Adam Zembrzuski dba A to Z Construction

Plain-English summary

OSHA issued A to Z Construction three serious citation items with proposed penalties totaling $2,000. The employer later said it no longer wished to contest, but the Secretary mistakenly filed a withdrawal of the citation instead of a withdrawal of the employer's notice of contest. The judge approved that filing, and the order became final. The Secretary then sought relief from the mistake under Federal Rule of Civil Procedure 60(b)(1). The Commission remanded the case for the judge to consider that motion, while noting that any withdrawal of the notice of contest had to be signed and filed by the employer.

Decision snapshot

• Cited standard(s): None specified in the decision.
• Outcome: The case was remanded for consideration of relief from the mistaken citation withdrawal.
• Key point: The Secretary cannot withdraw an employer's notice of contest; that filing must come from the employer.

Full text (OSHRC public release)

ADAM ZEMBRZUSKI dba A TO Z CONSTRUCTION, OSHRC DOCKET No. 16-1151

2017-03-30
Microsoft� Word 2013
2018-08-06

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EN-US
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X-NONE

United States of America

OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION

������ 1120 20 th � Street, N.W., Ninth Floor Washington,
DC 20036-3457

SECRETARY OF LABOR,

����������������������������������� Complainant,

������������������������ v.

OSHRC Docket No. 16-1151

ADAM ZEMBRZUSKI dba A TO Z CONSTRUCTION,

�������������������������������������
Respondent,

APPEARANCES:

Suzanne F. Dunne, Attorney;
Christine Z. Heri , Regional Solicitor; Katherine E.
Bissell, Deputy Solicitor for Regional Enforcement; U.S. Department of Labor,
Washington, DC

For the Complainant

��������������������������������������������������������������������������������������������������������������������������������������������������������������������������������

Adam Zembrzuski , pro se, Wheeling, IL For
the Respondent

REMAND ORDER

Before: M AC DOUGALL,
Acting Chairman; ATTWOOD, Commissioner. BY THE COMMISSION:

On June 6, 2016, the Occupational Safety and Health
Administration issued Respondent a three-item serious citation with a total
proposed penalty of $2,000, which Respondent contested. On August 11, 2016, Respondent
notified the Secretary that he no longer wished to contest the citation and
asked the Secretary for assistance in withdrawing his notice of contest. [1] ��
On August 15, 2016, the Secretary filed a Notice of Withdrawal of
Citation with Chief Administrative Law Judge Covette Rooney, who issued an
order approving the withdrawal on October 21, 2016. The judge�s order became a
final order of the Commission on November 23, 2016.

1F

����������� Two months later, on January 27,
2017, the Secretary filed a motion seeking relief from the final order under
Federal Rule of Civil Procedure 60(b)(1). Fed. R. Civ. Pro. 60(b)(1) (allows for relief from final judgment based
upon �mistake, inadvertence, surprise, or excusable neglect�); see also 29
C.F.R. � 2200.2(b) (applicability of Federal Rules of Civil Procedure to
Commission proceedings). According to the Secretary, he made a �good faith
mistake� when he filed a Notice of Withdrawal of Citation instead
of a Notice of Withdrawal of Notice of Contest. The Secretary�s
motion, which was directed to the judge, requests that the final order �be
lifted� and that he be allowed to file a Motion to Withdraw the Notice of Contest. [2]

We remand this case to the judge for
consideration of the Secretary�s motion.

SO
ORDERED.

/s/ ��������������������������������������������������������

Heather L. MacDougall

Acting Chairman

/s/ ��������������������������������������������������������

Cynthia L.
Attwood

Dated: � March 30, 2017 ���������������������������������������������� Commissioner

UNITED STATES OF AMERICA OCCUPATIONAL SAFETY
AND HEALTH REVIEW
COMMISSION

THOMAS E. PEREZ, Secretary
of Labor, United States Department of Labor,

Complainant,

v.

OSHRC Docket No.: 16-1151

Inspection
No.: 1151034

ADAM ZEMBRZUSKI dba

A TO Z CONSTRUCTION

Respondent.

ORDER APPROVING NOTICE OF WITHDRAWAL OF CITATION

The
Commission has jurisdiction over the subject matter of the case and over the
parties by virtue of the filing of a timely notice of
contest.

The stipulated
settlement between the parties filed on 8-15-16 has been considered. The stipulation and settlement
agreement has been served on all parties and authorized employee
representatives and posted in the manner prescribed by Commission Rule 7(g). [3]
Ten (10) days has passed since service and posting and no objection to the
settlement has been filed.

The settlement is approved under 5 U.S.C. �554(c )( l
) and Commission Rule 100. The terms of the stipulated settlement are
incorporated, in their entirety, by reference in this order.

1 Rules of Procedure of the Occupational Safety and Health Review
Commission, 29 C.F.R. ��2200.1-.212, as amended.

The order shall become final thirty (30) days from the
date of its docketing by the Executive Secretary, unless review thereof is
directed by a Commission Member within that time. 29 U.S.C. Section 6610).

Isl

COVETTE
ROONEY

Chief Judge, OSHRC

OCT 2 1 2016

Dated:

Washington, D.C.

[1] According
to the Secretary, Respondent has paid the proposed penalty and abated the
alleged violations.

[2] We
note that any withdrawal of Respondent�s notice of contest must be signed and
filed by Respondent, not the Secretary. See
29 U.S.C. � 659(a) (employer must notify Secretary of intent to contest
citation).

[3] We
note that any withdrawal of Respondent�s notice of contest must be signed and
filed by Respondent, not the Secretary. See
29 U.S.C. � 659(a) (employer must notify Secretary of intent to contest
citation).