Georgetown Ironworks, Inc. (Commission decision, June 18, 1992)

Plain-English summary

A judge dismissed Georgetown Ironworks' notice of contest after the company failed to answer a show-cause order, which had the effect of affirming the citation and proposed penalties. The Secretary later received information showing that Georgetown Ironworks had no employees and no role at the cited construction site. Another employer had accepted responsibility for the same citation items. The Secretary and Georgetown jointly sought reconsideration so the wrong employer would not be subject to a final order. The Commission treated the filing as a request for review and a motion to withdraw the citation, then granted the withdrawal. The order does not identify the cited standards or penalty amount.

Decision snapshot

• Cited standard(s): None identified in the order.
• Outcome: Citation withdrawn and default affirmance displaced because Georgetown Ironworks was the wrong employer.
• Key point: Procedural default does not justify a final citation against an employer shown to have had no employees or role at the worksite.

Full text (OSHRC public release)

Docket No. 92-0080

SECRETARY OF LABOR,

Complaint,                                                                                               

v.

GEORGETOWN IRONWORKS INC.,

Respondent.                                                                                   

OSHRC Docket No. 92-0080

DIRECTION FOR REVIEW AND ORDER

The Complainant filed a Motion to Remand Case for
Reconsideration in Light of New Information on June 8, 1992. That Motion, which Complainant represents is filed on behalf of both parties, asserts that the Respondent has demonstrated, to the Complainant's satisfaction, that it had no employees or role at the cited construction worksite. Based on that demonstration, the Complainant has informed the Commission that it seeks to withdraw the citation upon which its complaint is based.

On May 22, 1992, Chief Administrative Law Judge
Irving Sommer issued an Order Dismissing the Respondent's Notice of Contest. That Order, affirming the Secretary's citation and proposed penalties in ail respects, was docketed with the Commission on May 28, 1992 Judge Sommer's Order was based on the Respondent's failure to answer an earlier Order to Show Cause why the Respondent's Notice of Contest should not be dismissed.

Under the aforementioned circumstances, the
Commission will interpret the Complainant's Motion of June 8, 1992 as a Petition for Discretionary Review and a Motion to Withdraw Citation. Based on our review of the record in this matter, pursuant to 29 U.S.C. 661(j) and Commission Rule 92(a), 29 C.F.R. 2200.92(a), the aforementioned Order Dismissing Notice of Contest is directed for review. Further, finding that under Commission Rule 102, 29 C.F.R. 2200.102, the Complainant may withdraw the citation at any stage of a proceeding, pursuant to that rule, the Complainant's Motion to Withdraw Citation is granted.

Edwin G. Foulke, Jr.,

Chairman

Donald G. Wiseman,

     Commissioner

Velma Montoya,

     Commissioner

Dated: June 18, 1992

SECRETARY OF LABOR,  

Complainant,                                                                                              

v.

GEORGETOWN IRONWORKS,INC.

Respondent,

Docket NO.
92-0080                                                              

ORDER

On March 24, 1992, the undersigned issued an ORDER TO SHOW CAUSE to the Respondent as to why his Notice of Contest should not be dismissed for failure to file an answer to the complaint as required by the Commission Rules of Procedure. The Respondent failed to reply to the ORDER. His actions demonstrate either that he has abandoned the case or treats the Rules of Procedure of the Commission with disdain. This cannot be countenanced as it seriously impedes the administration of justice.

Accordingly, the Notice of Contest filed by the Respondent is dismissed. The Secretary's citation(s) and proposed penalties are AFFIRMED in all respects.

IRVING SOMMER

Judge

DATED: MAY 22,1992

Washington, D.C.

SECRETARY OF LABOR,

Complaint,

v.

Georgetown Ironworks, Inc.,

Respondent.

DOCKET NO. 92-0080

REGION 1

MOTION TO REMAND CASE FOR RECONSIDERATION

IN LIGHT OF NEW INFORMATION

On behalf of both parties, Complainant hereby moves
the Review Commission to remand this case to the Administrative Law Judge for reconsideration.  Because Respondent has demonstrated that it had no employees or role at the cited construction worksite, Complainant seeks to withdraw the Complaint herein and the citation on which it is based.   Note that another employer at the cited construction worksite has accepted responsibility for the same citation items arising out of identical violations; those citation items were not contested and have become a final order under the OSH Act.

While Complainant does not condone this pro se
Respondent's continued failure to file an Answer to the Complaint, the purposes of the OSH Act would be ill served by entry of a final order against the wrong employer.

Dated__

Marshall J. Breger

Solicitor of Labor

Albert H. Ross

Regional Solicitor

Constance B. Franklin

Attorney

U.S. Department of Labor

Attonreys for Complainant