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. 13-1199 

NATIONAL ELECTRIC COIL CO., L.P., 

Respondent. 

ORDER

On July 23, 2014, the parties filed a Joint Motion for Remand of this matter to the 

Administrative Law Judge for approval of their settlement agreement. After consideration 

by the Commission, the request to remand is granted. Accordingly, this matter is 

remanded to the judge for his consideration of the parties’ settlement agreement pursuant 

to Commission Rule 100, 29 C.F.R. § 2200.100. 

SO ORDERED. 

 BY DIRECTION OF THE COMMISSION 

Dated: July 28, 2014 /s/ 

 John X. Cerveny 

 Executive Secretary 
UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 

 DOCKET NO. 13-1199 

 

 

DECISION AND ORDER

This matter comes before the Court on Complainant’s Motion to Dismiss. Complainant 

contends that Respondent waived its right to contest the Citation and Notification of Penalty 

(“Citation”) when its representative signed an Informal Settlement Agreement (“ISA”) during a 

post-citation settlement meeting with local OSHA officials. Respondent, in its Memorandum in 

Opposition to Motion to Dismiss, contends that there was no enforceable agreement because its 

representative did not have authority to enter into the agreement, and because the agreement was 

voided by mutual rescission of the parties. Complainant filed a Reply in Support of Motion to 

Dismiss, wherein he took issue with Respondent’s characterization of the evidence contained 

within various affidavits. In response to the parties’ respective filings, the Court scheduled an 

evidentiary hearing to consider whether the ISA is enforceable and, therefore, whether 

Respondent’s Notice of Contest should be dismissed. 

The evidentiary hearing occurred on December 10, 2013 in Houston, Texas. Five 

witnesses testified at the hearing: (1) Michael Rivera, OSHA Area Director; (2) Michele Shield, 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

NATIONAL ELECTRIC COIL CO., L.P., 

 

 Respondent.

2 
OSHA Asst. Area Director; (3) James Spangler, Respondent’s Vice President of Human 

Resources; (4) Joseph Baldwin, OSHA Safety Consultant; and (5) Daniel Bucklew, 

Respondent’s Senior Vice President and Business Unit Manager. 

The parties were directed to file post-hearing briefs on the limited issue of the 

enforceability of the settlement agreement. In its post-hearing brief, Respondent proffered an 

additional argument that the ISA was voided by its own terms when Respondent failed to pay the 

agreed-upon penalties within 5 days of the date of the agreement. After reviewing 

Complainant’s Motion to Dismiss, Respondent’s Memorandum in Opposition to the Motion to 

Dismiss, Complainant’s Reply in Support of Motion to Dismiss, the testimony and exhibits 

introduced during the hearing, and the parties’ respective post-hearing briefs, the Court finds that 

the Informal Settlement Agreement is enforceable, that Respondent’s Notice of Contest should 

be vacated, and that this proceeding be dismissed. 

Background and Factual Findings 

 On June 25, 2013, Complainant issued two Citations to Respondent for alleged safety and 

health violations identified during two OSHA inspections conducted at Respondent’s facility

between January 14, 2013 and January 23, 2013. (Tr. 31; Ex. C-1). This case, OSHRC Docket 

No. 13-1199, focuses only on the health inspection, OSHA Inspection No. 841403, wherein 

Respondent was cited for four serious and one willful violations of the Act, with a total proposed 

penalty of $75,000.00. (Ex. C-1). The second Citation, which resulted from the safety 

inspection, was settled by the parties in a simultaneously executed Informal Settlement 

Agreement (“ISA”) during the same July 10, 2013 meeting at issue in this decision. (Tr. 46–47). 

Respondent does not dispute the validity and enforceability of the ISA concerning the safety 

3 
Citation—only the enforceability of the ISA concerning the health Citation is at issue. (Tr. 46–

48). 

