UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78-2060
JACKSONVILLE SHIPYARDS, INC.,
Respondent.

May 21, 1979

DIRECTION FOR REVIEW AND ORDER

Pursuant to 29 U.S.C. § 661(i), the Order of Judge John J. Larkin, dated April 19, 1979, approving the settlement agreement of the parties, is directed for review.

On April 13 and 25, 1978, Respondent was issued four citations. Respondent contested, among other items, items 8 and 12 of citation No. 3 respecting nonserious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq. After the filing of the complaint and answer respecting the contested items, a hearing was held on September 12, 1978. At the outset of the hearing, the parties advised the judge that they had reached a partial settlement, with respect to some but not all of the contested items, and that they would prepare a written stipulation of settlement. The terms of the proposed settlement were stated for the record before the Secretary presented his case in chief upon the items remaining in dispute, and the parties specifically advised the judge at this time that items 8 and 12 of citation No. 3 remained in dispute.

After the close of the hearing, the parties filed their settlement stipulation dated March 8, 1979. According to the accompanying cover letter, the parties purported to dispose of ‘all outstanding issues.’ However, the parties did not specifically refer to items 8 and 12 of citation No. 3.

On April 19, 1979, Judge Larkin issued his order approving the settlement. Stating that his disposition was consistent with the settlement, he, among other things, affirmed items 8 and 12 of citation No. 3. In a letter also dated April 19, 1979, that accompanied his order, which he served on the parties and the authorized employee representative, the judge stated that the parties should advise him if he had improperly disposed of items 8 and 12, as well as 1 and 13, of citation No. 3, for he had been unable to determine the intent of the parties with respect to these four items.

By letter dated April 24, 1979, Respondent advised the judge that his order of April 19, 1979, was correct except with respect to items 8 and 12, which Respondent states ‘were withdrawn and should be listed as vacated and with no penalty being assessed.’ Apparently Respondent’s position is that the Secretary had agreed to withdraw the items. The Secretary has not responded to either of the two letters, from the judge and from Respondent, both of which were served upon the Secretary.

Because the stipulated settlement is incomplete and the agreement of the parties respecting items 8 and 12 is not clear on the record, we vacate the April 19, 1979 order of the judge and we remand the case for further proceedings.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: MAY 21, 1979

[ALJ Order not available.]