Case 2:21-mi-00009-RWS-JCF Document 1 Filed 07/19/21 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`GAINESVILLE DIVISION
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`FILE NO.
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`Respondents.
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`MARTIN J. WALSH,
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`SECRETARY OF LABOR,
`UNITED STATES DEPARTMENT OF LABOR, )
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`Petitioner,
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`v.
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`FOUNDATION FOOD GROUP, INC.,
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`B.J. SVAIGL, CRAIG PUNTERVOLD, ZACH
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`HOOVER, RYAN COOK, and CHRISTIAN
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`FAUR,
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`) EXPEDITED PROCEDURE
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` REQUESTED
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`THE SECRETARY OF LABOR’S PETITION TO ENFORCE
`ADMINISTRATIVE SUBPOENAS AD TESTIFICANDUM ISSUED BY THE
`OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
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`COMES NOW Petitioner Martin J. Walsh, the Secretary of Labor, United
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`States Department of Labor (“the Secretary”), and petitions the Court to enter an
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`Order requiring Respondents to Show Cause why they should not be required to
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`appear and provide testimony as required by the Secretary’s Administrative
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`Subpoenas Ad Testificandum, and granting the Secretary such other and further relief
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`as may be necessary and appropriate. In support of the Petition, the Secretary asserts
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`the following:
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`1
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`GAINESVILLE DIVISION
`
`FILE NO.
`
`
`
`
`
`Respondents.
`
`
`
`
`
`
`)
`
`
`
`
`MARTIN J. WALSH,
`)
`
`
`
`SECRETARY OF LABOR,
`UNITED STATES DEPARTMENT OF LABOR, )
`
`
`
`
`
`
`
`
`)
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`Petitioner,
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`
`
`)
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`
`)
`
`v.
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`)
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`)
`FOUNDATION FOOD GROUP, INC.,
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`)
`B.J. SVAIGL, CRAIG PUNTERVOLD, ZACH
`)
`HOOVER, RYAN COOK, and CHRISTIAN
`)
`FAUR,
`
`) EXPEDITED PROCEDURE
`)
` REQUESTED
`)
`
`
`
`
`
`
`THE SECRETARY OF LABOR’S PETITION TO ENFORCE
`ADMINISTRATIVE SUBPOENAS AD TESTIFICANDUM ISSUED BY THE
`OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
`
`
`
`
`COMES NOW Petitioner Martin J. Walsh, the Secretary of Labor, United
`
`States Department of Labor (“the Secretary”), and petitions the Court to enter an
`
`Order requiring Respondents to Show Cause why they should not be required to
`
`appear and provide testimony as required by the Secretary’s Administrative
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`Subpoenas Ad Testificandum, and granting the Secretary such other and further relief
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`as may be necessary and appropriate. In support of the Petition, the Secretary asserts
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`the following:
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`1
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`Case 2:21-mi-00009-RWS-JCF Document 1 Filed 07/19/21 Page 2 of 8
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`JURISDICTION
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`1.
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`This Petition is brought to compel Respondents to comply with
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`Administrative Subpoenas Ad Testificandum (the “Subpoenas”) issued by the
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`Atlanta East Area Office of the Occupational Safety and Health Administration
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`(“OSHA”) of the United States Department of Labor, to five managers of
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`Foundation Food Group, Inc. (“FFG”), located at 2076 Memorial Park Drive,
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`Gainesville, Georgia. Attorney for FFG, Dane L. Steffenson, agreed to accept
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`service on behalf of managers Zach Hoover, B.J. Svaigl, Craig Puntervold, and Ryan
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`Cook. Attorney Matthew Cook represents Christian Faur and agreed to accept
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`service on Mr. Faur’s behalf.
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`2.
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`Jurisdiction to issue the order prayed for herein is conferred upon this
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`Court by 28 U.S.C. § 1345 and the Occupational Safety and Health Act of 1970, 29
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`U.S.C. § 651 et seq., (the “Act”), specifically, Section 8(b) of the Act, 29 U.S.C. §
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`657(b) and 28 U.S.C. §§ 1331 and 1345.
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`VENUE
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`3.
