OSHRC ALJ decision
Docket 93-2164
Decided October 13, 1994
Procedural
Judge Irving Sommer
Zantec Development Co., Inc.
Signed settlement enforced, notice of contest dismissed
Apply this to your situation
This order from 1994 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Final order, not Commission precedent
This decision by an OSHRC
Administrative Law Judge became a final order of the Commission
because no Commissioner directed review (29 U.S.C. § 661(j)). It
binds the parties but is not binding precedent in other cases. The
full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)
Plain-English summary
Zantec Development received four OSHA citations in February 1993 with penalties totaling $4,500. At an informal conference, OSHA offered to cut the penalties to $2,200 if Zantec signed a settlement waiving its right to contest, and Zantec's owner signed it that day. Zantec then tried to file a notice of contest anyway, arguing it had signed under duress because it was given only a short time to decide and could not reach its attorney. Administrative Law Judge Irving Sommer held that settlement agreements are enforceable contracts and that no duress occurred: the owner was an experienced businessman who read the agreement and freely chose to settle, and being pressed to accept an offer or lose it is not unlawful coercion. The judge granted the Secretary's motion to dismiss the notice of contest, leaving the signed settlement final and binding.
Decision snapshot
- Cited standard(s): None identified in this order (settlement-enforcement ruling; the four underlying citation standards are not named in the decision)
- Outcome: Secretary's motion to dismiss the notice of contest granted; the signed settlement agreement held valid and binding, so the citations stand.
- Key point: A signed OSHA settlement that waives contest rights is an enforceable contract. Time pressure to accept an offer, without any threat of a wrongful or unlawful act, is not duress and does not let an employer rescind.
Full text (OSHRC public release)
UNI-T’EDSTAfES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION :9
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 2003643419
COM(202)606-6100
-ma--
SECRETARYOF LABOR
Conlplainan~
v. OSHRC DOCKET
NO. 93-2164
ZAM’EC DEVELOPMENTCO., INC.
Respondent.
NOTICE OF DOCKETING
OF ~hUNISTIb4TWE IAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on September 14,1994. ‘Ike decision of the Judge
will become a final order of the Commission on October l3,1994 unless a
Commission member directs review of the decision on or before. fhat date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSIONMUST FILE A PEITIXON FOR DISCRETIONARY REVIEW.
Any such petition should be received the Executive Secretary on or before
October3 1994 in order to emit suit cient time for its review. See
Commission Rule 91,29 C.&!R.2200.91.
. All &her pleadingsor communicationsregarding this case shall be
addressed to: .
Executive Secretary I
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washingtoq D.C. 20036-3419
Petitioningparties shall also mail a copy to:
Daniel J. Mi* Esq.
Counsel for Re lonal Trial fi ation
l
O&e of the So czl
citor, U.S. DO
“8,
Room S4004
200 ConstitutionAvenue,N.W.
Washington,D.C. 20210
If a Directionfor Reviewis issuedby the Commission,then the Consul for
Re@onalTrial Litigationwill representthe Department of Labor. Any party
hamg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
Date: September 14, 1994
DOCKET NO. 93-2164
NOTICE IS GWEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Re l onal Trial Liti ation
Office of the So%‘&or, U.S. DO5
Room S4004
200ConstitutionAve., N.W.
Washington,D.C. 20210
BenjaminT. Chinni
Associate Regional Solicitor
Office of the Solicitor,U.S. DOL
Federal Of&e Building,Room 881
1240East Ninth Street
Cleveland,OH 44199
Roger L Sabo, Esq.
Schottenstein, Zox & Dunn
Huntin on Center
41 Sou$ Hi Street
Columbus,8 H 43215
Irvin Sommer
ChicPAdministrativeLaw Jud e
OccupationalSafetyand Heal8l
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00102592672:05
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION. .
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 2003643419
l
0
SECRETARY OF LABOR, l
l
0
0
Complainan& .
0
.0
v. 0
. Docket No. 93-2614
l
ZAN’IEC DEVELOPMENT CO. INC., ;
l
0
Respondent. l
l
.
0
.
Appearances:
.
Heather Joys, Esq. Roger L. sabo, Esq.
U.S. Department of Labor Schottenstein, Zax & Dunn, Esqs.
Clevelanc$ Ohio Columbus, Ohio
For the complainant For the Respondent
Before: Administrative
Law JudgeIwing Sommer
DECISION AND ORDER
Zantec (“Respondent”) was issued four citations totalling $4500 - from the
OccupationalSafetyandHealthAdministration
(“OSHA”) on February 41993. Under the
OSHA Act, the 15 working dayswithinwhich a notice of contest opposing any or part of the
citations must be filed ended on March 5,1993. At an informal conference conducted on
March 3, 1993, OSHA offered to reduce the penalties to $2200 upon the signingof a
settlement agreement. By the terms of the agreement the Respondent waived its right to
contest the_citations,and that all rights to review by either a court or agency would be
terminated This offer was made at the settlementnegotiationsconducted on March3,1993,
with the Respondent being informed said offer was valid ox@ -untilthe end of business on
2 ..
said day. The Respondent avers that he attempted to conduct his attorney for advice and
being unsuccessful signed the agreement.
