F.A. Bartlett Tree Expert Co., Inc.

Plain-English summary

F.A. Bartlett Tree Expert Co. does line-clearance tree trimming. After a June 1995 job in Old Lyme, Connecticut, OSHA issued a serious citation for failing to keep employees the minimum distance from energized parts and an other-than-serious citation for a missing face shield at a wood chipper, with $6,000 in proposed penalties total. At an informal conference a division manager signed a settlement agreement, but the terms reached beyond his division and beyond the cited items to company-wide protective-equipment and noise commitments. The administrative law judge rejected the entire settlement as beyond the manager's authority, held Bartlett's notice of contest timely, and let the case proceed. The judge then forwarded her decision to the Commission for docketing even though the Secretary still had to file his complaint. This Commission order cleans up that procedural tangle: it denied the Secretary's petition for interlocutory review, found the case had been docketed prematurely because there was no final disposition, rescinded the docketing, denied Bartlett's premature petition for discretionary review, and referred the case to the Chief Administrative Law Judge for reassignment. No citation was affirmed or vacated here; the litigation continues.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.269(r)(1)(v); 29 C.F.R. § 1910.133(a)(1)
• Outcome: Procedural. Secretary's interlocutory-review petition and Bartlett's discretionary-review petition both denied; premature docketing rescinded; case reassigned for further proceedings.
• Key point: A judge's rejection of a settlement is not a final, reviewable disposition, so the Commission would not review it at this stage and sent the case back for a complaint and reassignment.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W.- 9th Floor
Washington, DC 20036-3419

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 954211
F. A. BARTLETT TREE EXPERT CO., INC.,
Respondent.

ORDER

On April 10,1996, the Commission received the Secretary's petition for interlocutory review requesting that the Commission review the administrative law judge's decision and order rejecting a settlement agreement. F.A. Bartlett Tree Expert Co., Inc. ("Bartlett") filed an opposition to the petition. Pursuant to Commission Rule 73(a), 29 C.F.R. 5 2200.73(a), the Commission denies the petition for interlocutory review in light of the particular circumstances in this case.' Pursuant to the judge's order of April 18, 1996, the Secretary has until June 17, 1996, to file his complaint.

As an administrative matter, the Commission notes that the judge forwarded her decision and order to the Commission for docketing by the Executive Secretary under Commission Rule 90(b)(2), 29 C.F.R. 5 2200.90(b)(2), even though she stated therein that the Secretary still has an opportunity to file his complaint. The Commission finds that the judge improperly forwarded her decision and order, as well as the official file, to the Commission because it did not constitute a final disposition of the proceedings in this case under Commission Rule 90(a), 29 C.F.R. 5 2200.90(a). Accordingly, we rescind the judge's

'In denying the Secretary's petition for interlocutory review, we express no view as to the validity of the settlement agreement. Under Commission Rule 73(c), 29 C.F.R. 5 2200.73(c), the Secretary is not precluded from raising his objection to the judge's interlocutory ruling later in a petition for discretionary review.

notice of decision (dated April 1Y1996) and the Executive Secretary's notice of docketing of administrative law judge's decision (dated April 26, 1996). Because the judge's decision and order was not a fmal disposition, the petition for discretionary review filed by Bartlett is premature.2 We, therefore, deny Bartlett's petition for discretionary review at this time.

The judge who considered this case is no longer with the Commission. Accordingly, we refer this case to the Chief Administrative Law Judge for reassignment.

It is so ordered.

Chairman

Velma Montoya
Commissioner

Daniel Guttman
Commissioner

Dated: May 10, 1996

2Although Bartlett's petition for discretionary review is premature, we are troubled by the Secretary's refusal to forward Bartlett's notice of contest to the Commission's Executive Secretary, as required by Commission Rule 33,29 C.F.R. 5 2200.33. See section 10(c) of the Occupational Safety and Health Act of 1970,29 U.S.C. 5 659(c).

