Service Specialty, Inc. (Commission decision, May 22, 1980)

Plain-English summary

This is a short order closing a case that had already been to the Commission once. On September 28, 1979 the Commission remanded so the judge could enter findings of fact and conclusions of law on whether the company's notice of contest was timely filed, a question that determined whether the Commission had jurisdiction at all.

The remand hearing never happened. Before the scheduled date the parties filed a stipulation settling every matter in issue. Administrative Law Judge Paul L. Brady found that the company sought to withdraw its notice of contest, and concluded as a matter of law that the Commission had jurisdiction because the allegations and assertions were consistent with the pleadings and the record. He noted that the violations had been abated and the penalty, as amended, had been paid, and recommended that the Commission approve the settlement and affirm the citation.

The Commission adopted the jurisdictional conclusion and approved the settlement. The citation of October 23, 1975 for failure to comply with 29 C.F.R. § 1903.16(a) is affirmed with a $100 penalty. The notification of failure to correct, also dated October 23, 1975, is affirmed with a $100 penalty for not abating in time. The total for everything covered by the agreement is $200.

The sequence is the point worth noting. A settlement does not relieve the judge of the jurisdictional question the remand posed. Judge Brady still had to find that the Commission had jurisdiction before the stipulation could be approved, and the Commission adopted that conclusion before it reached the settlement.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1903.16(a)
• Outcome: Settled. The settlement agreement is approved, the citation and the notification of failure to correct are both affirmed, and $200 in penalties is assessed.
• Key point: A stipulation can moot the hearing a jurisdictional remand ordered, but the judge still has to find jurisdiction before the settlement can be approved.

Full text (OSHRC public release)

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EN-US
X-NONE
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

Complainant,

v.

OSHRC
DOCKET NO. 16033

SERVICE
SPECIALTY, INC.,

Respondent.

May 22, 1980

ORDER

Before CLEARY, Chairman; BARNAKO and COTTINE,
Commissioners.

BY THE COMMISSION:

The
Commission adopts the judge�s conclusion, made in accordance with our remand order of September 28, 1979, 79 OSAHRC 84/F5, 7 BNA OSHC 1770, 1979 CCH OSHD  23,928, that the Commission has jurisdiction over this proceeding.

The
settlement agreement submitted by the parties is hereby approved. The citation for failure to comply with 29 C.F.R. 1903.16(a), dated October 23, 1975, is affirmed and a penalty of $100 is assessed for that violation. The notification of failure to correct, dated October 23, 1975, is affirmed and a penalty of $100 is assessed for Respondent�s failure to timely abate the violations listed in the notification. Thus, the total penalty for all matters covered by the settlement agreement is $200. SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

BY: Gloria W. White

Acting Executive Secretary

DATED: MAY 22, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

Complainant,

v.

OSHRC
DOCKET NO. 16033

SERVICE
SPECIALTY, INC.,

Respondent.

FINAL ORDER DATE: February 25, 1980

DECISION
ON REMAND

On September 28, 1979, the Commission entered an order remanding this case to the undersigned to enter appropriate findings of fact and conclusions of law as to whether respondent�s notice of contest was timely filed, which would affect jurisdiction in this case.

Prior to the time of the scheduled hearing on remand, the parties filed a stipulation in settlement of all matters in issue. Accordingly, it is submitted as a finding of fact that respondent seeks to withdraw its notice of contest, and concluded, as a matter of law, that the Commission has jurisdiction in this case since all allegations and assertions are consistent with the pleadings and record.

The parties agree that the alleged violations have been abated and the proposed penalty, as amended, has been paid. It is, therefore, recommended that the Commission approve the settlement of the parties and affirm the citation.

SO ORDERED.

Dated this 24th day of
January, 1980.

/s/ PAUL L. BRADY

Judge