B & F Mechanical Contractors, Inc.
Settlement replaces default and reduces penalties to $900
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This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
An ALJ dismissed B & F Mechanical's notice of contest and affirmed a citation with $6,300 in proposed penalties after the company failed to respond to orders and did not return a promised settlement agreement. The company's president later explained that an automobile accident, hospitalization, severe staffing reductions, and family hurricane losses contributed to the missed communications. The Secretary did not object to resolving the case through the completed agreement. Under the settlement, citation items 1 through 7 were vacated, item 8's penalty was reduced from $600 to $300, and item 9 remained unchanged. B & F withdrew its contest, certified abatement, and agreed to pay a total penalty of $900, which the Commission approved as its final order.
Decision snapshot
- Cited standard(s): The release does not identify the standards underlying the nine citation items.
- Outcome: Items 1 through 7 were vacated; items 8 and 9 were settled for $900 total.
- Key point: The Commission may approve a completed settlement after a procedural default when the circumstances explain the missed filings and the Secretary does not object.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006-1246
FAX :
COM (202) 6344008
FTS (202) 6344008
.
SECRETARY OF LABOR,
Complainant,
v. / Docket No. 92-2226
B & F MECHANICAL CO.,
Respondent.
.
NOTICE OF COMMISSION DECISION
The attached order by the Occupational Safety and Health Review Commission was issued on
April 22,1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WE0 WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 0 660.
FOR THE COMMISSION
April 22, 1993
Date
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006-l 246
FAX
COM (202) 634-4008
.. FTS (202) 6344008
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. OSHRC Docket No. 92-2226
..
B & F MECHANICAL CO., ..
..
Respondent. ..
..
ORDER
Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:
On April 1, 1993, the Commission issued an order giving B & F Mechanical Co.
(“B & F”) a further opportunity to submit a fully executed settlement agreement with the
Secretary. B & F has done so. Its President also submitted a letter to the judge giving
numerous reasons that contributed to its failure to submit the agreement earlier.
Among those reasons, its President states that she was hospitalized with cracked
vertebrae due to an automobile accident and was not aware of the judges’ orders that led
to dismissal of B & F’s notice of contest below. She also states that her staff was reduced
to one part-time employee (her sister) due to business developments beyond its control, and
that her sister went to Florida to help their parents, who lost everything in the recent
hurricane there. B & F’s President further states that the company “in no way deliberately
caused the chain of events” that caused Judge Schoenfeld to dismiss the case.
The Secretary forwarded to the Commission the partially executed settlement
agreement after that dismissal, and has expressed no objection to permitting the case to be
settled based on that agreement. Under the circumstances as outlined by the Respondent,
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we ill approve the settlement agreement, and it will become the final order of the
Commission in this case.
SO ORDERED.
Chairman V
Commissioner .
Commissioner
Dated: April 22, 1993
NOTICE OF ORDER
The attached Order by the Occupational Safety and Health Review Commission
was issued and served on the following on April 22, 1993.
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL
200 Constitution Ave., N.W. Room S4004
Washington, D.C. 20210
Marshall H. Harris, Esq.
Regional Solicitor
Office’of the Solicitor, U.S. DOL
14480 Gateway Building
3535 Market Street
Philadelphia, PA 19104
Fraya Kerns
B & F Mechanical Co., Inc.
P.O. Box 465
Bladensburg, MD 20710
Michael H. Schoenfeld
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 417/C
1825 K Street, N.W.
Washington, D.C. 20006-1246
-
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
- -
LYNN-MARTIN,-SECRETARY-OF LABoR, : .
UNITED STATES DEPARTMENT OF LABOR OSHRC DOCKET
l
l No 0 922226
Complainant,
l
l INSPECTION
V. No 017735671
0
l
B & F MECHANICAL CONTRACTORS, INC. REGION III
and its successors, l
0
STIPULATION OF SETTLEMENT
The parties hereto, in order to resolve this case
amicably without the necessity of further litigation, hereby
agree and stipulate as follows:-
1 l The Complainant, by her attorneys, hereby moves to
amend the citation and notification of penalty issued on March
17 I 1992 as follows:
SERIOUS CITATION NUMBER 1:
a. Citation Number 1, Items l-5, 6a, 6b and 7.
Items l-5, 6a, 6b and 7 and the penalties proposed therefor are
vacated.
b l Citation Number 1, Item 8. The penalty
proposed for Item 8 is reduced from the original amount of
$600.00 to $300.00.
As grounds therefor, Complainant avers that the
modifications and reduced penalties more accurately reflect the
statutory criteria for penalty calculation set forth in Section
17 of the Occupational Safety and Health Act of 1970 ("the Act"),
29 U.S.C. s 666.
20 Citation 1, Item 9 and the penalty proposed
therefor shall remain as set forth in the Notice of Citation.
3a Respondent hereby moves the Commission for an
Order allowing it to withdraw its Notice of Contest to the
Citations and Notifications of Proposed Penalty as amended. In
support thereof, Respondent represents:
a. that the reduced penalty of $900.00 will be
paid in full upon approval of this Stipulation of Settlement by
the Administrative Law Judge;
b l that complete abatement of the conditions
noted in the Citations as amended has been accomplished;
c. that Respondent has posted its Notice of
Contest;
d l that a copy of this Stipulation of Settlement
has been posted in accordance with the requirements of 29 C.F.R.
