United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1924 Building – Room 2R90, 100 Alabama Street SW 

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant,

 v. OSHRC Docket No. 16-1274

T.E. Stevens Company, Inc., 

 Respondent.

ORDER DENYING MOTION TO DISMISS NOTICE OF CONTEST

 T. E. Stevens Company, Inc., (TES) is an excavation contractor. TES filed a timely 

notice of contest on August 2, 2016, contesting a Citation and Notice of Penalty issued to it by 

OSHA on July 6, 2016. On August 15, 2016, the Secretary filed a Motion to Dismiss Notice of 

Contest. The Secretary contends TES waived its right to contest the Citation because its 

representative signed an Informal Settlement Agreement (ISA) during an informal conference 

with an OSHA representative on July 15, 2016. The Secretary submitted the Declaration of 

Hector Julian-Camacho, an Assistant Area Director (AAD) for the Birmingham, Alabama, area 

office of the Occupational Safety and Health Administration (OSHA), in support of its Motion. 

In its Response in Opposition to Motion to Dismiss Notice of Contest, TES argues there was no 

enforceable ISA because its representative lacked authority to enter into an agreement on its 

behalf. In support of its Response, TES submitted the Declaration of James S. Robinson, the 

Safety Manager and Human Resources Manager for TES; Declaration of James “Jake” Lyle, 

Utility Superintendent for TES; and Declaration of Tom Stevens, President of TES. 

 After reviewing the Secretary’s Motion to Dismiss Notice of Contest, TES’s Response in 

Opposition to Motion to Dismiss Notice of Contest, and the declarations submitted by the parties, 

the Court finds the representative for TES did not have authority to enter into the ISA on behalf 

of TES and, therefore, the ISA is not enforceable. Accordingly, the Court DENIES the 

Secretary’s Motion to Dismiss Notice of Contest and directs the Secretary to file a complaint 

within 20 days of the issuance of this Order. 
2 

BACKGROUND 

Inspection and Citation

 On July 6, 2016, OSHA issued a one-item Citation to TES alleging a serious violation of 

29 C.F.R. § 1926.652(a)(1) for failing to provide cave-in protection for an employee who was 

working in an excavation measuring 7 feet, 4 inches, deep. The Citation resulted from an 

inspection conducted by a compliance safety and health officer (CSHO) at a TES worksite in 

Vestavia, Alabama, on April 28, 2016. The Secretary proposed a penalty of $5,390.00 for the 

item. 

 The Citation includes a paragraph addressing an informal conference. It states: 

Informal Conference – An informal conference is not required. However, if you 

wish to have such a conference you may request one with the Area Director 

during the 15 working day contest period. During such an informal conference 

you may present any evidence or views which you believe would support an 

adjustment to the citation(s) and/or penalty(ies). 

If you are considering a request for an informal conference to discuss any issues 

related to this Citation and Notification of Penalty, you must take care to schedule 

it early enough to allow time to contest after the informal conference, should you 

decide to do so. Please keep in mind that a written letter of intent to contest must 

be submitted to the Area Director within 15 working days of your receipt of this 

Citation. The running of this contest period is not interrupted by an informal 

conference. 

If you decide to request an informal conference, please complete, remove and post 

the Notice to Employees next to this Citation and Notification of Penalty as soon 

as the time, date, and place of the informal conference have been determined. Be 

sure to bring to the conference any and all supporting documentation of existing 

conditions as well as any abatement steps taken thus far. If conditions warrant, 

we can enter into an informal settlement agreement which amicably resolves this 

matter without litigation or contest. 

(Citation, pp. 1-2) 

 Upon receipt of the Citation, company president Stevens “told James [Robinson] to call 

OSHA to go on a fact finding mission and report to” him. Declaration of Tom Stevens, ¶ 6. 

James Robinson is TES’s Safety Manager and Human Resources Manager. Stevens promoted 

him to that position sixteen months ago from his position as a laborer. Declaration of James S. 

Robinson, ¶¶1-2. Stevens states Robinson “earned the job because he works hard and I thought 

this position would be something he could learn to do with the support of my staff.” Declaration 
3 

of Tom Stevens, ¶ 5. Stevens also states, “Robinson was aware of the location surrounding the 

citation and the penalty and was the appropriate employee to attend the informal conference to 

gather more information.” Declaration of Tom Stevens, ¶ 7. 

