National Electric Coil Co., L.P.

Read the official release (oshrc.gov)

Plain-English summary

National Electric Coil initially disputed whether an informal settlement agreement signed by its human-resources vice president was enforceable. The administrative law judge found that the representative had actual and apparent authority, rejected the company's attempted unilateral withdrawal, and dismissed its notice of contest. While that ruling was under review, the parties filed a joint motion asking that the case be returned to the judge for approval of a settlement agreement. The Commission granted the request and remanded the matter for consideration of the settlement under Commission Rule 100. The order does not identify the underlying cited safety or health standards.

Decision snapshot

• Cited standard(s): None identified in this procedural order.
• Outcome: Case remanded to the administrative law judge for consideration of the parties' settlement agreement.
• Key point: The Commission granted the parties' joint remand request so the judge could review their settlement.

Full text (OSHRC public release)

                                    United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                              1120 20th Street, N.W., Ninth Floor
                                 Washington, DC 20036-3457

SECRETARY OF LABOR,

                     Complainant,

                    v.                                   OSHRC Docket No. 13-1199

NATIONAL ELECTRIC COIL CO., L.P.,

                     Respondent.




                                     ORDER


  On July 23, 2014, the parties filed a Joint Motion for Remand of this matter to the

Administrative Law Judge for approval of their settlement agreement. After consideration
by the Commission, the request to remand is granted. Accordingly, this matter is
remanded to the judge for his consideration of the parties’ settlement agreement pursuant
to Commission Rule 100, 29 C.F.R. § 2200.100.

  SO ORDERED.


                                      BY DIRECTION OF THE COMMISSION

Dated: July 28, 2014 /s/
John X. Cerveny
Executive Secretary
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

                 Complainant,
                                                  DOCKET NO.        13-1199
            v.

NATIONAL ELECTRIC COIL CO., L.P.,

                 Respondent.




                               DECISION AND ORDER

   This matter comes before the Court on Complainant’s Motion to Dismiss. Complainant

contends that Respondent waived its right to contest the Citation and Notification of Penalty

(“Citation”) when its representative signed an Informal Settlement Agreement (“ISA”) during a

post-citation settlement meeting with local OSHA officials. Respondent, in its Memorandum in

Opposition to Motion to Dismiss, contends that there was no enforceable agreement because its

representative did not have authority to enter into the agreement, and because the agreement was

voided by mutual rescission of the parties. Complainant filed a Reply in Support of Motion to

Dismiss, wherein he took issue with Respondent’s characterization of the evidence contained

within various affidavits. In response to the parties’ respective filings, the Court scheduled an

evidentiary hearing to consider whether the ISA is enforceable and, therefore, whether

Respondent’s Notice of Contest should be dismissed.

   The evidentiary hearing occurred on December 10, 2013 in Houston, Texas.             Five

witnesses testified at the hearing: (1) Michael Rivera, OSHA Area Director; (2) Michele Shield,

                                           2

OSHA Asst. Area Director; (3) James Spangler, Respondent’s Vice President of Human

Resources; (4) Joseph Baldwin, OSHA Safety Consultant; and (5) Daniel Bucklew,

Respondent’s Senior Vice President and Business Unit Manager.

   The parties were directed to file post-hearing briefs on the limited issue of the

enforceability of the settlement agreement. In its post-hearing brief, Respondent proffered an

additional argument that the ISA was voided by its own terms when Respondent failed to pay the

agreed-upon penalties within 5 days of the date of the agreement. After reviewing

Complainant’s Motion to Dismiss, Respondent’s Memorandum in Opposition to the Motion to

Dismiss, Complainant’s Reply in Support of Motion to Dismiss, the testimony and exhibits

introduced during the hearing, and the parties’ respective post-hearing briefs, the Court finds that

the Informal Settlement Agreement is enforceable, that Respondent’s Notice of Contest should

be vacated, and that this proceeding be dismissed.

                           Background and Factual Findings

   On June 25, 2013, Complainant issued two Citations to Respondent for alleged safety and

health violations identified during two OSHA inspections conducted at Respondent’s facility

between January 14, 2013 and January 23, 2013. (Tr. 31; Ex. C-1). This case, OSHRC Docket

No. 13-1199, focuses only on the health inspection, OSHA Inspection No. 841403, wherein

Respondent was cited for four serious and one willful violations of the Act, with a total proposed

penalty of $75,000.00. (Ex. C-1). The second Citation, which resulted from the safety

inspection, was settled by the parties in a simultaneously executed Informal Settlement

Agreement (“ISA”) during the same July 10, 2013 meeting at issue in this decision. (Tr. 46–47).

