Kirkpatrick v. Action Steel Supply, Inc., 2001-STA-60 (ALJ Jan. 17, 2002)

U.S. Department of Labor

Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Issue date: 17Jan2002

Case No.: 2001-STA-60

In the Matter of:

WILLIAM O. KIRKPATRICK
    Complainant

    v.

ACTION STEEL SUPPLY, INC.
    Respondent

BEFORE: Rudolf L. Jansen
    Administrative Law Judge

   Pursuant to authority conferred by 29 C.F.R. § 18.8(a) a Pre-hearing Conference was held in this matter in Indianapolis, Indiana on January 15, 2002. The conference was set following notification by counsel for the Respondent that Action Steel Supply, Inc. had recently filed a voluntary petition in bankruptcy and that it would be necessary to postpone this case from the scheduled January 15, 2002 hearing date. Participating in the conference were Nelson G. Grills, counsel for Complainant, Jeffrey J. Graham, from the firm of Sommer and Barnard on behalf of the Respondent, and the undersigned.

   On January 10, 2002, I issued an Order to the parties requiring them to appear on January 15 and to produce six categories of information. The purpose of the conference was to receive that information and also to discuss it with counsel on the record so as to determine a proper course of action with respect to the future handling of this matter.

   Initially, we discussed generally the applicability of the Bankruptcy Act stay provisions to this proceeding. I advised counsel that it was my belief that since the Assistant Secretary of Labor was not a prosecuting party in this proceeding, that the stay provisions did apply. Ass't Sec'y & O'Dougherty v. Bjarne Skjetne, Jr. d/b/a Bud's Bus Service, 94-STA-17 (Sec'y Mar. 16, 1995; NLRB v. Continental Hagen Corporation, 932 F.2d 829, 831-35 (9th Cir. 1991); NLRB v. Evans Plumbing Co., 639 F.2d 291, 293 (5th Cir. 1981). It was also noted that on January 10, 2002, I issued an Order requiring the Assistant Secretary to advise me as to whether he had taken any action to intervene in this proceeding or as to whether it was the intention of the Assistant Secretary to intervene in the future. The results of that inquiry should determine the future course of events with respect to this case. I will advise the parties by Order as to the future handling of this case after the response is received from the Assistant Secretary.

   In response to my Order of January 10, 2002, Mr. Graham provided a variety of documentation. The six categories of documents or data requested are outlined at page 2 of my earlier Order and include the following:

   1. A copy of the bankruptcy petition noting the date of its filing;

   A copy of the voluntary petition in bankruptcy filed in the United States Bankruptcy Court located in the Southern District of Indiana was provided. The petition indicates that the filing was made under Chapter 11 and that there exists between 200 and 999 potential creditors. The petition also indicates that the debtor estimates that after any exempt property is excluded and administrative expenses paid, that there will be no funds available for distribution to unsecured creditors. It is estimated that the assets of the debtor corporation will be between ten and fifty million dollars and the debts are estimated to be in the same area.

   2. Any formal bankruptcy proceeding documents indicating the current status of that matter;

   A copy of the Bankruptcy Court's docket ledger disclosing the case history up to and including the events of January 8, 2002 was provided. In addition, Mr. Graham also provided a copy of the Appointment and Notice of Appointment of Members to the Unsecured Creditor Committee.

   3. Mailing receipts or file-stamped copies of documents noting the filing date of the complaint in this proceeding;

   There appears to be no mailing receipts showing the filing date of the original complaint. Mr. Grills advised that he had personally hand-carried the complaint filed by Mr. Kirkpatrick to the Assistant Secretary's office where it was actually filed on April 24, 2001. The Assistant Secretary had previously responded to my order of August 22, 2001 and provided a variety of documents including a file-stamped copy of the complaint bearing a filing date of April 24, 2001. Also provided were a copy of the Secretary's Findings on the complaint which was issued on July 31, 2001 and a copy of various mailing receipts. The formal record contains the original copy of the complaint filed by Mr. Kirkpatrick in this office bearing a file-stamped date of August 17, 2001. Thus, the complaint filing was timely.

   4. Any documents indicating whether the Assistant Secretary of Labor for Occupational Health and Safety has intervened or has expressed any interest in intervening in the prosecution of the complaint in this proceeding;

   Both Mr. Grills and Mr. Graham advised the Court that neither party had any contact with the U.S. Department of Labor since they had received copies of the Secretary's Findings. Thus, they were unaware of any interest by the Assistant Secretary in intervening in this case.

   5. The state of incorporation of Action Steel Supply, Inc., and

   The Respondent was incorporated within the state of Indiana as a domestic for profit organization.

   6. The state in which the bankruptcy filing has taken place and citation to any applicable cases indicating the Federal Circuit case law applicable to the stay provisions of the Bankruptcy Act and any pending administrative matters.

   The bankruptcy filing occurred in Indianapolis which is located within the Seventh Federal Judicial Circuit. Counsel were advised that if they become aware of any Seventh Circuit cases dealing with the issue of the applicability of the Bankruptcy Act stay provisions to administrative actions such as this, that they should forward copies of those decisions to the undersigned.

   Mr. Graham also indicated that Action Steel Supply, Inc. continues to operate as a debtor-in-possession and that a creditors' committee has been formed. He stated that the assets of the corporation will probably be sold to a third party and that the corporation will then be dissolved. He believed that it would take at least twelve months within which to complete the bankruptcy proceeding. Counsel were advised to keep the undersigned apprised as to any significant events occurring concerning the bankruptcy case.

      Rudolf L. Jansen
      Administrative Law Judge