UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

THOMAS E. PEREZ, Secretary of Labor, 

United States Department of Labor,

Complainant,

v. Docket No. 16-0006

ELOY DEL TORO,

Respondent.

ORDER OF DISMISSAL

This matter is before the Occupational Safety and Health Review Commission (“the 

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 651 et seq. (“the Act”), for the purpose of determining whether Respondent's late-filed 

notice of contest (“NOC”) should be dismissed. The issue presented is whether an informal 

settlement agreement signed by both parties herein is final and binding, and thus bars the 

Respondent from contesting the citations. After careful consideration of all submissions in this 

case, the Court concludes that it does, and therefore, the NOC must be dismissed. 

BACKGROUND

 On September 9, 2014, pursuant to section 9(a) of the Act, the Corpus Christi Area Office 

of the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued 

Respondent, Eloy Del Toro, a Citation and Notification of Penalty (citation). (See Complainant’s 

Supplemental Opposition to Relief under Rule 60(b), Exhibit A.) The citation consisted of three 

serious items and proposed penalties of $5,200. (Id.) Respondent subsequently signed an

informal settlement agreement on December 4, 2014, which OSHA signed on December 5, 2014, 

disposing of all issues in dispute, and importantly, in Paragraph 5 of that agreement, Respondent 

expressly waived its rights to contest the citation and penalties, as modified by the informal 

settlement agreement. (Complainant’s Supplemental Opposition to Relief under Rule 60(b), 

Exhibit B.) Notwithstanding this waiver, over a year later, Respondent subsequently filed a NOC 

with the Commission, on December 29, 2015. 
DISCUSSION

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

familiar principles of contract law, and are not subject to unilateral rescission. Phillips, 66 Co., 16 

BNA OSHC 1332, 1336 (No. 90-1459, 1993). Courts have long favored voluntary resolution of 

litigation in order to conserve judicial resources. See Lewis v. S.S. Baume, 534 F2d 1115, 1122, 

(5th Cir.1979). Further, to 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. See 

Pennsylvania Steel Foundry & Machine Company v. Secretary of Labor, 13 BNA OSHC 1417, 

(3rd Cir.1987) and Secretary of Labor v. Aerlex Corp., 13 BNA OSHC 1197 (No. 85-1257, 1987). 

Also, the Commission encourages settlements of disputes between the parties. See Commission 

Rule 100(a), 29 CFR § 2200.100(a). 

There are some exceptions to the finality of settlement agreements. Settlements entered 

into under duress, harassment, or overbearing conduct can be invalidated. Lewis, supra at 1122. 

Here, however, Respondent’s NOC does not assert it entered into the settlement agreement due to 

duress, harassment, or overbearing conduct on the part of OSHA. To the contrary, the NOC 

indicates Respondent was making payments pursuant to the settlement agreement but “due to 

financial difficulties I could no longer make payments. I would like for you to give me the 

opportunity to reinstate a settlement agreement. I just started working and can make arrangements 

on the cases.” Therefore, duress, harassment, or overbearing conduct, are not implicated here. 

Thus, the preponderance of the evidence demonstrates there was a valid binding agreement 

entered into between the parties, and as such, Respondent waived his right to contest the citations 

herein. Accordingly, 

IT IS HEREBY ORDERED THAT Respondent’s late notice of contest is DISMISSED.

SO ORDERED THIS 10th day of May, 2016. 

/s/ 

JOHN B. GATTO, Judge