The Informal Conference 

 According to AAD Julian-Camacho, Robinson called him on July 14, 2016, to schedule 

“an informal conference to discuss the citation and penalty . . . pursuant to 29 C.F.R. § 1903.20.” 

Declaration of Hector Julian-Camacho, ¶ 3. Section 1903.20 provides: 

At the request of an affected employer, employee, or representative of employees, 

the Assistant Regional Director may hold an informal conference for the purpose 

of discussing any issues raised by an inspection, citation, notice of proposed 

penalty, or notice of intention to contest. The settlement of any issue at such 

conference shall be subject to the rules of procedure prescribed by the Review 

Commission. If the conference is requested by the employer, an affected 

employee or his representative shall be afforded an opportunity to participate, at 

the discretion of the Assistant Regional Director. If the conference is requested by 

an employee or representative of employees, the employer shall be afforded an 

opportunity to participate, at the discretion of the Assistant Regional Director. 

Any party may be represented by counsel at such conference. No such conference 

or request for such conference shall operate as a stay of any 15-working-day 

period for filing a notice of intention to contest as prescribed in §1903.17.

 AAD Julian-Camacho met with Robinson and TES’s General Superintendent Ronald 

Connally on July 15, 2016, at OSHA’s Birmingham area office. AAD Julian-Camacho stated 

the TES representatives “gave me their T.E. Stevens Construction [sic] business cards and 

represented that they were there to negotiate on behalf of the company.” Declaration of Hector 

Julian-Camacho, ¶ 4. The AAD does not address any topics discussed at the conference other 

than the ISA signed by him and Robinson: 

5. During the informal conference, an Informal Settlement Agreement (ISA) was 

reached in which the penalty for the citation was reduced to $2,695. The terms of 

the agreement allow the company to pay the penalty in twelve monthly 

installments with the total due on or before July 15, 2017. 

6. The ISA provides in paragraph 5 that by signing the ISA, the Employer waives 

its right to contest the citation and penalty. 

7. At the conclusion of the informal conference on July 15, 2016, James S. 

Robinson signed the ISA on behalf of T. E. Stevens Company, Inc. I signed on 

behalf of OSHA. A true and exact copy of the ISA is attached as Exhibit C. 
4 

Declaration of Hector Julian-Camacho. 

 Robinson provides more detail regarding the informal conference with AAD JulianCamacho: 

9. Our meeting with Hector [Julian-Camacho] was very strange. Hector said that 

OSHA had been getting numerous and obscene threats from one of our employees 

and that we and OSHA had a big problem. 

10. Hector said OSHA had gotten The Department of Homeland Security 

involved and the police to look into this problem. 

11. When Hector showed Ronald and me his file on our “problem employee” it 

quickly became obvious to me this guy had no connection to our company. 

12. I told Hector that the “problem employee” did not work for us. Hector asked 

Ronald and me to help get rid of the guy who was causing so much of a stir at 

OSHA by his threatening voicemails and obscene language. 

13. We spent most of the meeting talking about the “problem employee” and 

spent very little time talking about the citation that I had been sent to find out 

about.

14. When we finally discussed the citation, Hector told me he had [a] really good 

deal for us. 

15. I signed the agreement without any authority from Tom after Hector told me 

OSHA was cutting it in half. 

16. I signed the agreement without any authority from Tom thinking I was 

getting a good deal for the company even though I was told only to go on a fact 

finding mission. 

17. I regret acting without authorization. 

Declaration of James S. Robinson. 

Events Immediately Following Informal Conference 

 After leaving the informal conference, Robinson went to the worksite and met with the 

general contractor on the project to discuss the “problem employee,” who worked for the 

electrical subcontractor. According to Robinson, the employee “was terminated right then.” 

Declaration of James S. Robinson, ¶ 18. Robinson then called Tom Stevens to inform him of the 

ISA. He states, “Tom told me that was not what I was sent there to do. He told me to call 

Hector back and tell him that I was not supposed to settle anything without his permission. . . . 

Tom said a ‘serious’ violation could cripple our company because many of the larger General 
5 

Contractors have a written policy that prohibits them from taking bids from subcontractors who 

have had a serious violation. . . . I was unaware of the implication of a ‘serious’ OSHA 

violation.” Declaration of James S. Robinson, ¶¶ 20-22. 

