Professional Directional, Ltd. (Commission decision, August 26, 2013)

Plain-English summary

Professional Directional agreed to withdraw its contest of five citation items and pay a reduced penalty of $13,600. After the judge approved the settlement, the Secretary reported that one sentence mistakenly said the employer "did ensure" safety data sheets were available when the agreement should have said it "did not ensure" they were available. The employer did not oppose correction. The Commission set aside the approval order and remanded the case for the parties to submit a corrected settlement agreement that satisfied Commission procedures.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1200(g)(8)
• Outcome: The settlement approval order was set aside, and the case was remanded for a corrected agreement and new approval order.
• Key point: A material wording error in a settlement agreement must be corrected through a compliant agreement before the judge approves it.

Full text (OSHRC public release)

Professional Directional, LTD., Docket No. 12-0095

SECRETARY OF LABOR,

Complainant,

v.

PROFESSIONAL DIRECTIONAL, LTD.,

Respondent.

OSHRC Docket No. 12-0095

DIRECTION FOR REVIEW AND REMAND

On July 19, 2013, Administrative Law Judge Patrick B. Augustine issued an order approving a settlement agreement between the Secretary and Professional Directional, LTD (“Professional”), pursuant to which Professional agreed to withdraw its notice of contest of five citation items and pay a total reduced penalty of $13,600. The judge’s order was docketed with the Commission on July 25, 2013.

On August 20, 2013, the Secretary filed with the Commission an “Unopposed Motion to Correct Settlement Agreement,” asserting that the agreement mistakenly states that Citation 1, Item 3, is amended to allege a serious violation of 29 C.F.R.
§ 1910.1200(g)(8) because “the employer did ensure that the safety data sheets for each hazardous chemical were available at the facility.” (Emphasis added.) According to the Secretary, the agreement should state that “the employer did not ensure that the safety data sheets for each hazardous chemical were available at the facility.” (Emphasis added.) The Secretary also indicates that he has consulted with Professional’s counsel and that Professional does not oppose the Motion.

We direct this case for review, set aside the order approving the settlement agreement, and remand to the judge to address the Motion. Specifically, the judge should direct the parties to submit a corrected settlement agreement in accordance with all requirements of Commission Rule of Procedure 100, 29 C.F.R. § 2200.100. Once these procedural requirements have been met, the judge should issue a new order approving the corrected settlement agreement.

SO ORDERED.  

/s/ ______

Thomasina V. Rogers

Chairman

/s/ ______

Cynthia L. Attwood

Dated: August 26, 2013                                                  Commissioner

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 12-0095

PROFESSIONAL DIRECTIONAL LTD,

Respondent.

ORDER APPROVING SETTLEMENT AGREEMENT

The Commission has jurisdiction over the subject matter of the case and over the parties by virtue of the filing of a timely notice of contest.

The Settlement Agreement (“Agreement”) between the parties filed on June 28, 2013, has been considered. The Agreement has been served on all parties and authorized employee representatives and posted in the manner prescribed by Commission Rule 7(g).

Ten (10) days
have since service and posting and no objection to the Agreement has been filed.

The Agreement is approved under 5 U.S.C. §554(c)(1) and Commission Rule 100(c) as in compliance with those sections. The terms of the Agreement are incorporated, in their entirety, by reference in this order.

The order shall become final thirty (30) days from the date of its 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.

Dated: July 19,2013                                                                 /s/ Patrick B. Augustine

Denver, Colorado                                                                     Patrick B. Augustine

Judge, OSHRC