SECRETARY OF LABOR,

	

 

Complainant,

	

 


                                               v.

	

OSHRC Docket No.

08-0404

MENOMINEE TRIBAL ENTERPRISES,

	

 

Respondent.

	

 


Appearances:

 

              Denise C. Hockley-Cann, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois

                            For Complainant


              Joseph Preloznik, Esq., Law Office of Joseph Preloznik,
Madison, Wisconsin

                            For Respondent


              William Kussel, Esq., Director of Legal Services, Keshena,
Wisconsin

                            For third party intervenor Menominee Indian
Tribe of Wisconsin


Before: James R. Rucker, Jr., Administrative Law Judge


DECISION AND ORDER

             On February 5, 2009, the court issued an Order outlining
its decision on Respondent's and third party intervenor, Menominee
Indian Tribe of Wisconsin's ("Menominee Tribe"), motions for summary
judgment. The court found that the Occupational Safety and Health Act of
1970, 29 U.S.C. §651 /et seq/. ("the Act") applies to Respondent's
activities at issue in the citations. The parties had previously
stipulated to the violations identified in the citations, the
classification of the violations, and the proposed penalties, during a
conference call with the court on October 21, 2008. The parties agreed
that the only disputed issue in this case was whether or not Respondent
is subject to the requirements of the Act and the regulations
implemented pursuant to the Act.

            This matter now comes before the court for consideration of
the Secretary's subsequent /Motion for an Order Affirming the
Secretary's Complaint and Citation and Notification of Penalty/.
Respondent did not file a response to the Secretary's motion. Third
party intervenor, Menominee Tribe, filed a letter stating, in pertinent
part, that "Menominee Tribe does not object to, or disagree with the
Secretary's statement in [s]ection one of its [m]otion that the parties
stipulated that the only issue before the [c]ourt was whether the
Secretary of Labor had jurisdiction over the workplace subject to the
[c]itation, and that the [c]ourt's February 5, 2009 decision regarding
summary judgment addressed that issue."

            Menominee Tribe objects to this court issuing a final
decision in this matter based on Menominee Tribe's belief that the
court's February 5, 2009 Order "contained one factual error, and did not
include certain facts the Menominee Tribe believes are material."
Menominee Tribe requests an opportunity to submit "proposed factual
findings" to be included in the court's final decision in this case. The
Secretary, also by letter, objects to Menominee Tribe's request to
submit additional proposed facts on issues already decided by the
court's February 5, 2009 Order.

            I note that the parties were required to submit briefs,
identifying all facts and legal arguments relating to the application of
the Act to Respondent by December 5, 2008. The Secretary, Respondent,
and Menominee Tribe all submitted timely briefs on the issue. Therefore,
Menominee Tribe's request to now submit additional proposed findings of
fact is DENIED.

            Pursuant to Commission Rule 61, 29 C.F.R. §2200.61, a case
may be fully stipulated by the parties and submitted to the Commission
or Judge for a decision at any time. If the parties agree that there are
no disputed issues to be tried, summary judgment is appropriate.
Anderson Liberty Lobby, Inc/./, 477 U.S. 242, 248 (1986);//Matsushita
Elec. Ind. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574/,/586 (1986).
Since the application of the Act to Respondent has been decided, and the
citations, classifications, and proposed penalties are not in dispute
pursuant to the parties' stipulation, I find that summary judgment is
warranted.

            It is therefore ORDERED that the Citation and Notification
of Penalty in this case is AFFIRMED as follows://

            1.         Citation 1 Item 1 is affirmed and a penalty of
$1,800.00 is assessed;

 

            2.         Citation 1 Item 2a is affirmed and a penalty of
$1,800.00 is assessed;

 

            3.         Citation 1 Item 2b is affirmed with no penalty
assessed;

 

             4.         Citation 1 Item 3a is affirmed and a penalty of
$1,350.00 is assessed;

 

            5.         Citation 1 Item 3b is affirmed with no penalty
assessed;

 

            6.         Citation 1 Item 4 is affirmed and a penalty of
$2,250.00 is assessed;

 

            7.         Citation 1 Item 5a is affirmed and a penalty of
$2,250.00 is assessed;

 

            8.         Citation 1 Item 5b is affirmed with no penalty
assessed;

 

            9.         Citation 1 Item 6a is affirmed and a penalty of
$1,350.00 is assessed;

 

            10.        Citation 1 Item 6b is affirmed with no penalty
assessed;

 

             11.       Citation 2 Item 1 is affirmed with no penalty
assessed;

 

            12.       Citation 2 Item 2 is affirmed with no penalty
assessed;

 

            13.       Citation 2 Item 3 is affirmed with no penalty
assessed.

 

 

            SO ORDERED.

 

 

                                                                                    /s/__________________________________

Date:   April 14,
2009                                                James R. Rucker

Denver,
Colorado                                                       Judge, OSHRC