United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20thStreet, N.W., Ninth Floor

Washington, DC 20036-3457

 

 

	

SECRETARY OF LABOR,

	

 

Complainant,

	

 

v.

	

OSHRC Docket Nos.15-1216

15-1217

(CONSOLIDATED)

 

CALDWELL COATINGS, LLC,

	

 

Respondent.

	

 

 

APPEARANCES:

Josh Bernstein, Trial Attorney;Madeleine T.Le, Counsel for Occupational
Safety and Health; James E. Culp, Regional Solicitor; M. Patricia Smith,
Solicitor of Labor; U.S. Department of Labor, Washington, DC

For the Complainant

 

Carl Carruth;McNair Law Firm, P.A.,Columbia,SC

  For the Respondent

DIRECTION FOR REVIEW AND REMAND ORDER

Before: ATTWOOD, Chairman;and MacDOUGALL,Commissioner.

BY THE COMMISSION:

  An order issued byAdministrative Law Judge PatrickB.Augustineapproving
a settlement agreement between Caldwell Coatings, LLC and the Secretary
became a final order of the Commission onOctober 28, 2016.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 Caldwell
Coatings two sets of citations:one set issued underOSHAinspection number
1056257(DocketNumber 15-1216),and the otherissuedunderOSHAinspection
number 1056287(DocketNumber 15-1217). These caseswere later
consolidated.See29 C.F.R § 2200.9(consolidation).Thesettlement
agreement,submittedby the partiesto the judge for approvalon August 26,
2016,withdrewthe citations underDocket Number 15-1216, butitfailed
toaddress thecitations underDocketNumber15-1217. Because the agreement
did not fully resolveone oftheconsolidatedcases, the judge’s order
approving the 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 onSeptember 28, 2016, 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);see
also29 C.F.R.§ 2200.90(b)(2)(docketing of judge’s report by Executive
Secretary).Because no Commissioner directed the case for review, the
order became final onOctober 28,2016.

OnDecember 5, 2016,the partiesfiledwith the Commissiona JointNotice
ofWithdrawal ofCitation andComplaintregarding Docket Number 15-1217.
About a week later, the Secretaryfiledan unopposed Motion to Correct
Settlement Agreementto include these withdrawn citations. Although the
motion failsto cite any legal authority as the basis for correcting the
settlement agreement,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 Assoc.,
Ltd.v. Webb, 473 F.3d 498, 505 & n.12 (2d Cir. 2007) (judgment corrected
pursuant to Federal Rule of Civil Procedure 60(a) “[b]ecausethe plain
language of the rule indicate[d]that a judge may correct
ajudgmentthereundersua sponte,” allowingdistrictcourt 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 submittinghisorder for
docketing even though the approved settlement agreement did not resolve
all the citations at issue. See Sterling Techs., Inc.,25BNA OSHC1891,
1892(No. 15-1772, 2016) (settingaside final order under Federal Rule of
Civil Procedure 60(a) because the judge’s order approving the informal
settlement agreement did not fully resolve the case).

   

 

We thus set aside the final order under Federal Rule of Civil Procedure
60(a) and remandthe casetothe judge to consider theSecretary’s unopposed
motionto correct the parties’ settlement agreement.

 

SO ORDERED.

/s/              Cynthia L. Attwood

                    Chairman

 

/s/            

Heather L. MacDougall

Dated:  January 12, 2017           Commissioner

 

 

 

						

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

U.S. Custom House

721 19thStreet, Room 407

Denver, Colorado 80202-2517

 

 

	

  Fax: (303) 844-3759

 

 

SECRETARY OF LABOR,  

 

  Complainant,  

 

    v.

 

CALDWELL COATINGS, LLC,

 

  Respondent.  

	

 

	

 

 

 

OSHRC Docket Nos.:15-1216

       15-1217

(CONSOLIDATED)

 

 

ORDER APPROVING SETTLEMENT AGREEMENT

 

The Commission has jurisdiction over the subject matter of this case and
over the Parties by virtue of the filing of a timelyNotice of Contest.

The Settlement Agreement (“Agreement”)between the Parties has been
considered. TheAgreementhas been served on all Parties and Authorized
Employee Representatives and posted in the manner prescribed by
Commission Rule 7(g).1Ten days have passed since service and posting and
no objection to theAgreementhas been filed.

TheAgreementisAPPROVEDunder 5 U.S.C. §554(c)(1) and Commission Rule
100(c) as in compliance with those sections. The terms of
theAgreementare incorporated, in their entirety, by reference in thisORDER.

ThisORDERshall become final thirty (30) days from the date of docketing
by the Executive Secretary, unless review thereof is directed by a
Commission Member within that time. 29 U.S.C. §661(j).

 

SO ORDERED.

              /s/ Patrick B. Augustine

	

Dated: September 23, 2016

	

Patrick B. Augustine

Judge, OSHRC

____

 

1Rules of Procedure of the Occupational Safety and Health Review
Commission, 29 C.F.R §2200.1 -.212, as amended, 55 Fed. Reg. 22780-4
(June 4, 1990).

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