Marble Works, Inc.
Consolidated penalty contest resolved by settlement, $5,780 total
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This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Marble Works, Inc. operates a manufacturing facility in Mobile, Alabama. OSHA conducted two separate safety and health inspections and issued citations on February 21, 1992 and March 24, 1992, each alleging serious and other-than-serious violations. Marble Works contested only the proposed penalties, not the underlying violations or the abatement dates, so the violations became final orders by operation of law. Its contest of the second set of citations was filed a week late, but Administrative Law Judge Nancy J. Spies excused the late filing after a hearing on timeliness, applying Rule 60(b). The two cases were consolidated. Before any evidence on the merits, the parties reached a settlement, which they stated on the record. Judge Spies adopted the settlement and assessed total penalties of $3,280 for the February citations (Docket 92-0990) and $2,500 for the March citations (Docket 92-1411).
Decision snapshot
- Cited standard(s): None specified in this order. Only the proposed penalties were contested; the underlying violations were already final.
- Outcome: Settled. The parties agreed on penalties, adopted by the judge: $3,280 (Docket 92-0990) and $2,500 (Docket 92-1411), $5,780 in total.
- Key point: When only penalties are contested and the parties settle, the judge adopts the agreed penalties. Here a late notice of contest was excused under Rule 60(b) based on facts the employer later asserted.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006- 1246
- - 1,
-9-.
/ - - _
*_ -
SECRETARY OF LABOR
Complainant, OSHRC DOCKET
v. NOS. 92-0990
92-1411
MARBLE WORKS, INC.,
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 January 7, 1993. The decision of the Judge
will become a final order of the Commission on February 8, 1993 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 27 , 1993 in order to ermit su f?ficient time for its review. Se&
Co-ssion Rule 91, 29 C.F. !k . 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Rewew Commission
1825 K St. N.W., Room 401
Washington, D.C. 2ooo6-1246
Petitioning parties shall also mail a copy to:
Danrel J. Slick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOB
Room sJOO4
LOUConstitution Avenue, NW.
&z+hqton, D.C. 20210
If a Direction for Review 1s Issued by. the Commission, then the Counsel for
Regional Trial Litigation ulll represent the Department of Labor. Any party
having questions about rewew rights may contact the Commission’s Executive
Secretary or call (202) 6347950.
Date: January 7, 1993 Ray H. Darling, Jr.
Executive Secretary
DOCKET NOS. 92-0990 & 92--1&l
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Re l onal Trial Liti ation
Office of the So7 icitor, U.S. DOY
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
George Palmer, Esq.
Assoc. Re ional Solicitor
Office of t!l e Solicitor, U.S. DOL
Suite 201
2015 - 2nd Avenue, North
Birmingham, AL 35203
Thomas T. Zieman, Jr., Esq.
Miller, Hamilton, Snider & Odom
254 State Street
Mobile, AL 36604
Nancy J. Spies
Occupational Safety and Health
Review Commission
1365 Peachtree St., N.E.
Room 240
Atlanta, GA 30309 3119
00107010514:04
OCClJPATlONAL SAFETY AND HEALTH REVIEW COMMISSlON
1366-SJ’EEKNE.SWE240
AJlANr~~U-119
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..
SECRETARY OF LABOR, l
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.
.
Complainant, ..
..
v. .. OSHRC Docket Nos.
..
MARBLE WORKS, INC., .. 92-990& z-1411
.
.
Respondent. .. (Consolidated)
Appearances:
6
Kathleen G. Henderson, Esq. Mr. Thomas T. Zieman, Jr., Esquire
Office of the Solicitor MilkX,Hamilton,sniderand~
U. S. Department of l&or Mobile, Alabama
Birmingham, Nabray Fbt Respondent
For Complainant
Before: Administrative Law Judge Nancy J. Spies
This consolidated p#rccling is before the Occupational Safety and Health Review
commission for decision. On Fchruary21, 1992, and on March 24, 1992, the Occupational
Safetv and Health Administrrtm
J
(09-M) issued citations to Respondent, Marble Works,
Inc., as a result of separate s fety and health inspections conducted at its manufacturing
facility in Mobile, Alabama.
