“SECRETARY OF LABOR,\t Complainant,\t v.\tOSHRC Docket No. 06-0095HORIZON HOMES, INC.,\t Respondent.\t APPEARANCES:Oscar L. Hampton III, Attorney; Michael A. Stabler, Regional Solicitor;Howard M. Radzely, Solicitor; U.S. Department of Labor, Washington,DC For the Complainant Robert E. O?Connor, Jr., Esq.; Omaha, NE For the RespondentREMAND ORDERBefore: RAILTON, Chairman; ROGERS and THOMPSON, Commissioners.BY THE COMMISSION:In an order dated January 16, 2007, Administrative Law Judge Benjamin R.Loye denied a request from Horizon Homes, Inc. (?Horizon?) to withdrawfrom a settlement agreement (?Agreement?) with the Secretary. Horizonpetitioned the Commission for review of the judge?s order claiming, inpart, that it had mistakenly signed the Agreement. On March 12, 2007,Chairman Railton directed this case for review. For the followingreasons, we remand this case to the judge for further proceedingsconsistent with this opinion.Background In November 2005, the Occupational Safety and HealthAdministration (?OSHA?) inspected a worksite operated by Horizon, thegeneral contractor, and two of its subcontractors. Thereafter, OSHAissued to Horizon one serious citation that included, among other items,an alleged violation of the guardrail standard set forth at 29 C.F.R.? 1926.451(g)(4)(i). Separately, according to Horizon, OSHA issued acitation to one of Horizon?s subcontractors for the identical allegedviolation?i.e., under the same guardrail provision for the same allegedviolative condition. Horizon maintains that in a subsequent settlementagreement with the subcontractor, the Secretary withdrew thesubcontractor?s guardrail citation item because the height of thescaffold in question failed to trigger the cited standard?sapplicability to the alleged violative condition. The Secretary does nottake issue with Horizon?s explanation of the status of the citationissued to the subcontractor. During settlement negotiations between the Secretary andHorizon, counsel for Horizon sought a withdrawal of the guardrailcitation item issued to Horizon because the Secretary had withdrawn thesame citation item issued to the subcontractor. Nevertheless, in theterms of the parties? executed Agreement submitted to the judge forapproval on December 14, 2006, the original citation?including theguardrail citation item??remained as issued? to Horizon but all proposedpenalties were reduced. On December 21, 2006, Horizon filed a Position Statementwith the judge seeking to withdraw from the Agreement. In the PositionStatement, counsel for Horizon admitted his ?error in not seeing? theinclusion of the guardrail citation item in the Agreement but assertedHorizon?s objection to a settlement that attributes guilt andestablishes a penalty ?for something that did not occur.? In response,the Secretary denied knowledge of having any conversations with Horizonagreeing to withdraw the guardrail citation item. The Secretary furtherstated that on December 22, 2006, she sent by facsimile to Horizon?scounsel a proposed amended settlement agreement withdrawing theguardrail citation item, but had received no response from Horizon. In denying Horizon?s request for withdrawal, the judge notedthat the contractual nature of a settlement agreement precludesunilateral rescission, absent ?duress, harassment or overbearingconduct.? He then concluded that Horizon had set forth no recognizablebasis for withdrawal from the Agreement.DiscussionThe Commission recognizes that settlement agreements are contracts to beenforced ?in accordance with federal common law principles.? \/Phillips66 Co.\/, 16 BNA OSHC 1332, 1338, 1993 CCH OSHD ? 30,191, p. 41,543(No.90-1549, 1993). Thus, in determining whether a settlement agreement isenforceable, the language of the written settlement agreement controlsunless the language is ambiguous, or there is fraud, duress, or\/mistake\/. \/Id.\/; \/see also\/ \/Callen v. Penn. R.R. Co.\/, 332 U.S. 625,630 (1948) (?One who attacks a settlement must bear the burden ofshowing that the contract he has made is tainted with invalidity, eitherby fraud practiced upon him or by a mutual mistake under which bothparties acted.?); \/Anzueto v. Washington Metro. Area Transit Auth.\/, 357F. Supp. 2d 27 (D.D.C. 2004) (agreement that inadvertently, onplaintiff?s part, settled previously filed Title VII claim wasenforceable where there was no evidence of mutual mistake, or unilateralmistake caused by other party).Here, we find that the record raises the question of whether arescission of the Agreement is warranted. \/See\/ \/Phillips 66 Co.\/, 16BNA OSHC at 1339, 1993 CCH OSHD at p. 41,543(case remanded to determinewhether an agreement ?was based on a mistake requiring rescission underprinciples of federal common law?). Specifically, the record suggeststhat the parties may have mistakenly included the guardrail citationitem in their Agreement. Indeed, subsequent to the execution of theAgreement, the Secretary apparently provided counsel for Horizon with anamended settlement agreement withdrawing this very citation item. Thejudge, however, did not address in his ruling whether mistake warrantedrescission.Accordingly, we set aside the judge?s order and remand the case to him.On remand, the judge shall review all relevant evidence in the record,including the Secretary?s claim to have provided Horizon?s counsel withan amended settlement agreement, and determine whether the parties madea mistake in executing the Agreement.SO ORDERED. \/s\/ W.Scott Railton Chairman \/s\/ ThomasinaV. Rogers Commissioner \/s\/ HoraceA. Thompson IIIDated: April 3, 2007 Commissioner———————————————————————— SECRETARY OF LABOR,\t Complainant,\t v.\tOSHRC DOCKET NO. 06-0095HORIZON HOMES, INC.,\t Respondent.\t DECISION AND ORDER The parties have filed a Stipulation and Settlement Agreement in theabove-captioned matter. The content of that Stipulation and SettlementAgreement is incorporated by reference in this Order.To date, Respondent has not complied with this judge?s January 16, 2007Order denying its motion to set aside the signed Settlement Agreementand directing posting of the agreement in accordance with Rule 7.Rather, in its January 22, 2007 filing, Respondent indicates its intentto appeal the January 16, 2007 Order. The Stipulation and Settlement Agreement is, therefore,approved so as to become a final Order of the Commission for purposes ofappeal.SO ORDERED. \/s\/Benjamin R. Loye Judge,OSHRC Dated: April 3, 2007”