 Stevens agrees with Robinson’s account. “James [Robinson] called me from his truck an 

hour or so after settling the matter with OSHA. He stated he got the fine cut in half. . . . I believe 

James thought he was helping the company by getting the fine reduced, but this is not what he 

was sent to do or authorized to do.” Declaration of Tom Stevens, ¶¶ 11-12. AAD JulianCamacho, Stevens, and Robinson agree Robinson called the AAD on July 15, 2016, the day of 

the informal conference, and informed him he did not have the authority to sign the ISA on 

behalf of TES. Declarations of Julian-Camacho, Stevens, and Robinson, ¶¶ 8, 13, and 24, 

respectively. On July 18, 2016, AAD Julian-Camacho called Robinson and told him “the terms 

of the settlement could not be altered.” Declaration of Hector Julian-Camacho, ¶ 9. 

July 22, 2016, Meeting Between AAD Julian-Camacho and Stevens 

 Stevens called the AAD on July 20, 2016, and reiterated Robinson did not have authority 

to sign the ISA. Declarations of Julian-Camacho and Stevens, ¶¶ 10 and 14, respectively. They 

arranged to meet on July 22, 2016, to discuss the issue. At that meeting, also attended by Utility 

Superintendent Jake Lyle, Stevens repeated that Robinson was not empowered with settlement 

authority at the informal conference and TES wanted “to revoke or renegotiate the agreement.” 

Declaration of Tom Stevens, ¶ 16. According to AAD Julian-Camacho, “Stevens admitted that 

Mr. Robinson is a Safety Manager and Human Resources Manager for T. E. Stevens Company, 

Inc. Mr. Stevens further stated that Mr. Robinson made a mistake by agreeing to the terms of the 

ISA, but admitted that it was his own fault for allowing Mr. Robinson to attend the informal 

conference on the company’s behalf. Mr. Stevens explained that he had been too busy to attend 

himself, with ‘too many things on [his] plate.’” Declaration of Hector Julian-Camacho, ¶ 11. 

Notice of Contest

 Stevens states: 

17. At the beginning of the meeting, Hector [Julian-Camacho] pointed out that 

we could not file a Notice of Contest as long as the agreement was in place. 

18. During the meeting, Hector called his supervisor and discussed what I wanted 

to do. 
6 

* * *

20. When Hector hung up the phone with his supervisor, he told me and Jake 

[Lyle] ‘she will not reduce the classification but you have until August 3, 2016, to 

file your Notice of Contest.” 

21. I took this as great news because I understood this to mean that the agreement 

was rescinded because the agreement clearly states that by signing the agreement 

the Employer waives the right to file a Notice of Contest. I left the meeting with 

Hector, 100% sure that the agreement had been revoked and that we were free to 

file a Notice of Contest. 

Declaration of Tom Stevens. Jake Lyle essentially repeats the representations of Stevens 

regarding the topic of filing the notice of contest at the July 22, 2016 meeting. Declaration of 

James “Jake” Lyle.

 AAD Julian-Camacho states, “On August 2, 2016, Mr. Stevens sent a letter, by regular 

mail, certified mail, and hand delivery, notifying Area Director Ramona Morris of the company’s 

intention to contest the citation and penalty. . . . [T]he notice of contest was filed within the time 

period set forth in 29 C.F.R. § 2200.33.” Declaration of Hector Julian-Camacho, ¶ 13. 

DISCUSSION 

 Paragraph 5 of the ISA provides: “The Employer, by signing this informal settlement 

agreement, hereby waives its right to contest the above citation(s) and penalties, as amended in 

paragraph 4 of this agreement.” Motion to Dismiss, Exhibit C. Based on the “’four corners’ of 

the unambiguous document, the Secretary contends the ISA is enforceable and TES waived its 

right to contest the Citation. 

 Generally speaking, the Commission is reluctant to permit a party to withdraw from an 

executed settlement agreement. See Zantec Dev. Co. Inc., 16 BNA OSHC 2102 (No. 93-2164, 

1994) (“[T]o allow employers to unilaterally withdraw from previously agreed-upon settlements 

would deprive the Secretary of the finality of settlement agreements necessary for the efficient 

enforcement of the Occupational Safety and Health Act of 1970.”), citing Pennsylvania Steel 

Foundry & Machine Company, 13 BNA OSHC 1417 (3rd Cir. 1987), and Aerlex Corp., 13 BNA 

OSHC 1197 (No. 85-1257, 1987). 

