Case No. 94-STA-27
In the Matter of:
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND
HEALTH,
Prosecuting Party
and
ADAM BIELSKI,
Complainant
v.
THE BRICKYARD, INC. and
EDWARD CRONIN,
Respondents
ORDER TO SHOW CAUSE
The above-captioned case was forwarded to the undersigned on
March 17, 1994. The case involves a complaint filed with the
Secretary of Labor by Adam Bielski ("Complainant"), against The
Brickyard, Inc. and Edward Cronin ("Respondents"), pursuant to
Section 405 of the Surface Transportation Assistance Act of 1982,
49 U.S.C. §2305 ("STAA"). The complaint, which alleges that
Respondents wrongfully terminated the Complainant for refusing to
drive an unsafe motor vehicle, was filed on January 19, 1993 with
Mary Keeney, an investigator with the Department of Labor's
Occupational Safety and Health Administration ("OSHA"). It appears
there may have been deficient notice to Respondents in this case.
The procedural history which follows is set out to highlight the
problem as viewed by the court. It contains a synopsis of all
pertinent information which is available to the court as of this
date.
PROCEDURAL HISTORY
On February 9, 1993, a letter was sent by OSHA Area Director
[PAGE 2]
Kipp W. Hartmann to:
Brick Yard, Inc.
1468 Main Street
Millis, MA 02054
The purposes of this letter were several: to serve notice to
Respondents that a complaint had been filed; to request
Respondents' version of the facts of the alleged incident and
Respondents' position with respect to the complaint; to inform
Respondents of their right to be represented by counsel in the
matter; and to solicit a "Notice of Appearance" should Respondents
choose to be represented. On April 1, 1993, a follow-up letter,
which stated that no response had been received to the February 9
letter, was sent via certified mail to the same address. Copies of
the certified mailing slips which have been obtained by the court
indicate that this letter was never acknowledged as received.
Thereafter, on June 29, 1993, a letter addressed to:
The Brickyard, Inc., Its Successors, and Edward Cronin
180 S. Main Street
Providence, RI 02903-2907
was sent via certified mail from OSHA. The return receipt
indicates that this letter was received on July 1, 1993, although
the signature is illegible. The contents of this letter were also
in the nature of a follow-up to the February 9 letter, requesting
that Respondent respond to the Complainant's allegations by July 9,
1993.
Thereafter, two identical letters, dated October 1, 1993, were
sent from OSHA to the following parties:
Mahoney, Hawkes and Goldings
Attorney John Bradley
The Brickyard, Inc., Its Successors, and Edward Cronin
and Mrs. Cronin
75 Park Plaza
Boston, MA 02116
and
Lane & Altman
Attorney John Drew
The Brickyard, Inc., Its Successors, and Edward Cronin
and Mrs. Cronin
101 Federal Street, 26th Floor
Boston, MA 02110
[PAGE 3]
The substance of these letters was the same as the letter which was
sent to "Brick Yard, Inc." on February 9, 1993, i.e., the
original notice letter. The letter to Mahoney, Hawkes and Goldings
was sent via certified mail and signed for by "M. Jackson."
On October 19, 1993, a letter from Attorney Eddirland Duncan
of Lane & Altman was sent to OSHA.[1] This letter clearly stated
that Lane & Altman represented Mr. Cronin in connection with his
bankruptcy case. The letter expressed confusion as to whether Mr.
Cronin was involved in the OSHA case, and noted that if such were
the case, the Bankruptcy Code provides for a stay of the Department
of Labor proceedings until one of several enumerated events
occurred with regard to Mr. Cronin's bankruptcy proceeding. Also
in response to OSHA's October 1 letter, on October 22, 1993,
Attorney John Bradley of the firm Mahoney, Hawkes and Goldings
submitted a designation of representative form on behalf of The
Brickyard, Inc. regarding this case.
On February 18, 1994, OSHA Regional Administrator John B.
Miles issued the Secretary's Findings and Order that, inter
alia, ordered Respondent to offer immediate reinstatement to
Complainant and to compensate him with backpay. These findings
were sent by letter on February 22, 1994 to Attorney Duncan at Lane
& Altman. The letter specified that the Findings were made in
favor of Complainant, and that the accompanying Order was
applicable to both The Brickyard, Inc. and Edward Cronin. The
letter also explained that Respondent had the right, within 30
days, to file objections to the findings and request a hearing
before an administrative law judge, and that in absence of such
objections the Findings and Order would become final and not
subject to judicial review. The letter and findings were sent via
certified mail and signed for at Lane & Altman, although the
signature on the certified mailing form is illegible. A similar
letter conveying the findings was sent to Complainant on the same
date.