United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19

Office of Executive Secretary
Phone: (202) 606-5400
Fax: (202) 606-5050

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 954211
F. A. BARTLETT TREE EXPERT CO., INC.,
Respondent.

NOTICE OF ORDER

The attached order was issued by the Commission on May 10,1996.

BY DIRECTION OF THE COMMISSION

Date: Mav 10, 1996
Ray H. Darling, Jr.
Executive Secretary
95-1211

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Frank V. McDermott, Jr.
Regional Solicitor
U.S. Department of Labor
One Congress Street
P.O. Box 8396
Boston, MA 02114

Gary L. Lieber, Esq.
Schmeltzer, Aptaker & Shepard, P.C.
The Watergate, Suite 1000
2600 Virginia Avenue, N.W.
Washington, D.C. 20037

United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19
Phone:(202)606-5400
Fax:(202)606-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET NO. 95-1211
F. A. BARTLETT TREE EXPERT CO.
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE'S DECISION

The Administrative Law Judge's Report in the above referenced case was docketed with the Commission on April 26, 1996. The decision of the Judge will become a final order of the Commission on May 28, 1996 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such etition should be received by the Executive Secretary on or before May 16, 1896 in order to ermit sufficient time for its review. See Commission Rule 91, 29 8 .F.R. 2200.91.

All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419

Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH.
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party havmg questions about review rights may contact the Commission's Executive Secretary or call (202) 606-5400.

FOR THE COMMISSION

Date: April 26, 1996
DOCKET NO. 95-1211
NOTICE IS GIVEN TO THE FOLLOWING:

Frank V. McDermott, Jr.
Acting Re 'onal Solicitor
Office of ifi e Solicitor, U.S. DOL
One Congress Street, 11th Floor
P.O. Box 8396
Boston, MA 02114

Gary L. Lieber, Esq.
Schmeltzer, Aptaker & Shepard, P.C.
The Watergate, Suite 1000
2600 Virginia Avenue, N.W.
Washington, DC 20037

Barbara Hassenfeld-Rutberg
Administrative Law Jud e
Occupational Safety an if Health
Review Commission
McCormack Post Office and
Courthouse, Room 420
Boston, MA 02109 4501

00116127788:Ol

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETTS 02109-4501

PHONE:
COM (617) 223-9746
FTS (617) 223-9746
FAX:
COM (617) 223-4004
FTS (617) 223-4004

SECRETARY OF LABOR,
Complainant
v.
OSHRC DOCKET NO. 95-1211
F.A. BARTLETT TREE EXPERT CO., INC.
Respondent.

Appearances:
Gail Glick, Esq. Gary L. Lieber, Esq.
Office of the Solicitor Schmeltzer, Aptaker & Shepard, P.C.
U.S. Department of Labor Washington, DC
For Complainant For Respondent

Before: Administrative Law Judge Barbara L. Hassenfeld-Rutberg

DECISION AND ORDER

On June 13, 1995, F.A. Bartlett Tree Expert Co., Inc. ("Respondent") was issued two citations, one serious citation 1, item 1 with a proposed penalty of $5000.00 and an other than serious citation 2, item 1 with a proposed penalty of $1000.00 for alleged violations on June 2,1995 at a work site on Four Mile River Road, Old Lyme, CT. The serious citation alleged a violation of 29 CFR 0 1910.269(r)(l)(v) for failure to insure that employees maintain the minimum distance fkom energized parts when performing line clearance tree trimming in two instances. The other than serious citation alleged a violation of 29 CFR 5 1910.133(a)( 1) for failure to provide protective face equipment where there was reasonable probability of injury; to wit, an employee was not wearing a face shield when feeding slash into a wood chipper.

