Menominee Tribal Enterprises

Plain-English summary

Menominee Tribal Enterprises and the Secretary stipulated to the violations, their classifications, and the proposed penalties, leaving only whether the Occupational Safety and Health Act applied to the cited activities. The judge had previously ruled that the Act applied. The Menominee Indian Tribe asked to submit additional factual findings after that ruling, but the judge denied the request because the parties had already been given a deadline to present their facts and legal arguments. With no remaining disputed issue, the judge granted summary judgment and affirmed 13 citation items. Six items carried penalties totaling $10,800, and seven items carried no penalty.

Decision snapshot

• Cited standard(s): None identified in this decision.
• Outcome: Thirteen stipulated citation items were affirmed, with total penalties of $10,800.
• Key point: Once statutory coverage was decided and all citation facts, classifications, and penalties were stipulated, summary judgment was appropriate.

Full text (OSHRC public release)

                                               United States of America
                   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                              721 19th Street, Room 407
                                               Denver, Colorado 80202

SECRETARY OF LABOR,
Complainant,
OSHRC Docket No.
v. 08-0404
MENOMINEE TRIBAL ENTERPRISES,
Respondent.

Appearances:

    Denise C . Hockley -Cann, Esq., Office of the Solicitor, U.S. Departm ent of L abor, Chicago, Illinois
            For Complainant

    Joseph Prelozn ik, Esq ., Law Office of Joseph Preloz nik, M adison, W isconsin
            For Respondent

    W illiam K ussel, Esq., D irector of Legal Serv ices, K eshena, W isconsin
             For third party intervenor M enomine e Indian Tribe of W isconsin

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,

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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

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