Respondent does not dispute the validity and enforceability of the ISA concerning the safety

                                             3

Citation—only the enforceability of the ISA concerning the health Citation is at issue. (Tr. 46–

48).

    After it received the two sets of Citations, Respondent requested the aforementioned

informal settlement conference with OSHA to discuss the possibility of resolving the alleged

violations. (Tr. 35, 143–144). OSHA Area Director Michael Rivera and Assistant Area Director

Michele Shield appeared on behalf of Complainant. (Tr. 27–28, 35). James Spangler,

Respondent’s Vice President of Human Resources, Maria Fernandez, Respondent’s

Environmental Health and Safety Coordinator, and James Baldwin, an independent safety

consultant, appeared on behalf of Respondent. (Tr. 35–36, 116, 133). Mr. Baldwin testified that

he had represented other companies in at least four or five different ISCs previously. (Tr. 185–

186).

    At the beginning of the ISC, AD Rivera asked whether Respondent’s representatives had

full settlement authority. (Tr. 37). Mr. Spangler and Mr. Baldwin confirmed that Mr. Spangler

had settlement authority, and AD Rivera noted the same on his ISC checklist. (Tr. 37–39, 42, 53,

147, 187; Ex. C-2). During the negotiations, Mr. Spangler at one point excused himself so that

he could make a telephone call about the settlement; however, he never indicated whom he was

calling or the specific purpose for the call. (Tr. 44, 119, 186–187). By his own admission, Mr.

Spangler never said anything during the ISC indicating whether he reached the person he was

trying to call, or whether the phone call affected his ability to finalize the settlement terms. (Tr.

151). In fact, as was later revealed in filings and during the evidentiary hearing, Mr. Spangler

was attempting to contact Dan Bucklew, Respondent’s Senior Vice President and Business Unit

Manager, who was on an airplane and unavailable to receive Mr. Spangler’s calls at the time.

                                             4

(Tr. 199). It is important to note that Mr. Bucklew does not directly supervise Mr. Spangler.

(Tr. 137).

    Mr. Spangler subsequently signed two settlement agreements, one fully resolving the

safety Citation case and another fully resolving the health Citation case (the one at issue here).

(Tr. 120; Ex. C-3). Once the agreements were signed, AD Rivera returned a box of documents

that had been produced to OSHA by Respondent during the investigation. (Tr. 54).

    After Respondent’s representatives left the ISC and were driving back to their offices,

Mr. Spangler received a phone call from Mr. Bucklew, who indicated his disapproval with the

terms of the settlement in the health Citation case, specifically with regard to accepting the

willful violation. (Tr. 121). Mr. Bucklew directed Mr. Spangler, Ms. Fernandez, and Mr.

Baldwin to return to OSHA’s office and submit a Notice of Contest with respect to the health

Citation case only. (Tr. 47, 121, 200–201).

    Mr. Baldwin then telephoned AD Rivera and told him that they were turning around and

heading back to OSHA’s office, and now wished to contest the health Citation case. (Tr. 54).

Once they returned to AD Rivera’s office, about 1 ½ hours after the original meeting, Mr.

Baldwin went inside and delivered a contest letter to AD Rivera. The Court notes that the

contest letter had already been pre-drafted by Respondent’s representatives before the original

meeting, in case the representatives could not negotiate acceptable settlement terms. (Tr. 192–

193).

    Unsure of the proper protocol in a situation like this, AD Rivera took the contest letter,

date-stamped it, and asked Respondent to return the box of subpoenaed investigative documents.

(Tr. 65). At no point during the exchange between AD Rivera and Mr. Baldwin did AD Rivera

state that the previously signed agreement was cancelled, revoked, or otherwise affected by the

                                            5

subsequently submitted contest letter. (Tr. 59, 191–192). Once AD Rivera received the contest

letter, he followed his normal procedure of sending the file to the Department of Labor

Solicitor’s Office, and forwarding the contest letter to the Commission. 1 (Tr. 83).

    Mr. Spangler testified during the hearing that due to his position with Respondent, he did

not need anyone’s approval in order to schedule the ISC with OSHA, to take Ms. Fernandez and

Mr. Baldwin to the meeting, or to make the flight from his office in Ohio to attend the meeting in

Texas. (Tr. 133–136). Mr. Spangler further testified that Mr. Bucklew was specifically aware

that Mr. Spangler would be attending the ISC and that the goal of Respondent’s team, inclusive

of himself, Baldwin, and Fernandez, was to negotiate a resolution of both sets of Citations. (Tr.

