Billie Gowans, dba Billy G's

Plain-English summary

An employee fatality led OSHA to inspect Billy G's and issue serious and willful lockout/tagout citations with $27,100 in proposed penalties. The parties settled for $16,200, but their written agreement described 36 monthly payments while also referring to only 10 payments over five years. After the judge approved the settlement, the employer objected to the required payment. The Commission found that the contradictory payment terms prevented assurance that the parties had a genuine agreement and meeting of the minds. It set aside approval and remanded for clarification or amendment, with a hearing required if the parties could not agree within 30 days.

Decision snapshot

• Cited standard(s): No specific standard identified in the decision.
• Outcome: The Commission set aside settlement approval and remanded for clarification of the payment terms or a hearing.
• Key point: A settlement cannot be approved when contradictory material terms leave the parties' actual agreement uncertain.

Full text (OSHRC public release)

Billie gowans, dba Billy G's, Docket No. 06-0936

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 06-0936

BILLIE GOWANS, d/b/a BILLY G’S,

Respondent.

APPEARANCES:

Judson H.P. Dean, Attorney; Catherine Oliver Murphy, Regional Solicitor;
Howard M. Radzely, Solicitor; U.S. Department of Labor, Washington, DC

For the Complainant

Billie Gowans, pro se ; Philadelphia, PA

For the Respondent

Remand Order

Before: RAILTON, Chairman; ROGERS and THOMPSON, Commissioners.

BY THE COMMISSION:

In an order dated December 13, 2006, Administrative Law Judge G. Marvin
Bober issued a Consent Order Approving Settlement in the above-captioned case. Billie
Gowans, d/b/a Billy G’s (“Billy G’s”), appearing pro se ,

filed a letter with the
Commission on January 10, 2007, objecting to the payment required by the approved
settlement agreement.

Commissioner Horace A. Thompson III subsequently directed
this case for review on January 12, 2007. For the following reasons, we remand this
matter to the judge for further proceedings consistent with this opinion.

Background

The fatality of a Billy G’s employee triggered an inspection by OSHA of Billy
G’s worksite from March 11 through April 11, 2006. On May 5, 2006, the Secretary
issued to Billy G’s one serious and one willful citation, with a total penalty amount of
$27,100, for alleged violations of several general industry lockout/tagout standards. The
citations were timely contested by Billy G’s . On June 16, 2006, the Secretary filed a
Joint Motion For Extension Of Time To File A Complaint that indicated a need “for
additional time to explore an informal resolution,” which was granted on June 22, 2006.
Subsequently, the parties duly filed a complaint and answer, and the case was assigned to
Judge G. Marvin Bober on September 6, 2006.

By facsimile dated October 4, 2006, the Secretary advised the judge that she and
Billy G’s had reached a verbal settlement, and the judge received the fully executed
settlement agreement on December 4, 2006.

Discussion

As stated in the Commission’s Rules of Procedure, “[s]ettlement is permitted and
encouraged by the Commission at any stage of the proceedings.” Commission Rule
100(a), 29 C.F.R. § 2200.100(a). However, “[t]he Commission must be assured that a
proposed settlement represents a genuine agreement between the parties and a true
meeting of the minds on all provisions thereof.” 84 Components Co. , 20 BNA OSHC
2063, 2064 (No. 02-0363, 2003) (citing Aerlex Corp. , 12 BNA OSHC 1989, 1986-87
CCH OSHD ¶ 27,847 (No. 85-1257, 1986)).

Here, the parties’ settlement agreement approved by the judge contains the
following contradictory language:

Respondent will pay the reduced penalty of $16,200 in thirty-six (36)
monthly installments over a period of three years in accordance with the
following plan. The first payment of $450 shall be due on the first day of
the month following approval of this Settlement Agreement by the ALJ
(for example, if the Settlement Agreement is approved by the ALJ during
the month of December 2006, the first payment would be due on January
1, 2007). The remaining thirty-five (35) payments of $450 each shall be
paid on the first of every month thereafter for a total of 10 payments over
5 years . . . . In the event that Respondent fails to satisfy any of these 10
payment deadlines , Respondent shall be in default[.]

(Emphasis added.) This contradictory language reflects a failure on the part of the
parties, as well as the judge, to carefully review the approved settlement agreement. This
failure, at a minimum, precludes any finding of a “genuine agreement between the parties
and a true meeting of the minds on all provisions[,]” particularly where the record lacks
any explanation from, or correction by, the parties and/or the judge with regard to the
inconsistent language.

Accordingly, we set aside the judge’s order approving the settlement agreement
and remand this case to the judge. On remand, the judge should closely review the
agreement, including the contradictory language noted above, and seek further
information or clarification from the parties, if necessary, prior to final approval of the

agreement. If the parties do not agree within thirty days of the date of this order to
amend their agreement, the judge should set this matter for a hearing date.

SO ORDERED.

__/s/_______

W. Scott Railton

Chairman

__/s/________

Thomasina V. Rogers

Commissioner

__/s/________

Horace A. Thompson III

Dated: February 12, 2007                                             Commissioner

ELAINE L CIIAO, SECPETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR,

Complainant,

OSHRC DOCKET

NO. 06-0936

v.

BILLIE GOWANS, dba BILLY G̓S,

and its successors,

INSPECTION

NO. 308992338

Respondent.

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 is approved and the terms thereof are
incorporated into this Order;

2.           The Citation and Notification of Penalty is modified in accordance with
the Settlement Agreement; and

3.           The total penalty associated with the affirmed Citation amounts to

$16,200.

__/s/____

Judge, OSHRC

December 13, 2006