1 

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

U.S. CUSTOM HOUSE

721 19TH STREET, ROOM 407

DENVER, COLORADO 80202-2517

Phone: (303) 844-2282 Fax: (303) 844-3759

SECRETARY OF LABOR, 

 Complainant, 

v. 

ARCO NATIONAL CONSTRUCTION 

COMPANY, INC.,

 Respondent. 

 

 

 OSHRC Docket No.: 15-0359 

ORDER DENYING UNOPPOSED MOTION FOR STAY OF CIVIL PROCEEDINGS

I. Background 

The matter before the Court is Respondent’s Unopposed Motion for Stay of Civil Proceedings 

(“Motion”). Respondent requests this stay, which is unopposed by Complainant, due to a 

pending criminal investigation for potential criminal charges under 29 U.S.C. § 666(e) and 18 

U.S.C. § 1001 which is being conducted by the U. S. Attorney’s Office for the Western District 

of Missouri (“DOJ”) against Respondent in another case entitled Secretary of Labor v, DNRB, 

Inc., dba Fasttrack Erectors, OSHRC 15-0282. Respondent does not allege it is subject to this 

criminal investigation or any independent DOJ criminal investigation.

This case arose from an investigation of a fatal fall by the Occupational Safety and Health

Administration (“OSHA”) at a worksite located at 3500 E. 149th Street, Kansas City, MO. 

Respondent alleges that the individual who fell was not an employee of Respondent; he was an 

employee of Fasttrack Erectors. OSHA issued citations to Fasttrack Erectors in OSHRC Case 

15-0282 and to the Respondent as reflected in this case. 

Respondent in this case was issued one serious citation consisting of three items in this case. 

Item 1(a) alleges a violation of 29 CFR 1926.451(g)(1); Item 1(b) alleges a violation of 29 CFR 

1926.453(b)(2)(iv); Item 2 alleges a violation of 29 CFR 1926.451(f)(14) and Item 3 alleges a 

violation of 29 C.F.R. 1926.760(a)(1). In the Fastrack Erectors case pending DOJ criminal 

investigation, Complainant issued one serious citation with three items and one willful violation 

consisting of seven items. In Fasttrack Erectors, Complainant alleged a violation of the same 

standards implicated in this case (plus seven additional regulations not implicated in this case). 
2 

II. Standing

Respondent advances as the sole basis for its Motion that permitting further proceedings in this 

case would not be appropriate because proceedings in this case may impair or interfere with 

DOJs criminal investigation and any criminal proceedings that may be undertaken in the 

Fasttrack Erectors case. Respondent does not state how it has standing1 to argue that 

Complainant or the DOJ investigation will be damaged or “how” the DOJ investigation may be 

impaired. Respondent merely alleges that the DOJs investigation “could” be impaired. 

Under 42 U.S.C. § 1987 the United States attorneys have the power to institute prosecution 

against individuals for violating a federal statute. That statute does not vest in a private 

corporation or citizen any rights to “stand-in” for the U.S. Attorney and assert the government’s 

interest in a matter. Courts have held that the Attorney General and United States attorneys 

could not be compelled by mandamus to alter the present scope and method of their investigation 

and conduct particular investigations. See Peek v. Mitchell, 419 F.2d 375 (6th Cir. 1970). The 

authority to act on behalf, or assert an interest of the federal government, rests with DOJ and not 

the Respondent in this action. 

The Court finds Respondent has no standing to argue the interests of either DOJ or Complainant 

in the Fasttrack Erectors case. Despite finding Respondent lacks standing, alternatively should a 

reviewing court find Respondent had standing, the Court will address the substance of 

Respondent’s Motion. 

III. Discussion of Motion on the Merits

Neither party has cited any legal authority or case law for the position taken in this Motion, that a 

stay should be entered because there is a criminal investigation in another matter which emanates

from the same worksite in which this Respondent is also cited for violating the Act. Thus, the 

Court will employ an analysis as to whether Respondent has a protected interest which would be 

impacted under the underlying principles recognized in cases for when stays are appropriate. 

