OSHRC Commission decision Docket 16-0597 Decided April 27, 2017 Remanded

True Value Company

Incomplete settlement order set aside and remanded

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Currency note: this decision dates from 2017
The OSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Decision of the Commission
This is a decision of the Occupational Safety and Health Review Commission, the highest level of agency review, citable as Commission precedent. It may have been appealed to a U.S. Court of Appeals after issuance; check subsequent history before relying on it. The full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)

Plain-English summary

OSHA issued True Value Company two serious citation items with proposed penalties totaling $8,000. The parties' settlement withdrew Item 1 but accidentally failed to address Item 2, and the judge's approval order later became final without resolving the entire case. The Secretary then asked to correct the agreement to include withdrawal of Item 2 and its $4,000 proposed penalty. The Commission treated the omission as a clerical mistake under Federal Rule of Civil Procedure 60(a), set aside the final order, and remanded the case for the judge to consider the correction motion.

Decision snapshot

  • Cited standard(s): None specified in the decision.
  • Outcome: The final settlement order was set aside and the case was remanded to the judge.
  • Key point: A settlement approval that omits an unresolved citation item may be corrected as a clerical oversight under Federal Rule of Civil Procedure 60(a).

Full text (OSHRC public release)

OSHRC
39
11
5567
14.00

Clean
Clean
false

false
false
false

EN-US
X-NONE
X-NONE

United
States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20 th Street, N.W., Ninth Floor

Washington,
DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket Nos. 16-0597

TRUE VALUE COMPANY,

����������������� �

Respondent.

APPEARANCES:

Christine T. Eskilson ,
Counsel for Occupational Safety and Health; Michael D. Felsen ,
Regional Solicitor; Nicholas C. Geale , Acting Solicitor
of Labor; U.S. Department of Labor, Washington, DC

For the Complainant

Mark A. Lies II; Seyfarth
Shaw, LLP, Chicago, IL

����������� For the Respondent

DIRECTION
FOR REVIEW AND REMAND ORDER

Before: � M ac DOUGALL , Acting Chairman; and ATTWOOD, Commissioner.

BY THE COMMISSION:

����������� An
order issued by Administrative Law Judge Carol A. Baumerich
approving a settlement agreement between True Value Company and the Secretary
became a final order of the Commission on November 23, 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 True Value Company two serious
citation items, each with a proposed penalty of $4,000, for a total proposed
penalty of $8,000. � The settlement
agreement, submitted by the parties to the judge for approval on October 11,
2016, withdrew Citation 1, Item 1, but failed to address Citation 1, Item 2. � Because the agreement did not fully resolve one
of the citation items, 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 on October 24, 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 also 29 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 on November 23, 2016.

On
April 17, 2017, the Secretary filed with the Commission an Unopposed Motion for
Clerical Correction of Stipulation and Settlement Agreement. � The Secretary stated that the Regional
Solicitor�s Office inadvertently failed to include in the Stipulation and
Settlement Agreement the withdrawal of Citation 1, Item 2 and its proposed $4,000
penalty. � Although the motion notes that the
judge�s order is a final order of the Commission, neither party has provided any
legal authority for the Commission to exercise jurisdiction to correct the
settlement agreement. [1] � Despite this failure, 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] ecause the plain language of the rule
indicate[d] that a judge may correct a judgment thereunder sua sponte ,� allowing district court 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 submitting her order for docketing even though the approved
settlement agreement, as initially submitted by the parties, did not resolve
all the citations at issue. �

We
thus set aside the final order under Federal Rule of Civil Procedure 60(a) and
remand the case to the judge to consider the Secretary�s unopposed motion to
correct the parties� settlement agreement. ��

SO ORDERED.

/s/ �������������������������������������������������������� �����������������������

Heather
L. MacDougall

����������������������������������������������������������������������������������� Acting
Chairman

/s/ ��������������������������������������������������������

Cynthia
L. Attwood

Dated: April 27, 2017 ������������������������������������������������ Commissioner

����������������������������������������������������������������
����� UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

*


SECRETARY
OF LABOR, ������������������������������ *

United
States Department of Labor, ������������������� *

����������������������������������������������������������������������������� *

����������������������������������� Complainant, �������������������� *

����������������������������������������������������������������������������� * ������ DOCKET No. 16-0597

����������������������������������������������� v . �������������������������� * ������������

����������������������������������������������������������������������������� * ������ REGION I

TRUE
VALUE COMPANY, ����������������������������� *

����������������������������������������������������������������������������� * ������ INSPECTION No. 1112726

����������������������������������� Respondent. ��������������������� * ������

*

                                                    • ���

�����������������������������������������

ORDER APPROVING SETTLEMENT

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

The executed
Stipulation executed and filed by the parties on October 11, 2016, has
been considered. The Stipulation has been served on all parties and authorized
employee representatives and posted in the manner prescribed by Commission Rule
7(g) [2] . � Ten (10) days have passed since service and
posting and no objection to the Settlement Agreement has been filed.

The
resolution of this matter is approved under 5 U.S.C. �554(c )( 1)
and Commission Rule 100. � The terms of
the Stipulation 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. Section 661(j).

__/s/____ ��������

Honorable Carol Baumerich

JUDGE, OSHRC

Dated: � _OCT 21, 2016 �����������������������������������

Washington, D.C.

[1] We note that this is the
third time in less than a year in which the Commission has been compelled to address
a final order involving a mistake regarding a settlement agreement. � See
Caldwell Coating, LLC , 26 BNA OSHC 1268, 1269 (No. 15-1216, 2017) (consolidated)
(granting relief under Federal Rule of Civil Procedure 60(a) and setting aside
final order approving settlement agreement that did not fully resolve
case); � Sterling Techs., Inc. , 25 BNA OSHC 1891, 1892 (No. 15-1772, 2016) (same).
� Parties and their counsel are reminded
that they should carefully review all pleadings and other documents; motions
shall provide the grounds for the relief sought. � See Commission
Rule 40(a), 29 C.F.R. � 2200.40(a)
(Motions and requests, how to make). �

[2]
Rules 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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