United States of America
OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION
1120 20th
Street, N.W., Ninth Floor
Washington, DC 20036-3457
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SECRETARY OF LABOR, |
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Complainant, |
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v. |
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STERLING TECHNOLOGIES, INC., and its successors, |
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Respondent. |
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APPEARANCES:
Michael P. Doyle, Regional Counsel; Oscar L. Hampton
III, Regional Solicitor; M. Patricia Smith, Solicitor; U.S. Department of
Labor, Washington, DC and Philadelphia, PA
For
the Complainant
Dean
W. Viehl; Lake City, PA
For
the Respondent
DIRECTION FOR
REVIEW AND REMAND ORDER
Before: ATTWOOD, Chairman and
MacDOUGALL, Commissioner.
BY THE COMMISSION:
An order
issued by Chief Administrative Law Judge Covette Rooney approving an informal
settlement agreement between Sterling Technologies, Inc. and the Secretary
became a final order of the Commission on December 30, 2015. For the reasons
that follow, we set aside the final order under Federal Rule of Civil Procedure
60(a), direct review of the case, and remand it to the judge for further
proceedings.
The
Occupational Safety and Health Administration issued Sterling a serious
citation that included two items. The parties’ informal settlement agreement
submitted to the judge for approval resolved only one of the citation items
and, according to its terms, left the other citation item “contested pending
forty-five (45) day extension for further settlement agreement discussions.”
See Commission Rule 100(b), 29 C.F.R. § 2200.100(b) (requiring that
settlement agreement specify the terms for each contested item and “specify any
contested item . . . that remains to be decided”). Because
the agreement did not fully resolve the case, the judge’s order approving the
informal settlement agreement did not constitute a “final disposition of the
proceedings” under Commission Rule 90(a), 29 C.F.R. § 2200.90(a).
Nonetheless, the order was submitted for docketing and subsequently docketed on
November 30, 2015, thereby commencing the thirty-day period before “[t]he
report of the administrative law judge . . . become[s] the
final order of the Commission.” 29 U.S.C. § 661(j) (“The report of the
administrative law judge shall become the final order of the Commission within
thirty days after such report by the administrative law judge, unless within
such period any Commission member has directed that such report shall be
reviewed by the Commission.”); 29 C.F.R. § 2200.90(b)(2) (“Promptly upon receipt
of the Judge’s report, the Executive Secretary shall docket the report and
notify all parties of the docketing date. The date of docketing of the Judge’s
report is the date that the Judge’s report is made for purposes of section
12(j) of the Act, 29 U.S.C. § 661(j).”).
On December
23, 2015, one week before the final order date, the parties filed with the
Commission a joint motion for relief under Commission Rule 90(b)(3), 29 C.F.R.
§ 2200.90(b)(3), which seeks to replace the informal settlement agreement
with an “Amended Settlement Agreement” that resolves both citation items and
their respective penalties. A ruling, however, was not issued on the motion
prior to the December 30, 2015 final order date. Under the circumstances, we
find it appropriate to grant relief from the final order under Federal Rule of
Civil Procedure 60(a), which permits the Commission “on its own” to “correct a
clerical mistake or a mistake arising from oversight or omission whenever one
is found in a judgment, order, or other part of the record.” See
Robert Lewis Rosen Assocs., Ltd. v. Webb, 473 F.3d 498, 505 & n.12 (2d
Cir. 2007) (judgment corrected pursuant to Federal Rule of Civil Procedure
60(a) “because the plain language of the rule indicates that a judge may
correct a judgment thereunder sua sponte,” allowing district court to
award additional sums contemplated, but not specifically mentioned, in
arbitrator’s award that court previously confirmed in full). Here, the mistake
arose from the judge’s “oversight” in submitting her order for docketing even
though the approved informal settlement agreement did not resolve all of the
citation items at issue.
See Pettey Oil Fields Serv. Inc., 21 BNA OSHC
1638 (No. 05-1039, 2006) (directing case for review during thirty-day period
because decision did not satisfy Commission Rule 90(a), and remanding for
resolution of outstanding issues); see also Structural Grouting Sys.
Excavating, Inc., 21 BNA OSHC 1067, 1068-69 (No. 03-1913, 2005) (granting
relief under Federal Rule of Civil Procedure 60(a)).
We
thus set aside the final order under Federal Rule of Civil Procedure 60(a) and
remand for the judge to consider the parties’ amended settlement agreement
pursuant to Commission Rule 100, 29 C.F.R. § 2200.100.
SO
ORDERED.
/s/ Cynthia
L. Attwood
Chairman
/s/
Heather L. MacDougall
Dated: January 27,
2016 Commissioner
OCCUPATIONAL SAFETY
AND HEALTH REVIEW COMMISSION
-------------------------------------------------------------
THOMAS E. PEREZ, SECRETARY OF
LABOR, :
UNITED STATES DEPARTMENT OF LABOR,
Complainant, :
v. :
STERLING TECHNOLOGIES,
INC., :
OSHRC DOCKET
NO. 15-1772
INSPECTION NO. 1079222
and its
successors,
Respondent. :
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ORDER APPROVING INFORMAL SETTLEMENT
The parties advise that all matters in dispute have been amicably
resolved and agree to
entry of the order set forth below. It is therefore
ORDERED that:
1. The Informal Settlement agreement is approved and the terms thereof
are
incorporated into this Order.
2. The citation items and proposed penalties are affirmed, modified or
vacated in
accordance with the Informal Settlement agreement.
3. The total penalty associated with the amended citation items
amounts to
$2,340.00.
/s/ Covette Rooney
Administrative Law Judge, OSHRC
Dated: Nov 24 2015