“Docket No. 91-1786 SECRETARY OF LABORComplainant.v.QUINN MACHINE AND TOOL INC.,Respondent.Docket No. 91-1786ORDERThis matter is before the Commission on a Direction for Review entered by Chairman EdwinG. Foulke, Jr. on January 21, 1992. The parties have now filed a Stipulation andSettlement Agreement.Having reviewed the record, and based upon the representations appearing in theStipulation and Settlement Agreement, we conclude that this case raises no matterswarranting further review by the Commission. The terms of the Stipulation and SettlementAgreement do not appear to be contrary to the Occupational Safety and Health Act and arein compliance with the Commission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement intothis order. This is the final order of the Commission in this case. See 29 U.S.C. ??659(c), 660(a) and (b)Edwin G. Foulke, Jr. ChairmanDonald G.Wiseman CommissionerVelma Montoya CommissionerDated March 18, 1992UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONLYNN MARTIN, SECRETARY OF LABOR,UNITED STATES DEPARTMENT OF LABOR Complainant, V.QUINN MACHINE & TOOL, INC., and its successors, Respondent.OSHRC DOCKET No. 91-1786 INSPECTION No. 113343875 REGION IIISTIPULATION OF SETTLEMENT The parties hereto, in order to resolve this case amicably without the necessity offurther litigation, hereby agree and stipulate as follows:1. On June 4, 1991 a citation and notification of penalty was issued to Quinn Machine& Tool, Inc. (Respondent). Respondent filed a notice of contest. The parties thenentered into negotiations in order to resolve the case.2. On September 27, 1991, Judge Michael H. Schoenfeld issued a Notice and Order requiring,inter alia; that the fully executed Stipulation of Settlement be filed on or beforeOctober 25, 1991.3. In discussions between the parties, prior to October 25, 1991, Complainant was advisedthat an executed Stipulation of Settlement had been mailed by Respondent to Complainantfor final signature and filing with the Administrative Law Judge.4. on October 25, 1991, when the executed Stipulation of settlement had not been receivedby Complainant, a conference call was placed by the parties to the Office ofAdministrative Law Judges to explain the status of the settlement. In the absence of theJudge, the parties spoke to a member of the support staff. A letter summarizing thesubstance of the conference call together with an unsigned copy of the Stipulation ofSettlement was mailed to the Administrative Law Judge, requesting an additional extensionof time.5. On November 25, 1991 the Administrative Law Judge issued an Order Vacating the Citationand Notification of Proposed Penalty.6. Complainant filed a motion for reconsiderationwhich was denied by order dated December 4, 1991.7. Complainant filed a petition for discretionary review with the Occupational Safety andHealth Review Commission (\”Commission\”). Review was granted by Order datedJanuary 21, 1992.8. At all times relevant, the parties had agreed upon the terms of a settlement whichwould resolve this matter. As the parties are in agreement with respect to the terms ofsettlement, justice would best be served by acceptance of the filing of the fully executedstipulation of Settlement and Proposed Final Order.9. The Complainant, by her attorneys, hereby moves to amend the Notice of Failure to AbateAlleged Violation and proposed Additional Penalty (hereafter FTA) and Citation andNotification of Penalty issued on June 4, 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 facts underlying thealleged violations, the proposed amendments are justified and appropriate.10. Respondent hereby moves the Commission for an Order allowing it to withdraw its Noticeof Contest to the Notice of Failure to Abate Alleged Violations and Proposed AdditionalPenalty and to the Citation and Notification of Proposed Penalty as amended herein, and insupport of said motion represents as follows:a. that the violations alleged have been abated. b. Respondent agrees to comply with the applicable provisions of the Occupational Safetyand Health Act of 1970 and the regulations duly promulgated pursuant thereto.c. The penalties amended herein ($720.00, $480.00 and $240.00) total $1,440.00. Inaddition, a penalty of $480.00 resulting from the original inspection (which was notcontested) number 113336614, remains unpaid. The total sum of penalties due to be paid byRespondent 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 certified check made payable toOSHA-LABOR and forwarded to the Erie Area Office of OSHA, Suite B-12, 3939 West RidgeRoad, Erie, Pennsylvania 16506. The first payment shall be made within 30 days of the datethis settlement has become a final Order of the Commission. Each of the remaining paymentsmust be made monthly