“SECRETARY OF LABORComplainant.v.QUINN MACHINE AND TOOL INC.,Respondent.Docket No. 91-1786*ORDER*This matter is before the Commission on a Direction for Review enteredby Chairman Edwin G. Foulke, Jr. on January 21, 1992. The parties havenow filed a Stipulation and Settlement Agreement.Having reviewed the record, and based upon the representations appearingin the Stipulation and Settlement Agreement, we conclude that this caseraises no matters warranting further review by the Commission. The termsof the Stipulation and Settlement Agreement do not appear to be contraryto the Occupational Safety and Health Act and are in compliance with theCommission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and SettlementAgreement into this order. This is the final order of the Commission inthis case. See 29 U.S.C. ?? 659(c), 660(a) and (b)Edwin G. Foulke, Jr.ChairmanDonald G.WisemanCommissionerVelma MontoyaCommissionerDated March 18, 1992————————————————————————UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONLYNN MARTIN,SECRETARY OF LABOR,UNITED STATES DEPARTMENT OF LABORComplainant, 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 thenecessity of further litigation, hereby agree and stipulate as follows:1. On June 4, 1991 a citation and notification of penalty was issued toQuinn Machine & Tool, Inc. (Respondent). Respondent filed a notice ofcontest. The parties then entered into negotiations in order to resolvethe case.2. On September 27, 1991, Judge Michael H. Schoenfeld issued a Noticeand Order requiring, inter alia; that the fully executed Stipulation ofSettlement 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 hadbeen mailed by Respondent to Complainant for final signature and filingwith the Administrative Law Judge.4. on October 25, 1991, when the executed Stipulation of settlement hadnot been received by Complainant, a conference call was placed by theparties to the Office of Administrative Law Judges to explain the statusof the settlement. In the absence of the Judge, the parties spoke to amember of the support staff. A letter summarizing the substance of theconference call together with an unsigned copy of the Stipulation ofSettlement was mailed to the Administrative Law Judge, requesting anadditional extension of time.5. On November 25, 1991 the Administrative Law Judge issued an OrderVacating the Citation and Notification of Proposed Penalty.6. Complainant filed a motion for reconsideration which was denied byorder dated December 4, 1991.7. Complainant filed a petition for discretionary review with theOccupational Safety and Health Review Commission (\”Commission\”). Reviewwas granted by Order dated January 21, 1992.8. At all times relevant, the parties had agreed upon the terms of asettlement which would resolve this matter. As the parties are inagreement with respect to the terms of settlement, justice would best beserved by acceptance of the filing of the fully executed stipulation ofSettlement and Proposed Final Order.9. The Complainant, by her attorneys, hereby moves to amend the Noticeof Failure to Abate Alleged Violation and proposed Additional Penalty(hereafter FTA) and Citation and Notification of Penalty issued on June4, 1991 as follows:a. FTA Notificationi. Item Nos. 1-1a and 1-1b:The proposed additional penalty is reduced from $1,800.00 to $720.00ii. FTA Item Nos. 1-3a and 1-3c:The proposed additional penalty is reduced from $1,200.00 to $480.00b. 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 factsunderlying the alleged violations, the proposed amendments are justifiedand appropriate.10. Respondent hereby moves the Commission for an Order allowing it towithdraw its Notice of Contest to the Notice of Failure to Abate AllegedViolations and Proposed Additional Penalty and to the Citation andNotification of Proposed Penalty as amended herein, and in support ofsaid motion represents as follows:a. that the violations alleged have been abated.b. Respondent agrees to comply with the applicable provisions of theOccupational Safety and Health Act of 1970 and the regulations dulypromulgated 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 originalinspection (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 fourpayments of $480.00 each. Each payment shall be made by a certifiedcheck made payable to OSHA-LABOR and forwarded to the Erie Area Officeof OSHA, Suite B-12, 3939 West Ridge Road, Erie, Pennsylvania 16506. Thefirst payment shall be made within 30 days of the date this settlementhas become a final Order of the Commission. Each of the remainingpayments must be made monthly thereafter. Accordingly, the final paymentof $480.00 must be made within four (4) months of the date of a finalOrder herein.d. that complete abatement of the conditions noted in the Citations asamended has been accomplished.e. that Respondent has posted its Notice of Content.f. that a copy of this