GMJ Contracting Corp. d/b/a GMJ Masonry

Plain-English summary

An administrative law judge approved and docketed a settlement agreement in GMJ Masonry’s case. The agreement actually concerned a different GMJ citation in another docket and did not resolve the one-item serious citation at issue here. The approval order nevertheless became final because the error was not caught during the review period. The Commission treated the mistake as a correctable clerical oversight, set aside the final order, and remanded the case so the judge could consider the Secretary’s unopposed request to file the correct agreement.

Decision snapshot

• Cited standard(s): The order does not identify the substantive standard in the unresolved citation.
• Outcome: Erroneous final settlement order set aside; case remanded to consider the correct agreement.
• Key point: A final approval order may be corrected when the record shows that a settlement from another docket was filed and approved by mistake.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20 th
Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No.
17-0364

GMJ CON T RACTING CORP. D/B/A GMJ MASONRY ,

Respondent.

APPEARANCES :

Diane C. Sherman , Cou nsel for Occupational Safety and Health;
Jeffrey S. Rogoff , Regional Solicitor ;
Nicholas C.
Geale ,
Acting
Solicitor of Labor;
Donyell
M. Thompson, Senior Trial Attorney;
U.S. Department of Labor , Office of the Solicitor, New York, NY

For the Complainant

Heather Cummings ; Joseph W.
Rufolo , Sr. ;
JW
Rufo lo
& Associates ,
Edison ,
NJ

For the Respondent

D IRECTION FOR REVIEW AND REMAND ORDER

Before: M ac DOUGALL , Chairman;
ATTWOOD
and SULLIVAN, Commissioner s .

BY THE COMMISSION:

An order issued by
Administrative Law Judge
William S. Coleman
approving a settlement agreement between
GMJ
Contracting Corp. d/b/a GMJ Masonry
and the Secretary became a final order of the Commission on
August 7, 2017.

For the reasons that follow, we set aside the final order under Federal Rule of Civil Procedure 60(a), direct review of the case, and remand it to the judge for further proceedings.

The Occupational Safety and Health Administration issued GMJ
a
one-item
serious
citation
with a proposed
penalty of $8,149.

On June 23, 2017, the Secretary submitted
for approval
a
settlement
agreement
that
addresses
a different citation
issued to GMJ, which
is the
subject of a
separate
case (Docket No. 17-0217). Because the
settlement
agreement did not resolve the
citation
at issue here, the judge’s
order approving it
did not constitute a “final disposition of the proceedings” under Commission Rule 90(a), 29 C.F.R.
§ 2200.90(a). Nonetheless, the order was submitted for docketing and subsequently docketed on
July 6, 2017, thereby commencing the thirty-day period before “[t]he report of the administrative law judge
. . .
become[s] the final order of the Commission.”

29 U.S.C. § 661(j);
see also
29 C.F.R.
§ 2200.90(b)(2)
(docketing of judge’s report by Executive Secretary).

Because no Commissioner directed the case for review, the order became final on
August 7, 2017.

On
September 28, 2017,
the
Secretary
filed
with the Commission
an Unopposed Motion for
Relief Under Rule 60(b).

The Secretary
explained
that
he
had
inadvertently
filed the wrong settlement agreement and
requested
that the Commission reopen the matter to allow the parties an opportunity to file the correct agreement. The Secretary cited
Federal Rule of
Civil Procedure
60(b)(1), which allows the Commission to set aside a final order due to “mistake, inadvertence, surprise, or excusable neglect,” and
Federal Rule of
Civil Procedure
60(b)(6), which
allows
the Commission to
do
so for “any other reason that justifies relief.”

Federal Rule of Civil Procedure 60(a) 1
permits the Commission
to “correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record.”
See, e.g. ,
True Value Co. , 26 BNA OSHC 1659 (No. 16-0597, 2017) (setting aside final order approving settlement agreement that failed to resolve all citation items under Rule 60(a));
Robert Lewis Rosen Assoc., Ltd. v. Webb , 473 F.3d 498, 504
(2d Cir. 2007) (error in judgment resulting merely from oversight and not due to substantive mistake could
be
corrected under Rule 60(a));
Hegger
v. Green , 91 F.R.D. 595, 597 (S.D.N.Y. 1981) (A “clerical mistake” under Rule 60(a) is “a type of mistake or omission mechanical in nature which is apparent on the record and which does not involve a legal decision or judgment by an attorney.”)
(internal citation omitted). Here,
the mistake arose when, following the Secretary’s submission of the wrong
settlement agreement, the judge
submitted
his approval order for docketing even though the settlement
agreement did not resolve the citation at issue. 2

We thus set aside the final order under Federal Rule of Civil Procedure 60(a) and remand
the case
to
the judge to consider the
Secretary’s
unopposed motion
for relief.

SO
ORDERED.

/s/               

Heather L. MacDougall

Chairman

/s/               

Cynthia L. Attwood

Commissioner

/s/               

James J. Sullivan, Jr.

Commissioner

Dated:    November 6, 2017

EDWARD C. HUGLER, Acting Secretary of Labor,

United States Department of Labor,

Complainant,

v

Docket or Inspection No. 1159396

GMJ Contracting, Corp.,

Respondent

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION

ORDER APPROVING SETTLEMENT

Respondent in Inspection No. 1159396, by letter dated
1/10/2017 contested citation issued to it

by Complainant on 11/8/2016. In that letter, Respondent
also contested the $18,707.00 penalty

proposed by Complainant for the citation. 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 Agreement arc 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. Section 661(j),

will become the
final order of the Commission at the expiration of
thirty (30)

days from the date of the docketing
by the Executive Secretary, unless within

that time a member of the Commission directs that it be reviewed.

Dated this
_5___
day of
July, 2017 .

SO
ORDERED:

/s/

William Coleman

Judge, Occupational Safety

And Health Review Commission

"

1
Because we find relief appropriate
under
Federal Rule of Civil Procedure
60 (a), we
need
not
address
whether relief may also be appropriate under
Federal Rule of Civil Procedure
60(b).

2
T his is
not the first time
the Commission has been compelled to address a final order involving a mistake regarding a settlement agreement.
See
True Value Co. , 26 BNA OSHC 1659 (No.
16 0597, 2017)
( setting aside final order approving settlement agreement that did not fully resolve
case ) ;
Caldwell Coating s , LLC , 26 BNA OSHC 1268 (No. 15-1216, 2017) (consolidated) ( same);
Sterling Techs., Inc. , 25 BNA OSHC 1891 (No. 15-1772, 2016) (same).

Again, we remind the p arties and their counsel that they should carefully review all documents
before filing .