United Parcel Service, Inc. (Commission decision, February 2, 2009)

Plain-English summary

UPS sought Commission review after an administrative law judge affirmed a serious citation with eight instances and assessed a $4,400 penalty. While review was pending, UPS and the Secretary negotiated a corporate-wide settlement, and affected employee Samuel Bucalo filed objections and several motions. The Commission remanded the case for the judge to address the adequacy of UPS's corporate disclosure, requested sanctions concerning claimed abatement, a request for nationwide posting, and the settlement objections. It rescinded the appellate briefing notice so those factual and legal issues could be resolved first.

Decision snapshot

• Cited standard(s): None identified in this remand order.
• Outcome: The Commission remanded settlement-related objections and motions to the judge for further proceedings.
• Key point: A judge must address timely affected-employee objections and related motions before the Commission completes review of a proposed settlement.

Full text (OSHRC public release)

United Parcel Service, Inc., Docket No. 05-1115

SECRETARY OF LABOR,

Complainant,

v.

UNITED PARCEL SERVICE, INC.,               

OSHRC Docket No. 05-1115

Respondent,

and

SAMUEL J. BUCALO,

Affected Employee

Appearances :

Peter J. Vassalo, Attorney; Charles F. James, Counsel for Appellate Litigation; Joseph M. Woodward, Associate Solicitor; Gregory F. Jacob, Solicitor; U.S. Department of Labor, Washington, DC

For Complainant

Amir C. Tayrani, Esq., Gibson, Dunn & Crutcher, LLP, Washington, DC

Seth D. Bruckner, Esq., United Parcel Service, Inc., Atlanta, Georgia

For Respondent

Samuel J. Bucalo, Cincinnati, Ohio

For the Affected Employee

REMAND ORDER

Before:      THOMPSON, Chairman; ROGERS, Commissioner

BY THE COMMISSION:

On August 21, 2007, United Parcel Service, Inc. (“UPS”) filed a Petition for Discretionary Review of Administrative Law Judge Ken S. Welsch’s decision affirming one serious citation consisting of eight instances and assessing a penalty of $4,400. The case was directed for review and a briefing notice was issued to the parties on October 22, 2007. To allow the Secretary and UPS an opportunity to engage in negotiations to reach a corporate-wide settlement regarding the cited conditions, the briefing schedule was subsequently held in abeyance until December 30, 2008. The Secretary filed a Stipulation and Settlement Agreement with the Commission on January 6, 2009, and Affected Employee Samuel Bucalo timely filed his objections to the agreement on January 22, 2009.

UPS filed a letter in response to Mr. Bucalo’s
objections on January 27, 2009, as did the Secretary on January 29, 2009. For the following reasons, we now remand this case to the judge for further proceedings consistent with this decision.

Prior to filing his objections to the settlement agreement, Mr. Bucalo filed four motions with the Commission on January 15, 2009. On January 23, 2009, the Secretary and UPS separately filed their oppositions to these motions. One of Mr. Bucalo’s motions seeks a default judgment against UPS for failing to disclose its corporate affiliates as prescribed in Commission Rule 35(a), 29 C.F.R. § 2200.35(a).

The record shows that UPS filed a Corporate Disclosure
Statement with its Answer dated September 9, 2005. However, in a January 29, 2009 letter, Mr. Bucalo takes issue with the adequacy of that filing. Accordingly, we remand this matter to the judge for consideration and ruling.

Furthermore, because two of Mr. Bucalo’s remaining motions and his objections to the settlement agreement raise overlapping factual and legal issues, we find it appropriate to remand this matter to the judge to consider and address all of the filings relating to the settlement agreement. On remand, the judge should rule on the two motions in question: in one, Mr. Bucalo seeks sanctions against the Secretary and UPS, claiming they have falsely represented that abatement of the cited conditions has been completed, and in the other, he requests that the Commission order UPS to post the settlement agreement in every UPS facility in the nation.

The
judge should also review the settlement agreement, the objections filed by Mr. Bucalo and the responses to those objections filed by UPS and the Secretary, and any objections that may be timely filed by non-party affected employees, pursuant to the requirements set forth under Commission Rule 100, 29 C.F.R. §   2200.100.

Accordingly, we rescind the briefing notice and remand this case to the judge for further proceedings consistent with this opinion.

SO ORDERED.

/s/

Horace A. Thompson III

Chairman

/s/

Dated: February 2, 2009                                                    Thomasina V. Rogers

Commissioner