E.J. Sciaba Construction Co., Inc.

Plain-English summary

OSHA cited E.J. Sciaba Construction after a Massachusetts worksite inspection and proposed $9,000 in penalties. Sciaba then signed an informal settlement reducing the penalties but did not make the agreed payment. More than two months after receiving the citations, the company sent a letter asking to revisit the case and present its position. The judge held that the letter did not express an intent to contest the citations, was untimely in any event, and provided no basis to reopen the signed settlement. The case was dismissed because the Commission lacked jurisdiction.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 659(c)
• Outcome: The proceeding was dismissed for lack of Commission jurisdiction.
• Key point: A request to resume settlement discussions is not a notice of contest, especially after the statutory filing deadline and execution of a valid settlement.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. DOCKET No. 03-0814
E. J. SCIABA CONTRACTING CO., INC.,
Respondent.

APPEARANCES:
Kathryn A. Joyce, Esq. Matthew Daley, pro se
Office of the Solicitor of Labor E. J. Sciaba Contracting
U.S. Department of Labor For Respondent
Boston, Massachusetts
For Complainant

BEFORE: MICHAEL H. SCHOENFELD
Administrative Law Judge

                              DECISION AND ORDER

Procedural History
This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”).
Following an inspection of a work site in Winthrop, Massachusetts on December 27, 2002,
the United States Department of Labor, Occupational Safety and Health Administration (“OSHA”)
issued to E. J. Sciaba Construction Company, Inc. (“Sciaba”) two citations alleging various
violations of section 5(a)(1) of the Act as well as a number of safety and health standards appearing
in Part 1926 of Title 29 of the Code of Federal Regulations; the citations proposed civil penalties

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totaling $ 9,000. Upon receipt of a faxed letter on May 3, 2003, from Respondent, the Commission
docketed the case as a contested matter. The Secretary then filed a motion to dismiss. An initial
Notice of Hearing was issued on July 24, 2003. On July 25, 2003, the Secretary filed a more detailed
Motion to Dismiss Notice of Contest along with a supporting memorandum.
An initial question of whether the Commission has jurisdiction has been raised by
Complainant’s Motion to Dismiss Notice of Contest. A plenary evidentiary hearing was conducted
in Boston, Massachusetts on August 19, 2003. Both parties appeared and were offered the
opportunity to present evidence and argument.

Discussion
The following facts are undisputed. A postal receipt indicates that Respondent received the
citations on February 5, 2003. No written notice of contest was filed. On February 27, 2003 an
“informal” settlement conference was held at the OSHA district office. Present were a representative
of Respondent and several OSHA officials. The discussions were clear and no duress was applied
to obtain Respondent’s agreement to the settlement. Respondent’s representative appeared to
completely understand the nature of the proceedings and willingly and freely entered into the
settlement and was authorized by Respondent to do so. Respondent was not unfamiliar with OSHA
proceedings having had other contacts with the OSHA area office. On that date, the parties executed
a written “informal” settlement agreement whereby OSHA, among other things, reduced the
proposed penalties and Respondent agreed to payment by March 13, 2003. On April 23, 2003 a
letter was mailed to Respondent demanding payment of the entire amount of the proposed penalty
due to the fact that the reduced amount previously agreed upon had not been received. On May 2,
2003, Respondent faxed a letter to OSHA and to the Commission stating, in pertinent part;
I am writing you to inquire about the above referenced case. I
recently received a notice stating we were in default and would to
(sic.) pay a fine levied in this case. I ask that you revisit this case and
allow us the opportunity to provide and represent our company’s
position.
* * *
One outstanding factor is that our Safety officer left our company
earlier this year and unfortunately failed to return this documentation.
Due to this fact we never received any information or a phone call

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listing a date for this conference.

As previously indicated, on the basis of this letter, the Commission docketed the case as a contested
matter. The Secretary filed a Motion to Dismiss Notice of Contest along with a supporting
memorandum.
The Secretary argues that Respondent’s letter dated May 2, 2003 is “not an appropriately or
timely filed notice of contest” inasmuch as it was not received by OSHA within fifteen working days
of Respondent’s receipt of the citation. The Secretary also maintains that the informal settlement
agreement includes a provision that the citation became a “final order not subject to review by any
court or agency.” Finally, the Secretary argues that such a settlement is entitled to finality and must
remain undisturbed in the absence of evidence of “duress, harassment or overbearing conduct” on
the part of the government.
Respondent’s letter dated May 2, 2003 is not a notice of contest on its face nor can it be
reasonably construed as an attempt to contest. Thus, the result in this matter is mandated by section
10(c) of the Act, (29 U.S.C. 659(c)), under which the Commission’s jurisdiction attaches upon the
filing of a timely notice of an employer’s intention to contest a citation. Under Commission
precedent, a writing clearly expressing an intent to dispute the terms of a citation may be deemed a
valid notice of contest. See, Juan Moctazuma, 02-0873, 20 BNA OSHC 1132 (ALJ, Feb. 21, 2003).
In this case, Respondent’s letter of May 2, 2003 does no such thing. It does ask for an opportunity
to discuss the matter and present the company’s position. Essentially, the letter seeks to reopen
negotiations which led to the informal settlement agreement. It does not contest the underlying
citation. In the absence of any notice of contest having been filed in this matter, the Commission
lacks jurisdiction ab initio.
Moreover, even if I were to find the May 2, 2003 letter an intent to contest, the result would
be the same. The letter was not filed within the fifteen working day limitation, thus grounds would
have to be established for accepting the untimely filed notice of contest. Respondent would have
to demonstrate that the late filed notice of contest resulted from “mistake, inadvertence, surprise or
excusable neglect” cognizable under the Commission’s interpretation of Rule 60(b), Fed. R. Civ. P.
60(b). There is no claim and no evidence that any of the possible elements exist here. Thus, even
if Rule 60(b) “relief” is applicable in Commission proceedings, it would not be available here.

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Finally, the May 2, 2003 letter and the record in this case does not establish an appropriate
bases for considering the reopening of a signed settlement agreement. The documents in evidence
as part of pleadings as well as testimonial evidence of record clearly establishes that there were
virtually no misunderstandings or misconceptions as to the settlement terms or conditions.
Accordingly, even under the Commission’s most recent “test” of whether there was “a genuine
agreement between the parties and a true meeting of the minds on all provisions” of the settlement,
there are no grounds to reopen the agreement. See, 84 Components Co., 02-0363, 2003 OSHARC
Lexis 39 (Direction for Review and Remand Order, April 18, 2003)(Unpublished).

                                FINDINGS OF FACT


   All findings of fact necessary for a determination of all relevant issues have been made

above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with
this decision are hereby denied.

                               CONCLUSIONS OF LAW
   The Commission lacks subject matter jurisdiction.


                                        ORDER
   This matter is dismissed.




                                                  /s/
                                                  Michael H. Schoenfeld
                                                  Judge, OSHRC

Date: September 25, 2003
Washington, D.C.

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