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. 16-0597

 

(CONSOLIDATED)

1144444

TRUE VALUE COMPANY,

 

Respondent.

APPEARANCES: 

Christine T. Eskilson, Counsel for Occupational Safety and Health; Michael D. Felsen, 

Regional Solicitor; Nicholas C. Geale, Acting Solicitor of Labor; U.S. Department of 

Labor, Washington, DC 

For the Complainant 

Mark A. Lies II; Seyfarth Shaw, LLP, Chicago, IL

 For the Respondent 

DIRECTION FOR REVIEW AND REMAND ORDER

Before: MACDOUGALL, Acting Chairman; and ATTWOOD, Commissioner. 

BY THE COMMISSION: 

 An order issued by Administrative Law Judge Carol A. Baumerich approving a 

settlement agreement between True Value Company and the Secretary became a final order of 

the Commission on November 23, 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 True Value Company two 

serious citation items, each with a proposed penalty of $4,000, for a total proposed penalty of 

$8,000. The settlement agreement, submitted by the parties to the judge for approval on October 

11, 2016, withdrew Citation 1, Item 1, but failed to address Citation 1, Item 2. Because the 

agreement did not fully resolve one of the citation items, the judge’s order approving the 
2

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 October 24, 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 November 23, 2016. 

On April 17, 2017, the Secretary filed with the Commission an Unopposed Motion for 

Clerical Correction of Stipulation and Settlement Agreement. The Secretary stated that the 

Regional Solicitor’s Office inadvertently failed to include in the Stipulation and Settlement 

Agreement the withdrawal of Citation 1, Item 2 and its proposed $4,000 penalty. Although the 

motion notes that the judge’s order is a final order of the Commission, neither party has provided

any legal authority for the Commission to exercise jurisdiction to correct the settlement 

agreement. 1

 Despite this failure, 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 her order for docketing even 

though the approved settlement agreement, as initially submitted by the parties, did not resolve 

all the citations at issue. 

 

1

 We note that this is the third time in less than a year in which the Commission has been 

compelled to address a final order involving a mistake regarding a settlement agreement. See 

Caldwell Coating, LLC, 26 BNA OSHC 1268, 1269 (No. 15-1216, 2017) (consolidated) 

(granting relief under Federal Rule of Civil Procedure 60(a) and setting aside final order 

approving settlement agreement that did not fully resolve case); Sterling Techs., Inc., 25 BNA 

OSHC 1891, 1892 (No. 15-1772, 2016) (same). Parties and their counsel are reminded that they 

should carefully review all pleadings and other documents; motions shall provide the grounds for 

the relief sought. See Commission Rule 40(a), 29 C.F.R. § 2200.40(a) (Motions and requests, 

how to make). 
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/ 

 Heather L. MacDougall 

 Acting Chairman 

/s/ 

Cynthia L. Attwood 

Dated: April 27, 2017 Commissioner
UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

* * * * * * * * * * * * * * * * * * * * * * * * * * *

SECRETARY OF LABOR, *

United States Department of Labor, * 

 *

 Complainant, *

 * DOCKET No. 16-0597 

 v. * 

 * REGION I

TRUE VALUE COMPANY, *

 * INSPECTION No. 1112726 

 Respondent. * 

* * * * * * * * * * * * * * * * * * * * * * * * * * * 

ORDER APPROVING SETTLEMENT 

The Commission has jurisdiction over the subject matter of the case and over the parties by virtue 

of the filing of a notice of contest. 

The executed Stipulation executed and filed by the parties on October 11, 2016, has been 

considered. The Stipulation has been served on all parties and authorized employee representatives and 

posted in the manner prescribed by Commission Rule 7(g)1. Ten (10) days have passed since service and 

posting and no objection to the Settlement Agreement has been filed.

The resolution of this matter is approved under 5 U.S.C. §554(c)(1) and Commission Rule 100. 

The terms of the Stipulation are incorporated, in their entirety, by reference in this order. The order shall 

become final thirty (30) days from the date of its docketing by the Executive Secretary, unless review 

thereof is directed by a Commission Member within that time. 29 U.S.C. Section 661(j). 

________/s/____________________________ 

Honorable Carol Baumerich 

JUDGE, OSHRC 

Dated: _OCT 21, 2016 

Washington, D.C. 

 

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).