137, 141-142). Mr. Spangler testified that his position as Vice President of Human Resources

empowered him with the authority to meet with OSHA and attempt to settle both cases. (Tr.

144–145). He testified that Mr. Bucklew generally had final authority to approve any financial

commitments that affect Respondent’s Brownsville facility (the inspected facility at issue in the

Citation), however, Mr. Spangler also testified that he was never told not to accept a willful

violation until after he signed the ISC and had left the meeting with OSHA. (Tr. 145–146).

    Mr. Bucklew testified that he was aware, prior to the ISC, that Respondent had been cited

for a number of OSHA violations, including an alleged willful violation. (Tr. 201–202, 210–

211). Mr. Bucklew also admitted that, typically, Mr. Spangler would in fact be the person at the

company to attend an ISC with OSHA, as a part of his normal job duties. (Tr. 211). Mr.

Bucklew had asked to speak with Mr. Spangler before the meeting, but acknowledged that he

never told Mr. Spangler what he could agree, or not agree, to at the ISC, and never specifically

prohibited Mr. Spangler from accepting the willful violation. (Tr. 202–203, 205, 213).

1
. Respondent took issue with a redacted portion of AD Rivera’s Case File Diary, which documents actions taken on
the case. (Ex. C-5). At the parties’ request, the Court conducted an in camera review of the contested diary entry.
The Court’s review of the redacted line in the diary sheet does not affect Court’s decision in this matter.

                                                    6

Mr. Spangler claimed during the hearing that he did not know that he had the choice to

walk away from the settlement conference without resolving the cases. (Tr. 155). However, the

Court rejects that testimony on the basis that: (1) Mr. Baldwin, the third party OSHA consultant,

had represented companies in other ISCs prior to this one (Tr. 185-186); (2) Respondent’s

negotiating team brought two pre-drafted contest letters with them to the OSHA settlement

meeting (Tr. 172, 192; Ex. C-6); (3) there were seven days remaining in the 15-working day

statutory contest period at the time of the settlement meeting, as clearly set out on the face of the

Citations; and (4) Mr. Spangler was a sophisticated and knowledgeable representative, as

evidenced by his position as Vice President of Human Resources, which among other things,

requires him to understand and negotiate union labor contracts. (Tr. 155–157).

                                        Discussion

   Respondent submits three bases upon which the health Citation ISA should be nullified,

allowing its Notice of Contest to proceed: (1) Mr. Spangler did not have authority to settle the

health case, rendering the agreement unenforceable; (2) the ISC is null and void due to

Respondent’s failure to pay the negotiated penalty amount within 5 days; and (3) Complainant,

by its acceptance of the contest letter and failure to collect past-due penalties, manifested its

intent to mutually rescind the ISC. Complainant, on the other hand, contends that the ISC is

binding and enforceable, that Mr. Spangler had authority to execute the ISC on behalf of

Respondent, and that Complainant’s post-agreement actions or inaction do not in any way

manifest intent to rescind the ISC.

                     Mr. Spangler Had Authority to Bind Respondent

   “A party may be held responsible for the acts of its purported agent under three agency

theories.” Wells Fargo Business Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir. 1983).

                                             7

The two theories the Court is concerned with in this case are actual authority and apparent

authority. Actual authority requires that authority “must have been delegated to the agent either

by words that expressly or directly authorize him to do a delegable act, or such authority may be

implied from the facts and circumstances attending the transaction in question.” Id. Mr. Bucklew

and Mr. Spangler both admitted that attending an OSHA settlement meeting was a typical part of

Mr. Spangler’s responsibilities, and that he did not need a directive or permission from anyone to

attend. (Tr. 134–136, 212). Although not his supervisor, Mr. Bucklew had asked Mr. Spangler to

call him before he went to the OSHA informal settlement conference. (Tr. 137, 204–205). Mr.

Bucklew admitted, however, that he never told Mr. Spangler of any limitations on his authority,

including whether or not he could accept the willful violation. (Tr. 145, 202–204).

   In light of the fact that attending ISCs is an anticipated part of Mr. Spangler’s position, so

much so that he could (and did) assemble a team which included an outside OSHA consultant to

attend with him, the Court concludes, based on the totality of the circumstances in the record,

that Mr. Spangler had actual authority to settle the case on behalf of Respondent.