 TES counters its representative, James Robinson, lacked authority to enter into the ISA 

on behalf of TES. Stevens delegated Robinson to set up and attend the informal conference as 

“fact finding mission,” and did not intend for him to enter into an ISA. 
7 

Actual Authority 

 The Secretary argues Robinson had the required authority, as evidenced by Stevens’s 

purported statements at the July 22, 2016, meeting with the AAD. 

Mr. Stevens admitted that Mr. Robinson is a Safety Manager and Human 

Resources Manager for the Employer. Mr. Stevens took responsibility for 

allowing Mr. Robinson to attend the conference instead of attending himself. His 

statements indicate both that he knew Mr. Robinson was attending the informal 

conference and that he intended for Mr. Robinson to act on the company’s behalf. 

The purpose of informal settlement conferences is to discuss and settle citations 

and penalties. 

Motion to Dismiss, p. 3. 

 The Court disagrees with the inference drawn by the Secretary from Stevens’s remarks. 

Stating he “took responsibility for allowing Mr. Robinson to attend the conference instead of 

attending himself” does not indicate Stevens gave Robinson settlement authority at the informal 

conference. It indicates a hindsight conclusion his subordinate did not handle an important issue 

in the manner Stevens wished. In fact, his subordinate, who Stevens sent to gather information, 

agreed to the precise outcome Stevens wished to avoid—the acceptance of the Citation for a 

serious violation of § 1926.652(a)(1). Stevens believes this acceptance could “cripple” TES due 

to the policy enforced by larger contractors prohibiting them from hiring subcontractors have 

committed serious OSHA violations. Stevens’s disagreement with the classification of the 

alleged violation was manifested immediately when he instructed Robinson to call the AAD and 

rescind the ISA. Stevens followed up by arranging a meeting with the AAD and attending it 

himself. 

 The Court also disagrees with the Secretary’s characterization of the informal conference. 

The Secretary states, “The purpose of informal settlement conferences is to discuss and settle 

citations and penalties.” Motion to Dismiss, p. 3. The Citation itself, as well as § 1903.20, 

refers to an informal conference, not, as the Secretary styles it, “informal settlement 

conferences.” Although a settlement discussion may be part of an informal conference, it is not 

its sole purpose. Section 1903.20 clearly contemplates the parties may discuss topics other than 

settlement: “[T]he Assistant Regional Director may hold an informal conference for the purpose 

of discussing any issues raised by an inspection, citation, notice of proposed penalty, or notice of 

intention to contest.” (emphasis added.) 
8 

The Citation also informs the employer it may request an informal conference for reasons 

other than settlement negotiations: “Be sure to bring to the conference any and all supporting 

documentation of existing conditions as well as any abatement steps taken thus far. If conditions 

warrant, we can enter into an informal settlement agreement which amicably resolves this matter 

without litigation or contest.” (emphasis added.) Settlement is just one of the possible topics that 

could be addressed at an informal conference “[i]f conditions warrant.”

 The Secretary contends that by sending “two high-ranking members of company 

management, the Employer manifested its consent to allow those individuals to act on its 

behalf.” Motion to Dismiss, p. 4. Neither the Citation nor § 1903.20 requires the presence of an 

employer representative with settlement authority. The mere fact Tom Stevens left attendance of 

the informal conference to Robinson, the employee who “was aware of the location surrounding 

the citation and the penalty,” does not manifest consent to an agreement made by that 

representative. 

 There is no evidence in the record before the Court that TES delegated settlement 

authority to Robinson. Actual authority is not established.

Apparent Authority 

The Secretary argues, “Even if Mr. Robinson did not have actual authority, he had 

apparent authority. Apparent authority does not require an explicit delegation of authority.” 

Mission to Dismiss, p. 3. The doctrine of apparent authority is “based on the actions of the 

principal, not those of the agent. Apparent authority is based on the principal holding the agent 

out to the third party as having the authority upon which he acts, not upon what one thinks an 

agent's authority might be, or what the agent holds out his authority to be.” Gen. Am. Life Ins. 

Co. v. AmSouth Bank, 100 F.3d 893, 898 (11th Cir. 1996).

