OSHRC Commission decision Docket 93-2614 Decided January 26, 1995 Settled

Monfort of Colorado - Greeley Lamb

Settlement approved for $37,500

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Currency note: this decision dates from 1995
The OSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Decision of the Commission
This is a decision of the Occupational Safety and Health Review Commission, the highest level of agency review, citable as Commission precedent. It may have been appealed to a U.S. Court of Appeals after issuance; check subsequent history before relying on it. The full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)

Plain-English summary

Monfort of Colorado - Greeley Lamb and the Secretary resolved citations arising from an OSHA inspection through a settlement approved by the Commission. The Secretary reclassified seven emergency-response and hazard-communication items from repeated to serious, and Monfort withdrew its contest to those amended items. Monfort certified that all items in the three citations had been abated by November 15, 1994, and that it had paid $37,500 in full. The Commission incorporated the agreement into its order and set aside the judge's earlier decision to the extent it conflicted with the settlement. The agreement stated that Monfort made no admission for purposes outside OSHA proceedings and that each party would bear its own costs.

Decision snapshot

  • Cited standard(s): 29 C.F.R. §§ 1910.119(f)(1)(i), 1910.120(q)(2), 1910.212(a)(3)(ii), and 1910.1200(h).
  • Outcome: Settlement approved. Seven items were reclassified from repeated to serious, all cited conditions were certified abated, and Monfort paid $37,500.
  • Key point: The Commission may replace an earlier procedural ruling with a settlement that resolves classification, abatement, and penalties for all remaining citations.

Full text (OSHRC public release)

                                UNITED   STATES OF AMERICA
      OCCUPATIONAL          SAFETY AND HEALTH REVIEW COMMISSION
                                  One Lafayette Centre
                            1120 20th Street, N.W. - 9th Floor
                               Washington, DC 20036-3419

SECRETARY OF LABOR,

           Complainant,
                                                  ..

           v.                                     ..             Docket No. 93-2614
                                                  ..

MONTFORT OF COLORADO - ..
GREELEY LAMB ..

           Respondent.



                                         ORDER

     This matter is before the Commission on a direction for review entered by

Commissioner Edwin G. Foulke, Jr., on January 21, 1994. The parties have now filed a
stipulation and settlement agreement.

     Having reviewed the record, and based upon the representations appearing in the

stipulation and settlement agreement, we conclude that this case raises no matters
warranting further review by the Commission. The terms of the stipulation and settlement
agreement do not appear to be contrary to the purposes of the Occupational Safety and
Health Act and are in compliance with the Commission’s Rules of Procedure.

    Accordingly, we incorporate the terms of the stipulation and settlement agreement

into this order, and we set aside the Administrative Law Judge’s decision and order to the
extent that it is inconsistent with the stipulation and settlement agreement. This is the final
order of the Commission in this case. See 29 U.S.C. 86 659(c), 660(a), and (b).

                                                  BY DIRECTION OFTHE COMMISSION

Dated 1-G -y$ir v

                                                  Ray   H’ .
                                                  Executive Secretary

NOTICE OF ORDER

   The attached Order by the Occupational Safety and Health Review Commission

was issued and served on the following on January 26, 1995.

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

Tedrick A. Housh, Jr., Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
1210 City Center Square
1100 Main Street
Kansas City, MO 64105

Rodney L. Smith, Esquire
Eiberger, Stacy, Smith & Martin
3500 Republic Plaza
370 Seventeenth Street
Denver, CO. 802025635

James Barkley
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 250
1244 North Speer Boulevard
Denver, CO 80204-3582
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

ROBERT REICH, SECRETARY OF LABOR,

                       Complainant,


                                                        OSHRC Docket
                                                        No. 93-2614

MONFORT OF COLORADO - GREELEY LAMB,

                       Respondent.




                     STIPULATION   AND SETTLEMENT    AGREEMENT




    The parties have reached agreement              on a full and complete

settlement and disposition of the issues in this proceeding which

are currently pending before the Commission. It is hereby

stipulated and agreed between the Complainant, Secretary of

Labor, and the Respondent, Monfort of Colorado - Greeley Lamb,

that:

    1   0     The Secretary hereby      amends   Citation Number 2, Items la

through Id and Items 2a through 2c, to reclassify the alleged
violations of 29 C.F.R. SS 1910.120(q)(2) (ii), (iii), (vii), and

(x 1 I and 29 C.F.R. SS 1910.1200(h)(l) (ii), (2) (ii), and (2)(iv),
as serious rather than repeat violations.

