United States of America *OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION* 1244 North Speer Boulevard, Room 250 Denver, Colorado 80204-3582 ___________________________________ SECRETARY OF LABOR, : : Complainant, : : v. : OSHRC Docket No. 01-2193 : KEYSTONE STRUCTURAL CONCRETE : LTD., and its successors, : Respondent. : ___________________________________: Phone: (303) 844-3409 Fax: (303) 844-3759 *FINAL ORDER* This matter comes up on Keystone's June 10, 2002 motion to reconsider this judge's June 4, 2002 Order vacating its notice of contest. Keystone's motion is accompanied by its counsel's first notice of appearance, and his untimely response to this judge's May 10, 2002 Order to Show Cause. Keystone retained counsel shortly before a scheduled March 2002 hearing. On March 11, 2002, in response to the parties representation that the case was settled, this judge cancelled the hearing, and ordered that the settlement agreement be filed by April 6, 2002. The settlement agreement was drafted by Complainant's counsel and mailed to Keystone's counsel on March 12, 2002. On May 10, this judge issued an order asking each party to show good cause why no agreement had been filed. However, because Keystone's counsel never filed an entry of appearance in this matter he was not served with any of this judge's orders, apparently learning about them indirectly from his client and opposing counsel. Keystone's counsel signed the settlement agreement in this matter on May 15, 2002 and returned it to Complainant's counsel. In his June 10, 2002 filings, counsel states that his failure to execute the settlement agreement was due to inadvertence Counsel further states that he mistakenly relied on opposing counsel to respond to the show cause order. Counsel offers no cognizable for his failure to timely execute and file the settlement agreement Nor does counsel offer any reasonable explanation for his failure to read and comply with this judge's May 10, 2002 show cause order. Counsel correctly notes, however, that settlement is encouraged by the Commission at any stage of the proceedings, and requests that his client not be penalized for his mistake. The June 4, 2002 Order vacating Keystone's notice of contest is, therefore, vacated. As the parties have filed a Settlement Agreement in this matter and ten (10) days have elapsed since service without objection it is: ORDERED, The Settlement Agreement filed by the parties is approved. The terms of that agreement, together with the citation and proposed penalties as amended by such agreement, are hereby adopted as orders of the Occupational Safety and Health Review Commission. /s/ James H. Barkley Judge, OSHRC Dated: June 13, 2002 ------------------------------------------------------------------------ *UNITED STATES OF AMERICA* ** ** *OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION* ** ___________________________________ SECRETARY OF LABOR, ) ) Complainant, ) ) v. ) OSHRC Docket ) KEYSTONE STRUCTURAL CONCRETE ) No. 01-2193 LTD., and its successors, ) Respondent. ) ___________________________________) SETTLEMENT AGREEMENT Come now complainant and respondent and submit the following settlement agreement pursuant to Rule 2200.100 of the Commission's Rules of Procedure: This settlement agreement specifies the terms of settlement as set out below for each contested item and disposes of all issues in the case. Affected employees have not filed objections to the reasonableness of any abatement time. 1. Complainant agrees to withdraw the following Items: *Citation Item 29 CFR Penalty Violation/ Number Standard Amount Abatement Date* 1 1 1926.403(b)(1)(iii) $1,400.00 Corrected During Inspection 1 2 1926.404(f)(6) $1,400.00 Corrected During Inspection 2. This withdrawal of these items in no way affects the Secretary's interpretation of compliance with these standards or their application to this employer. 3. Respondent withdraws its notice of contest. 4. Respondent promises to continue its good-faith efforts to comply with the Occupational Safety and Health Act. 5. Respondent certifies that the affected employees in the above-styled case are not represented by an authorized employee representative. 6. Respondent certifies that a copy of this settlement agreement has been served upon the unrepresented affected employees in the manner set forth in Rule 2200.100 of the Rules of Procedure, by posting same on the 15th day of May, 2002. 7. Each party agrees to bear its own attomey's fees, costs and other expenses incurred by such party in connection with any stage of the above-referenced proceeding including, but not limited to, attorney's fees which may be available under the Equal Access to Justice Act, as amended. EUGENE SCALIA Solicitor of Labor WILLIAM E. EVERHEART Regional Solicitor KEYSTONE STRUCTURAL CONCRETE JANICE L. HOLMES Counsel for Safety and Health By: By: /s/ /s/ PARTICK GARNER AARON R. RAMIREZ Attorney Attorney Cokinos, Bosien & Young. U. S. Department of Labor 2919 Allen Parkway, Suite 1500 Office of the Solicitor Houston, Texas 77019 525 Griffin, Suite 501 Dallas, Texas 75202 Attorneys for Respondent Attorneys for Complainant. Signed this 15 day Signed this 23 day of May, 2002. of May, 2002.