Mesquite Construction, Inc.

Plain-English summary

Mesquite Construction's two cases had been consolidated, but the parties' settlement agreement covered only docket 92-0203. A clerical error caused the judge's final order and the Commission's docketing notice to include docket 92-0317 as well. The Commission severed docket 92-0317, struck it from the settlement order, and remanded it to the judge for continued proceedings. The settlement in docket 92-0203 became final, although its terms are not reproduced in the official text.

Decision snapshot

• Cited standard(s): None identified in the order.
• Outcome: Mixed. Docket 92-0203 settled and became final, while docket 92-0317 was severed and remanded.
• Key point: A settlement order cannot dispose of a consolidated case that the parties did not include in their agreement.

Full text (OSHRC public release)

Docket No. 92-0203 92-0317

SECRETARY OF LABOR

Complainant,

v.

MESQUITE CONSTRUCTION, INC.,

Respondent.

Docket Nos. 92-0203 & 92-0317

DIRECTION FOR REVIEW AND REMAND ORDER

On April 1, 1992, the Chief Administrative Law Judge
consolidated the above referenced cases. On June 9, 1992, the parties filed a Settlement
Agreement captioned with Docket No. 92-0203. The parties did not file a motion to sever
Docket No. 92-0203 from Docket No. 92-0317 under Commission Rule 11, 29 C.F.R. � 2200.11.

The administrative law judge approved the Settlement
Agreement and entered a "Final Order" captioned with both docket numbers as
consolidated cases. Thereafter, the Executive Secretary issued a Notice of Docketing
stating that the Report of the administrative law judge, also captioned with both docket
numbers, would become a Final Order of the Commission on August 10, 1992, unless directed
for review. By letter filed July 14, 1992, the Secretary has informed the Commission that
Docket No. 92-0317 is still under litigation.

The Commission has reviewed the records of both cases
and finds that the parties did not intend Docket No. 92-0317 to be included in the terms
of their settlement agreement. The Commission also finds that due to clerical error Docket
Number 92-0317 was included in the captions of the "Final Order" issued by the
administrative law judge and the Not of Docketing issued by the Executive Secretary.

Accordingly, the Commission directs these cases for
review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29
U.S.C. � 661(j). The Commission severs Docket Number 92-0317 from Docket Number 92-0203,
and strikes Docket Number 92-0317 from the administrative law judge's "Final
Order" and the Executive Secretary's Notice of Docketing. Docket Number 92-0317 is
remanded to the administrative law judge for further proceedings. Docket No. 91-0203 will
become a final order of the Commission on August 10, 1992, as stated in the Executive
Secretary's Notice of Docketing.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated August 10, 1992

July 14, 1992

Ray H. Darling, Jr.

Executive Secretary
                                                                                                                              OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

RE: Secretary of labor v. Mesquite Construction,
Inc. Region IX Docket No. 92-0203 and 92-0317

Dear, Mr. Darling:

Please be advised that a clerical error has been made
in the Final Order issued July 2, 1992 regarding the above-referenced cases.  A
Settlement Agreement, a copy of which is attached hereto, was indeed executed by the
parties and filed, but only regarding Docket No. 32-0203.  The case represented by
Docket No.   92-0317 was not a part of that Settlement Agreement, and is still being
actively litigated.

If you have any questions regarding this matter,
please do not hesitate to telephone the undersigned.  Otherwise, kindly amend the
Final Order to refer to Docket No. 92-0203 only.  Thank you for your assistance and
corporation in the matter. 

Very Truly yours,

Daniel W. Teehan

Regional Solicitor

By: Jan M Coplick

Attorney

Enclosure: a/s

cc: Anthony Giammarco Esq.

SECRETARY OF LABOR,

Complainant,

v.   

MESQUITE CONSTRUCTION, INC.,

Respondent.

OSHRC Docket Nos. 92-0203 and 92-0317
(CONSOLIDATED)

FINAL ORDER

The parties have filed a Settlement Agreement in this
matter. The content of that agreement is incorporated by reference in this order.

The Settlement Agreement is hereby approved and shall
be deemed a final order of the Commission.

It is SO ORDERED.

R. Loye

Judge, OSHRC

Dated: July 2, 1992