After it received the two sets of Citations, Respondent requested the aforementioned

informal settlement conference with OSHA to discuss the possibility of resolving the alleged 

violations. (Tr. 35, 143–144). OSHA Area Director Michael Rivera and Assistant Area Director 

Michele Shield appeared on behalf of Complainant. (Tr. 27–28, 35). 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. (Tr. 35–36, 116, 133). Mr. Baldwin testified that 

he had represented other companies in at least four or five different ISCs previously. (Tr. 185–

186). 

At the beginning of the ISC, AD Rivera asked whether Respondent’s representatives had 

full settlement authority. (Tr. 37). Mr. Spangler and Mr. Baldwin confirmed that Mr. Spangler 

had settlement authority, and AD Rivera noted the same on his ISC checklist. (Tr. 37–39, 42, 53, 

147, 187; Ex. C-2). During the negotiations, Mr. Spangler at one point excused himself so that 

he could make a telephone call about the settlement; however, he never indicated whom he was 

calling or the specific purpose for the call. (Tr. 44, 119, 186–187). By his own admission, Mr. 

Spangler never said anything during the ISC indicating whether he reached the person he was 

trying to call, or whether the phone call affected his ability to finalize the settlement terms. (Tr. 

151). In fact, as was later revealed in filings and during the evidentiary hearing, Mr. Spangler 

was attempting to contact Dan Bucklew, Respondent’s Senior Vice President and Business Unit 

Manager, who was on an airplane and unavailable to receive Mr. Spangler’s calls at the time. 

4 
(Tr. 199). It is important to note that Mr. Bucklew does not directly supervise Mr. Spangler. 

(Tr. 137). 

Mr. Spangler subsequently signed two settlement agreements, one fully resolving the 

safety Citation case and another fully resolving the health Citation case (the one at issue here). 

(Tr. 120; Ex. C-3). Once the agreements were signed, AD Rivera returned a box of documents 

that had been produced to OSHA by Respondent during the investigation. (Tr. 54). 

After Respondent’s representatives left the ISC and were driving back to their offices, 

Mr. Spangler received a phone call from Mr. Bucklew, who indicated his disapproval with the 

terms of the settlement in the health Citation case, specifically with regard to accepting the

willful violation. (Tr. 121). Mr. Bucklew 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. (Tr. 47, 121, 200–201). 

Mr. Baldwin then telephoned AD Rivera and told him that they were turning around and 

heading back to OSHA’s office, and now wished to contest the health Citation case. (Tr. 54). 

Once they returned to AD Rivera’s office, about 1 1⁄2 hours after the original meeting, Mr. 

Baldwin went inside and delivered a contest letter to AD Rivera. The Court notes that the 

contest letter had already been pre-drafted by Respondent’s representatives before the original 

meeting, in case the representatives could not negotiate acceptable settlement terms. (Tr. 192–

193). 

Unsure of the proper protocol in a situation like this, AD Rivera took the contest letter, 

date-stamped it, and asked Respondent to return the box of subpoenaed investigative documents. 

(Tr. 65). At no point during the exchange between AD Rivera and Mr. Baldwin did AD Rivera 

state that the previously signed agreement was cancelled, revoked, or otherwise affected by the 

5 
subsequently submitted contest letter. (Tr. 59, 191–192). Once AD Rivera received the contest 

letter, he followed his normal procedure of sending the file to the Department of Labor 

Solicitor’s Office, and forwarding the contest letter to the Commission.1 (Tr. 83). 

Mr. Spangler testified during the hearing that due to his position with Respondent, he did 

not need anyone’s approval in order to schedule the ISC with OSHA, to take Ms. Fernandez and 

Mr. Baldwin to the meeting, or to make the flight from his office in Ohio to attend the meeting in 

Texas. (Tr. 133–136). Mr. Spangler further testified that Mr. Bucklew was specifically aware 

that Mr. Spangler would be attending the ISC and that the goal of Respondent’s team, inclusive 

of himself, Baldwin, and Fernandez, was to negotiate a resolution of both sets of Citations. (Tr. 

137, 141-142). Mr. Spangler testified that his position as Vice President of Human Resources 

empowered him with the authority to meet with OSHA and attempt to settle both cases. (Tr. 