A. Respondent’s Constitutional Right. 

 

1 Complainant is noted in the Motion as not opposing the Motion. Complainant made no other arguments or 

statements that he conferred with DOJ and that DOJ had requested the stay. Complainant also does not offer any 

argument as to how DOJ would be damaged in the Fasttrack Erectors criminal investigation. The only statement 

which Complainant authorized to be represented for him was that he did not oppose the Motion. If any party is best 

situated to conclude and identify to the Court any possible damage to the DOJ investigation in the Fasttrack 

Erectors criminal investigation it would be Complainant. Complainant relying on the arguments advanced by 

Respondent in the Motion results in the moving party/parties failing to meet its burden of proof and burden of 

persuasion that a stay should be granted. Finally, the DOJ is aware of the stay granted by this Court in the Fasttrack 

Erectors case. Under Commission Rule 21 if DOJ was concerned that prosecution of this case would impair or 

damage their investigation in the Fasttrack Erectors case, it could have sought to intervene for the purpose of asking 

this Court to enter a stay and provide evidence to the Court for it to evaluate. DOJ did not do so in this case. 
3 

The Fifth Amendment to the United States Constitution protects individuals from compelled selfincrimination in criminal cases. U.S. Const. amend. V. The “core protection” afforded by this 

clause of the Fifth Amendment is a prohibition against compelling a criminal defendant to testify 

against herself at trial. United States v. Patane, 542 U.S. 630, 637, 124 S.Ct. 2620, 2626 (2004).

In addition to allowing refusal to testify at one's criminal trial, the privilege permits refusal to 

answer any official questions put to an individual “in any other proceeding, civil or criminal, 

formal or informal, where the answers might incriminate him in future criminal proceedings.” 

Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 1141 (1984) (internal citation and 

quotation omitted). An individual does not lose this privilege because she is convicted of a 

crime. Id. The privilege against compelled self-incrimination “continues until the time for 

appeal has expired or until the conviction has been affirmed on appeal.” United States v. Duchi, 

944 F.2d 391, 394 (8th Cir. 1991); accord Frank v. United States, 347 F.2d 486, 491 

(D.C.Cir.1965) (“Government may not convict a person and then, pending his appeal, compel 

him to give self-accusatory testimony relating to the matters involved in the conviction”).

Corporations do not have a Fifth Amendment right against self-incrimination. Braswell v. United 

States, 487 U.S. 99, 108 S.Ct. 2284 (1988); Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 

F.3d 83, 92 n. 5 (2d Cir. 2012). Respondent is a corporation. In addition, the situation presented 

in this case is not one in which a party to criminal litigation “must choose between testifying at 

the civil trial or maintaining its silence” since this Respondent is not subject to any DOJ 

investigation. Woolston Constr. Co., Inc., 15 BNA OSHC 1114 (No. 88–1877, 1991) 

(“Woolston”) (noting that in any case “[t]here is no infringement of either the Fifth Amendment 

privilege against self-incrimination or the Due Process Clause of the Fourteenth Amendment 

when a party to civil litigation, faced with parallel criminal proceedings, must choose between 

testifying at the civil trial or maintaining its silence”). 

Utilizing the defined legal parameters discussed above, in this case, Respondent is not “a person, 

who is a defendant in both a civil and a criminal case, is forced to choose between waiving his 

privilege” or sustaining an adverse judgment and “not merely the loss of his most effective 

defense.” United States v. Premises Located at Route 13, 946 F.2d 749, 756 (11th Cir. 1991) 

(internal quotes omitted). In summary, Respondent in this case: (i) is not subject to any DOJ 

criminal proceedings or investigation; (ii) is not being forced to testify against itself in one 

proceeding to its detriment in another proceeding; and (iii) has no right under recognized 

constitutional principles that would be impacted and any rights violated if the stay were not 

granted. 

B. Court’s Authority in Granting a Stay. 

“[T]he power to grant a stay is purely discretionary.” Woolston. “Stays are not favored.” 

