Security Window Division of Builders Supply Co., Inc.

Plain-English summary

An administrative law judge had thrown out the Secretary of Labor's notification that Security Window Division of Builders Supply Co., Inc. failed to correct an earlier violation, doing so because the Secretary did not file a required complaint. On the same day that order became final, the parties reached a stipulated settlement and jointly asked the judge to set his order aside. The Commission treated that request as a motion for relief from a final order under Rule 60(b) of the Federal Rules of Civil Procedure and granted it. It vacated the judge's order and sent the case back so the settlement agreement could be acted on. The Commission also flagged two loose ends for the remand: the judge had left a contested repeat-violation citation out of his order, and the dates of the underlying citation in the file did not match the dates stated in the settlement agreement.

Decision snapshot

• Cited standard(s): None; this order applies Rule 60(b) of the Federal Rules of Civil Procedure and Commission Rule 2(b) (29 C.F.R. § 2200.2(b)).
• Outcome: Remanded. The Commission granted the joint Rule 60(b) motion, vacated Judge Harris's order, and remanded for consideration of the settlement agreement.
• Key point: A joint motion to set aside a final order so the parties can settle is treated as a Rule 60(b) motion; when granted, the Commission remands for the judge to act on the settlement, noting discrepancies that must be resolved.

Full text (OSHRC public release)

[Transcriber's note: The official OSHRC HTML release contained Unicode replacement characters (U+FFFD) in place of a section symbol (restored here as "§" in "29 CFR § 2200.2(b)") and as empty separator glyphs (dropped). No wording has been added or changed; the phrase "a joint for relief" appears as released. The bracketed star-pagination markers ([1], [2]) appear in the official source and are reproduced as released.]

Docket No. 77-2345

SECURITY WINDOW DIVISION OF BUILDERS SUPPLY CO., INC.

OSHRC Docket No. 77-2345

Occupational Safety and Health Review Commission

December 15, 1977

[*1]

Before CLEARY, Chairman, and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Roger J. Miller, for the employer

OPINION:

ORDER

BY THE COMMISSION:

On October 17, 1977, Administrative Law Judge David H. Harris vacated the Secretary's Notification of Failure to Correct Alleged Violation and Proposed Additional Penalty for failure of the Secretary to file a complaint. On November 16, 1977, the same day the Judge's order became final, the parties entered into a stipulated settlement agreement that was forwarded to the Judge and received by him on November 21, 1977.

The settlement was accompanied by a joint motion to set aside the Judge's order. We read the motion to be a joint for relief under Rule 60(b) of the Federal Rules of Civil Procedure, made applicable to our proceedings by Commission Rule 2(b), 29 CFR § 2200.2(b). The motion is granted. The Judge's order is vacated and the case remanded for action on the settlement agreement.

In remanding this case, we note that the parties' settlement agreement also disposes of a citation and proposed penalty for an alleged repeated violation which were [*2] issued at the same time as the notification and proposed additional penalty for failure to correct. Although respondent contested this citation and penalty as well as the failure to correct notification, the Judge failed to include the citation and proposed penalty in his order.

We also note that the Notification of Failure to Correct Alleged Violation contained in the file is based upon the respondent's failure to correct items in a citation issued on the 10th and 11th of March, 1977, while the settlement agreement in paragraph 2(b) asserts that the uncorrected items were in a citation issued on August 30, 1976.

Accordingly, it is ORDERED that the order of Judge Harris vacating the Notification of Failure to Correct Alleged Violation and Proposed Additional Penalty issued on May 4, 1977, is vacated and the case is remanded for consideration of the settlement agreement in light of the observations made herein.