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. 11-2555

AUSTIN INDUSTRIAL SPECIALTY 

SERVICES, L.P.,

Respondent.

APPEARANCES: 

Sheryl L. Vieyra, Senior Trial Attorney; Virginia E. Fritchey, Trial Attorney; Madeleine T. Le, 

Counsel for Occupational Safety and Health; James E. Culp, Regional Solicitor; M. Patricia 

Smith, Solicitor of Labor; U.S. Department of Labor, Dallas, TX and Washington, DC 

 For the Complainant 

Steven R. McCown, Esq. and Russell Zimmerer, Esq.; Littler Mendelson, P.C., Dallas, TX 

 For the Respondent 

ORDER 

Before: ROGERS, Chairman; ATTWOOD, Commissioner. 

BY THE COMMISSION: 

 Before us is the Secretary’s February 15, 2013 petition seeking interlocutory review of 

Administrative Law Judge Stephen J. Simko’s denial of the Secretary’s motion for a 30-day 

continuance of the hearing in this matter, which was scheduled to begin on February 20, 2013, in 

Houston, Texas. One week earlier, on February 13, 2013, Sheryl Vieyra, lead counsel for the 

Secretary, learned that she would require surgery during the week of February 18 and her 

physician prohibited her from traveling to the hearing as scheduled. Following surgery, she 

expected to be out of the office for at least six weeks. Ms. Vieyra notified Respondent’s counsel 

that same day of the Secretary’s intent to file a motion to continue the hearing. At that time, 

Respondent stated that it would oppose the motion. 

 The following morning, on February 14, 2013, the parties held a conference call with the 
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judge. In attendance on the conference call, in addition to the judge, were Stephen R. McCown 

and Russell Zimmerer, counsel for the Respondent; and Ms. Vieyra and co-counsel Virginia E. 

Fritchey for the Secretary. During the conference call, Ms. Vieyra explained that because of the 

large record in the case and the number of witnesses scheduled to testify, a continuance of 30

days would be required to bring another attorney up to speed to replace her in the case. After 

further discussion among the parties, including questioning by the judge and Respondent’s 

counsel regarding the availability of other attorneys in the Dallas Regional Solicitor’s office, the 

judge denied the Secretary’s motion. He reasoned that an attorney working through the weekend 

and the President’s Day holiday could be prepared to try the case as scheduled on February 20, 

2013. An affidavit from Ms. Fritchey setting out the facts surrounding the Secretary’s motion, 

including an account of this conference call, was included with the Secretary’s petition for 

interlocutory review. The Respondent has filed an opposition to the petition.1

Under Commission Rule 73(a)(1), the Commission has the discretion to grant 

interlocutory review where “the review involves an important question of law or policy about 

which there is substantial ground for difference of opinion and . . . immediate review of the 

ruling may materially expedite the final disposition of the proceedings . . . .” 29 C.F.R.

 

1

In its opposition filing, Respondent contends that specific representations made by Ms. 

Fritchey in her affidavit regarding conversations she had with Ms. Vieyra are “hearsay 

statements” under Federal Rule of Evidence 802. Respondent asks that these statements be 

“stricken” and not considered by the Commission. To the extent that Respondent’s request is 

meant to be a motion, we note that Commission Rule 40(a) expressly prohibits including a 

motion in another document. 29 C.F.R. § 2200.40(a).

But putting aside this procedural misstep, we find the argument on which Respondent rests its 

purported motion lacking not only in decorum, but also in merit. Ms. Fritchey and Ms. Vieyra 

are the attorneys of record in this matter. Like Respondent’s counsel, both are subject to rules of 

professional conduct as officers of the court. See, e.g., Rule 104(a), 29 C.F.R. § 2200.104(a) 

(requiring all representatives appearing before Commission and judges to comply “with the letter 

and spirit of the Model Rules of Professional Conduct of the American Bar Association”). And 

Respondent has offered nothing to support its implication that the representations made by either 

attorney in this sworn affidavit should be doubted. Nor has Respondent indicated how else Ms. 

