L. R. Willson and Sons, Inc.

Plain-English summary

An administrative law judge had affirmed a tag-line violation against L. R. Willson and Sons and assessed a $4,000 penalty. The parties later settled Willson's separate Equal Access to Justice Act fee claim concerning a withdrawn general duty clause item. When the Secretary sought to collect the tag-line penalty, Willson argued that the fee settlement had discharged all penalty obligations and asked the Commission to stop collection. The Commission held that the Occupational Safety and Health Act gives federal district courts, not the Commission, authority over penalty-collection actions. It also concluded that any request for relief from the settlement order based on mistake or neglect was filed beyond the one-year deadline. The motion to cease collection efforts was denied.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1) and 29 C.F.R. § 1926.751(d).
• Outcome: Motion to cease collection efforts denied.
• Key point: The Commission cannot enjoin the Secretary's penalty-collection efforts; collection disputes belong in federal district court.

Full text (OSHRC public release)

• no title specified

:

SECRETARY OF LABOR,                :

:

Complainant,             :

:

v.                       :   OSHRC Docket No. 93-0785

:

L. R. WILLSON AND SONS, INC.,      :

:

Respondent.              :

_____:

DECISION

Before: WEISBERG, Chairman; ROGERS, Commissioner.

BY THE COMMISSION:

L. R. Willson and Sons, Inc. ("Willson") filed a motion with the

Commission requesting that the Commission order the Secretary to cease

collection efforts seeking the payment of a penalty in this case.

Administrative Law Judge Michael Schoenfeld denied Willson's motion. For

the reasons that follow, we affirm the judge's order.

BACKGROUND

On February 25, 1993, the Secretary cited Willson for two violations.

Serious Citation 1, Item 1 ("the general duty clause item") alleged a

violation of section 5(a)(1) of the Occupational Safety and Health Act

of 1970, 29 U.S.C. §§ 651-678 ("the Act"), for exposing employees to

hazards of uncontrolled loads and swinging and/or falling steel. Serious

Citation 1, Item 2 ("the tag line item") alleged a violation of 29

C.F.R. § 1926.751(d) for failing to use tag lines to control loads while

hoisting during structural steel assembly. The Secretary proposed a

penalty of $4000 for each citation item. Willson timely contested both

citations.

Prior to the hearing, the Secretary withdrew the general duty clause

citation, making Willson the prevailing party as to that citation item.

As a result, Willson sought an award of attorney's fees under the Equal

Access to Justice Act, 5 U.S.C. § 504 ("the EAJA"), for the cost of

defending itself against the general duty clause citation. The judge

denied the application for fees because he had not yet filed a decision

on the tag line item. After the judge filed his decision affirming the

tag line item and assessing a $4000 penalty, Willson petitioned for

discretionary review of the judge's decision. In the petition, Willson

renewed its application for fees. The petition for review was not

granted, and the judge's decision on the tag line item became a final

order on October 3, 1994.

On October 19, 1994, Willson once again filed with the judge its

application for attorney's fees. Subsequently, on January 17, 1995, the

Secretary and Willson filed a settlement agreement with the judge which

stated that "[t]he Respondent filed a petition for attorney's fees under

the Equal Access to Justice Act, which is currently pending before the

Commission. The parties wish to settle all matters raised by the

[p]etition . . . ." By the terms of the settlement agreement, Willson

agreed to accept payment from the Secretary "in full settlement of its

petition, withdraw its petition for fees, and cease any further

proceedings in connection with this matter." While the agreement does

specifically refer to the withdrawn general duty clause citation item,

it does not mention the tag line item. On February 27, 1995, Judge

Schoenfeld's Order Approving Stipulated Settlement became final.

On August 31, 1995, the Secretary sent a collection letter to Willson

requesting payment of the tag line penalty. This was followed by

collection letters on January 31, 1996 and February 23, 1996. Willson

responded to each letter by claiming that the settlement agreement

discharged it from all penalty obligations arising from the citation. On

March 18, 1996, the Secretary notified Willson that she was going to

pursue collection through litigation. On August 8, 1997, the Secretary

again notified Willson that payment was overdue. In response to this

letter, on August 26, 1997 Willson submitted to the Commission's

Executive Secretary a "Motion to Cease Collection Efforts" in which

Willson "moves the Commission for an Order directing the Occupational

Safety and Health Administration ("OSHA") to cease its collection

efforts against Willson." The Secretary filed an opposition and motion

to strike Willson's motion. The case was again assigned to Judge

Schoenfeld, who on November 11, 1997 found that the Commission was

without jurisdiction to consider the merits of Willson's motion and

accordingly denied that motion.

DISCUSSION

The Secretary has been attempting to collect from Willson a penalty she

believes she is owed based on the tag line violation. Willson denies

that it owes the penalty, and asks us to stop the Secretary's collection

effort. We must reject Willson's request. The Act contains no provision

authorizing the Commission to order the injunctive relief Willson seeks.

Rather, the Act provides for the recovery of penalties by the Secretary

"in a civil action . . . brought in the United States district

court."[1] Hence, the Commission is not the proper forum to consider

either a suit to collect penalties or to hear an appeal regarding the

collection of penalties. /Badger Underground Constr., Inc./, 17 BNA OSHC

1696, 1697, 1995-97 CCH OSHD ¶ 31,096, p.43,396 (No. 94-3251, 1996)

(penalty collection is solely the function of the Secretary of Labor

under the Act). If and when the Secretary brings suit in a district

court for payment of the tag line penalty, Willson can then present the

arguments it makes in its motion.

Even if we were to treat Willson's motion as a motion for relief from

the final order that approved the settlement agreement under Fed. R.

Civ. P. 60(b),[2] such motion would be time-barred. Willson is

time-barred from raising "mistake, inadvertence, surprise, or excusable

neglect" under 60(b)(1) because its motion was not made until

approximately two and a half years after the settlement agreement became

a final order, well outside the one year limitation for such motions,

despite a number of attempts by the Secretary in the interim to collect

the penalty. We also do not find "any other reason justifying relief"

under Rule 60(b)(6), the only other clause of Rule 60(b) that could

apply here.

We therefore deny Willson's Motion to Cease Collection Efforts.

/s/

Stuart E. Weisberg

Chairman

/s/

Thomasina V. Rogers

Commissioner

Dated: January 25, 1999

[1] Section 17(l) of the Act provides as follows:

Civil penalties owed under this Act shall be paid to the Secretary

for deposit into the Treasury of the United States and shall accrue

to the United States and may be recovered in a civil action in the

name of the United States brought in the United States district

court for the district where the violation is alleged to have

occurred or where the employer has its principal office.

The action may be brought "within five years from the date when the

claim first accrued." 28 U.S.C. § 2462.

[2] Rule 60(b) of the Federal Rules of Civil Procedure provides, in

pertinent part:

Rule 60. Relief From Judgment or Order

. . . .

*(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered

Evidence; Fraud, etc.* On motion and upon such terms as are just,

the court may relieve a party or a party's legal representative from

a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 59(b); (3)

fraud . . . misrepresentation, or other misconduct of an adverse

party; (4) the judgment is void; (5) the judgment has been

satisfied, released, or discharged, or a prior judgment upon which

it is based has been reversed or otherwise vacated, or it is no

longer equitable that the judgment should have prospective

application; or (6) any other reason justifying relief from the

operation of the judgment. The motion shall be made within a

reasonable time, and for reasons (1), (2), and (3) not more than one

year after the judgment, order, or proceeding was entered or taken.