The citations issued w8 Febnuuy 21, 1992, alleged serious and “other than serious”
violations. On March 13, 992, respondent’s secretary and treasurer, Mark Tap&
representing the Companyp SG,time& contested the penalties proposed by OSHA b t&
first set of ciWons. The ~derlying violations and abatement dates were not contested.
The tzhkms issued on March 24,1992, also alleged serious and “other than serious”
violations. Hwewer, Tapia did not sewe Respondent’s request for hearing on these later
citations until April 24,1992, seven days after April 17, 1992, the last day within which he
could timeiy contest the citations. The letter sewed on April 24,1992, was dated April 16,
1992.’ Since Respondent failed to file its notice of contest within the time established by
Section lo(a) of the occupational safety and Health Act of 1970 (Act), the administrative
law judge dismissed the notice of contest of the March 24, 1992, citation. However, in
Respondent’s letter of July 15, 1992, which was received by the Commission after the
administrative law judge’s dismissal, Respondent asserted facts which might support a hnding
that the untimely filing should be excused. Under Attclnric Marine, hc. v. OSHRC, 524 F.2d
476 (5th Cir. 1975), the case was remanded for inquiry into the issue of timeliness, and then
if deemed appropriate, for a decision on the merits of the case.
On April 30,1992, the cases invoking both the February 21,1992, and the March
_ 24,
1992, citations were consolidated. A hearing was convened in both matters on October 27,
1992, in Mobile, Alabama. The parties were represented by counsel, although simplified
proceedings were in effect.
. . The parties’ evidence initially addressed the timeliness issue. After presentation of
evidence and argument on that issue, the undersigned entered a decision on the record
holding that Respondent’s failure to contest the March 24, 1992, citation within the 15day
period was excused.*
Prior to a prescntatkm of evidence on the merits of the cases, the parties were
afforded an opportunity to d&xs settlement. Counsel were successful in reaching
l This contest letter, like the vm 0ebc cont~tcd only the p’lopowl penalties and did not contest the
alleged violations or abatement &car
- The Commission’s authority to grwr f&d br>mfinal orders eaterul punuaat to Sectionlo(a) of the Act
is based upon Rule 60(b), F.RCkf + md &&anticMmLu, sup. See LaririaM-Pw Cbvp, 13 BNA OSHC
~,l~~~HD~~~(No~t~l~Rq(~,Inc,13BNAOSHC2021,1~CCHOSM)
v 28&M (No. 8&174891989).2agreement as to all remaining issues in these matters. The terms of the agreement were
stated in open court on the record and are hereby adopted and incorporated into this
decision and order.
-INGS OF FACT AND CONCLUSIONS OF LAW
1 l Respondent, Marble Works, Inc., was at all times relevant to this proceeding
engaged in a business affecting commerce and had employees within the meaning of Section
3(S) of the Act. The Commission has jurisdiction of the parties and the subject matter of
this proceeding,
2 Respondent contested only the penalties proposed for citations issued on
February 21,1992 and March 24, 1992. The underlying violations and abatement dates had
become final orders of the Commission by operation of Section lo(a) of the Act.
30 Penalties assessed for Item Nos. 1 through 11 of Citation No. 1 and Item No.
1 of Citation No. 2, issued February 21, 1992 (Docket No. 92.990), total $3,280.
40 Penalties assessed for Item Nos. 1 through 8 of Citation No. 1 and Item Nos.
1 through 3, and 5, of Citation No. 2, issued March 24, 1992 (Docket No. 9%1411), total
$&Soo. ’
ORDERBased upon the foregoing decision, it is ordered that: (1) A total penalty in the amount of $3,280.00 is hereby asses& for CitationNo. 1, Item Nos. 1 through 11, and Citation No. 2, Item No. 1, in Docket No. 92-990.
(2) A total penalty in the amount of $2,500 is hereby assessed for Citation No. 1,
Item Nos. 1 through 8, and Citation No. 2, Item Nos. 1 through 3, and Item 5, in Docket
No. 92-1411.
Dated this 28th day of Dccembcr, 1992./s/ Nancv J. Spies NANCY J. SPIES Judge
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