 Here, TES (the principal) did not hold Robinson (the agent) out to OSHA (the third party) 

as having authority upon which OSHA acted. The only communication between TES and 

OSHA after the Citation was issued and prior to the informal conference was initiated by 

Robinson. Stevens told Robinson to call OSHA because he was “too busy to attend himself, 

with ‘too many things on [his] plate.’” Declaration of Julian-Camacho, ¶ 11. Nothing TES, 

through Stevens, did created the appearance that Robinson had settlement authority at the 

informal conference. 
9 

 The Secretary cites a Commission case in which the ALJ granted the Secretary’s motion 

to dismiss the notice of contest on the grounds the employer had waived the right to contest the 

citation by signing an ISA that included such a waiver in its terms. The employer argued, as 

here, the company representative signing the ISA did not have authority to sign on the 

employer’s behalf. Although the cited decision is an unreviewed ALJ decision with no 

precedential authority, the reasoning of the ALJ is instructive. 

 In National Electric Coil Co., L.P., 13-1199, 2014 WL 3778586, (No. 13-1199, 2014), 

remand, 2014 WL 3778585 (O.S.H.R.C. July 28, 2014) (noting discretionary review granted; 

joint motion to remand for consideration settlement agreement approved), OSHA issued two 

citations to the employer, one alleging safety violations and the other alleging health violations. 

The employer requested and was granted an informal conference. Attending the informal 

conference for OSHA were an OSHA Area Director and an Assistant Area Director. Attending 

on behalf of the employer were “James Spangler, Respondent's Vice President of Human 

Resources, Maria Fernandez, Respondent's Environmental Health and Safety Coordinator, and 

James Baldwin, an independent safety consultant, appeared on behalf of Respondent. . . . Mr. 

Baldwin . . . had represented other companies in at least four or five different” informal 

conferences previously. Id. at *2. 

The Area Director began the informal conference by asking whether the employer’s 

representatives had full settlement authority. Spangler and Baldwin both asserted Spangler had 

settlement authority. Spangler signed two settlement agreements, one for the safety citation and 

one for the health citation. After the employer’s representatives left the informal conference and 

were driving back to their offices, “Mr. Spangler received a phone call from [the vice-president], 

who indicated his disapproval with the terms of the settlement in the health Citation case, 

specifically with regard to accepting the willful violation. . . .[The vice-president] directed Mr. 

Spangler, Ms. Fernandez, and Mr. Baldwin to return to OSHA's office and submit a Notice of 

Contest with respect to the health Citation case only.” Id. 

The ALJ held an evidentiary hearing on the Secretary’s motion to dismiss. He 

subsequently granted the motion, based on the apparent authority of Spangler to sign an ISA on 

behalf of the employer. 
10

At the beginning of the ISC, Mr. Spangler and Mr. Baldwin both told AD Rivera 

that Mr. Spangler had full settlement authority and could sign an agreement if 

acceptable terms were negotiated. (Tr. 37-39, 42, 53, 147, 187). Although Mr. 

Spangler indicated later during the meeting that he needed to call someone, he 

never stated the specific reasons for the call, the results of the call, or in any way 

indicated to OSHA that his authority was contingent upon anyone else's approval 

of the negotiated terms. Mr. Spangler simply returned to the meeting and 

subsequently signed both ISC's, fully resolving both sets of Citations. (Tr. 50-51, 

174-175). Complainant, given no reason to believe otherwise, relied upon 

Respondent's representations that Mr. Spangler had apparent authority to enter 

into the agreements, execute the ISCs, and bind Respondent to the negotiated 

terms. (Tr. 51-53). This apparent authority is further solidified by the fact that 

Respondent does not dispute the enforceability or validity of the ISC signed with 

regard to the safety Citation; only with regard to the health Citation. (Tr. 46-48). 

Id. at *5. 

Here, the AAD did not ask Robinson if he had settlement authority and Robinson did not 

represent that he had it. Furthermore, the employer in National Electric Coil did not dispute the 

settlement agreement for the safety citation, indicating it had empowered Spangler with 

settlement authority with regard to that citation. The employer’s inconsistent treatment of the 

two settlement agreements undermines its claim Spangler had no authority to bind the employer. 

TES did nothing to manifest intent to imbue Robinson with settlement authority. 

The Court finds TES did not “hold out” Robinson to OSHA as an agent with settlement 

authority. TES did not cause OSHA to believe Robinson had such authority. No apparent 

authority existed at the time of the informal conference. 

Accordingly, the Court concludes Robinson lacked authority to sign a contractual 

agreement on behalf of TES. The settlement agreement is, therefore, unenforceable. The Court 

DENIES the Secretary’s Motion to Dismiss Notice of Contest. 

SO ORDERED. 

 

 /s/Sharon D. Calhoun 

 SHARON D. CALHOUN 

Date: September 23, 2016 Judge 

Atlanta, Georgia