Moniaros Contracting Corporation (Commission decision, November 15, 1990)

Plain-English summary

An ALJ approved a stipulated settlement that would have reduced eight proposed penalties from $5,560 to $3,000. Moniaros then sent the judge a letter objecting to certain terms of the order. The Commission treated the letter as a petition for discretionary review and found that the existing record did not establish whether the parties had reached a full settlement. It set aside the approval order and remanded for the ALJ to determine whether a complete agreement existed and to take any other steps needed to dispose of the case. The release does not identify the OSHA standards underlying the citation items.

Decision snapshot

• Cited standard(s): None identified in the release
• Outcome: Settlement approval set aside; case remanded to determine whether the parties reached a full settlement.
• Key point: An asserted settlement cannot support a final approval order when the employer's objections leave the existence of a complete agreement unresolved.

Full text (OSHRC public release)

Docket No. 90-1668

SECRETARY OF LABOR,

Complainant,

v.

MONIAROS CONTRACTING CORPORATION,

Respondent.

OSHRC Docket No. 90-1668

DIRECTION FOR REVIEW

AND REMAND ORDER

On October 22, 1990, Respondent, Moniaros contracting corporation, filed a letter with Administrative Law Judge Irving Sommer which sets forth objections to certain terms contained in the judge's Order Approving Settlement, which was docketed with the Commission's Executive Secretary on October 25, 1990. Deeming Respondent's letter to be a petition for discretionary review, and based upon a preliminary examination of the official record, the Commission, pursuant to 29 U.S.C. 661(j) and 29 C.F.R. 2200.92(a), hereby directs this case for review.

In the letter of October 22, 1990, Respondent implicitly raises the issue of whether the parties have reached a full settlement of this case. The Commission is unable to decide this issue based on the record as presently constituted. The judge's order is therefore set aside and the case remanded to him to determine whether the parties have reached a full settlement of this case, and to take any other steps necessary for the disposition of this matter.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: November 15, 1990

ELIZABETH DOLE, Secretary of Labor,

United States Department of Labor,

Complainant,

v.

MONIAROS CONTRACTING CORP.,

Respondent.

OSHRC Docket NO. 90-1668

STIPULATED SETTLEMENT

ROBERT P. DAVIS

Solicitor of Labor

PATRICIA M. RODENHAUSEN

Regional Solicitor

STEVEN D. RISKIN

Attorney

U.S. Department of Labor

Attorneys for ELIZABETH DOLE,

Secretary of Labor

Patricia M. Rodenhausen

Regional Solicitor

U.S. Department of Labor

ELIZABETH DOLE, Secretary of Labor,

United States Department of Labor,

Complainant,

v.

MONIAROS CONTRACTING CORP.,

Respondent.

OSHRC Docket NO. 90-1668

STIPULATED SETTLEMENT

Based upon the following recital, the complainant and the Respondent herein agree to the following as a conclusion of this matter:

1) The Secretary hereby amends the proposed penalty to reflect a total proposed penalty of $3000 as follows:

CITATION NO.
ITEM
ORIGINAL
AMENDED

1
1
$250
$170

2
250
170

3
250
170

4
1000
500

5
1000
500

6
810
490

7
1000
500

8

1000

500

Total:

$5560

$3000

2) Based upon the above, the respondent herein withdraws its notice of contest as to the Citation No. 1 and the proposed penalty as modified.

3) Respondent affirmatively states that:

a) The violations alleged in Citation No. 1, Items Nos. 1, 2 and 3 shall be abated by November 5, 1990.

b) All other violations alleged in Citation No. 1 have been abated.

c) It will comply in the future' with the Occupational Safety and Health Act.

4) Respondent certifies that on or before October 12, 1990, this Stipulation will be posted where affected employees may see it.

5) It will pay the amended proposed penalty of $3,000 by forwarding a check made payable to Occupational Safety and Health-Labor in that amount to the Occupational Safety and Health Administration Office located at Bayside Area Office, 42-40 Bell Boulevard, Bayside, New York 11361.

6) Each party hereby agrees to bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding.

DATED: August 15, 1990

New York, New York

ROBERT P. DAVIS

Solicitor of Labor

PATRICIA M. RODENHAUSEN

Regional Solicitor

BY: STEVEN D. RISKIN

Attorney

U.S. Department of Labor

Attorneys for

ELIZABETH DOLE,

Secretary of Labor

MONIAROS CONTRACTING CORP.

BY: _________

ELIZABETH DOLE, Secretary of Labor,

United States Department of Labor,

Complainant,

v.

MONIAROS CONTRACTING CORP.

Respondent.

OSHRC Docket NO. 90-1668

ORDER APPROVING SETTLEMENT

Respondent in OSHRC Docket No. 90-1688, by a letter dated June 1, 1990 contested citation no. 1 issued to it by Complainant on May 9, 1990. In that letter, Respondent also contested the penalties proposed by Complainant for that citation. Respondent's letter did not contest citation no. 2, also issued to it by complainant an May 9, 1990, which citation has become a final order by operation of law.

An executed Settlement Agreement has been received from the parties, and this Agreement addresses all matters at issue between the parties in this proceeding. The Agreement having been read and considered it is

ORDERED: (1) That the terms of the Settlement Agreement are approved and incorporated as part of this order; and

(2) That this Order, pursuant to Section 12(j) of the Act, 29 U.S.C. 661(j), will become the final order of the Commission at the expiration of 30 days from the date of docketing by the Executive Secretary, unless within that time a member of the Commission directs that it be reviewed.

Dated this 23rd day of October, 1990.

Judge, Occupational Safety

& Health Review Commission