SECRETARY OF LABOR,
CUSTOM ELECTRICAL CONTRACTORS, INC.,
OSHRC Docket No. 83-1032
DIRECTION FOR REVIEW AND ORDER
Pursuant to 29 U.S.C. § 661(i), an order of James A. Cronin, Jr., approving a settlement agreement between the parties is hereby directed for review.
Respondent has filed a petition for review, objecting to the judge's order and asserting that there is good cause to set aside the settlement agreement. Treating the petition as a motion for reinstatement of Respondent's notice of contest, we vacate the judge's order and remand to the judge for consideration of Respondent's contentions and for ruling on the motion.
FOR THE COMMISSION
Ray H. Darling, Jr.
CLEARY, Commissioner, dissenting
I would not remand this case. I do not believe the Respondent has stated a basis upon which the Commission should approve Respondent's withdrawal from the settlement. He indicates he was misled by the Secretary's counsel who indicated that Respondent could not win on the merits, and/or that he had no case. This is not necessarily misleading, and there is certainly no basis for overturning a settlement because one party expresses a view as to the possible outcome of the case during settlement negotiations. I know of no stricture which prohibits an expression of opinion by counsel.
Further, Respondent had no basis for assuming the Secretary of Labor and this
Commission were one and the same. He was furnished with written material advising
him of his rights and procedures. In the Guide to Procedures of the Commission,
which is furnished, it is pointed out on the first page that the Review Commission is an
independent agency, and that "[i]t is not connected in any way with the Department of
Labor or the Occupational Safety and Health Administration (OSHA).
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