SECRETARY OF LABOR
Complainant.
v.
QUINN MACHINE AND TOOL INC.,
Respondent.
Docket No. 91-1786
ORDER
This matter is before the Commission on a Direction for Review entered by Chairman Edwin
G. Foulke, Jr. on January 21, 1992. The parties have now filed a Stipulation and
Settlement Agreement.
Having reviewed the record, and based upon the representations appearing in the
Stipulation and Settlement Agreement, we conclude that this case raises no matters
warranting further review by the Commission. The terms of the Stipulation and Settlement
Agreement do not appear to be contrary to the Occupational Safety and Health Act and are
in compliance with the Commission's Rules of Procedure.
Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement into
this 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.
Chairman
Donald G.Wiseman
Commissioner
Velma Montoya
Commissioner
Dated March 18, 1992
UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
LYNN 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 III
STIPULATION OF SETTLEMENT
The parties hereto, in order to resolve this case amicably without the necessity of
further 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 then
entered 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 before
October 25, 1991.
3. In discussions between the parties, prior to October 25, 1991, Complainant was advised
that an executed Stipulation of Settlement had been mailed by Respondent to Complainant
for final signature and filing with the Administrative Law Judge.
4. on October 25, 1991, when the executed Stipulation of settlement had not been received
by Complainant, a conference call was placed by the parties to the Office of
Administrative Law Judges to explain the status of the settlement. In the absence of the
Judge, the parties spoke to a member of the support staff. A letter summarizing the
substance of the conference call together with an unsigned copy of the Stipulation of
Settlement was mailed to the Administrative Law Judge, requesting an additional extension
of time.
5. On November 25, 1991 the Administrative Law Judge issued an Order Vacating the Citation
and Notification of Proposed Penalty.
6. Complainant filed a motion for reconsideration
which was denied by order dated December 4, 1991.
7. Complainant filed a petition for discretionary review with the Occupational Safety and
Health Review Commission ("Commission"). Review was granted by Order dated
January 21, 1992.
8. At all times relevant, the parties had agreed upon the terms of a settlement which
would resolve this matter. As the parties are in agreement with respect to the terms of
settlement, justice would best be served by acceptance of the filing of the fully executed
stipulation of Settlement and Proposed Final Order.
9. The Complainant, by her attorneys, hereby moves to amend the Notice of Failure to Abate
Alleged Violation and proposed Additional Penalty (hereafter FTA) and Citation and
Notification of Penalty issued on June 4, 1991 as follows:
a. FTA Notification
i. Item Nos. 1-1a and 1-1b:
The proposed additional penalty is reduced from $1,800.00 to $720.00
ii. FTA Item Nos. 1-3a and 1-3c:
The proposed additional penalty is reduced from $1,200.00 to $480.00
b. 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 the
alleged violations, the proposed amendments are justified and appropriate.
10. Respondent hereby moves the Commission for an Order allowing it to withdraw its Notice
of Contest to the Notice of Failure to Abate Alleged Violations and Proposed Additional
Penalty and to the Citation and Notification of Proposed Penalty as amended herein, and in
support 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 Safety
and 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. In
addition, a penalty of $480.00 resulting from the original inspection (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 four
payments of $480.00 each. Each payment shall be made by a certified check made payable to
OSHA-LABOR and forwarded to the Erie Area Office of OSHA, Suite B-12, 3939 West Ridge
Road, Erie, Pennsylvania 16506. The first payment shall be made within 30 days of the date
this settlement has become a final Order of the Commission. Each of the remaining payments
must be made monthly thereafter. Accordingly, the final payment of $480.00 must be made
within 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 been
accomplished.
e. that Respondent has posted its Notice of Content.
f. that a copy of this Stipulation of Settlement has been posted in accordance 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 Longer In Business __ on Jan 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 of
Proposed Penalty, as amended by this Stipulation, shall become final orders of the
Commission.
12. Each party hereby agrees to bear its own fees and other expenses incurred by such
party in connection with any stage of this proceeding.
QUINN MACHINE & TOOL, INC.
Marshall J. Breger Solicitor of Labor
N.R. Barthelmes Vice President
Marshall H. Harris
Regional Solicitor
Howard K. Agran Attorney
U.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 PENALTY
Respondent's notice of contest dated June 28, 1991, was docketed by the Commission on July
31, 1991. Complainant's motion to extend the time to September 25, 1991, within which to
file a complaint was granted on September 20, 1991. Included in the Order granting
Complainant'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 settlement
between the parties had been agreed upon and that a Stipulation of Settlement had been
drawn 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 and
directing that either the settlement or complainant's complaint be filed no later than
October 25, 1991. Again, the admonition "No further extensions will be granted"
was included. (Boldface in original.) In a conference call on October 25, 1991, the
parties asserted that a settlement had been executed but was "possibly lost in the
mail." 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 executed
settlement agreement or a complaint (or a dispositive motion) as directed by the Order of
September 27, 1991. constitutes a flagrant failure to plead or otherwise proceed as
directed. This is especially so in light of the subsequent telephone conference.
Vacating the citation and notification of proposed penalties is warranted pursuant to
Commission Rule 41.[[1]] I further find that such dismissal need not be preceded by the
issuance 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 the
failure to file the executed settlement lay in Respondent's hands, Complainant would have
to proceed by filing a complaint. Indeed, Complainant was directed to do just that by the
September 27, 1991 Order. If Respondent was dilatory or obstructive, agreeing to
settlement proposals then refusing to execute a stipulation containing the agreed upon
terms, it was Complainant's responsibility to proceed by filing a complaint. Complainant's
failure to do so is tantamount to an abandonment of its case. Accordingly,
IT IS ORDERED that the citation and notification of proposed penalties issued to
Respondent on or about June 4, 1991, are VACATED.
MICHAEL H. SCHOENFELD Judge, OSHRC
SECRETARY OF LABOR,
Complainant.
v.
QUINN MACHINE AND TOOL INC
Respondent.
Docket No. 91-1786
ORDER DENYING COMPLAINANT'S MOTION FOR RECONSIDERATION OF ORDER
VACATING CITATION AND NOTIFICATION OF PROPOSED PENALTY
Complainant's Motion for Reconsideration of the Order Vacating Citation and Notification
of Proposed Penalty and for Acceptance of the Filing of a Fully Executed Stipulation of
Settlement ("motion") has been reviewed.
I find and conclude that:
1. The "conference call" (motion, � 4) did not include the Administrative Law
Judge as a participant. Accordingly, it cannot he inferred that any extension of time was
granted at that time.
2. The October 25, 1991 letter was not a motion as required by Commission Rule 30(e) and
could 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 it
ignored the admonition of September 27, 1991, that "[N]o extensions will be
granted." It was thus incumbent on the parties to assure, in advance of the filing
date, 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, is
inconsistent with the spirit, if not the letter of Commission Rule 5.
Accordingly, Complainant's motion is DENIED.
MICHAEL H. SCHOENFELD Judge, OSHRC
Dated: December 4, 1991 Washington,D.C.
FOOTNOTES
[[1]] As amended, 58 Fed. Reg. 22780-83 (June
4,1990).