SECURITY WINDOW DIVISION OF BUILDERS SUPPLY CO., INC.

OSHRC Docket No. 77-2345

Occupational Safety and Health Review Commission

December 15, 1977

[*1]

Before CLEARY, Chairman, and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Roger J. Miller, for the employer

OPINION:

ORDER

BY THE COMMISSION:

On October 17, 1977, Administrative Law Judge David H. Harris vacated the Secretary's Notification of Failure to Correct Alleged Violation and Proposed Additional Penalty for failure of the Secretary to file a complaint. On November 16, 1977, the same day the Judge's order became final, the parties entered into a stipulated settlement agreement that was forwarded to the Judge and received by him on November 21, 1977.

The settlement was accompanied by a joint motion to set aside the Judge's order. We read the motion to be a joint for relief under Rule 60(b) of the Federal Rules of Civil Procedure, made applicable to our proceedings by Commission Rule 2(b), 29 CFR 2200.2(b). The motion is granted. The Judge's order is vacated and the case remanded for action on the settlement agreement.

In remanding this case, we note that the parties' settlement agreement also disposes of a citation and proposed penalty for an alleged repeated violation which were [*2] issued at the same time as the notification and proposed additional penalty for failure to correct. Although respondent contested this citation and penalty as well as the failure to correct notification, the Judge failed to include the citation and proposed penalty in his order.

We also note that the Notification of Failure to Correct Alleged Violation contained in the file is based upon the respondent's failure to correct items in a citation issued on the 10th and 11th of March, 1977, while the settlement agreement in paragraph 2(b) asserts that the uncorrected items were in a citation issued on August 30, 1976.

Accordingly, it is ORDERED that the order of Judge Harris vacating the Notification of Failure to Correct Alleged Violation and Proposed Additional Penalty issued on May 4, 1977, is vacated and the case is remanded for consideration of the settlement agreement in light of the observations made herein.