    2   l   Respondent hereby withdraws its notice of contest to the

citation as amended above.

    3e      Respondent certifies that the abatement of all items of

Citation Number 1 for serious violations, Citation Number 2 for

repeat violations as amended above, and Citation Number 3 for

other-than-serious violations, was accomplished by November 15,

1994, the final abatement date.

    4   l   Respondent certifies that it has provided Bobby Glover,

Area Director of the Denver Office of the Qccupational Safety and

Health Administration, with written verification that abatement

has been completed and the manner in which it had been

accomplished for all items of the above citations.

    5   l   Respondent certifies that it has submitted payment of

$37,500.00 to the OSHA Area Office, in full and complete payment

of the penalty.

    6   l   Respondent certifies that a copy of this Stipulation and

Settlement Agreement was posted at the workplace on fyf.mkf lq
1
lssv, in accordance with Rules 7 and 100 of the Commission%

Rules of Procedures, and will remain posted for a period of ten

days.

    7   l    There is no authorized employee representative        to have

elected party status in this case.

    8   l   Each party agrees to bear its own COStSe


                                    2

9 0 None of the foregoing agreements, statements,

stipulations, or actions taken by respondent shall be deemed an

admission by respondent of the allegations contained in the

citations or the complaint herein. The agreements, statements,
stipulations, and actions herein are made solely for the purpose

of settling this matter economically and amicably and they shall

not be used for any other purpose, except for subsequent

proceedings and matters brought by the Secretary of Labor

directly under the provisions of the Occupational Safety and
Health Act of 1970.

Dated this day of December, 1994.

                          Respectfully submitted,

                          THOMAS   S. WILLIAMSON,   Jr.
                          Solicitor of Labor

                          JOSEPH M. WOODWARD
                          Associate Solicitor for
                            Occupational Safety and Health

                          TEDRICK A. HOUSH, Jr.
                          Regional Solicitor

                          DANIEL J. MICK
                          Counsel for Regional
                            Trial Litigation




                            Secretary of Labor

Attorney for Respondent

                          KATHLEEN BUTTERFIELD
                          Attorney for the
                            Secretary of Labor

NOTICE TO EMPLOYEES OR EMPLOYEE REPRESENTATIVE

 The attached Stipulation and Settlement Agreement has been

entered into by the parties and is being submitted to the

Occupational Safety and Health Review Commission for entry as a

Final Order. If you have any comments on the Stipulation and

Settlement Agreement, you may submit them within ten days of
service or posting of the Stipulation to:

      Ray H. Darling, Jr.
      Executive Secretary
      Occupational Safety and Health
      Review Commission
      1120 20th St., N.W., #980
      Washington, D.C. 20036

 A copy of the comments should also be sent to:

      Rodney L. Smith, Esq.
      Eiberger, Stacy, Smith & Martin, P.C.
      3500 Republic Plaza
      370 17th Street
      Denver, CO 80202




 Served and/or posted this 19
                                b
                                    day of   Dccembu   , l?W.

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

                                                                                             FAX:

PHONE:
COM (202) 606-6060
COM (202) 606400
Frs (202) 606-5060
Frs (202) 606-5100

             SECRETARY      OF LABOR
                              Complainant,
                      V.                                                     OSHRC DOCKET
                                                                             NO. 93-2614
             MONFdRT       OF COLORADO,           GREELEY     LAMB
                               Respondent.


                                   NOTICE OF DOCKETING
                            OF ADMINISTRATIVE LAW JUDGE’S DECISION
                  The Administrative Law Judge’s Report in the above referenced case was
             docketed with the Commission on December 22, 1993. The decision of the Judge
             will become a final order of the Commission on January 21, 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 etition should be received b the Executive Secretary on or before
             January 1P, 1994 in order to errnit suHicient time for its review. See
             Commrssion Rule 91, 29 C.F.5 . 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. DO5
                                    Room S4004
                                    200 Constitution Avenue, N.W.
                                    Washington, DC. 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 nghts may contact the Commission’s Executive
             Secretary or call (202) 606-5400.




