vacated and Serious
Citation No. 1 issued Febraury19, 2004 is AFFIRMED and a penalty in the
amount of $4,732 is assessed thereto.

FINDINGS OF FACT

            All findings of fact relevant and necessary to a
determination of all issues have been made above. Fed. R. Civ. P. 52(a).

ORDER

A.        Docket No. 04-0967

            1.         Serious citation 1 item 1 is affirmed and a
penalty in the amount of $2,800 is assessed.

            2.         Serious citation item 2(a) is affirmed.

            3.         Serious citation item 2(b) is affirmed.

            4.         A total penalty in the amount of $2,800 is
assessed for items 2(a) and 2(b).

B.        Docket No 04-0610.

            1.         Serious citation 1 item 1(a) is affirmed.

2.        Serious citation 1 item 1(b) is affirmed.

3.        Serious citation 1 item 2(a) is affirmed.

4.        Serious citation 1 item 2(b) is affirmed.

5.        Serious citation 1 item 3 is affirmed.

6.        Serious citation 1 item 4(a) is affirmed.

7.        Serious citation 1 item 4(b) is affirmed.

8.        Serious citation 1 item 5 is affirmed.

            9.         A penalty in the amount of $600 is assessed for
items 1(a) and 1(b).

            10.       A penalty in the amount of $382 is assessed for
items 2(a) and 2(b).

            11.       A penalty in the amount of $1,500 is assessed for
item 3.

            12.       A penalty in the amount of $1,500 is assessed for
items 4(a) and 4(b).

            13.       A penalty in the amount of $750 is assessed for
item 5.

 

 

 

                                                                        /s/

Robert A. Yetman

Judge, OSHRC

 

            Dated: October 21, 2004