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. 15-1772 

STERLING TECHNOLOGIES, INC., 

and its successors, 

Respondent. 

APPEARANCES: 

Michael P. Doyle, Regional Counsel; Oscar L. Hampton III, Regional Solicitor; M. Patricia 

Smith, Solicitor; U.S. Department of Labor, Washington, DC and Philadelphia, PA 

For the Complainant 

Dean W. Viehl; Lake City, PA 

For the Respondent 

DIRECTION FOR REVIEW AND REMAND ORDER 

Before: ATTWOOD, Chairman and MACDOUGALL, Commissioner. 

BY THE COMMISSION: 

An order issued by Chief Administrative Law Judge Covette Rooney approving an 

informal settlement agreement between Sterling Technologies, Inc. and the Secretary became a 

final order of the Commission on December 30, 2015. 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 Sterling a serious citation that 

included two items. The parties’ informal settlement agreement submitted to the judge for 

approval resolved only one of the citation items and, according to its terms, left the other citation 
 

 

 

 

 

 

 

 

 

 

 

item “contested pending forty-five (45) day extension for further settlement agreement 

discussions.” See Commission Rule 100(b), 29 C.F.R. § 2200.100(b) (requiring that settlement 

agreement specify the terms for each contested item and “specify any contested item . . . that 

remains to be decided”). Because the agreement did not fully resolve the case, the judge’s order 

approving the informal 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 November 30, 2015, 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) (“The report of the 

administrative law judge shall become the final order of the Commission within thirty days after 

such report by the administrative law judge, unless within such period any Commission member 

has directed that such report shall be reviewed by the Commission.”); 29 C.F.R. § 2200.90(b)(2) 

(“Promptly upon receipt of the Judge’s report, the Executive Secretary shall docket the report 

and notify all parties of the docketing date. The date of docketing of the Judge’s report is the 

date that the Judge’s report is made for purposes of section 12(j) of the Act, 29 U.S.C. 

§ 661(j).”). 

On December 23, 2015, one week before the final order date, the parties filed with the 

Commission a joint motion for relief under Commission Rule 90(b)(3), 29 C.F.R. 

§ 2200.90(b)(3), which seeks to replace the informal settlement agreement with an “Amended 

Settlement Agreement” that resolves both citation items and their respective penalties. A ruling, 

however, was not issued on the motion prior to the December 30, 2015 final order date. Under 

the circumstances, 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 Assocs., Ltd. v. Webb, 473 F.3d 498, 

505 & n.12 (2d Cir. 2007) (judgment corrected pursuant to Federal Rule of Civil Procedure 60(a) 

“because the plain language of the rule indicates 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 

2 
 

 

 

 

 

informal settlement agreement did not resolve all of the citation items at issue. 1 See Pettey Oil 

Fields Serv. Inc., 21 BNA OSHC 1638 (No. 05-1039, 2006) (directing case for review during 

thirty-day period because decision did not satisfy Commission Rule 90(a), and remanding for 

resolution of outstanding issues); see also Structural Grouting Sys. Excavating, Inc., 21 BNA 

OSHC 1067, 1068-69 (No. 03-1913, 2005) (granting relief under Federal Rule of Civil 

Procedure 60(a)). 

We thus set aside the final order under Federal Rule of Civil Procedure 60(a) and remand 

for the judge to consider the parties’ amended settlement agreement pursuant to Commission 

Rule 100, 29 C.F.R. § 2200.100. 

SO ORDERED. 

/s/ 

Cynthia L. Attwood 

Chairman 

/s/ 

Heather L. MacDougall 

Dated: January 27, 2016 Commissioner 

We note that in submitting the informal settlement agreement for the judge’s approval, the 

Secretary represented in his attached proposed approval order, which the judge signed, that “all 

matters in dispute [had] been amicably resolved.” Under Commission Rule 90(b)(3), an error of this 

nature can be corrected by the judge prior to the final order date. 29 C.F.R. § 2200.93(b)(3) (“Until 

the Judge’s report has been directed for review or, in the absence of a direction for review, until the 

decision has become a final order, the Judge may correct clerical errors and errors arising through 

oversight or inadvertence in decisions, orders or other parts of the record.”). 

3 

1 
-------------------------------------------------------------

 

 

 

 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

THOMAS E. PEREZ, SECRETARY OF LABOR, OSHRC DOCKET
 

:
 

UNITED STATES DEPARTMENT OF LABOR, NO. 15-1772
 

Complainant, 

:	 

INSPECTION

 NO. 1079222 v.	 : 

STERLING TECHNOLOGIES, INC., : 

and its successors,
 

Respondent. :


 -------------------------------------------------------------­

ORDER APPROVING INFORMAL SETTLEMENT 

The parties advise that all matters in dispute have been amicably resolved and agree to 

entry of the order set forth below. It is therefore ORDERED that: 

The Informal Settlement agreement is approved and the terms thereof are 1. 

incorporated into this Order. 

The citation items and proposed penalties are affirmed, modified or vacated in 2. 

accordance with the Informal Settlement agreement. 

The total penalty associated with the amended citation items amounts to 3. 

$2,340.00. 

/s/ Covette Rooney 

Administrative Law Judge, OSHRC 

Dated:Nov242015