Commission Rule 63(a); 29 C.F.R. § 2200.63(a). 

 i. Absence of a Parallel Proceeding against Respondent. 
4 

In Pitt–Des Moines, Inc., 17 BNA OSHC 1936 (No. 94-1355, 1997), the Commission described 

principles that guide consideration of a party’s request to stay Commission proceedings pending 

the outcome of parallel criminal proceedings. The principal cases in this area establish that 

although there is no constitutional right to a stay, a court may stay civil proceedings pending the 

outcome of parallel criminal proceedings pursuant to its power to control its docket and sensibly 

coordinate its business. See generally Landis v. North American Co., 299 U.S. 248, 255 (1936). 

See also United States v. Kordel, 397 U.S. 1 (1970); Securities & Exchange Comm’n v. Dresser 

Indus., 628 F.2d 1368 (D.C.Cir.1980), cert. denied 449 U.S. 993 (1980). The overall objective is 

to permit disposition of cases “with economy of time and effort for [the court], for counsel, and 

for litigants,” that the court must achieve by “weigh[ing] competing interests [in order to] 

maintain an even balance.” Landis, 299 U.S. at 254–255. In determining whether to grant a stay, 

courts consider whether “the interests of justice” require such action, Kordel, 397 U.S. at 12 n. 

27, and “make such determinations in the light of the particular circumstances of the case,” 

Dresser Industries, 628 F.2d at 1375. Under the precedent of these cases, Respondent would not 

be entitled to a stay of proceedings as there is no parallel criminal proceeding or investigation 

which impacts Respondent. 

ii. Granting of Any Stay is not Supported., 

The duration of a stay is determined in an individual case based on a showing of “the limits of 

any reasonable need,” Landis, 299 U.S. at 257, and stays of indefinite duration are generally not 

entered “unless no alternative is available.” McSurely v. McClellan, 426 F.2d 664, 672 

(D.C.Cir.1970), cert. denied, 474 U.S. 1005 (1985). Federal courts, however, “have deferred 

civil proceedings pending the completion of parallel criminal prosecutions when the interests of 

justice seemed to require such action, sometimes at the request of the prosecution, ... sometimes 

at the request of the defense2

....” Kordel, 397 U.S. at 12 n. 27 (citations omitted). In some cases, 

however, courts have considered whether less drastic measures could be employed to protect the 

affected interests, such as issuing protective orders to delay certain discovery, Gordon v. FDIC, 

427 F.2d 578, 580 (D.C.Cir.1970), limiting the stay until the taking of evidence is concluded in 

the criminal case, or preserving testimony by holding written interrogatories under seal pending 

completion of the criminal trial. McSurely v. McClellan, 426 F.2d at 672. The Court concludes 

there are less drastic measures available to the parties to prevent evidence that may impact the 

DOJ investigation in Fasttrack Erectors that may have been inadvertently disclosed. 

iii. Respondent Fails to Meet Five Criteria for Stay Enunciated in Woolston. 

In Woolston, the Commission described the factors that should be considered in determining 

whether to stay administrative proceedings even where no indictment had been returned: 

 

2 Even though Respondent filed the Motion requesting the stay, as previously noted there is no criminal parallel 

proceeding or investigation aimed at Respondent. Where stays have been granted in the past even without a

constitutional right recognized, there was a criminal investigation or proceeding pending against a Respondent along 

with civil proceedings. This nexus is absent from our present case. 
5 

While the strongest case for granting a stay occurs when an indictment has been returned, SEC v.

Dresser Industries, Inc., 628 F.2d at 1375–6, an indictment is not required. When determining 

whether to grant a stay of civil proceedings, the courts have traditionally looked to five factors: 

(1) The interest of the plaintiffs in proceeding expeditiously with the civil action as balanced 

against the potential prejudice to the plaintiffs of a delay; 

(2) The burden which any particular aspect of the proceedings may impose on defendants; 

(3) The convenience to the courts: 

(4) The interests of persons not parties to the litigation; and

(5) The public interest. 

Accord, Keating v. Office of Thrift Supervision, 45 F.3d 322, 324-25 (9th Cir. 1995) (noting also 

that in determining whether to stay administrative proceedings because of parallel criminal 

proceedings against an individual who is a party to the administrative proceedings, the “decision 

whether to stay ...should be made in light of the particular circumstances and competing 

interests involved in the case,” which “means the decision maker should consider the extent to 

which the defendant's fifth amendment rights are implicated”). Even applying these factors to 

the present case where there are no parallel proceedings involving Respondent, it would not 

prevail under the above factors. Thus, a weighing of the competing interests that would be 

affected by the grant or denial of the requested stay falls decisively against granting the 

requested indefinite stay or even a stay of limited duration. 