            Date: December 22, 1993

DOCKET NO. 93-2614
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

Tedrick Housh, Esq.
Re ional Solicitor
O&e of the Solicitor U S DOL
Federal Office Bldg., koom 2106
911 Walnut Street
Kansas City, MO 64106

Robert D. Moran, Esquire
Suite 800
919 18th Street, N. W.
Washington, DC 20006

James H. Barkley
Administrative Law Jud e
Occupational Safety an tf Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO ir0204 3582

00018157511:08
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. SPEER BOULEVARD
ROOM 250
DENVER, COLORADO 80204-3582

PHGNE: FAX:
COM (303) 844-2281 COM (303) 844-3759
FTS (303) 844-228 1 FTS (303) 844-3759

    SECRETARY                OF LABOR,

                                             Complainant,

                  V.                                                           OSHRC DOCKET
                                                                               NO. 93-2614
    MONFORT OF COLORADO -
    GREELEY LAMB,
                      Respondent.                                     I



                                   ORDER       DISMISSING NOTICE OF CONTEST
                  Between May 10 and May 24, 1993, Monfort was inspected by OSHA.                  As a result
    of that inspection,           on May 24, 1993 Monfort was issued one “serious” citation and one
    “other than serious:’ citation,              alleging violations of 29 C.F.R. @1910.212(a)(3)(ii)         and
    W(f)(l)(i),           respectively.     On June 7, 1993, Monfort’s attorney       filed a timely notice of
    contest to the citations.             On July 14, 1993, the parties were notified that the case had been
    docketed and assigned the docket number 93-1806.
                  On August 5, 1993, Monfort was issued three more citations arising out of the same
    inspection.           The August 5 citations included three items alleging “serious” violations of
    $1910.1200 et seq., “repeated”              and “other than serious” violations of ~~1910.120 et seq. and
    “repeat” violations of $1910.1200 etseq. Monfort did not forward the citation to its attorney
    until September 25, 1993; on whi.ch date the attorney immediately filed a notice of contest.
    The latter case was docketed as case number 93-2614.
                  Complainant      moves to vacate the notice of contest as untimely based on 510(a) of
    the Occupational            Safety and Health Act of 1970 (29 U.S.C., Section 651, et Seq.) which
    provides           that a citation uncontested     within 15 days automatically becomes a final order of

the Commission. Monfort does not deny the notice of contest was untimely. However,
Monfort moves for relief under Fed.R.Civ.P. 60(b).
A party filing a late notice of contest may also obtain Commission review by filing a
motion for relief from judgment or order under Rule 60(b), which allows for such relief in
cases of “mistake, inadvertence, surprise, or excusable neglect”. The burden is on the
Respondent to prove itself “justified in failing to avoid its error,” in order to show its
entitlement to relief under Rule 60(b). Keefe Earth Boring Company, Inc. (KE’BCO), 14

BNA OSHC 2187, 2192, 1991 CCH OSHD ll29,277 (No. 88-2521, 1991). In KE’BCO, the
Commission noted that mere carelessness or negligence, even by a layman, is not excusable.
Id .
Monfort alleges that the employee who received the second citation thought it was
part of the previously contested case because of the common ID number on the citation and
the merged inspection. Monfort argues that its mistake entitles it to relief under rule 60(b).
This judge does not agree. Monfort’s misunderstanding, if any, does not merit relief
under Rule 60(b). OSHA citations and documents received from the Commission are
important legal documents that are to be carefully read and understood. Here the two
citations are so dissimilar that a reasonable person could not conclude that the second
citation was part of the first case. Significantly, the first citation had been contested and
docketed before the second citation was issued. The different issuance dates, types of
violations, descriptions of the violations and proposed penalties would all have alerted a
reasonable person to the existence of a second citation requiring a second notice of contest.
Moreover, an affidavit filed by OSHA supervisor, Herb Gibson, indicates Respondent was
aware that two separate citations were generated by the March inspection. Monfort is not
inexperienced. in OSHA matters, having been cited previously. A client’s lack of diligence
in informing his attorney regarding matters relevant to the suit does not entitle the client to
60(b) relief. See; KEBCO, supra, citing with approval National Bank of Joliet v. W.H. Barber
OiZ’Co., 69 F.R.D. 107, 109 (N.D.111. 1975).
m
3-

     Respondent has not demonstrated   entitlement to relief under Fed.R.Civ.P. 60(b). Its

notice of contest is vacated, and the citation and proposed penalties are affirmed.

Dated: December 10, 1993

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