The Respondent received documents fkom the Occupational Safety and Health Administration ("OSHA") informing it of its right to an informal conference in the Hartford area office. In those notices, the Respondent was made aware of the possibility that the matter could be resolved by a settlement agreement at that level, thereby avoiding further litigation (Ex. C-l). The Respondent elected to have an informal conference and on June 13, 1995, the conference was held at the Hartford OSHA office. Josef Nomand, the assistant area director for safety and health for that office met with Michael Keegan and Steven A. Gould, representatives of the Respondent. Victor Fleck, a vice president of the Respondent was the person who had received and read the pamphlets and citations explaining the informal conference, stating " If conditions warrant, we can enter into an informal settlement agreement which amicably resolves this matter without litigation or contest." (Ex. C-l). After reading the OSHA material, Fleck instructed the two representatives to attend the informal conference (Tr. 142-43). Keegan has been a division manager for the Respondent for about five years. In that capacity, he manages, hires, fires, signs bids up to $50,000.00 and oversees the safety policies and programs for his division of 100 persons. Gould is a superintendent for the Respondent.

As a result of the informal conference, Keegan signed a settlement agreement with Nomand to resolve the pending matter. Keegan testified that he was not coerced or deceived by Nomand into signing the agreement (Tr. 115,122). Keegan also testified that Fleck never told him he did not have authority to sign an agreement or instructed him on any limits to his authority in representing the company (Tr. 110-l 11). Thus, it appears that Keegan had actual authority to represent the company and sign an agreement that would bind only his division as he already has the authority to bind the company on bids up to $50,000.00. The total proposed penalty for the citations was $6,000.00, certainly within the realm of his financial authority for his division. It was reasonable for Nomand to rely on at least what appeared to be Keegan's apparent authority as Keegan negotiated with him regarding the agreement and willingly signed it on behalf of the Respondent. Had the agreement

undersigned Judge finds that the parties may sign an agreement that includes both cited and non-cited conditions and may also be broad enough to include corporate-wide settlements. Secretavy of Labor v. Phillips 66 Co. 16 BNA OSHC 1332, 1334 (No. 90-1549, 1993). The authority to go beyond the scope of the items cited is based on the concept of ancillary jurisdiction. Davies Can Co. 4 BNA OSHC 1237 (No. 8182,1976).

Here, the facts of who is the Respondent's representative must be closely analyzed and what is the scope of that person's authority. Certainly, had Fleck signed the agreement, there would be less to discuss regarding his authority to sign such a broad contract. Here, the circumstances warrant scrutiny because a division manager signed an agreement that clearly is beyond the scope of the citation and his division. The scope of the settlement agreement went beyond the authority of Keegan, who as a division manager, is not authorized to bind the whole company. Paragraphs 10 and 11 require the Respondent's implementation of applicable personal protective equipment and noise standards and further mandate the filing of progress reports to the 0SII.A Hartford area office regarding those standards (Ex. C-2). These paragraphs could easily be interpreted as applying to the whole company.

The Commission has held that an Administrative Law Judge may not accept an agreement in part and reject an agreement in part as it would leave the parties bound by a reformed contract they never intended to make. Phillips 66, supra at 1335. Thus, in the case herein, the undersigned Judge must reject the entire agreement as being beyond the scope of citations and thus beyond the scope of Keegan's authority, actual or apparent. Fleck, immediately upon discovering what had been signed, requested that Respondent's attorney, Gary L. Lieber, file a Notice of Contest, which is dated July 6,1995 (Ex. C-3). I find the Notice of Contest to have been timely and properly filed. I also find that the Secretary of Labor has not lost its right to timely file a complaint in this matter; therefore the Respondent's prehearing Motion to Default the Secretary of Labor is hereby denied. The time for filing of the complaint will toll from the date of receipt of this decision.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

All findings of fact relevant and necessary to a determination of the contested issues have been found specially and appear herein. See Rule 52(a) of the Federal Rules of Civil Procedure. Proposed findings of fact or conclusions of law inconsistent with this decision are denied.

ORDER

The Settlement Agreement is null and void; the Respondent's Notice of Contest is timely filed; the Respondent's Motion to Default the Secretary is denied, and the Secretary may file its Complaint.

BARBARA L. HASSENFELDfRUTBERG
Judge, OSHRC
Date: -51 ~3~, 1996
Boston, Massachusetts