Vieyra’s medical situation should have been conveyed to the Commission. In fact, a close 

reading of the affidavit reveals that most of what it describes took place during the conference 

call at which Respondent’s counsel was a principal participant. At that time, counsel had the 

opportunity to confront Ms. Vieyra directly about her veracity before the judge. Finally, we 

direct Respondent’s attention to Federal Rule of Evidence 807, which sets forth a “residual 

exception” to the hearsay rule. Based on our reading of the record, the criteria for meeting this 

exception have been amply satisfied here. Accordingly, we reject Respondent’s request.
3

§ 2200.73(a)(1). If the petition is not granted by a majority of the Commissioners within 30

days, it is denied by operation of law. Commission Rule 73(b), 29 C.F.R. § 2200.73(b). For 

reasons set out separately below, the two Commission members do not agree on the disposition 

of the Secretary’s petition. Chairman Rogers votes to not grant the petition. Commissioner 

Attwood votes to grant the petition or, at the very least, to stay the proceedings to afford more 

time for deliberation of its merit. Accordingly, the petition will be denied pursuant to Rule 73(b) 

as of March 18, 2013.

However, the Commission is in agreement on the following: Denial of the Secretary’s 

petition should in no way be interpreted as an approval of the judge’s ruling on the Secretary’s 

motion for a continuance. See Lewis County Dairy Corp., 21 BNA OSHC 1070, 1071, 2005 

CCH OSHD ¶ 32,859, p. 53,016-17 (No. 03-1533, 2005). Under the Commission’s rules, the 

judge has a duty “to conduct a fair and impartial hearing, to assure that the facts are fully elicited, 

to adjudicate all issues and avoid delay.” Commission Rule 67, 29 C.F.R. § 2200.67. The 

Commission strongly emphasizes that those same rules also impose an obligation on a judge to 

“adjourn the hearing as the needs of justice and good administration require[.]” Commission 

Rule 67(l), 29 CFR § 2200.67(l). Having considered the submitted affidavit and the serious 

nature of the representations made by the Secretary’s counsel, as well as the Respondent’s 

opposition filing, the Commission fails to see how the judge’s denial of the Secretary’s motion 

for a continuance reflects either “justice” or “good administration.”

The separate opinions of both Commission members follow.

/s/

Thomasina V. Rogers

Chairman

/s/

Cynthia L. Attwood

Dated: March 1, 2013 Commissioner
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Separate Opinion of Chairman Rogers

ROGERS, Chairman.

The Secretary has made no attempt to show that the relevant criteria for interlocutory 

review set forth under Rule 73(a)(1) have been met here. Upon review of the record, I find that 

the judge’s denial of the motion for a continuance does not “involve[] an important question of 

law or policy about which there is substantial ground for difference of opinion.” See Order of 

the Occupational Safety and Health Review Commission, St. Marys Foundry, Inc., No. 07-0170 

(consolidated) (Jan. 11, 2008) (attached) (finding denial of Respondent’s motion for continuance 

of hearing did not warrant interlocutory review). Like my colleague, I am deeply troubled by the 

judge’s ruling in light of the factual circumstances involved. But in my view, the “nature of the 

legal issues raised,” including the potential for prejudice, which is not unusual in continuance 

disputes, simply does not meet the standard for interlocutory review. Id. Accordingly, I do not 

vote to grant the Secretary’s petition.
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Separate Opinion of Commissioner Attwood

ATTWOOD, Commissioner. 

The Secretary requested a 30-day continuance upon learning on the eve of trial in a 

complex case that lead counsel required imminent surgery followed by weeks of recovery, and 

informed the judge that no other counsel was adequately prepared to step in on such short notice. 

Based on these asserted facts, it appears to me that the request for interlocutory review “involves 

an important question of law or policy about which there is substantial ground for difference of 

opinion” and, due to the timing and nature of counsel’s incapacity combined with the legal 

complexity of the case, is distinguishable from prior cases, including St. Marys Foundry, Inc., in 

which interlocutory review was not granted.2

Indeed, in overturning a judge’s denial of a requested continuance, the Fifth Circuit—in 

which this case arises—noted that “[a]n exception . . . exists in certain cases when the illness of 

counsel is the ground for a continuance.” Smith-Weik Machinery Corp. v. Murdock Machine and 

Engineering Co., 423 F.2d 842, 844-45 (5th Cir. 1970). The court explained as follows:

In Anglo-American law, with trials based on the adversary system as the 

best means of arriving at a just and legal result, the interests of 

justice . . . require[] that both parties be represented by able counsel well informed 

on the facts and the pertinent law. The illness of the defendant’s principal 

attorney and local counsel’s relative unfamiliarity with the case tipped the scales 

so heavily in favor of the plaintiff as to effectually deprive the defendant of its 

rightful day in court.