144–145). He testified that Mr. Bucklew generally had final authority to approve any financial 

commitments that affect Respondent’s Brownsville facility (the inspected facility at issue in the 

Citation), however, Mr. Spangler also testified that he was never told not to accept a willful 

violation until after he signed the ISC and had left the meeting with OSHA. (Tr. 145–146). 

Mr. Bucklew testified that he was aware, prior to the ISC, that Respondent had been cited 

for a number of OSHA violations, including an alleged willful violation. (Tr. 201–202, 210–

211). Mr. Bucklew also admitted that, typically, Mr. Spangler would in fact be the person at the 

company to attend an ISC with OSHA, as a part of his normal job duties. (Tr. 211). Mr. 

Bucklew had asked to speak with Mr. Spangler before the meeting, but acknowledged that he 

never told Mr. Spangler what he could agree, or not agree, to at the ISC, and never specifically 

prohibited Mr. Spangler from accepting the willful violation. (Tr. 202–203, 205, 213). 

1

. Respondent took issue with a redacted portion of AD Rivera’s Case File Diary, which documents actions taken on 

the case. (Ex. C-5). At the parties’ request, the Court conducted an in camera review of the contested diary entry. 

The Court’s review of the redacted line in the diary sheet does not affect Court’s decision in this matter. 

6 

 
Mr. Spangler claimed during the hearing that he did not know that he had the choice to

walk away from the settlement conference without resolving the cases. (Tr. 155). However, the 

Court rejects that testimony on the basis that: (1) Mr. Baldwin, the third party OSHA consultant,

had represented companies in other ISCs prior to this one (Tr. 185-186); (2) Respondent’s 

negotiating team brought two pre-drafted contest letters with them to the OSHA settlement 

meeting (Tr. 172, 192; Ex. C-6); (3) there were seven days remaining in the 15-working day 

statutory contest period at the time of the settlement meeting, as clearly set out on the face of the 

Citations; and (4) Mr. Spangler was a sophisticated and knowledgeable representative, as 

evidenced by his position as Vice President of Human Resources, which among other things, 

requires him to understand and negotiate union labor contracts. (Tr. 155–157). 

Discussion

Respondent submits three bases upon which the health Citation ISA should be nullified, 

allowing its Notice of Contest to proceed: (1) Mr. Spangler did not have authority to settle the 

health case, rendering the agreement unenforceable; (2) the ISC is null and void due to 

Respondent’s failure to pay the negotiated penalty amount within 5 days; and (3) Complainant, 

by its acceptance of the contest letter and failure to collect past-due penalties, manifested its 

intent to mutually rescind the ISC. Complainant, on the other hand, contends that the ISC is 

binding and enforceable, that Mr. Spangler had authority to execute the ISC on behalf of

Respondent, and that Complainant’s post-agreement actions or inaction do not in any way 

manifest intent to rescind the ISC. 

Mr. Spangler Had Authority to Bind Respondent 

“A party may be held responsible for the acts of its purported agent under three agency 

theories.” Wells Fargo Business Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir. 1983). 

7 
The two theories the Court is concerned with in this case are actual authority and apparent 

authority. Actual authority requires that authority “must have been delegated to the agent either 

by words that expressly or directly authorize him to do a delegable act, or such authority may be 

implied from the facts and circumstances attending the transaction in question.” Id. Mr. Bucklew 

and Mr. Spangler both admitted that attending an OSHA settlement meeting was a typical part of 

Mr. Spangler’s responsibilities, and that he did not need a directive or permission from anyone to 

attend. (Tr. 134–136, 212). Although not his supervisor, Mr. Bucklew had asked Mr. Spangler to 

call him before he went to the OSHA informal settlement conference. (Tr. 137, 204–205). Mr. 

Bucklew admitted, however, that he never told Mr. Spangler of any limitations on his authority, 

including whether or not he could accept the willful violation. (Tr. 145, 202–204). 

In light of the fact that attending ISCs is an anticipated part of Mr. Spangler’s position, so 

much so that he could (and did) assemble a team which included an outside OSHA consultant to 

attend with him, the Court concludes, based on the totality of the circumstances in the record, 

that Mr. Spangler had actual authority to settle the case on behalf of Respondent. 

