Aspen Products, Inc. (Commission decision, November 6, 2017)

Plain-English summary

An administrative law judge approved a settlement in two consolidated Aspen Products cases. The Secretary later reported that a typographical error caused the agreement to group the wrong violations and substitute the wrong violation. The normal response period for Aspen’s position on the correction would extend beyond the date when the judge’s order otherwise became final. The Commission directed the cases for review and remanded them so the judge could consider the Secretary’s correction motion.

Decision snapshot

• Cited standard(s): No substantive OSHA standard is identified in the remand order.
• Outcome: Consolidated cases directed for review and remanded for consideration of a settlement correction.
• Key point: The Commission may direct review to preserve a judge’s ability to correct an alleged settlement error before the approval order becomes final.

Full text (OSHRC public release)


Document

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 No s .
17-0312

17-0313

(CONSOLIDATED)

1144444

ASPEN PRODUCTS, INC. ,

(CONSOLIDATED)

Respondent.

APPEARANCES :

Nicholas C.
Geale , Acting Solicitor of Labor; Stanley E. Keen, Regional Solicitor; Karen E. Mock, OSHA Counsel; Monica R. Moukalif, Trial Attorney; U.S. Department of Labor, Office of the Solicitor, Atlanta, GA

For the Complainant

Christopher J. Sherman; Payne & Jones, Chartered , Overland Park, KS

For the Respondent

D IRECTION FOR REVIEW AND REMAND ORDER

Before: M ac DOUGALL , Chairman;
ATTWOOD
and
SULLIVAN , Commissioner s .

BY THE COMMISSION:

An order issued by
Administrative Law Judge John B. Gatto
approving a settlement agreement between
Respondent
and the Secretary
was docketed on
October 10, 2017.

On October 30, 2017, the Secretary filed a motion requesting leave to correct a “typographical error” in the settlement agreement.  According to the Secretary, the parties intended to combine two violations into one grouped item, and to substitute one violation for a new violation, but due to a typographical error, the settlement agreement combined the wrong violations and made the wrong substitution.  The Secretary also asserts that he has been unable to reach Respondent’s counsel to obtain a response to the motion and that he believes opposing counsel is on vacation. See Commission Rule 40(a), 29 C.F.R. § 2200.40(a) (requiring moving party to confer with other party prior to filing motion and to state if the party opposes the motion).

Commission Rule 90(b)(3), which the Secretary cites in support of his request, allows the judge—until the case is directed for review or the judge’s decision becomes a final order if not directed—to “correct clerical errors and errors arising through oversight or inadvertence in decisions, orders or other parts of the record.” 29 C.F.R. § 2200.90(b)(3). In this case, the judge’s order will become a final order on November 9, 2017, which is prior to the expiration of the ten-day period permitted under the Commission’s Rules for Respondent to file a response to the Secretary’s motion, unless the case is directed for review. See Commission Rule 40(c), 29 C.F.R. § 2200.40(c) (providing ten days from service of motion for party to file response); 29 U.S.C. § 661(j) (absent direction for review, judge’s decision becomes a final order of the Commission within 30 days).

In light of these alleged facts and circumstances, we direct the case for review and remand it to the judge to consider the Secretary’s motion.

SO
ORDERED.

/s/               

Heather L. MacDougall

Chairman

/s/               

Cynthia L. Attwood

Commissioner

/s/               

James
J. Sullivan, Jr.

Commissioner

Dated:    November 6, 2017

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

100 Alabama St. S.W

Building 1924 Room 2R90

Atlanta, GA 30303-314

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No.
17-0312

OSHRC ,

Respondent.

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No.
17-0313

OSHRC ,

Respondent.

FINAL CONSENT ORDER

The parties have submitted a
settlement agreement in the above-captioned case pursuant to Commission Rule 100. See 29 C.F.R. § 2200.100.

The Court notes the time has expired for
affected employees or authorized employee representatives to elect party status, or if party status has been elected, to file an objection to the reasonableness of any abatement time. See 29 C.F.R. § 2200.100(c) .

Accordingly,

IT IS HEREBY ORDERED THAT
having examined the
settlement agreement, said agreement
is approved under 5 U.S.C. § 554(c)(1) and
29 C.F.R. § 2200.100(c), and
is adopted and incorporated herein by reference as part of this Final Consent Order.

The citation items are affirmed, modified, or vacated in accordance with the terms of the settlement agreement.

SO
ORDERE D.

/s/            

JOHN B. GATTO, Judge

Dated: September 13, 2017

Atlanta, GA

"