   Apparent authority, on the other hand, does not require an explicit delegation of

authority. Rather, apparent authority “arises when the principal, either intentionally or by lack of

ordinary care, induces third persons to believe an individual is his agent even though no actual

authority, express or implied, has been granted to such individual.” Wells Fargo, 695 F.2d at

945. To hold the principal liable, “a party must establish that it has been induced to act in good

faith upon certain representations made to it by the principal.” Id.

   Respondent sent the Vice President of Human Resources (Mr. Spangler), its

Environmental Safety and Health Coordinator (Ms. Fernandez), and an independent OSHA

consultant (Mr. Baldwin) to represent its interests regarding two sets of Citations at a settlement

                                             8

meeting with OSHA officials. At the beginning of the ISC, Mr. Spangler and Mr. Baldwin both

told AD Rivera that Mr. Spangler had full settlement authority and could sign an agreement if

acceptable terms were negotiated. (Tr. 37–39, 42, 53, 147, 187). Although Mr. Spangler

indicated later during the meeting that he needed to call someone, he never stated the specific

reasons for the call, the results of the call, or in any way indicated to OSHA that his authority

was contingent upon anyone else’s approval of the negotiated terms. Mr. Spangler simply

returned to the meeting and subsequently signed both ISC’s, fully resolving both sets of

Citations. (Tr. 50–51, 174–175). Complainant, given no reason to believe otherwise, relied

upon Respondent’s representations that Mr. Spangler had apparent authority to enter into the

agreements, execute the ISCs, and bind Respondent to the negotiated terms. (Tr. 51-53). This

apparent authority is further solidified by the fact that Respondent does not dispute the

enforceability or validity of the ISC signed with regard to the safety Citation; only with regard to

the health Citation. (Tr. 46–48).

   By sending three representatives, consisting of a Vice President, a Safety and Health

Coordinator, and an independent OSHA consultant, Respondent manifested its consent to allow

those individuals to act on its behalf. See Interstate Brands, 19 BNA OSHC 1440 (No. 00-1643,

2001) (holding that it was reasonable for Secretary to conclude that representative sent by

Respondent had obtained permission to attend settlement conference and participate in

discussion). There is no evidence in the record that any of the three representatives were ever

informed that they could not settle the case, and no specific limitations on the parameters of their

settlement authority was ever conveyed to any of them prior to the ISC. From the perspective of

Complainant, without any information to the contrary, it was wholly reasonable to rely on the

apparent authority of Mr. Spangler. The agreement amongst Respondent’s representatives

                                             9

regarding Mr. Spangler’s authority underscores that Complainant “relied on the agent’s authority

in good faith, in the exercise of reasonable prudence.” Wells Fargo, 695 F.2d at 945. The Court

concludes that, based on the totality of the circumstances in the record, Mr. Spangler also had

apparent authority to settle the case on behalf of Respondent.

  The Informal Settlement Agreement is Not Nullified by Operation of its Own Terms

   “Settlement agreements are contracts. As such, they are binding and enforceable under

familiar principles of contract law, and are not subject to unilateral recision [sic].” Zantec Dev.

Co. Inc., 16 BNA OSHC 2102 (No. 93-2164, 1994) (ALJ) (citing Phillips 66 Co., 16 BNA

OSHC 1332, 1336 (No. 90-1459, 1993)). Through settlement “[e]ach party agrees to extinguish

those legal rights it sought to enforce through litigation in exchange for those rights secured by

the contract.” Village of Kaktovik v. North Slope Borough, 689 F.2d 222, 230 (D.C. Cir. 1982).

In construing a written contract, the primary concern is to determine the parties’ intentions as

expressed in the agreement. Lawyers Title Ins. Co. v. Doubletree Partners, LP, 739 F.3d 848,

858 (5th Cir. 2014). “All of the provisions of the policy must be considered with reference to the

whole instrument, so that no single provision alone is given controlling effect.” Id. (internal

citations omitted); see also Foster Wheeler Energy Corp. v. An Ning Jiang MV, 383 F.3d 349,

354 (5th Cir. 2004).

   Respondent contends that the language contained in paragraph 3 of the ISC renders it null

and void, including Respondent’s express waiver of its right to contest the Citation, because

Respondent did not pay the agreed-upon penalties within five days of signing the ISC. The

pertinent provisions of the ISC are as follows:

   …3. The Employer agrees to pay the proposed penalties, if any, as issued with
   the above citation(s), or, if amended by this agreement, as amended below. Such
   penalty is to be remitted within five days of the signing of this agreement. If
   the original signed Agreement and payment is not received in accordance



                                              10

with this time period, the Agreement shall be null and void and all original
penalties shall become payable along with appropriate fees and interest.