Based on the court’s analysis and the potential for prejudice to the Secretary’s case, I would find 

the circumstances here warrant interlocutory review.3 This is especially so as any resulting 

prejudice to the Secretary may not be remediable after the fact by ordering a new trial, at which 

time essential witnesses may have become unavailable. Moreover, unlike a respondent for 

whom a dismissal may cure irreparable harm, the Secretary has no comparable remedy. I also 

 

2

In St. Marys, Respondent’s Memorandum In Support of Petition for Interlocutory Review 

reveals that it retained new counsel who had prior conflicts with the impending hearing date but 

who nevertheless took the “case in the belief that his reasonable and complying request [for a 

continuance] would be granted.” In contrast, counsel here became unexpectedly incapacitated, 

which was completely outside the Secretary’s control. 

3

I also note that the asserted facts, if true, suggest that in denying the continuance, the judge 

improperly considered (1) matters not before him (settlement practices in other cases) and (2) 

purported personal knowledge of Solicitor’s office attorney availability.
6

would not fault the Secretary, given the exigent circumstances, for omitting from his petition a 

formal “assert[ion]” that the interlocutory review criteria are met. See 29 C.F.R. § 2200.73(a)(1). 

Finally, by obviating the possibility of an unnecessary and costly appeal and re-trial, immediate 

review may well “materially expedite the final disposition of the proceedings.” 29 C.F.R. 

§ 2200.73(a)(1). Accordingly, I would grant the Secretary’s petition.

 
 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. 07-0170 & 07-0171

ST. MARYS FOUNDRY, INC.,

Respondent.

APPEARANCES: 

Patrick L. DePace, Trial Attorney; U.S. Department of Labor, Cleveland, OH 

Michael Doyle, Counsel for Appellate Litigation; Charles S. James, Counsel for Appellate Litigation Joseph 

M. Woodward, Associate Solicitor; Jonathan L. Snare, Acting Solicitor of Labor; U.S. Department of Labor, 

Washington, DC 

 For the Complainant 

Gary W. Auman, Esq. and Douglas S. Jenks, Esq.; Dunlevey, Mahan & Furry LLP, Dayton, OH 

 For the Respondent 

ORDER 

Before: THOMPSON, Chairman; ROGERS, Commissioner. 

BY THE COMMISSION: 

On December 19, 2007, St. Marys Foundry, Inc. (“St. Marys”) filed a petition with the Commission, 

seeking interlocutory review, under Commission Rule 73, 29 C.F.R. § 2200.73, of Administrative Law 

Judge Ken Welsch’s order denying its motion for a continuance.1

 The Commission has discretion to grant 

interlocutory review where “the review involves an important question of law or policy about which there is 

substantial ground for difference of opinion and that immediate review of the ruling may materially expedite 

 

1 Pursuant to Commission Rule of Procedure 62(a), 29 C.F.R. § 2200.62(a), a hearing may be postponed 

by the judge “on his own initiative or for good cause shown upon the motion of a party.” Commission Rule 

62(b), 29 C.F.R. § 2200.62(b), specifically provides that “[a] motion for postponement grounded on 

conflicting engagements of counsel or employment of new counsel shall be filed . . . as soon as the 

conflict is learned of or the engagement occurs.” 
2

the final disposition of the proceedings.” 29 C.F.R. § 2200.73(a)(1). St. Marys does not argue that its 

petition meets the requirements of Commission Rule 73, and given the nature of the legal issues raised, it is 

unlikely that any such argument would be successful. Accordingly, we deny St. Marys’ petition for 

interlocutory review.

We note that St. Marys’ counsel filed his motion for a continuance immediately after being retained

and well before the seven days prior to the hearing as required by 29 C.F.R. § 2200.62(c). The motion 

referenced conflicting engagements that would likely hinder counsel’s ability to fully participate in the 

previously scheduled nine-day hearing. Moreover, this case involves two docket numbers, a total of five 

citations alleging numerous willful, serious, and “other” violations of various general industry health and 

safety standards, 29 C.F.R. part 1910, and the General Duty Clause, 29 U.S.C. § 654(a)(1), and a total 

proposed penalty of $253,350. Given the conflicting engagements of St. Marys’ newly retained counsel, 

as well as the potential length and complexity of this case and the unopposed nature of the motion, the judge

may wish to reconsider whether “good cause” exists for a continuance. 29 C.F.R. § 2200.62(a). 

SO ORDERED.

BY DIRECTION OF THE COMMISSION

/s/

Ray H. Darling, Jr.

Executive Secretary 

Dated: January 11, 2008