Apparent authority, on the other hand, does not require an explicit delegation of 

authority. Rather, apparent authority “arises when the principal, either intentionally or by lack of 

ordinary care, induces third persons to believe an individual is his agent even though no actual 

authority, express or implied, has been granted to such individual.” Wells Fargo, 695 F.2d at 

945. To hold the principal liable, “a party must establish that it has been induced to act in good 

faith upon certain representations made to it by the principal.” Id. 

Respondent sent the Vice President of Human Resources (Mr. Spangler), its 

Environmental Safety and Health Coordinator (Ms. Fernandez), and an independent OSHA 

consultant (Mr. Baldwin) to represent its interests regarding two sets of Citations at a settlement 

8 
meeting with OSHA officials. 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). 

By sending three representatives, consisting of a Vice President, a Safety and Health 

Coordinator, and an independent OSHA consultant, Respondent manifested its consent to allow 

those individuals to act on its behalf. See Interstate Brands, 19 BNA OSHC 1440 (No. 00-1643, 

2001) (holding that it was reasonable for Secretary to conclude that representative sent by 

Respondent had obtained permission to attend settlement conference and participate in 

discussion). There is no evidence in the record that any of the three representatives were ever 

informed that they could not settle the case, and no specific limitations on the parameters of their 

settlement authority was ever conveyed to any of them prior to the ISC. From the perspective of

Complainant, without any information to the contrary, it was wholly reasonable to rely on the 

apparent authority of Mr. Spangler. The agreement amongst Respondent’s representatives 

9 
regarding Mr. Spangler’s authority underscores that Complainant “relied on the agent’s authority 

in good faith, in the exercise of reasonable prudence.” Wells Fargo, 695 F.2d at 945. The Court 

concludes that, based on the totality of the circumstances in the record, Mr. Spangler also had 

apparent authority to settle the case on behalf of Respondent. 

The Informal Settlement Agreement is Not Nullified by Operation of its Own Terms

“Settlement agreements are contracts. As such, they are binding and enforceable under 

familiar principles of contract law, and are not subject to unilateral recision [sic].” Zantec Dev. 

Co. Inc., 16 BNA OSHC 2102 (No. 93-2164, 1994) (ALJ) (citing Phillips 66 Co., 16 BNA 

OSHC 1332, 1336 (No. 90-1459, 1993)). Through settlement “[e]ach party agrees to extinguish 

those legal rights it sought to enforce through litigation in exchange for those rights secured by 

the contract.” Village of Kaktovik v. North Slope Borough, 689 F.2d 222, 230 (D.C. Cir. 1982). 

In construing a written contract, the primary concern is to determine the parties’ intentions as 

expressed in the agreement. Lawyers Title Ins. Co. v. Doubletree Partners, LP, 739 F.3d 848, 

858 (5th Cir. 2014). “All of the provisions of the policy must be considered with reference to the 

whole instrument, so that no single provision alone is given controlling effect.” Id. (internal 

citations omitted); see also Foster Wheeler Energy Corp. v. An Ning Jiang MV, 383 F.3d 349, 

354 (5th Cir. 2004). 

Respondent contends that the language contained in paragraph 3 of the ISC renders it null 

and void, including Respondent’s express waiver of its right to contest the Citation, because 

Respondent did not pay the agreed-upon penalties within five days of signing the ISC. The 

pertinent provisions of the ISC are as follows: 

...3. The Employer agrees to pay the proposed penalties, if any, as issued with 

the above citation(s), or, if amended by this agreement, as amended below. Such 

penalty is to be remitted within five days of the signing of this agreement. If 

the original signed Agreement and payment is not received in accordance 

10 
with this time period, the Agreement shall be null and void and all original 

penalties shall become payable along with appropriate fees and interest.

...5. The Employer, by signing this informal settlement agreement, hereby 

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

Paragraph 4 of this agreement. 

(Ex. C-3) (emphasis as in original). 