     …5. The Employer, by signing this informal settlement agreement, hereby
     waives its right to contest the above citation(s) and penalties, as indicated in
     Paragraph 4 of this agreement.

(Ex. C-3) (emphasis as in original).

     There is no dispute that Respondent failed to pay the agreed-upon penalty within five

days; however, the parties disagree about the effect of that failure. Respondent contends that the

contract is unenforceable and nullified by its own terms and, therefore, Respondent’s subsequent

contest letter filed later that same day is the only effective document. Complainant argues that

Respondent is ignoring the final clause in paragraph 3, which explains that failure to pay the

negotiated penalty amounts within five days results in the original proposed penalties becoming

due and payable. The Court agrees with Complainant.

     As noted above, the provisions of a contract must be construed in consideration of the

contract as a whole, so that no single provision is given controlling effect. Respondent seeks to

unilaterally render the entire ISC void by its failure to fulfill its own commitment to pay the

agreed-upon penalties within the specified period of time. This is not a reasonable interpretation

of the agreement. It appears that the parties’ negotiated ISC agreement consisted of reducing the

total penalties proposed in the case by grouping various violations together. (Ex. C-3). None of

the proposed violations, or their characterizations, were vacated, modified, or otherwise altered.

(Ex. C-3). Therefore, the Court interprets paragraph 3 to mean that if payment of the reduced

fines was not remitted within following the five-day period, the penalty reductions “shall be null

and void and all original penalties shall become payable along with appropriate fees, and interest.

(Id.).

                                            11

The Court does not read Paragraph 3 as a “re-start” button that can be unilaterally

activated by Respondent through failure to comply with its commitments. Respondent seeks to

benefit from its non-performance by regaining full contest rights that it expressly forfeited in the

agreement. Similarly, if an employer entered into an ISC with OSHA, and then chose not to

abate the hazards identified in accepted violations, the result would not be to void the ISC with

contest rights fully reinstated.

     Respondent’s argument misconstrues the effect of paragraph 3, which penalizes non-

performance with a reinstatement of the original penalties, which become immediately due and

payable, with interest. The effect of this provision is clear—non-performance does not reboot

the process; rather, it penalizes the offending party for not upholding its end of the bargain.

Respondent cannot and should not benefit from its own failure to comply with the agreement’s

terms. 2 The Court rejects Respondent’s arguments on this point and finds that the ISC is not

deemed unenforceable as a result of Respondent’s failure to pay the reduced penalty amount

within the five-day period.

                        There was no Mutual Rescission of the Agreement

     Parties to a contract can agree to mutually rescind the contract, and such an agreement

can be inferred from the behavior of the parties. Village of Kaktovik, 689 F.2d at 230 (citing

Corbin on Contracts § 1236 n.60 (1964 and Supp. 1981)). Respondent contends that

Complainant’s actions (or inaction) subsequent to receiving the contest letter was consistent with

an intent to rescind the ISC. Specifically, Respondent identifies the following as indications of

2
. Assuming, arguendo, that Respondent’s interpretation of paragraph 3 is reasonable, the Court would still find that
Respondent’s July 10, 2013 contest letter should be vacated. The ISC, which included an express waiver of
Respondent’s contest rights, was signed on July 10, 2013. (Ex. C-3). Respondent submitted its purported contest
letter later that same day. According to the ISC, the negotiated reduced penalty was due to be paid by July 15, 2013.
Therefore, at the time Respondent submitted its contest letter, it did not have the right to do so. That right,
arguendo, would not have been re-instated until five days later, when Respondent failed to pay the reduced penalty
total. Respondent did not submit a contest letter after July 15, 2013. Subsequently, the contest period ended on July
17, 2013. 29 U.S.C. § 659 (Ex. C-1).

                                                    12

Complainant’s acquiescence to the rescission: (1) AD Rivera’s physical acceptance and

processing of the contest letter; (2) AD Rivera’s request that the box of subpoenaed investigative

documents be returned; (3) Complainant’s subsequent failure to take any action to collect the

penalties and interest, failure to conduct a follow-up inspection, and failure to follow-up on

abatement certification from Respondent; and (4) the Solicitor’s communications with

Respondent regarding an extension of time to file the complaint and discussions regarding the

possibility of settlement.