thereafter. Accordingly, the final payment of $480.00 must be madewithin four (4) months of the date of a final Order herein.d. that complete abatement of the conditions noted in the Citations as amended has beenaccomplished.e. that Respondent has posted its Notice of Content.f. that a copy of this Stipulation of Settlement has been posted in accordance with therequirements of 29 C.F.R. ?2200.100(c) and 29 C.F.R. ?2200.7 so as to provide notice toall affected employees at No Longer In Business __ on Jan\u00a0 28 1992.g. that Respondent agrees to continue to comply with the applicable provisions of the Act,and the applicable health and safety standards promulgated pursuant to the Act.11. The Notification of Failure to Abate Alleged Violation, Citation and Notification ofProposed Penalty, as amended by this Stipulation, shall become final orders of theCommission.12. Each party hereby agrees to bear its own fees and other expenses incurred by suchparty 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. 91-1786ORDER VACATING CITATION AND NOTIFICATION OF PROPOSED PENALTY Respondent’s notice of contest dated June 28, 1991, was docketed by the Commission on July31, 1991. Complainant’s motion to extend the time to September 25, 1991, within which tofile a complaint was granted on September 20, 1991. Included in the Order grantingComplainant’s motion was the admonition \”No further extensions will be granted.\”(Boldface in original, footnote omitted.)By correspondence dated September 19, 1991, the Secretary indicated that a settlementbetween the parties had been agreed upon and that a Stipulation of Settlement had beendrawn up for signature. In response to receipt of that correspondence, on September 27,1991, an order was issued acknowledging receipt by the Commission of the letter anddirecting that either the settlement or complainant’s complaint be filed no later thanOctober 25, 1991. Again, the admonition \”No further extensions will be granted\”was included. (Boldface in original.) In a conference call on October 25, 1991, theparties asserted that a settlement had been executed but was \”possibly lost in themail.\” It was stated that another settlement would be filed immediately.As of November 15, 1991, a month after the conference call, nothing has been filed.I find on these facts that Complainant’s failure to file either a fully executedsettlement agreement or a complaint (or a dispositive motion) as directed by the Order ofSeptember 27, 1991. constitutes a flagrant failure to plead or otherwise proceed asdirected. This is especially so in light of the subsequent telephone conference.Vacating the citation and notification of proposed penalties is warranted pursuant toCommission Rule 41.[[1]] I further find that such dismissal need not be preceded by theissuance of a Show Cause order delivered by Certified Mail as specified by Rules 41(c) and(d) inasmuch as Complainant was put an the same notice by the conference call. Even if thefailure to file the executed settlement lay in Respondent’s hands, Complainant would haveto proceed by filing a complaint. Indeed, Complainant was directed to do just that by theSeptember 27, 1991 Order. If Respondent was dilatory or obstructive, agreeing tosettlement proposals then refusing to execute a stipulation containing the agreed uponterms, it was Complainant’s responsibility to proceed by filing a complaint. Complainant’sfailure to do so is tantamount to an abandonment of its case. Accordingly,IT IS ORDERED that the citation and notification of proposed penalties issued toRespondent 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 PENALTY Complainant’s Motion for Reconsideration of the Order Vacating Citation and Notificationof Proposed Penalty and for Acceptance of the Filing of a Fully Executed Stipulation ofSettlement (\”motion\”) has been reviewed.I find and conclude that:1. The \”conference call\” (motion, ? 4) did not include the Administrative LawJudge as a participant. Accordingly, it cannot he inferred that any extension of time wasgranted at that time.2. The October 25, 1991 letter was not a motion as required by Commission Rule 30(e) andcould have been refused for filing under Commission Rule 30(g).3. Even if the October 25, 1991. letter was regarded as a motion for extension of time itignored the admonition of September 27, 1991, that \”[N]o extensions will begranted.\” It was thus incumbent on the parties to assure, in advance of the filingdate, that a timely filing would occur.4. The filing of the letter of October 25, 1991, by facsimile transmission at 3:44 p.m.,asking for yet more time, on the last date allowed for the filing of the agreement, isinconsistent with the spirit, 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 (June4,1990).”