Cornet Frosted Foods & Ice Cream Corporation (Commission decision, March 16, 1992)

Plain-English summary

Cornet Frosted Foods & Ice Cream Corporation and the Secretary settled citations issued in October 1991. Their written agreement reduced the listed penalties from $7,000 to $3,000, required payment of that amount, and recorded the company's representation that the cited conditions had been abated. After an OSHRC judge approved the agreement, both parties discovered that they had accidentally left out an item they had agreed to resolve. The Secretary petitioned for review with the company's support. The Commission remanded the case so the parties could execute an amended settlement and submit it to the judge.

Decision snapshot

• Cited standard(s): None identified in the decision.
• Outcome: Prior settlement approval remanded so the parties could add an inadvertently omitted item.
• Key point: In this case, the Commission remanded after the parties said their written settlement inadvertently omitted an agreed item.

Full text (OSHRC public release)

Docket No. 91-3305

SECRETARY OF LABOR,

Complainant,

v.

CORNET FROSTED FOODS & ICE CREAM CORPORATION.

Respondent.

OSHRC Docket No. 91-3305

DIRECTION FOR REVIEW AND REMAND ORDER

The Secretary has filed a petition for review in which she asks that the Commission direct for review the order of Chief Administrative Law Judge Irving Sommer, approving the settlement agreement in this case. She requests that the Commission remand the case to Judge Sommer in order that the parties, who inadvertently omitted an item from the settlement, may execute an amended settlement agreement and submit it to the judge. The Secretary represents that the Respondent joins in the petition.

Accordingly, we hereby direct this case for review and remand it to Chief Judge Sommer in order that the parties may execute an amended settlement agreement and submit it to him.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Dated: March 16, 1992

LYNN MARTIN, SECRETARY OF LABOR

Complainant

v.

CORONET FROSTED FOODS & ICE CREAM, CORP.,

Respondent

OSHRC Docket No. 91-3305

SECRETARY'S PETITION FOR DISCRETIONARY REVIEW

Complainant, the Secretary of Labor, moves for an order directing the case for review and remanding to Chief Judge Sommer in order that an amended settlement agreement may be executed and submitted. As grounds for this motion the Secretary states as follows:

1. Following respondent's timely contest, the case was docketed by the Commission as No.
   91-3305.

2. A settlement agreement resolving all issues raised
   by the contest was subsequently reached between the parties.

3. In reducing the settlement to writing one item was
   inadvertently omitted. The omission was detected by neither party prior to submission of the agreement to Judge Sommer.

4. On February 11, 1992, Judge Sommer issued his
   order approving the agreement. The settlement approved by the judge was erroneous in that it omitted an item upon which agreement had been reached.

5. The Judge's order was docketed by the Executive
   Secretary on February 13,1992, and will become a final order on March 16,1992 unless directed for review

6. Respondent joins in this petition.

7. There is no authorized representative of
   employees, and no employee has elected party status.

For the above reasons, and because the settlement as approved by the Judge does not fully reflect the intent of the parties, we respectfully request direction of the case and remand to Judge Sommer.

Respectfully submitted,

MARSHALL J. BREGER

Solicitor

CYNTHIA L. ATTWOOD

Associate Solicitor for Occupational Safety and Health

DONALD G. SHALHOUB

Deputy Associate Solicitor for Occupational Safety and Health

DANIEL J. MICK

Counsel for Regional

Trial Litigation

SECRETARY OF LABOR,

Complainant,

v.

CORNET FROSTED FOODS & ICE CREAM CORPORATION.

Respondent.

OSHRC Docket No. 91-3305

ORDER APPROVING SETTLEMENT

Respondent in OSHRC Docket No. 91-3305, by a letter dated November 21, 1991 contested the citations issued to it by Complainant on October 29, 1991. In that letter, Respondent also contested the penalties proposed by Complainant for the citations.

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

ORDERED: (1) That the terms of the Stipulated Settlement 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. {sec} 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 11th day of February,1992.

SO ORDERED:

Judge, Occupational Safety & Health Review
Commission

LYNN MARTIN, SECRETARY OF LABOR

Complainant

v.

CORONET FROSTED FOODS & ICE CREAM, CORP.,

Respondent

OSHRC Docket No. 91-3305

STIPULATED SETTLEMENT

MARSHALL J. BREGER

Solicitor of Labor

PATRICIA M. RODENHAUSEN

Regional Solicitor

LUIS A. MICHELI

Attorney

U.S. Department of Labor

Attorneys for

LYNN MARTIN,

Secretary of Labor, Complainant

SECRETARY OF LABOR,

Complainant,

v.

CORNET FROSTED FOODS & ICE CREAM CORPORATION.

Respondent.

OSHRC Docket No. 91-3305

Based upon the following recital, the Secretary 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 proposed penalty of $3,000.00, assessed as follows:

CITATION NO,

ITEM
ORIGINAL

PROPOSED

PENALTY
AMENDED

PROPOSED

PENALTY

1
1
$ 750
$ 350

1
2
750
350

1
3
1,250
600

1
4
1,000
500

1
6
1,000
500

1
7
1,000
500

2
1
500
200

Total

$7,000
$3,000

2) Based upon the above, the Respondent herein
withdraws its notice of contest as to the citation and proposed penalty as modified.

3) Respondent affirmatively states that :

a) The violations alleged in the citations have been abated.

b) It will comply in the future with the Occupational safety and Health Act.

4) Respondent certifies that on January 22,1992 this
stipulation will be posted where affected employees may see it.

5) it will pay the amended proposed penalty of
$3,000.00 by forwarding a check made payable to "Occupational Safety and Health Administration - Labor" in that amount to the Occupational Safety and Health Administration Office located at U.S. Department of Labor, Occupational Safety and Health Administration, 990 Westbury Road, Westbury, New York 11590.

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: January 29,1992

New York, New York

MARSHALL J.BREGER

Solicitor of Labor

PATRICIA M. RODENHAUSEN

Regional Solicitor

BY: LUIS A. MICHELI

Attorney

U.S. Department of Labor Attorneys for:

LYNN MARTIN, SECRETARY OF LABOR

Complainant

v.

CORONET FROSTED FOODS & ICE CREAM, CORP.,

Respondent

BY: JOSEPH C. GRECO, JR

Comptroller