On March $1993, the Respondent filed a notice of contest with OSHA who did not
forward it to the Commission as required since they considered the settlement final and
binding. Thereafter, the Respondent filed the notice of contest with the commission, where
it was docketed on August 6,1993. On October 28,1993, the Secretary of Labor moved to
dismiss the notice of contestalleging the citations had become final based on the signed
settlement agreement, and that the Commissionno longer had jurisdictionover the matter.
The issue presented is whether the settlement agreement signed by both parties
herein is fmal and binding, and thus bars the Respondent from contestingthe citations. The
Respondent claims the agreement was signed under duress, and is not enforceable. The
Secretary counters that there was no duress herein and the settlement is binding on both
parties.
Settlement agreements are contracts. As such, they are binding and enforceable
under f&miliarprinciples of contract law, and are not subject to unilateral recision, secretmy
of Labor v. P#!ilZ@s,66 Co., 16 BNA OSHC 1332, 1336 (No. 90-1459, 1993). Courts have
long favored voluntary resolution of litigation in order to conserve judicial resources.
See Lauij; v. S.S. Batme, 534 F2d 1115,1122, (5th Cir. 1979); Further, to allow employers
to unilaterally withdrxw from previously agreed-upon settlements would deprive the
Secretary of the finalityof settlement agreements necessary for the efficientenforcement of
the Occupational Safety and Health Act of 1970. See PennsylvaniaSteel Fount&y& Machhe
Company v. Secretary of Labor,13 BNA OSHC 1417, (3rd Cir. 1987) and Se- of Labor
v. Aerk Cop, 13 BNA OSHC 1197 (No. 85X57,1987). Also, the Commissionencourages
settlements of disputes between the parties. Commission Rule 100(a), 29 CFR Sec. 2200.
100(a).
There are some exceptions to the finality of settlement agreements. Settlements
entered into under duress, harassment,or overbearing conduct can be invalidated. Lewis,
supra at 1122=
3 .- .
The Respondent alleges that he signed the settlementagreement under duress, having
been given a short period to either sign or else loose out, and that his inabilityto contact
his attorney for advice was duress. The evidence shows that the Respondent was allowed
approximately two hours decide whether or not to sign the settlement agreement which he
had discussed with the OSHA personnel. Not having made contact with his attorney he
under his own free will made the decision to close his case by settlement. Duress is not
implicated as herein where one party states he will avail himselfof his legal rights if an offer
is not accepted Only the threat of wrongful or unlau&l acts constitutes duress. Beatty v.
U.S., 168 F1 Supp 204,267, (Ct. CL 1958). The Respondent alleges that his inabilityto
contact his attorney before signing the settlement agreement enables him to rescind.
However “courts have consistentlyheld that parties have a right to settle or compromise
their litigation without the knowledge or consent of their counseLn
Lewis, supra.
The Respondent appeared and testified at the hearing. He gave the distinct
impression of an above normal intelligence, and engaged in operating his own business for
many years; he admitted to signing and reading contracts in the course of his business and
herein did peruse and read the settlementagreement, His actions in signingthe agreement
when considered against his business background, his experience in business dealings
including contractual matters, his obvious intelligence, his decision freely made to settle this
matter shows no improprietytherein, and I so find.
The Respondent’s allegationsthat the settlement agreement is invalid because the
OSHA area director did not forward the notice of contest as required, and also violated its
field manual by not allowingadditionaltime to contact an attorney are without merit. Since
the agreement was valid and binding as indicated above and the waiver agreed to binding
OSHA had no reason to forward the notice of contest to the Commissionsince the matter
was settled and closed. The Respondent’s allegations concerning the failure of OSHA to
followits Field OperationsManual is rejected. These actions are merely discretionarywith
the area director. As the Commissionstated in H.B. Zdkuy, 7 BNA OSHC 2202,2205, L
the Field Operations Manual is an internal manual containing only guidelines for the
exercise of the Secretary’s enforcement responsibilities. We stated that the manual does not
have the force and effect of law, nor does it accord important procedural and .subs-the
.
rights to individuals.” Finally,failure of the area director to forward the notice of contest
to the Commission did not prejudice the Respondent’s case since the waiver siened was valid
w
and effectiye.
The preponderance of the evidence demonstrates there was a valid binding
agreement entered into between the parties, and as such, the Respondent waived his right
to contest the citations herein. Accordingly, the motion by the Secretary to dismiss the
notice of contest is granted. All other proposed findings,conclusions, or motionsinconsistent
with this order are hereby denied.
l?INDINGS
1. The Respondent was issued four (4) citations on February 8, 1993 with penalties
totaling $4500.
20 On March 3,1993 the Respondent and OSHA entered into a settlementagreement
which was duly signed by both parties.
30 The settlement agreement was entered into by both parties openly and without any
duress -or coercion, or any other action which would invalidate the agreement.
4. By the terms of the agreement the Respondent waked his right to contest the
citations.
5. The settlement agreement is final and binding on all parties.
CONCLUSION
Motion by the Secretary to dismiss the Respondent’s notice of contest is granted.
ORDER
The settlement agreement is AFFIRMED as valid and binding in all respects.
IRVINg$iOMMER
Judge
Get today's answer for your situation
You just read what one judge decided for one employer in 1994, and it binds only those parties. Ezel checks the current OSHA standards and Commission precedent and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.