On March 1, 1994, Attorney Duncan submitted a letter properly
addressed to the Office of Administrative Law Judges (OALJ) in
Washington, D.C. In this letter, Attorney Duncan first stated that
her firm's representation of Mr. Cronin was in connection with his
bankruptcy proceeding. The letter then reiterated Attorney
Duncan's earlier assertion that, by virtue of the ongoing
bankruptcy proceeding, current actions against Mr. Cronin would be
violative of the Bankruptcy Code's automatic stay provisions.
Finally, Attorney Duncan asserted that The Brickyard, Inc. was no
longer operating, thus, compliance with the Order would not be
[PAGE 4]
possible.
Interpreting Attorney Duncan's letter as a timely objection to
the Secretary's Findings and Order pursuant to 29 C.F.R.
§1978.105, the Chief Docket Clerk of OALJ in Washington, D.C.
forwarded the case file to the undersigned for the purpose of
scheduling a hearing in accordance with 29 C.F.R. §1978.106.
On March 18, 1994, a Notice of Hearing and Pre-Hearing Order was
issued by the undersigned, setting the hearing date for Monday,
April 4, 1994. The parties were ordered to submit pre-hearing
briefs regarding the applicability of the stay provisions of the
Bankruptcy Code to §405 of the STAA. In accordance with the
information available in the case file, the Notice of Hearing and
Order were served on the following pertinent parties:
The Brickyard, Inc.
1468 Main Street
Millis, MA 02054[2]
Adam Bielski
141 Mendon Street
Uxbridge, MA 01569
Eddirland Duncan, Esq.
Lane & Altman
101 Federal Street
Boston, MA 02110
On March 23, 1994, the requested pre-hearing brief regarding
the bankruptcy issue was submitted to the court by Kevin Sullivan,
Esq., of the Department of Labor's Office of the Solicitor, whose
function is to act as the prosecuting attorney in the proceeding
before the administrative law judge.[3] On March 24, 1994,
Attorney Duncan responded to the Notice of Hearing and Pre-Hearing
Order with a letter which again stated that Lane & Altman's
representation of Mr. Cronin was limited to his bankruptcy, and
noted that no appearance had ever been entered by any attorney from
Lane & Altman in this matter, nor had any pleadings been filed on
behalf of Mr. Cronin. Attorney Duncan stated that any previous
correspondence submitted by Lane & Altman had been in response to
receiving correspondence from OSHA, and was only to provide
information which Lane & Altman thought would be useful to OSHA in
its investigation. Finally, Attorney Duncan stated that her March
1 letter was not intended as an objection to the Secretary's
Findings and Order.[4]
Having received this most recent letter from Attorney Duncan,
[PAGE 5]
it became necessary for the court to reconstruct the procedural
history of this case. Upon agreement by Attorney Sullivan, an
ORDER OF CONTINUANCE was issued by the undersigned on March
30, 1994, so that a more thorough consideration of the case could
be undertaken. It appeared at first blush that perhaps the case
should be remanded and the Secretary's Findings and Order be
adopted in accordance with 29 C.F.R. §1978.105(b)(2), as there
was no timely objection to the initial findings pursuant to those
regulations. Upon further investigation, however, it became
apparent that proper notice in this case might be lacking with
respect to the Secretary's Findings and Order and as to the
Notice of Hearing and Pre-Hearing Order.
During subsequent telephone conversations between the court's
staff and Attorneys Duncan and Sullivan, the following information
was obtained:
1. Neither Attorney Duncan nor any attorney from Lane &
Altman have represented The Brickyard, Inc. with regard
to any matter.
2. Neither Attorney Duncan nor any attorney from Lane &
Altman has ever represented Edward Cronin with regard to
proceedings before OSHA; further, in numerous letters,
the firm has specifically limited the scope of its
representation to Mr. Cronin's bankruptcy.
