Sterling/ICC, and its Successors (ALJ decision, January 3, 1994)

Plain-English summary

An earlier order dismissed Sterling/ICC's notices of contest as untimely. The Commission sent the matters back for a hearing because the company's vice president suggested that OSHA had led him to believe a lawyer was required to contest the citations. At the hearing, the OSHA district supervisor testified that he had said the company could proceed on its own or use a representative. The vice president likewise admitted that he was told he could represent the company himself or hire counsel. The judge found no OSHA deception or misleading advice and reaffirmed the dismissals. The decision does not identify the cited standards, proposed penalties, or exact filing dates.

Decision snapshot

• Cited standard(s): No specific OSHA standard is identified in the decision.
• Outcome: Procedural. The judge reaffirmed dismissal of both untimely notices of contest.
• Key point: A late contest is not excused by alleged government deception when the evidence shows OSHA accurately explained that counsel was optional.

Full text (OSHRC public release)

OCCUPATIONAL SAFi?i?i~~h~~iiiiciW/EW
COhdMSSlON
On8 Lafayette c8ntte
1120 20th %‘88t, NJ/V. - 9th Floor
Washington, DC 20036-3419

SECRETARY OF LABOR
Complainant,
OSHRC DOCKET
v. NOS. 93-0895
93-0896
STERLING/ICC, AND ITS SUCCESSORS,
Respondent.

NOTICE OF DOCKETING
OF ADMINKIIMTIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on December 2, 1993. The decision of the Judge will become a final order of the Commission on January 3, 1994 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 petition should be received by the Executive Secretary on or before December 22, 1993 in order to permit sufficient time for its review. See Commission Rule 91, 29 C.F.R. 2200.91. All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOf
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 having questions about review nghts may contact the Commission’s Executive Secretary or call (202) 606-5400.
FOR THE COMMISSION

Jk+O$&jfl
Date: December 2, 1993
Ray H. Darling, Jr.
Executive Secretary
DOCKET NOS. 93-0895 & 93-0896
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mi& ESQ.
CowGel for Ri 'oAI TriaI fiti ation
Office of the S&itm, U.S. DO%
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Marshall H. Harris, Esq.
Re ‘onal Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market Htreet
Philadelphia, PA 19104

John Patrick McGinley
Vice-President
Sterlin /ICC
4401 #&wick Road
College Park, MD 20740

Irvin Sommer
Chie BAdministrative Law Jud e
Occupational Safety and HealtII
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00102638384:03
OCCUPATIONAL ~AF#?%t~~“~i~cik”IEW
COhdMlSSlON
Onehfay8tt8C8ntfB
1120 20th Strwt, N.W - 9th Floor
Washington, DC 20036-3419

SECRETARY OF LABOR,

Complainant,

v. .. Docket Nos. 93-0895
9348%
STERLING/ICC, and its
successor!+
Respondent.

Appearances:

Maureen A Russo, Esq.
John P. McGinl9
U.S. Department of Labor
Vice President
Philadelphia, Pa.
College Park MD

For the Complainant
For the Respondent

Before: Administrative Law Judge Irving Sommer

DECISION AND ORDER

By order dated June 17, 1993 the undersigned dismissed the Respondent’s notice of contest as being untimely filed. The Respondent requested review of this decision and in an order dated July 19,1993 the Commission directed that “appropriate further proceedings be conducted to allow the Respondent an opportunity to offer proof of the circumstances alleged in Mr. McGinley’s June 9,1993 letter.” In said letter the Commission indicated that “Mr McGinley suggests that he was misled by OSHA to believe that it was necessary to hire a lawyer in order to contest a citation.” A hearing was held in Washington, DC. on August 26, 1993, at which time both parties appeared and were represented.
 2

Joti R Wise- the district supewisor of the Washington, DC. office of OS= tesad that he had engaged in an informal conference with Mr. McGinley on or about January 23,1992, concerning the citations issued to the company. wiseman emphatically stated that he had at no time told McGinley that if the citations were contested that a lawyer was necessary to proceed. Wiseman said, “I tell all people that they may conduct this themselves or have somebody from their company.” (Tr 17). In response to the question of his counsel, “And did you ever suggest or imply, during the course of the events, anything that would lead Mr. McGinley to believe that if he wished to contest these particular citations, he would need legal counsel?” his response was, “No, I did not.” The testimony of Mr. McGinley fully establishes that Wiseman at no point told him that in order to proceed further he needed to hire counsel. Actually he admitted he was told that if he desired to proceed further he could represent himself or get a lawyer. (Tr 31).
A careful analysis of the evidence of record, the testimony of the witness herein compel the conclusion that the Respondent was in no way misled by OSHA with respect to his rights to proceed further either representing the corporation himself or with coumel of his choice. The failure of the Respondent to proceed was in no way caused by any deception by OSHA.
Accordingly, the decisions dated June 17, 1993 dismissing the notice of contest in the captioned cases are RE- AFFIRMED as issued.

IRVING SO-R
Judge
DATED: NW 2 6 1993
=shington, DC.