Monfort of Colorado - Greeley Lamb
Settlement approved for $37,500
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This is citable Commission precedent from 1995, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
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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