Tire Reclamation Services, Inc. (Commission decision, February 6, 1992)

Plain-English summary

Tire Reclamation Services agreed to settle OSHA citations for a total penalty of $450. After an OSHRC judge approved the agreement, the company's vice president reported that a fire had closed the business and left it without funds to pay. The Commission held that this changed circumstance did not itself provide a sufficient legal basis to set aside the approved settlement. It nevertheless remanded the case so the parties could decide whether to negotiate a new agreement, noting that the Secretary might choose not to pursue the matter if the company was out of business or the violations would not recur. If no amended agreement was reached within 30 days, the original settlement order would become final.

Decision snapshot

• Cited standard(s): None identified in the decision.
• Outcome: Case remanded for 30 days to permit an amended settlement; otherwise the existing $450 settlement would become final.
• Key point: Post-settlement financial hardship did not establish grounds to undo the agreement, but the Commission allowed the parties a limited opportunity to renegotiate it.

Full text (OSHRC public release)

Docket No. 91-2080

SECRETARY OF LABOR,

Complainant,

v.

TIRE RECLAMATION SERVICES, INC.,

Respondent.

OSHRC Docket No. 91-2080

ORDER

The Occupational Safety and Health Administration (OSHA) issued a citation to Tire Reclamation Services, Inc., alleging violations of various OSHA standards. After the company had timely contested the citation, the parties entered into a settlement agreement which reduced the amount of the penalties imposed for the violations. The Chief Administrative Law Judge entered an order approving that agreement. Subsequently, a vice president of the company sent a letter to the Review Commission stating that the president of the company had agreed to the reduced penalty before a fire closed down the company. The letter stated that "at present" there were no funds available to pay the penalty and asked for relief.

That letter was construed to be a petition for the Commission to review the judge's order approving the agreement between the parties, and the case was directed for review by Commissioner Montoya pursuant to 29 U.S.C. 661(j) and 29 C.F.R. 2200.92(a). The direction for review specified the issue to be considered as:

Whether the Judge's Order approving the settlement agreement should be set aside, and/or possibly modified, because, due to a subsequent change in Respondent's circumstances that could not have been foreseen, the Respondent no longer consents to the Settlement terms.

Examination of the written agreement submitted to the Judge reveals that it hears an undated handwritten notation to the same effect as the letter, followed by the signature of the same person who signed the letter and the agreement on behalf of the company. While we construe the letter as a request for relief from the judge's order, it does not allege a sufficient basis for the Review Commission to set aside the judge's order approving that agreement and does not allege any basis on which to afford the company relief under Rule 60(b) of the Federal Rules of Civil Procedure. Nevertheless, we will remand this case to the Chief Judge for him to afford the parties an opportunity to amend the settlement agreement if they wish to do so. If the company is out of business, or the violations will not recur, it is possible that the Secretary of Labor may elect not to pursue the matter.

Accordingly, this case is remanded for the Chief Judge to determine whether the parties desire to enter into a new agreement. If the parties do not agree within thirty days of the date of this order to amend their agreement, the judge's order affirming the parties' settlement agreement shall become a final order.

Edwin G. Foulke, Jr. Chairman

Donald G. Wiseman Commissioner

Velma Montoya Commissioner

Dated: February 6, 1992

LYNN MARTIN, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR

Complainant, V.

TIRE RECLAMATION SERVICES, INC., and its successors,

Respondent.

OSHRC DOCKET No. 91-2080 INSPECTION No. 109368563 REGION III

CONSENT ORDER APPROVING SETTLEMENT

The parties advise that all matters in dispute have been amicably resolved and agree to entry of the order set forth below. It is therefore ORDERED that:

1. The settlement agreement in approved and the term thereof are incorporated into this
   order.

2. The citation items and proposed penalties are affirmed as modified in accordance with
   the settlement agreement.

3. The total penalty associated with the affirmed citation items amounts to $450.00.
   Respondent shall pay said penalty in accordance with the terms of the settlement agreement.

Irving-Sommer Judge, OSHRC

Dated:Nov 18, 1991

LYNN MARTIN SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR

Complainant,

v.

TIRE RECLAMATION SERVICES INC., and its successors,

Respondent.

OSHRC DOCKET No. 91-2080 INSPECTION

No. 109368563 REGION III

STIPULATION OF SETTLEMENT

The parties hereto, pursuant to Review Commission Rule 29 CFR 2200.100(a), in an effort to reach an amicable resolution of the issues presented herein jointly present the following:

1. Complainant amends the Citations and Notifications of Penalty as follows:

Serious Citation Number 1, Item 1a, b, c and d. The proposed penalty is reduced from
$450.00 to $350.00. The abatement dates are extended from September 14, 1991 to October 1, 1991.

Other Citation Number 2, Item 1. The proposed penalty is reduced from $300.00 to $100.00.

As a result of these amendments the total penalty proposed is $450.00.

In support of the amendments set forth above Complainant avers that upon review of the facts underlying the alleged violations, the proposed amendments are justified and appropriate.

2. Respondent, moves the Commission for an order allowing it to withdraw its Notice of
   Contest to the Citations and Notifications of Penalty as amended herein and in support of said motion represents as follows:

a. Serious Citation Number 1, Item 1a, b, c and d will be abated by October 1, 1991. Other Citation Number 2, Item 1 has been abated.

b. Respondent agrees to comply with the applicable provisions of the Occupational Safety and Health Act of 1970 and the regulations duly promulgated pursuant thereto.

c. Copies of the Citations and the Notifications of Penalty were posted on or about when ? and a copy of this Stipulation of Settlement will be posted on or before Nov. 8, 1991, as required by 29 CFR 2200.7 and 100.

d. Respondent will forward on or before November 15, 1991 a certified check in the sum of
$450.00 made payable to "DOL-OSHA" to the United States Department of Labor - OSHA, Room 2005, 20 North Pennsylvania Avenue, Wilkes-Barre, Pennsylvania 10701.

3. The parties further stipulate and agree that the Citations and Notifications of
   Penalty, as amended herein, shall become final orders of the Occupational Safety and Health Review Commission.

4. Each of the parties hereby agrees to bear the payment of its costs, fees and such other
   expenses as are related to this proceeding.

TIRE RECLAMATION SERVICES, INC. BY:

John J. Lynch

Vice President

David S. Fortney

Deputy Solicitor of Labor

Marshall H. Harris

Regional Solicitor

U.S. DEPARTMENT Of LABOR Attorneys for Complainant

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Stipulation of Settlement and final Consent Order was mailed this 12th day of November 1991, in a postage prepaid government envelope, addressed as follows:

John J. Lynch, Vice President

Tire Reclamation Services, Inc

56 Went Eagle Road

Havertown, PA 19083

Howard K. Agran Attorney