O’Harra’s Complete Plumbing Service, LLC

Plain-English summary

A judge approved an informal settlement between OSHA and O’Harra’s Complete Plumbing Service. O’Harra’s later sent a letter claiming that it had no employees and had felt pressured to sign the agreement. The Commission treated the letter as both a late notice of contest and a request for relief from the citation’s final-order status under Federal Rule of Civil Procedure 60(b). Because the record did not show when the company received the citation, the Commission set aside the settlement approval and remanded for the judge to determine whether relief from the final order was warranted.

Decision snapshot

• Cited standard(s): The remand order does not identify the substantive OSHA standards.
• Outcome: Settlement approval set aside; case remanded to determine whether Rule 60(b) relief from a final order is warranted.
• Key point: A late contest may proceed only if the employer establishes grounds for relief from the citation’s final-order status.

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.
18-1225

O’ HARRA ’ S COMPLETE PLUMBING SERVICE ,
LLC ,

Respondent.

APPEARANCES :

Susan J. Willer,
Attorney ;
H. Alice Jacks ,
Associate
Regional Solicitor;
Christine Z. Heri, Regional Solicitor ;
Kate S. O’Scannlain, Solicitor of Labor ; U.S. Department of Labor, Office of the Solicitor,
Kansas City ,
MO

For the Complainant

Jamie O’Harra ;
O’Harra’s Complete Plumbing Service ,
LLC ,
Topeka , 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
Chief
Administrative Law Judge
Covette Rooney
approving an informal
settlement agreement between
O’Harra’s Complete Plumbing Service,
LLC
and the Secretary
was docketed on
August 15, 2018.

O’Harra’s filed a petition for discretionary review
of the Judge’s order
on September 4, 2018. For the following reasons, we
direct
this case for
review
and remand for further proceedings consistent with this
order.

The
Occupational Safety and Health Administration issued a
citation
to O’Harra’s
on May 1, 2018. The
record
does not
establish
when O’Harra’s received the citation,
so we are
unable to determine the date
on which
the 15-day period for filing a notice of contest expired.

See
29 U.S.C. § 659(a);
Commission Rule § 2200.33, 29 C.F.R. § 2200.33. However, it
appears
that
the contest
period had expired by the time the Commission received, on
July 27, 2018, a
letter from O’Harra’s,
dated July 20, 2018,
contesting the citation. In the letter,
Jamie
O’Harra claims
he should be exempt from OSHA standards because he had no employees and that he felt pressured into signing
the
settlement agreement. 1

We
consider
the
July 20
letter
filed
by O’Harra’s
to
be
a late notice of contest.

Absent a timely notice of contest, the Commission lacks any authority to act. See
29 U.S.C. § 659(a) (failure to file a timely notice of contest results in citation and proposed penalty becoming a final order of the Commission “not subject to review by any court or agency”). Therefore, by operation of law,
an uncontested
or untimely contested
citation and proposed penalty must be deemed a final order of the Commission, unless
entitlement
to relief
is demonstrated
under Federal Rule of Civil Procedure 60(b). 2

See
29 U.S.C. § 661(g) (Commission
proceedings
conducted
in accordance with Federal Rules of Civil Procedure unless Commission has adopted different rule);
Branciforte Builders, Inc. , 9 BNA OSHC 2113, 2117 (No. 80-1920, 1981) (late notice of contest may be excused under
Rule
60(b)).

As such, we also construe the July 20 letter as a motion for
Rule 60(b)
relief from a final order.

In light of our reading of the July 20 letter,
we remand the matter to the judge to consider
whether
O’Harra’s is entitled to
Rule 60(b)
relief,
which if
found
warranted would
also
result in
a decision
that the settlement agreement was erroneously approved. The
mutually-executed settlement agreement may be
relevant to
the issue of whether
O’Harra’s is entitled to
that
relief.

Accordingly, we set aside
the judge’s order approving the settlement agreement
and remand for
consideration of whether relief
from a final order is warranted.

SO ORDERED.

/s/                  

Heather L. MacDougall

Chairman

/s/               

Cynthia L. Attwood

Commissioner

/s/               

James J. Sullivan, Jr.

Dated:    September 11, 2018   


   Commissioner

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO.
18-1225

O’HARRA’S COMPLETE PLUMBING

SERVICE, LLC,

Respondent.

ORDER

APPROVING STIPULATED SETTLEMENT

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 stipulated settlement between the parties filed on
May 24, 2018
has been considered. The parties certify that affected employees were properly notified of the settlement on
May 24, 2018. No objection to the settlement has been filed.

The settlement is approved under 5 U.S.C. § 554(c)(1) and Commission Rule 100. 3 The terms of the stipulated settlement are incorporated, in their entirety, by reference in this order.

/s/            

COVETTE ROONEY

Chief Judge, OSHRC

Dated: August 13, 2018

Washington, D.C.

"

1
On August 3, 2018, the Secretary filed a motion seeking an extension of time to file a motion to vacate the late notice of contest.
The judge has not ruled on the Secretary’s motion.

2
Federal Rule of Civil Procedure 60(b) states:

Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

3
Rules of Procedure of the Occupational Safety and Health Review Commission, 29 C.F.R. §§ 2200.1-.212 (1991).