S 2200.100(c) and 29 C.F.R. S 2200.7(g) so as to provide notice
/
(location at which all affected employees will receive notice) on
&H/L /?"/ @ 1992;
e. that in addition to the foregoing posting, a
Copy of this Stipulation was served on Steamfitters Local 602 on
in accordance with the requirements of 29
C.F.R. S 2200.100(c) and 29 C.F.R. S 2200.7(c) (postage pre-paid
first-class mail or personal delivery).
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f0 that Respondent agrees to continue to comply
with the applicable provisions of the Act, and the applicable
health and safety standards promulgated pursuant to the Act; and
g l that within thirty (30) days after the
execution of the Stipulation of Settlement, respondent will
submit to the Harrisburg, Pennsylvania Area Office a letter
containing a concise description of the actions taken to abate
the hazards alleged in each of the items of the Citations to be
affirmed by the Administrative Law Judge pursuant to this
Stipulation of Settlement and the date on which such action
occurred.
40 The Citation and Notification of Proposed Penalty
as amended by this Stipulation shall become a final order of the I)
Commission and the parties consent to the entry of the attached
Consent Order Approving Settlement.
5a Each party hereby agrees to bear its own fees and
other expenses incurred by such party in connection with any
stage of this proceeding.
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60 Respondent shall forward payment to the Baltimore
Area Office of OSHA at the Federal Building, Room 1110, 31
Hopkins Plaza, Baltimore, Maryland 21201, made payable to "OSHA-
Labor?
Marshall J. Breger
B C-F Mechanical Contractors, Solicitor of Labor
Inc.
Respondent
Marshall H. Harris
Regional Solicitor
Attorney
U.S. DEPARTMENT OF LABOR
Attorneys for Complainant. _ -
-
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006-1246
FAX
COM (202) 634-4008
FTS (202) 634-4008
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2226
B & F MECHANICAL CONTRACTORS, INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE IAW JUDGE’S DECISION
The Administrative Law Judge’s Re ort in the above referenced case was
docketed with the Commission on Marc R 24, 1993. The decision of the Judge
will become a final order of the Commission on April 23, 1993 unless a
Commission member directs review of the decision on or before that date; ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before _
April 13, P993 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 cp.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 IS St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.
FOR THE COMMISSION
f? H- ~~pY&/y
Date: March 24, 1993 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 92-2226
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Marshall H. Harris, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Building
3535 Market l treet
Philadelphia, PA 19104
Fra a Kerns
B &! F Mechanical Co., Inc.
P.O. Box 465
Bladensburg, MD 20710
Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
Room 417/C
1825 K Street, N.W.
Washington, DC 20006 1246
00017735671:03
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
~-
..
SECRETARY OF LABOR, ..
..
Complainant, ..
..
V. .. Docket No. 92-2226
.
B & F MECHANICAL CO., INC.,
Respondent.
ORDER
DISMISSING NOTICE OF CONTEST
-4ND
AFFIRMING CITATION AND NOTIFICATION OF PROPOSED PENALTIES
On January 14, 1993, an Order to Show Cause Why Notice of Contest Should
Not be Dismissed was issued by Judge Irving Sommer. The Order was addressed to
Respondent at the mailing address of record and was sent by certified mail, return
receipt requested.
The unopened envelope has been returned to the Commission by the United
States Postal Service noting that despite two notices (January 16) 1993 and January
22, 1993) the envelope remained unclaimed. Notwithstanding Respondent’s failure
to accept delivery of the certified mail, the office of this Judge spoke to the
representative of Respondent on at least one occasion and left telephone messages
on at least two others. Despite repeated assurances that Respondent would sign and
return a settlement agreement, the terms of which had apparently been agreed to,
it has not done so.
I find that RespondenVs failure to reply to the Show Cause Order is of its own
making in that the order which was sent to Respondent as required by Rule 41(d) )
29 C.F.R. § 2200.41(d) (1992)=, remained unclaimed despite United States Postal
Service notification l That Respondent’s conduct is deliberate is confirmed by its
continued failure to be responsive in the face of telephone contacts and assurances
that it would cooperate. I conclude that such conduct is contumacious and
intentionally disrespectful of the Commission and its procedures. Thus, dismissal
of the Notice of Contest filed by Respondent is appropriate as is affirmance of the
violations and the penalties as proposed.
Accordingly, IT IS ORDERED THAT:
1. Respondent’s Notice of Contest of June 5, 1992 is DISMISSED.
2. Citation No. 1, initially issued to Respondent on or about March 17, 1992,
is AFFIRMED in its entirety.
3. The penalties proposed) $6,300.00, are AFFIRMED.
.’, ,’
/
!/’
/(&&&
-/ i
MICHAEL H. SCHOENFBLD
Judge, OSHRC
Dated: March 23, 1993
Washington, D.C.
1 Rules of Procedure of the Occupational Safety and Health Review Commission, 29
C.F.R. §Q 2200.1~.212, as amended, 57 Fed. Reg. 41676-689 (September 11,1992).
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