There is no dispute that Respondent failed to pay the agreed-upon penalty within five 

days; however, the parties disagree about the effect of that failure. Respondent contends that the 

contract is unenforceable and nullified by its own terms and, therefore, Respondent’s subsequent 

contest letter filed later that same day is the only effective document. Complainant argues that 

Respondent is ignoring the final clause in paragraph 3, which explains that failure to pay the 

negotiated penalty amounts within five days results in the original proposed penalties becoming 

due and payable. The Court agrees with Complainant. 

As noted above, the provisions of a contract must be construed in consideration of the 

contract as a whole, so that no single provision is given controlling effect. Respondent seeks to 

unilaterally render the entire ISC void by its failure to fulfill its own commitment to pay the 

agreed-upon penalties within the specified period of time. This is not a reasonable interpretation 

of the agreement. It appears that the parties’ negotiated ISC agreement consisted of reducing the 

total penalties proposed in the case by grouping various violations together. (Ex. C-3). None of 

the proposed violations, or their characterizations, were vacated, modified, or otherwise altered. 

(Ex. C-3). Therefore, the Court interprets paragraph 3 to mean that if payment of the reduced 

fines was not remitted within following the five-day period, the penalty reductions “shall be null 

and void and all original penalties shall become payable along with appropriate fees, and interest. 

(Id.). 

11 
The Court does not read Paragraph 3 as a “re-start” button that can be unilaterally 

activated by Respondent through failure to comply with its commitments. Respondent seeks to 

benefit from its non-performance by regaining full contest rights that it expressly forfeited in the 

agreement. Similarly, if an employer entered into an ISC with OSHA, and then chose not to 

abate the hazards identified in accepted violations, the result would not be to void the ISC with

contest rights fully reinstated. 

Respondent’s argument misconstrues the effect of paragraph 3, which penalizes nonperformance with a reinstatement of the original penalties, which become immediately due and

payable, with interest. The effect of this provision is clear—non-performance does not reboot 

the process; rather, it penalizes the offending party for not upholding its end of the bargain. 

Respondent cannot and should not benefit from its own failure to comply with the agreement’s 

terms.2

 The Court rejects Respondent’s arguments on this point and finds that the ISC is not 

deemed unenforceable as a result of Respondent’s failure to pay the reduced penalty amount 

within the five-day period. 

There was no Mutual Rescission of the Agreement 

Parties to a contract can agree to mutually rescind the contract, and such an agreement 

can be inferred from the behavior of the parties. Village of Kaktovik, 689 F.2d at 230 (citing 

Corbin on Contracts § 1236 n.60 (1964 and Supp. 1981)). Respondent contends that 

Complainant’s actions (or inaction) subsequent to receiving the contest letter was consistent with 

an intent to rescind the ISC. Specifically, Respondent identifies the following as indications of 

2

. Assuming, arguendo, that Respondent’s interpretation of paragraph 3 is reasonable, the Court would still find that 

Respondent’s July 10, 2013 contest letter should be vacated. The ISC, which included an express waiver of 

Respondent’s contest rights, was signed on July 10, 2013. (Ex. C-3). Respondent submitted its purported contest 

letter later that same day. According to the ISC, the negotiated reduced penalty was due to be paid by July 15, 2013. 

Therefore, at the time Respondent submitted its contest letter, it did not have the right to do so. That right, 

arguendo, would not have been re-instated until five days later, when Respondent failed to pay the reduced penalty 

total. Respondent did not submit a contest letter after July 15, 2013. Subsequently, the contest period ended on July 

17, 2013. 29 U.S.C. § 659 (Ex. C-1). 

12 

 
Complainant’s acquiescence to the rescission: (1) AD Rivera’s physical acceptance and 

processing of the contest letter; (2) AD Rivera’s request that the box of subpoenaed investigative 

documents be returned; (3) Complainant’s subsequent failure to take any action to collect the 

penalties and interest, failure to conduct a follow-up inspection, and failure to follow-up on 

abatement certification from Respondent; and (4) the Solicitor’s communications with 

Respondent regarding an extension of time to file the complaint and discussions regarding the 

possibility of settlement. 

