SECRETARY OF LABOR,
TIRE RECLAMATION SERVICES, INC.,
OSHRC Docket No. 91-2080
The Occupational Safety and Health Administration (OSHA) issued a citation to Tire Reclamation Services, Inc., alleging violations of various OSHA standards. After the company had timely contested the citation, the parties entered into a settlement agreement which reduced the amount of the penalties imposed for the violations. The Chief Administrative Law Judge entered an order approving that agreement. Subsequently, a vice president of the company sent a letter to the Review Commission stating that the president of the company had agreed to the reduced penalty before a fire closed down the company. The letter stated that "at present" there were no funds available to pay the penalty and asked for relief.
That letter was construed to be a petition for the Commission to review the judge's order approving the agreement between the parties, and the case was directed for review by Commissioner Montoya pursuant to 29 U.S.C. § 661(j) and 29 C.F.R. § 2200.92(a). The direction for review specified the issue to be considered as:
Whether the Judge's Order approving the settlement agreement should be set aside, and/or possibly modified, because, due to a subsequent change in Respondent's circumstances that could not have been foreseen, the Respondent no longer consents to the Settlement terms.
Examination of the written agreement submitted to the Judge reveals that it hears an undated handwritten notation to the same effect as the letter, followed by the signature of the same person who signed the letter and the agreement on behalf of the company. While we construe the letter as a request for relief from the judge's order, it does not allege a sufficient basis for the Review Commission to set aside the judge's order approving that agreement and does not allege any basis on which to afford the company relief under Rule 60(b) of the Federal Rules of Civil Procedure. Nevertheless, we will remand this case to the Chief Judge for him to afford the parties an opportunity to amend the settlement agreement if they wish to do so. If the company is out of business, or the violations will not recur, it is possible that the Secretary of Labor may elect not to pursue the matter.
Accordingly, this case is remanded for the Chief Judge to determine whether the parties desire to enter into a new agreement. If the parties do not agree within thirty days of the date of this order to amend their agreement, the judge's order affirming the parties' settlement agreement shall become a final order.
Edwin G. Foulke, Jr. Chairman
Donald G. Wiseman Commissioner
Velma Montoya Commissioner
Dated: February 6, 1992
LYNN MARTIN, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR
TIRE RECLAMATION SERVICES, INC., and its successors,
OSHRC DOCKET No. 91-2080 INSPECTION No. 109368563 REGION III
CONSENT ORDER APPROVING 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 settlement agreement in approved and the term thereof are incorporated into this order.
2. The citation items and proposed penalties are affirmed as modified in accordance with the settlement agreement.
3. The total penalty associated with the affirmed citation items amounts to $450.00. Respondent shall pay said penalty in accordance with the terms of the settlement agreement.
Irving-Sommer Judge, OSHRC
Dated:Nov 18, 1991
LYNN MARTIN SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR
TIRE RECLAMATION SERVICES INC., and its successors,
OSHRC DOCKET No. 91-2080 INSPECTION
No. 109368563 REGION III
STIPULATION OF SETTLEMENT
The parties hereto, pursuant to Review Commission Rule 29 CFR § 2200.100(a), in an effort to reach an amicable resolution of the issues presented herein jointly present the following:
1. Complainant amends the Citations and Notifications of Penalty as follows:
Serious Citation Number 1, Item 1a, b, c and d. The proposed penalty is reduced from $450.00 to $350.00. The abatement dates are extended from September 14, 1991 to October 1, 1991.
Other Citation Number 2, Item 1. The proposed penalty is reduced from $300.00 to $100.00.
As a result of these amendments the total penalty proposed is $450.00.
In support of the amendments set forth above Complainant avers that upon review of the facts underlying the alleged violations, the proposed amendments are justified and appropriate.
2. Respondent, moves the Commission for an order allowing it to withdraw its Notice of Contest to the Citations and Notifications of Penalty as amended herein and in support of said motion represents as follows:
a. Serious Citation Number 1, Item 1a, b, c and d will be abated by October 1, 1991. Other Citation Number 2, Item 1 has been abated.
b. Respondent agrees to comply with the applicable provisions of the Occupational Safety and Health Act of 1970 and the regulations duly promulgated pursuant thereto.
c. Copies of the Citations and the Notifications of Penalty were posted on or about when ? and a copy of this Stipulation of Settlement will be posted on or before Nov. 8, 1991, as required by 29 CFR §§ 2200.7 and 100.
d. Respondent will forward on or before November 15, 1991 a certified check in the sum of $450.00 made payable to "DOL-OSHA" to the United States Department of Labor - OSHA, Room 2005, 20 North Pennsylvania Avenue, Wilkes-Barre, Pennsylvania 10701.
3. The parties further stipulate and agree that the Citations and Notifications of Penalty, as amended herein, shall become final orders of the Occupational Safety and Health Review Commission.
4. Each of the parties hereby agrees to bear the payment of its costs, fees and such other expenses as are related to this proceeding.
TIRE RECLAMATION SERVICES, INC. BY:
John J. Lynch
David S. Fortney
Deputy Solicitor of Labor
Marshall H. Harris
U.S. DEPARTMENT Of LABOR Attorneys for Complainant
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Stipulation of Settlement and final Consent Order was mailed this 12th day of November 1991, in a postage prepaid government envelope, addressed as follows:
John J. Lynch, Vice President
Tire Reclamation Services, Inc
56 Went Eagle Road
Havertown, PA 19083
Howard K. Agran Attorney