Here, because the Respondent has no Fifth Amendment right against self-incrimination, the Fifth 

Amendment rights of a party are not implicated. The only relevant interest Respondent has 

asserted in favor of stay is that if some witnesses in this case testifies or information is provided 

during discovery that information or testimony might impact the DOJ investigation in the 

Fasttrack Erectors case. 

Respondent makes the bare assertion that in defending this matter Respondent intends to rely on 

the testimony of individuals who might disclose information which could damage the 

investigation of DOJ in the Fasttrack Erectors case. This sole argument is tenacious at best. 

First, it is based on an assumption “testimony or discovery might” disclose something that could 

damage the investigation. Second, Respondent is in no position to know or not know what the 

U.S. Attorney is investigating, the facts known by the U.S. Attorney or the status of the 

investigation. Thus, Respondent would be in no position to know what might be testified to or 

disclosed as damaging the DOJ investigation. Third, there is nothing in the record to note DOJ

has requested this action or to denote that this Respondent knows better than DOJ what might 

damage the investigation. Respondent fails (1) to point to any concrete matters of fact upon 

which it would be unable to present evidence to protect its position, or (2) to demonstrate how 
6 

such information would be essential to the DOJ investigation. Respondent thus fails to 

demonstrate that its ability to mount an adequate defense would actually be impeded if these 

proceedings are not stayed indefinitely. As the basis of its Motion, Respondent alleges that the 

investigation of DOJ in a totally different case involving different facts might be compromised if 

its case had to move forward. Respondent’s responsibility is to protect its interest in defending 

its positions; not worry about what DOJs interests may be in a different case. 

The Motion is grounded on the possibility that some witnesses might disclose something that 

might damage DOJ in the Fasttrack Erectors investigation. Even if this did happen, the rights of 

Respondent would not be impeded in mounting a defense. The motion falls far short of 

establishing any individuals are even likely to engage in this conduct and even if it happened 

how Respondent’s ability to present a defense would be impeded to the point of denying the 

Respondent due process.3

In contrast, if the Motion was granted and the ongoing discovery and the eventual hearing were 

stayed indefinitely, the resulting delay in the resolution of this case would be real and substantial. 

The Commission has observed that “[t]he statute of limitations applicable to the filing of 

criminal charges under the [OSH] Act is five years, and stays of such long duration are strongly 

disfavored.” C & S Erectors, Inc., 18 BNA OSHC 1052 (No. 96-1525, 1997); see 18 U.S.C. 

3282. In the Fasttrack Erectors case (1) a criminal investigation is actually commenced, (2) a 

criminal proceeding could be commenced, (3) convictions could result, and (4) appeals 

therefrom are pursued, then the indefinite stay sought here could last considerably longer than 

the five-year limitations period. Staying a related case not under investigation by DOJ would not 

be in the public interest for this timeframe as witnesses become unavailable, evidence may be 

lost and any hazard goes unabated. In addition, this Court’s experience is that the civil 

proceeding of a parallel criminal case is usually resolved at the same time the criminal case is 

resolved thereby bringing judicial efficiency and no further delay in prosecuting the civil 

proceeding. This public judicial economy interest is not present in this case as it is highly 

unlikely that this case would be resolved in any criminal proceedings involving Fasttrack 

Erectors as there is no commonality of parties and facts. Granting an indefinite stay in this case 

could well result in this case taking up to two years additional time to resolve assuming a stay is 

in place until the criminal phase in Fasttrack Erectors is concluded. This time passage could 

well be seven years assuming Fasttrack Erectors is resolved on the eve of the tolling of the five 

year statute of limitations. The public interest is not served by such delay where witnesses 

become unavailable and exhibits lost. The Court finds there is simply no compelling public 

interest in granting any type of stay under these circumstances. 