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`Respondent FFG and the individual named Respondents conduct their
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`business throughout the United States, including in Gainesville, Georgia. The
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`Subpoenas seek testimony related to the chicken processing plant owned and
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`operated by Respondent FFG at 2076 Memorial Park Drive, Gainesville, Georgia.
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`This business location is within the jurisdiction of the court.
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`2
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`Case 2:21-mi-00009-RWS-JCF Document 1 Filed 07/19/21 Page 3 of 8
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`4.
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`Venue lies in the United States District Court for the Northern District
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`of Georgia pursuant to Section 8(b) of the Act, 29 U.S.C. § 657(b), as Respondents
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`have and continue to conduct business in this judicial district.
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`5.
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`The testimony sought by the Subpoenas is from managers who work
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`predominantly at Respondent’s place of business in Gainesville, Georgia. Given that
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`the Subpoenas seek testimony related to work performed in Gainesville, Georgia,
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`and the witnesses responsive to the Subpoenas are located in Gainesville, Georgia,
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`this case should be assigned to the United States District Court for the Northern
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`District of Georgia, Gainesville Division.
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`THE INVESTIGATION AND SUBPOENAS
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`6.
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`Respondent FFG owns and operates a poultry processing plant located
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`at 2076 Memorial Park Drive (“the Plant”). The Plant processes raw poultry into
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`various marinated and/or breaded poultry products that are then frozen. Machinery
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`within the Plant includes blenders, mixers, ovens, grills and freezers. Chemicals
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`known to be in use at the Plant include liquid nitrogen and ammonia.
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`7.
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`The Secretary, through the Atlanta East Area Office of OSHA, began
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`conducting an investigation when it received an oral complaint on Thursday, March
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`11, 2021, from an FFG employee representative, alleging that at approximately 9:30
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`that morning there had been a strong smell of ammonia at the Plant, and that
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`employees had been evacuated. This representative also filed a written complaint on
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`3
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`Case 2:21-mi-00009-RWS-JCF Document 1 Filed 07/19/21 Page 4 of 8
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`March 12, 2021, reiterating that employees had left the worksite because the smell
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`of ammonia was so strong, and further alleging that no alarm was activated and that
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`employees are regularly “exposed to noise levels about 85 decibels and do not
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`receive annual hearing exams.” Thereafter, on March 29, 2021, a FFG employee
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`representative filed another written complaint with OSHA, alleging an imminent
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`danger at the Plant. This second complaint reiterates that there was an ammonia leak
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`at the Plant on March 11, 2021, and also alleges that FFG has not conducted a
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`process safety analysis for the use of ammonia, has inadequate ventilation on a
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`cooking line, does not have an effective emergency action plan, and that the Plant
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`has inadequate egress/emergency exits.
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`8.
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`FFG refused to allow OSHA to enter the Plant when it attempted to
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`conduct an inspection. Accordingly, in April of 2021, OSHA applied for and
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`obtained a warrant to inspect the premises of the Plant. Before OSHA had a chance
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`to complete the execution of the warrant, FFG filed three motions with this Court:
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`to stay execution of an OSHA inspection warrant, to unseal the warrant application,
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`and to quash the warrant. [See Case 2:21-cv-00124-RWS-JCF]. The magistrate
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`judge denied FFG’s motion to stay and the motion to unseal, and issued a report and
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`recommendation to deny the motion to quash. FFG filed objections to the order
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`denying the motion to stay. The District Court denied the objections on June 8, 2021.
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`Shortly after that ruling, OSHA resumed its inspection at the FFG plant. No further
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`4
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`Case 2:21-mi-00009-RWS-JCF Document 1 Filed 07/19/21 Page 5 of 8
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`interruptions occurred. OSHA completed its on-site inspection, and returned the
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`underlying warrants to the Court.
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`9.
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`As part of this complaint-inspection, OSHA determined that it would
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`interview
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`the
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`following FFG managers: Environmental Health
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`and
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`Safety/Wastewater Manager Ryan Cook, Maintenance Manager Prepared Foods
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`Christian Faur, Director Prepared Foods Operations Zach Hoover, Corporate
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`Maintenance Manager Craig Puntervold, and Senior Vice President of Operations
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`B.J. Svaigl.1 OSHA served the Subpoenas requiring Mr. Hoover, Mr. Svaigl, Mr.
