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 No. 16-1442 

TOUSLEY PROPERTY

MANAGEMENT LLC, 

Respondent.

 

 

ORDER

The parties have filed an executed settlement agreement that resolves the issues pending 

before the Commission. 

Among its provisions, the settlement agreement amends the originally issued single 

alleged violation of the construction industry fall protection standard set forth at 29 C.F.R. 

§ 1926.501(b)(13) from a willful violation with a proposed penalty of $14,000, to a serious 

violation with an agreed penalty of $11,200. 

The settlement agreement recites that the violative condition alleged in the original single 

citation item had been abated during the inspection that had been conducted on June 27, 2016. 

However, the settlement agreement also contains other provisions under which the Respondent 

agrees to take additional certain measures that are in the nature of abatement (e.g., agreeing “to 

implement a pre-job checklist to ensure ... that appropriate fall protection is utilized on all 

jobsites where it requires employees to work”). The parties agreed that the original citation was 

“now deemed amended to include any abatement measures, as well as the agreements as to 

actions to be taken by Respondent which are described” in the settlement agreement. 
2 

The settlement agreement also provides that the Respondent agrees to withdraw its notice 

of contest. 

As part of the filing of the settlement agreement, the Respondent certified pursuant to 

Commission Rule 100(c), 29 C.F.R. § 2200.100(c), that on May 26, 2017 the settlement 

agreement had been posted in the manner required by 29 C.F.R. § 2200.7(g) and § 1903.16. 

On June 6, 2017, the Commission received a letter dated May 31, 2017, bearing the 

signature of Ms. Tiffany Rogers, who identified herself to be the Office Manager of the 

Respondent. Ms. Rogers stated that she was writing “to express my strong objection to the 

Settlement Agreement,” on the grounds that the magnitude of the agreed penalty will negatively 

affect the Respondent, the Respondent’s employees, and the Respondent’s “tenants.” 

As described below, Ms. Rogers’ stated objections are beyond the scope of the 

Commission’s authority to consider in determining whether to approve a settlement agreement 

entered into between the Secretary and a cited employer.

It is firmly established that with respect to a settlement agreement made between the 

Secretary and a cited employer and tendered to the Commission for approval, the only aspect of 

the agreement to which affected employees (or an authorized employee representative of affected 

employees) have the right to object is the reasonableness of the period of time for the employer 

to abate the violative condition. United Steelworkers of Am., Local No. 185 v. Herman, 216 F.3d 

1095, 1098 (D.C. Cir. 2000) (noting that “[e]very circuit that has examined the issue has held 

that when a case settles, and the employer withdraws its contest to the citation, employees may 

only challenge–and the Commission may only consider–the reasonableness of the abatement 

time”); 29 U.S.C. § 659(c); Commission Rule 100(c), 29 C.F.R. § 2200.100(c). 
Ms. Rogers’ letter does not set forth any objection to the reasonableness of the period of 

time for the Respondent to complete the abatement-type measures set forth in the settlement 

agreement. Her letter thus does not provide a legally cognizable basis either for conducting a 

hearing on her objection pursuant to Commission Rule 100(c), or for disapproving the tendered 

settlement agreement. 

Accordingly, the settlement agreement is hereby approved in its entirety and is 

incorporated herein by reference as a part of this order. 

SO ORDERED.

 

 /s/ 

WILLIAM S. COLEMAN

Administrative Law Judge 

DATED: June 28, 2017