 

3 As noted above, while corporations do not have a Fifth Amendment right against self-incrimination individuals do. 

If individuals in this case were to invoke their self-incrimination right while replying to discovery, absent a DOJ 

investigation of this Respondent or such individual giving testimony being associated with Fasttracks Erectors, the 

invocation of their right should not be sustained. In the later instance protections exist to protect the testimony of 

such individual from disclosure in other litigation. 
7 

In Woolston, the Secretary had recommended to the Justice Department that a criminal 

indictment be pursued, but as of the time of the administrative hearing, no indictment had been 

returned. Nevertheless, in Woolston the Commission upheld the administrative law judge’s 

denial of the corporate employer’s request for a stay, which had been asserted on the ground that 

a witness’s invocation of his Fifth Amendment right against self-incrimination at the 

administrative hearing had impeded the employer’s ability to present a defense. Here, as in 

Woolston, the Motion presents the administrative law judge “with the likelihood of years of 

delay, without any reasonable assurance that criminal proceedings would be initiated” against 

this Respondent. Id. Here, even more so than in Woolston, the “prospect of an interminable 

delay of the case” considerably outweighs the mere potential problem that would face 

Respondent in preparing a defense. 

iv. Discoverable Evidence in this Case Should Not Impact DOJ Investigation 

In this case, Respondent, in its Answer, denied that it violated the cited regulations because the 

individual killed at the worksite was not their employee. Affirmative Defense B. Thus, if this 

affirmative defense prevails, the case against Respondent would be vacated since to be 

responsible for a violation of the Occupational Safety and Health Act (“Act”) an individual or 

entity must be an “employer” as defined under the Act, the regulations and controlling case law. 

Determining whether or not Respondent was an employer for the purposes of this civil 

proceeding would not impact any DOJ investigation in Fasttrack Erectors. If Respondent was 

found to be an employer of the exposed individual(s) then the analysis reverts to what this 

Respondent did to protect its employee(s) from hazards at the worksite, whether it had 

knowledge of the conduct and did it violate the Act. ARCO’s conduct to protect its employee(s) 

at the worksite has nothing to do with what conduct Fasttrack Erectors engaged in, what actions 

it took or did not take, what policies they has in effect or did not have in effect and their 

knowledge of the actions as it relates to the citations issued to them. 

Counsel representing the parties in this case can implement certain safeguards to protect against 

the disclosure of information involving Fasttrack Erectors in the discovery phase of this case. 

As noted above, since the cases are predicated on different factual scenarios there would be no 

need propound questions that may illicit this type of information. Where such information is 

illicit or unintentionally disclosed in discovery, the parties can protect such information from 

disclosure outside the confines of this case through a protective order. 

IV. Conclusion 

The Commission has recognized in Pitt-Des Moines, 17 BNA OSHRC at 1938-40, 1995 CCH 

OSHD at p. 43,939-41 the Court has a legitimate interest in managing its docket in the face of 

interminable delays and is a factor to be weighed in determining whether or not to grant an 

extension to the stay. See also C & S Erectors, 18 OSHC at 1052, 1053 1995-97 CCH OSHD 

¶31,408, p. 44,388 (No. 98-1525, 1997). For the reasons stated, the parties have failed to carry 

its burden to demonstrate the necessity of stay being imposed. 
8 

The parties have available to it the following less drastic measures to insure that discovery in this 

case does not impinge on any DOJ criminal investigation in the Fasttrack Erectors case:

• Structure the questions during discovery so that information related to the Fasttrack 

Erectors case is not sought or inquired into. 

• Determine if it is necessary to call any witness that may have knowledge of information 

in the Fasttrack Erectors case.

• Request the entry of a Protective Order to protect the deliberate or inadvertent disclosure 

of discovery material that may impact the Fasttrack Erectors case. 

• Request any information that may impact the Fasttrack Erectors case be handled under 

seal pending completion of the DOJ criminal process. 

The Motion is DENIED. 

The Court’s Minute Order dated August 21, 2015 staying the responses to pending discovery of 

any party is VACATED. Any responses to discovery that were due pending the Court’s 

consideration of this Motion shall be due within ten days of the date of this Order. 

SO ORDERED. 

 /s/ Patrick B. Augustine

Dated: August 25, 2015

 

Patrick B. Augustine

Judge, OSHRC