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`Puntervold, and Mr. Cook’s testimony on FFG’s attorney Dane Steffenson via
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`electronic mail on June 21, 2021. The Subpoena requires these management-level
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`employees of FFG to appear and be interviewed as part of OSHA’s investigation on
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`July 15, 2021 and July 16, 2021. Mr. Steffenson indicated he was authorized to
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`accept service of the Subpoenas for these individuals, and he confirmed his receipt
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`thereof.
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`10. Attorney Matthew Cook represents Christian Faur in his personal
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`capacity, and accepted service of the Subpoena for Mr. Faur.
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`11. On July 15th and July 16th, the named Respondents did not appear and
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`provide testimony, as required by their Subpoenas. Upon information and belief, in
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`1 OSHA also subpoenaed three other managers to testify. These managers did appear and provided
`testimony as required.
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`5
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`Case 2:21-mi-00009-RWS-JCF Document 1 Filed 07/19/21 Page 6 of 8
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`failing to appear, the named Respondents were acting on the advice of FFG’s
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`counsel.
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`12. Time is of the essence, as the Secretary must conclude his investigation
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`and issue any citations and notifications of penalty for any alleged violations of the
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`Act and related occupational safety and health standards no later than September 10,
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`2021, pursuant to Section 9(c) of the Act, 29 U.S.C. § 658(c). Without the testimony
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`sought by the Subpoenas, OSHA will be hindered in its ability to determine whether
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`employees of the Plant have been exposed to certain hazards as alleged in the
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`complaints, in violation of the Act, and whether there are ongoing hazards that need
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`to be abated in order to protect employee safety and health.
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`13. Counsel for the Secretary has communicated with Respondent FFG’s
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`counsel regarding OSHA’s need for these interviews. Efforts to resolve this matter
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`by negotiations with FFG’s counsel have proven fruitless.
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`PRAYER FOR RELIEF
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`WHEREFORE, the Secretary prays that this Court enter an Order requiring
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`Respondents to Show Cause why they should not be required to appear for
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`interviews as required by the Subpoenas; and granting the Secretary such other and
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`further relief as may be necessary and appropriate, including sanctions if warranted.
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`Because Section 9(c) of the Act requires that any citations be issued within
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`six months of a violation of the Act, the Secretary requests that the Court
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`6
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`Case 2:21-mi-00009-RWS-JCF Document 1 Filed 07/19/21 Page 7 of 8
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`immediately issue its Order to Show Cause why the Subpoenas should not be
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`enforced, and require Respondents to respond within five (5) calendar days of the
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`Court’s Order to Show Cause. Should the Court find that a hearing is necessary, the
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`Secretary asks that the Court schedule a hearing on this matter on an expedited basis.
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`The Secretary has filed a request for Expedited Procedure via separate Motion.
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`Respectfully submitted this 19th day of July 2021.
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`ADDRESS:
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`Office of the Solicitor
`U. S. Department of Labor
`61 Forsyth Street, S.W.
`Room 7T10
`Atlanta, GA 30303
`Telephone:
` (404) 302-5489
` (404) 302-5438 (FAX)
`Chastain.Lydia.J@dol.gov
`ATL.FEDCOURT@dol.gov
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`SOL Case No. 21-00145
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`SEEMA NANDA
`Solicitor of Labor
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`TREMELLE I. HOWARD
`Regional Solicitor
`Georgia Bar No. 302971
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`By: s/Lydia J. Chastain
` LYDIA J. CHASTAIN
` Senior Trial Attorney
` Georgia Bar No. 142535
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`Office of the Solicitor
`U. S. Department of Labor
`Attorneys for Petitioner
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`7
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`Case 2:21-mi-00009-RWS-JCF Document 1 Filed 07/19/21 Page 8 of 8
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`CERTIFICATE OF COMPLIANCE
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`Pursuant to Local Rules 5.1(C) and 7.1(D), I certify that the foregoing
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`pleading is typewritten using Times New Roman font, fourteen-point type.
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`DATED this 19th day of July 2021.
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`/s/ Lydia J. Chastain
`LYDIA J. CHASTAIN
`Georgia Bar No. 142535
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`8
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