United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457 

SECRETARY OF LABOR,

Complainant, 

v. OSHRC Docket Nos. 15-1216 

 15-1217

CALDWELL COATINGS, LLC, (CONSOLIDATED)

Respondent. 

APPEARANCES: 

Josh Bernstein, Trial Attorney; Madeleine T. Le, Counsel for Occupational Safety and 

Health; James E. Culp, Regional Solicitor; M. Patricia Smith, Solicitor of Labor; U.S. 

Department of Labor, Washington, DC 

For the Complainant 

Carl Carruth; McNair Law Firm, P.A., Columbia, SC

 For the Respondent 

DIRECTION FOR REVIEW AND REMAND ORDER

Before: ATTWOOD, Chairman; and MACDOUGALL, Commissioner.

BY THE COMMISSION:

An order issued by Administrative Law Judge Patrick B. Augustine approving a settlement 

agreement between Caldwell Coatings, LLC and the Secretary became a final order of the 

Commission on October 28, 2016. 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 Caldwell Coatings two sets of 

citations: one set issued under OSHA inspection number 1056257 (Docket Number 15-1216), and 

the other issued under OSHA inspection number 1056287 (Docket Number 15-1217). These cases

were later consolidated. See 29 C.F.R § 2200.9 (consolidation). The settlement agreement, 

submitted by the parties to the judge for approval on August 26, 2016, withdrew the citations under 
2 

Docket Number 15-1216, but it failed to address the citations under Docket Number 15-1217. 

Because the agreement did not fully resolve one of the consolidated cases, the judge’s order 

approving the settlement agreement 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 September 28, 2016, 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 October 28, 2016. 

On December 5, 2016, the parties filed with the Commission a Joint Notice of Withdrawal 

of Citation and Complaint regarding Docket Number 15-1217. About a week later, the Secretary 

filed an unopposed Motion to Correct Settlement Agreement to include these withdrawn citations. 

Although the motion fails to cite any legal authority as the basis for correcting the settlement 

agreement, we find it appropriate to grant relief from the final order under Federal Rule of Civil 

Procedure 60(a), which permits the Commission “on its own” 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 Robert Lewis Rosen Assoc., Ltd. v. Webb, 473 F.3d 498, 505 & n.12 (2d 

Cir. 2007) (judgment corrected pursuant to Federal Rule of Civil Procedure 60(a) “[b]ecause the 

plain language of the rule indicate[d] that a judge may correct a judgment thereunder sua sponte,” 

allowing district court to award additional sums contemplated, but not specifically mentioned, in 

arbitrator’s award that court previously confirmed in full). Here, the mistake arose from the 

judge’s “oversight” in submitting his order for docketing even though the approved settlement 

agreement did not resolve all the citations at issue. See Sterling Techs., Inc., 25 BNA OSHC 1891, 

1892 (No. 15-1772, 2016) (setting aside final order under Federal Rule of Civil Procedure 60(a) 

because the judge’s order approving the informal settlement agreement did not fully resolve the 

case). 

 
3 

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 to correct the parties’ settlement 

agreement. 

SO ORDERED.

 

/s/ 

 Cynthia L. Attwood 

 Chairman

/s/ 

Heather L. MacDougall

Dated: January 12, 2017 Commissioner
United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

U.S. CUSTOM HOUSE

721 19TH STREET, ROOM 407

DENVER, COLORADO 80202-2517

Fax: (303) 844-3759

SECRETARY OF LABOR, 

 Complainant, 

 v. 

CALDWELL COATINGS, LLC,

 Respondent. 

 

 

 OSHRC Docket Nos.: 15-1216 

 15-1217 

(CONSOLIDATED)

ORDER APPROVING SETTLEMENT AGREEMENT

The Commission has jurisdiction over the subject matter of this case and over the Parties 

by virtue of the filing of a timely Notice of Contest.

The Settlement Agreement (“Agreement”) between the Parties has been considered. The 

Agreement has been served on all Parties and Authorized Employee Representatives and posted in 

the manner prescribed by Commission Rule 7(g).1 Ten days have passed since service and posting 

and no objection to the Agreement has been filed.

The Agreement is APPROVED under 5 U.S.C. §554(c)(1) and Commission Rule 100(c) as 

in compliance with those sections. The terms of the Agreement are incorporated, in their entirety, 

by reference in this ORDER. 

This ORDER shall become final thirty (30) days from the date of docketing by the 

Executive Secretary, unless review thereof is directed by a Commission Member within that time. 

29 U.S.C. §661(j). 

SO ORDERED.

 /s/ Patrick B. Augustine

Dated: September 23, 2016 Patrick B. Augustine

Judge, OSHRC 

____

1

Rules of Procedure of the Occupational Safety and Health Review Commission, 29 C.F.R §2200.1 -.212, as 

amended, 55 Fed. Reg. 22780-4 (June 4, 1990).