Stipulation of Settlement has been posted inaccordance 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 LongerIn Business ___ on _Jan 28 _1992.g. that Respondent agrees to continue to comply with the applicableprovisions of the Act, and the applicable health and safety standardspromulgated pursuant to the Act.11. The Notification of Failure to Abate Alleged Violation, Citation andNotification of Proposed Penalty, as amended by this Stipulation, shallbecome final orders of the Commission.12. Each party hereby agrees to bear its own fees and other expensesincurred by such party in connection with any stage of this proceeding.QUINN MACHINE & TOOL, INC.Marshall J. Breger Solicitor of LaborN.R. Barthelmes Vice PresidentMarshall H. HarrisRegional SolicitorHoward K. Agran AttorneyU.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 PENALTYRespondent’s notice of contest dated June 28, 1991, was docketed by theCommission on July 31, 1991. Complainant’s motion to extend the time toSeptember 25, 1991, within which to file a complaint was granted onSeptember 20, 1991. Included in the Order granting Complainant’s motionwas the admonition \”No further extensions will be granted.\” (Boldface inoriginal, footnote omitted.)By correspondence dated September 19, 1991, the Secretary indicated thata settlement between the parties had been agreed upon and that aStipulation of Settlement had been drawn up for signature. In responseto receipt of that correspondence, on September 27, 1991, an order wasissued acknowledging receipt by the Commission of the letter anddirecting that either the settlement or complainant’s complaint be filedno later than October 25, 1991. Again, the admonition \”No furtherextensions will be granted\” was included. (Boldface in original.) In aconference call on October 25, 1991, the parties asserted that asettlement had been executed but was \”possibly lost in the mail.\” It wasstated that another settlement would be filed immediately.As of November 15, 1991, a month after the conference call, nothing hasbeen filed.I find on these facts that Complainant’s failure to file either a fullyexecuted settlement agreement or a complaint (or a dispositive motion)as directed by the Order of September 27, 1991. constitutes a flagrantfailure to plead or otherwise proceed as directed. This is especially soin light of the subsequent telephone conference.Vacating the citation and notification of proposed penalties iswarranted pursuant to Commission Rule 41.[[1]] I further find that suchdismissal need not be preceded by the issuance of a Show Cause orderdelivered by Certified Mail as specified by Rules 41(c) and (d) inasmuchas Complainant was put an the same notice by the conference call. Evenif the failure to file the executed settlement lay in Respondent’shands, Complainant would have to proceed by filing a complaint. Indeed,Complainant was directed to do just that by the September 27, 1991Order. If Respondent was dilatory or obstructive, agreeing to settlementproposals then refusing to execute a stipulation containing the agreedupon terms, it was Complainant’s responsibility to proceed by filing acomplaint. Complainant’s failure to do so is tantamount to anabandonment of its case. Accordingly,IT IS ORDERED that the citation and notification of proposed penaltiesissued to Respondent on or about June 4, 1991, are VACATED.MICHAEL H. SCHOENFELD Judge, OSHRCSECRETARY OF LABOR,Complainant.v.QUINN MACHINE AND TOOL INCRespondent.Docket No. 91-1786ORDER DENYING COMPLAINANT’S MOTION FOR RECONSIDERATION OF ORDERVACATING CITATION AND NOTIFICATION OF PROPOSED PENALTYComplainant’s Motion for Reconsideration of the Order Vacating Citationand Notification of Proposed Penalty and for Acceptance of the Filing ofa Fully Executed Stipulation of Settlement (\”motion\”) has been reviewed.I find and conclude that:1. The \”conference call\” (motion, ? 4) did not include theAdministrative Law Judge as a participant. Accordingly, it cannot heinferred that any extension of time was granted at that time.2. The October 25, 1991 letter was not a motion as required byCommission Rule 30(e) and could have been refused for filing underCommission Rule 30(g).3. Even if the October 25, 1991. letter was regarded as a motion forextension of time it ignored the admonition of September 27, 1991, that\”[N]o extensions will be granted.\” It was thus incumbent on the partiesto assure, in advance of the filing date, that a timely filing would occur.4. The filing of the letter of October 25, 1991, by facsimiletransmission at 3:44 p.m., asking for yet more time, on the last dateallowed for the filing of the agreement, is inconsistent with thespirit, if not the letter of Commission Rule 5.Accordingly, Complainant’s motion is DENIED.MICHAEL H. SCHOENFELD Judge, OSHRCDated: December 4, 1991 Washington,D.C.FOOTNOTES[[1]] As amended, 58 Fed. Reg. 22780-83 (June 4,1990).”