3. Mr. Cronin was never personally served with either notice
of the complaint which initiated the OSHA proceedings,
the Secretary's Findings and Order, or the Notice of
Hearing and Pre-Hearing Order issued by the undersigned.
Also, the following documents, previously not in the file sent from
Washington, were obtained by the court from Attorney Sullivan:
1. Notice of Appearance of John Bradley, Esq., dated October
22, 1993, on behalf of The Brickyard, Inc.
2. OSHA's letter dated October 1, 1993, to Attorney Bradley
serving notice of the complaint.
3. OSHA's letter dated June 29, 1993 to:
The Brickyard, Inc., Its Successors and
Edward Cronin
180 S. Main Street
Providence, RI 02903-2907
[PAGE 6]
sent as a follow-up to an April 1 letter, which served
notice of the complaint.
4. OSHA's letter dated April 1, 1993 to:
Brick Yard, Inc.
1468 Main Street
Millis, MA 02054
sent as a follow-up to a February 9, 1993 letter, which
served notice of the complaint.
5. OSHA's original notice letter dated February 9, 1993, to:
Brick Yard, Inc.
1468 Main Street
Millis, MA 02054
I note that not a single piece of correspondence has been
addressed to Mr. Cronin personally. Further, despite having filed
the only appearance in this matter, there is no indication that
Attorney Bradley was served with the Secretary's Findings and Order
when they were issued in February 1994. Lastly, I note that there
is no indication that the February 1994 Findings and Order of the
Secretary were sent to any other parties except Ms. Beverly Queen,
Chief Docket Clerk at OALJ in Washington, D.C., Mr. Bielski, and
Attorney Duncan at Lane & Altman.
Having considered all of the above, I have determined that
there exists a question as to whether the parties in this matter
have been properly served with notice of the complaint, of the
Secretary's Findings and Order, and/or of the Notice of Hearing and
Pre-Hearing Order. In a context not wholly related to the issue
herein, the Supreme Court stated as follows:
The standard procedures which governed the
investigation of Hufstetler's complaint
against Roadway in this case required that
Roadway be notified "of the complaint and of
the substance of the allegation" and also that
the field investigator consult with Roadway to
obtain its explanation for the discharge
before the Secretary made any findings and
issued a preliminary reinstatement order.
[citations omitted].
[PAGE 7]
Brock v. Roadway Express, Inc., 481 U.S. 252, 259
(1987). Thus, it is not clear whether the named Respondents herein
were ever provided an opportunity to participate in the
investigation or to respond to the Findings and Order which issued
in February of 1994. See also Smith v. Specialized
Transportation Services, 91-STA-0022 (Sec'y, November 20,
1991), which appears to hold that notice to the parties at all
stages of an STAA proceeding is required. Under these
circumstances, an order to show cause is warranted.
ORDER
Accordingly, the parties are hereby ORDERED to show
cause on or before April 29, 1994 as to why this case should not be
remanded to Regional Administrator John B. Miles in order to ensure
that proper service and notice and meaningful opportunity to
respond be afforded to the parties.
JOAN HUDDY ROSENZWEIG
Administrative Law Judge
[ENDNOTES]
[1] This letter was misaddressed to the Commonwealth of
Massachusetts. However, because the street address was that of
the federal OSHA office, Ms. Keeney was the named investigator,
and the letter is part of the administrative file, it appears
that the letter was received by OSHA.
[2] On March 28, 1994, this correspondence was returned to the
Boston OALJ as undeliverable. The Post Office label indicated
that the addressee's forwarding order had expired, and that the
new address of "The Brickyard, Inc." was 180 S. Main Street,
Providence, RI. The Notice of Hearing and Pre-Hearing Order was
then forwarded to The Brickyard, Inc. at this updated address on
March 28, 1994.
[3] No judgment is made herein regarding the issue of the effect
of Mr. Cronin's bankruptcy on the STAA proceedings. That
determination will be made after resolution of the issue of
whether there has been proper notice to the parties.
[4] I note here that a careful reading of correspondence from
Lane & Altman confirms Attorney Duncan's assertions regarding the
limitation on the scope of that law firm's representation of Mr.
Cronin to the bankruptcy issues alone. However, the March 1
letter at issue is not so clear in its wording that it was
unreasonable to presume it was intended to be an objection to the
Secretary's Findings and Order. See 29 C.F.R.
§1978.105.
