United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor Washington, DC 20036-3457

SECRETARY OF LABOR,
Complainant,
v.	OSHRC Docket No. 16-1151
ADAM ZEMBRZUSKI dba A TO Z CONSTRUCTION,
Respondent,

APPEARANCES:

Suzanne F. Dunne, Attorney; Christine Z. Heri, Regional Solicitor; Katherine E. Bissell, Deputy Solicitor for Regional Enforcement; U.S. Department of Labor, Washington, DC

For the Complainant

Adam Zembrzuski, pro se, Wheeling, IL For the Respondent

REMAND ORDER

Before: MACDOUGALL, Acting Chairman; ATTWOOD, Commissioner. BY THE COMMISSION:

On June 6, 2016, the Occupational Safety and Health Administration issued Respondent a three-item serious citation with a total proposed penalty of $2,000, which Respondent contested. On August 11, 2016, Respondent notified the Secretary that he no longer wished to contest the citation and asked the Secretary for assistance in withdrawing his notice of contest.[1] On August 15, 2016, the Secretary filed a Notice of Withdrawal of Citation with Chief Administrative Law Judge Covette Rooney, who issued an order approving the withdrawal on October 21, 2016. The judge’s order became a final order of the Commission on November 23, 2016.

1F

Two months later, on January 27, 2017, the Secretary filed a motion seeking relief from the final order under Federal Rule of Civil Procedure 60(b)(1). Fed. R. Civ. Pro. 60(b)(1) (allows for relief from final judgment based upon “mistake, inadvertence, surprise, or excusable neglect”); see also 29 C.F.R. § 2200.2(b) (applicability of Federal Rules of Civil Procedure to Commission proceedings). According to the Secretary, he made a “good faith mistake” when he filed a Notice of Withdrawal of Citation instead of a Notice of Withdrawal of Notice of Contest. The Secretary’s motion, which was directed to the judge, requests that the final order “be lifted” and that he be allowed to file a Motion to Withdraw the Notice of Contest.[2]

We remand this case to the judge for consideration of the Secretary’s motion.

SO ORDERED.

/s/

Heather L. MacDougall

Acting Chairman

/s/

Cynthia L. Attwood

Dated: March 30, 2017 Commissioner

UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor,
Complainant,
v.		OSHRC Docket No.: 16-1151
		Inspection No.: 1151034
ADAM ZEMBRZUSKI dba A TO Z CONSTRUCTION
Respondent.

ORDER APPROVING NOTICE OF WITHDRAWAL OF CITATION

The Commission has jurisdiction over the subject matter of the case and over the parties by virtue of the filing of a timely notice of contest.

The stipulated settlement between the parties filed on 8-15-16 has been considered. The stipulation and settlement agreement has been served on all parties and authorized employee representatives and posted in the manner prescribed by Commission Rule 7(g).[3] Ten (10) days has passed since service and posting and no objection to the settlement has been filed.

The settlement is approved under 5 U.S.C. §554(c)(l ) and Commission Rule 100. The terms of the stipulated settlement are incorporated, in their entirety, by reference in this order.

1Rules of Procedure of the Occupational Safety and Health Review Commission, 29 C.F.R. §§2200.1-.212, as amended.

[1] According to the Secretary, Respondent has paid the proposed penalty and abated the alleged violations.

[2] We note that any withdrawal of Respondent’s notice of contest must be signed and filed by Respondent, not the Secretary. See 29 U.S.C. § 659(a) (employer must notify Secretary of intent to contest citation).

[3] We note that any withdrawal of Respondent’s notice of contest must be signed and filed by Respondent, not the Secretary. See 29 U.S.C. § 659(a) (employer must notify Secretary of intent to contest citation).

REMAND ORDER

COVETTE ROONEY