First, with respect to AD Rivera’s physical acceptance of the contest letter, he testified 

that this was an unusual situation and did not know the proper protocol to follow. (Tr. 60). Thus, 

he accepted the contest letter and requested the return of the investigative documents out of “an 

abundance of caution”, because he was not sure what the outcome would be. (Tr. 65). The Court 

finds that AD Rivera’s actions do not constitute any intent to rescind the ISC or any intent to 

recognize the legitimacy of the contest letter. The Court accepts AD Rivera’s testimony that he 

simply sought to cover his bases in an unknown situation, pending review by his superiors and 

Complainant’s attorneys. 

 Second, as to Complainant’s “failure” to pursue collection of the negotiated penalties, 

interest, and abatement verification, the Court also finds that Complainant’s inaction does not 

illustrate a clear intent to rescind the ISC, nor does it acknowledge the contest letter. The 

following passage is instructive: 

The Respondent’s allegations concerning the failure of OSHA to follow its Field 

Operations Manual are rejected. These actions are merely discretionary with the 

area director. As the Commission stated in H.B. Zachary, 7 BNA OSHC 2202, 

2205, “—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 substantive rights to individuals. 

13 
Zantec Dev. Co. Inc., 16 BNA OSHC 2102. OSHA’s temporarily suspending otherwise 

discretionary actions (such as penalty collection, abatement verification, and follow-up 

inspections) until a resolution is reached regarding the status of the case is a reasonable course of 

action and does not illustrate “an objective intent to abandon.” See Franconia Assocs. v. United 

States, 61 Fed. Cl. 718, 745 (Fed. Cl. 2004). 

Likewise, the Court can discern no such intent resulting from the Solicitor’s attempt to 

discuss the case with Respondent and explore settlement possibilities. In litigation, with 

disputed factual and legal issues, parties routinely seek extensions of time and discuss settlement 

possibilities for a variety of reasons. There is no evidence that such communication constituted 

Complainant’s acceptance that the ISC is null and void, or that the contest letter is enforceable. 

Conclusion 

Ultimately, the Court agrees with Complainant that this case is a paradigmatic example of 

buyer’s remorse. Complainant presented clear and convincing evidence of an executed Informal 

Settlement Agreement, signed by Respondent’s authorized representative, which fully resolved 

this case and waived Respondent’s right to subsequently contest the proposed violations or 

penalties. Respondent’s arguments are post-hoc rationalizations intended to void a binding 

agreement which Respondent later decided it did not like. The Court is leery of the precedent 

that would be set if a party could unilaterally withdraw from an informal settlement agreement as 

Respondent proposes here. See Zantec Dev. Co. Inc., 16 BNA OSHC 2102 (“[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. 

14 
85-1257, 1987). To be sure, if such an agreement had been executed by the same party 

representatives, in the same manner, yet with Complainant vacating the willful, the 

enforceability of the ISC would be the same. Complainant would likewise not be entitled to later 

decide he did not like the terms, and “walk away” from such a mutually negotiated and fully 

executed commitment.

Accordingly, the Court finds that the Informal Settlement Agreement is binding and 

enforceable, including the negotiated penalty reductions as outlined in the agreement.3 

Complainant’s Motion to Dismiss is GRANTED, Respondent’s Notice of Contest is VACATED, 

and this case is DISMISSED.

SO ORDERED. 

 /s/ Brian A. Duncan Date: April 4, 2014 Judge Brian A. Duncan 

Denver, Colorado U.S. Occupational Safety and Health Review Commission 

 

3. Respondent should not be penalized at this point for not paying the negotiated, reduced penalty amounts within 

the five-day period. Just as Complainant’s witnesses testified that they were unsure of the protocol in this situation, 

with regard to pursuing unpaid penalties and demanding abatement verification, Respondent was equitably entitled 

to withhold penalty payment until the question of whether the executed Informal Settlement Agreement or the 

subsequently submitted Notice of Contest was enforceable.

15