   First, with respect to AD Rivera’s physical acceptance of the contest letter, he testified

that this was an unusual situation and did not know the proper protocol to follow. (Tr. 60). Thus,

he accepted the contest letter and requested the return of the investigative documents out of “an

abundance of caution”, because he was not sure what the outcome would be. (Tr. 65). The Court

finds that AD Rivera’s actions do not constitute any intent to rescind the ISC or any intent to

recognize the legitimacy of the contest letter. The Court accepts AD Rivera’s testimony that he

simply sought to cover his bases in an unknown situation, pending review by his superiors and

Complainant’s attorneys.

   Second, as to Complainant’s “failure” to pursue collection of the negotiated penalties,

interest, and abatement verification, the Court also finds that Complainant’s inaction does not

illustrate a clear intent to rescind the ISC, nor does it acknowledge the contest letter. The

following passage is instructive:

   The Respondent’s allegations concerning the failure of OSHA to follow its Field
   Operations Manual are rejected. These actions are merely discretionary with the
   area director. As the Commission stated in H.B. Zachary, 7 BNA OSHC 2202,
   2205, “—the Field Operations Manual is an internal manual containing only
   guidelines for the exercise of the Secretary's enforcement responsibilities. We
   stated that the manual does not have the force and effect of law, nor does it accord
   important procedural and substantive rights to individuals.




                                           13

Zantec Dev. Co. Inc., 16 BNA OSHC 2102. OSHA’s temporarily suspending otherwise

discretionary actions (such as penalty collection, abatement verification, and follow-up

inspections) until a resolution is reached regarding the status of the case is a reasonable course of

action and does not illustrate “an objective intent to abandon.” See Franconia Assocs. v. United

States, 61 Fed. Cl. 718, 745 (Fed. Cl. 2004).

   Likewise, the Court can discern no such intent resulting from the Solicitor’s attempt to

discuss the case with Respondent and explore settlement possibilities. In litigation, with

disputed factual and legal issues, parties routinely seek extensions of time and discuss settlement

possibilities for a variety of reasons. There is no evidence that such communication constituted

Complainant’s acceptance that the ISC is null and void, or that the contest letter is enforceable.

                                              Conclusion

   Ultimately, the Court agrees with Complainant that this case is a paradigmatic example of

buyer’s remorse. Complainant presented clear and convincing evidence of an executed Informal

Settlement Agreement, signed by Respondent’s authorized representative, which fully resolved

this case and waived Respondent’s right to subsequently contest the proposed violations or

penalties. Respondent’s arguments are post-hoc rationalizations intended to void a binding

agreement which Respondent later decided it did not like. The Court is leery of the precedent

that would be set if a party could unilaterally withdraw from an informal settlement agreement as

Respondent proposes here. See Zantec Dev. Co. Inc., 16 BNA OSHC 2102 (“[T]o allow

employers to unilaterally withdraw from previously agreed-upon settlements would deprive the

Secretary of the finality of settlement agreements necessary for the efficient enforcement of the

Occupational Safety and Health Act of 1970.”), citing Pennsylvania Steel Foundry & Machine

Company, 13 BNA OSHC 1417 (3rd Cir. 1987), and Aerlex Corp., 13 BNA OSHC 1197 (No.

                                             14

85-1257, 1987). To be sure, if such an agreement had been executed by the same party

representatives, in the same manner, yet with Complainant vacating the willful, the

enforceability of the ISC would be the same. Complainant would likewise not be entitled to later

decide he did not like the terms, and “walk away” from such a mutually negotiated and fully

executed commitment.

     Accordingly, the Court finds that the Informal Settlement Agreement is binding and

enforceable, including the negotiated penalty reductions as outlined in the agreement. 3

Complainant’s Motion to Dismiss is GRANTED, Respondent’s Notice of Contest is VACATED,

and this case is DISMISSED.

     SO ORDERED.



                                     /s/       Brian A. Duncan

Date: April 4, 2014 Judge Brian A. Duncan
Denver, Colorado U.S. Occupational Safety and Health Review Commission

3. Respondent should not be penalized at this point for not paying the negotiated, reduced penalty amounts within
   the five-day period. Just as Complainant’s witnesses testified that they were unsure of the protocol in this situation,
   with regard to pursuing unpaid penalties and demanding abatement verification, Respondent was equitably entitled
   to withhold penalty payment until the question of whether the executed Informal Settlement Agreement or the
   subsequently submitted Notice of Contest was enforceable.

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