Keystone Structural Concrete Ltd., and its successors

Plain-English summary

The judge had vacated Keystone Structural Concrete's notice of contest after its attorney failed to timely execute a settlement and respond to an order to show cause. On reconsideration, the judge restored the contest because settlement is encouraged and the client should not bear the attorney's mistake. He then approved the parties' settlement. The Secretary withdrew two electrical citation items, each of which had carried a proposed $1,400 penalty and had been corrected during the inspection. Keystone withdrew its notice of contest and agreed to continue good-faith compliance efforts. No penalty remained under the settlement.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.403(b)(1)(iii) and 1926.404(f)(6)
• Outcome: Prior dismissal vacated; settlement approved and both citation items withdrawn with no penalty.
• Key point: The judge reinstated the contest to allow a completed settlement rather than penalize the employer for counsel's filing mistake.

Full text (OSHRC public release)

                            United States of America
           OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                       1244 North Speer Boulevard, Room 250
                         Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,

                Complainant,

                    v.                                              OSHRC DOCKET NO. 01 -2193

KEYSTONE STRUCTURAL CONCRETE
LTD., and its successors,

                Respondent.

                                        FINAL ORDER

    This matter comes up on Keystone's June 10, 2002 motion to reconsider this judge's June 4,

2002 Order vacating its notice of contest. Keystone's motion is accompanied by its counsel's first
notice of appearance, and his untimely response to this judge's May 10, 2002 Order to Show Cause.
Keystone retained counsel shortly before a scheduled March 2002 hearing. On March 11, 2002, in
response to the parties representation that the case was settled, this judge cancelled the hearing, and
ordered that the settlement agreement be filed by April 6, 2002. The settlement agreement was drafted
by Complainant's counsel and mailed to Keystone's counsel on March 12, 2002. On May 10, this
judge issued an order asking each party to show good cause why no agreement had been filed.
However, because Keystone's counsel never filed an entry of appearance in this matter he was not
served with any of this judge's orders, apparently learning about them indirectly from his client and
opposing counsel. Keystone's counsel signed the settlement agreement in this matter on May 15, 2002
and returned it to Complainant's counsel. In his June 10, 2002 filings, counsel states that his failure to
execute the settlement agreement was due to inadvertence Counsel further states that he mistakenly
relied on opposing counsel to respond to the show cause order.
Counsel offers no cognizable for his failure to timely execute and file the settlement agreement
Nor does counsel offer any reasonable explanation for his failure to read and comply with this judge's
May 10, 2002 show cause order. Counsel correctly notes, however, that settlement is encouraged by
the Commission at any stage of the proceedings, and requests that his client not be penalized for his
mistake. The June 4, 2002 Order vacating Keystone's notice of contest is, therefore, vacated.
 As the parties have filed a Settlement Agreement in this matter and ten (10) days have elapsed
since service without objection it is:
ORDERED,

   The Settlement Agreement filed by the parties is approved. The terms of that agreement,

together with the citation and proposed penalties as amended by such agreement, are hereby adopted
as orders of the Occupational Safety and Health Review Commission.

                                                               /s/
                                                            James H. Barkley
                                                            Judge, OSHRC

Dated: June 13, 2002
2
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR )
Complainant, )
) OSHRC Docket
) No. 01-2193
KEYSTONE STRUCTURAL CONCRETE, )
LTD., AND ITS SUCCESSORS, )
Respondent. )

                                 SETTLEMENT AGREEMENT
   Come now complainant and respondent and submit the following settlement agreement

pursuant to Rule 2200.100 of the Commission's Rules of Procedure:

   This settlement agreement specifies the terms of settlement as set out below for each contested

item and disposes of all issues in the case. Affected employees have not filed objections to the
reasonableness of any abatement time.

       1.   Complainant agrees to withdraw the following Items:

Citation Item 29 CFR Penalty Violation/
Number Standard Amount Abatement
Date
1 1 1926.403(b)(1)(iii) $1,400.00 Corrected During Inspection
1 2 1926.404(f)(6) $1,400.00 Corrected During Inspection

       2.   This withdrawal of these items in no way affects the Secretary's interpretation of

compliance with these standards or their application to this employer.
3. Respondent withdraws its notice of contest.
4. Respondent promises to continue its good-faith efforts to comply with the

                                                 1

Occupational Safety and Health Act.

    5.   Respondent certifies that the affected employees in the above-styled case are not

represented by an authorized employee representative.

    6.   Respondent certifies that a copy of this settlement agreement has been served upon the

unrepresented affected employees in the manner set forth in Rule 2200.100 of the Rules of Procedure,
by posting same on the 15th day of May, 2002.

    7.   Each party agrees to bear its own attomey's fees, costs and other expenses incurred by

such party in connection with any stage of the above-referenced proceeding including, but not limited
to, attorney's fees which may be available under the Equal Access to Justice Act, as amended.

                                                               EUGENE SCALIA
                                                               Solicitor of Labor

                                                               WILLIAM E. EVERHEART
                                                               Regional Solicitor

KEYSTONE STRUCTURAL CONCRETE JANICE L. HOLMES
Counsel for Safety and Health

By: By:

/s/ /s/
PARTICK GARNER AARON R. RAMIREZ
Attorney Attorney

Cokinos, Bosien & Young. U. S. Department of Labor
2919 Allen Parkway, Suite 1500 Office of the Solicitor
Houston, Texas 77019 525 Griffin, Suite 501
Dallas, Texas 75202

Attorneys for Respondent Attorneys for Complainant.
Signed this 15 day Signed this 23 day
of May, 2002. of May, 2002.