1 

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. 14-1306 

BIG LOTS, INC.,

 Respondent.

ORDER DENYING RESPONDENT’S MOTION 

TO ENFORCE SETTLEMENT AGREEMENT 

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

Commission) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 

§ 651 et seq. (the Act). On June 5, 2015, Respondent filed a Motion to enforce the parties’ 

settlement agreement, together with exhibits and an affidavit from Respondent Counsel 

(Motion). On June 25, 2015, Complainant, the Secretary of Labor (Secretary), filed an 

Opposition to Respondent’s Motion, together with exhibits and an affidavit from Counsel for the 

Secretary (Opposition). On July 2, 2015, Respondent filed a Motion for leave to file a reply brief 

to the Secretary’s Opposition, together with a reply brief (Reply).1 

For the reasons set forth below, Respondent’s Motion is denied. 

Background.

The Columbus, Ohio Area Office of the Occupational Safety and Health Administration 

(OSHA) inspected Respondent’s workplace, located at 500 Phillipi Road, Columbus, Ohio 

43228, on June 11, 2014. On July 31, 2014, OSHA issued to Respondent a four item serious 

citation, with subparts, a two item repeat citation, and a notification of penalty (citation). The 

 

1

Respondent’s Motion to file a Reply Brief is granted. 
2 

serious citation items allege violations of hazardous materials2, personal protective equipment3, 

electrical4

, and machine guarding5standards. The repeat citation items allege violations of 

materials handling and storage6

and electrical7standards. The total proposed penalty is 

$47,920.00. 

Respondent filed a notice of contest. This case was docketed with the Commission. The 

Secretary filed a Complaint dated October 27, 2014. Respondent filed an Answer and 

affirmative defenses dated December 5, 2014. The Answer denied that Respondent violated the 

citation items as alleged and denied the appropriateness of the citation classifications and 

proposed penalties. A Notice of Hearing issued setting the hearing for May 12 through 14, 2015, 

in Columbus, Ohio. 

On March 9, 2015, Counsel for the Secretary informed the undersigned judge that the 

parties had reached a settlement of this case. An Order Acknowledging Proposed Settlement 

issued directing the parties to file a fully executed settlement agreement within 30 days of the 

settlement notification, on or before April 8, 2015. On April 20, 2015, Counsel for the Secretary 

filed a Motion for an extension of time to file the settlement agreement. An Order issued 

granting the extension of time to May 11, 2015. As the executed settlement agreement was not 

filed with the Commission, a Notice of Hearing issued, on May 26, 2015, returning this case to 

the hearing calendar.8

Thereafter, Respondent filed a Motion to enforce the parties’ settlement agreement, the 

Secretary filed an Opposition, and Respondent filed a Reply. These documents set forth the 

parties’ disagreement regarding the settlement status of this case.

Settlement Negotiation 

 While the settlement status of this case is questioned, the relevant facts regarding the 

parties’ settlement negotiation, conducted through email messages, are undisputed. 

 

2

 29 C.F.R. § 1910.110(f)(2)(i). 

3

 29 C.F.R. § 1910.132(e), 1910.132(f)(1). 

4

 29 C.F.R. § 1910.305(g)(2)(iii), 1910.334(a)(2)(ii). 

5

 29 C.F.R. § 1910.212(a)(5). 

6

 29 C.F.R. § 1910.176(b). 

7

 29 C.F.R. § 1910.305(b)(1)(ii). 

8

 During a June 2015 conference call, the parties agreed to reschedule the hearing to December 8, 9, and 10, 2015. 

A Rescheduled Notice of Hearing and Revised Scheduling Order has issued. 
3 

 Respondent Counsel Matthew Austin sent a settlement offer to Counsel for the Secretary 

Mary Bradley, via email attachment, on February 23, 2015. Mr. Austin’s email stated 

‘[a]ttached is Big Lot’s proposal for complete settlement of OSHRC Docket No. 14-1306, 

Inspection No. 980298. Please provide your response as soon as possible so we can comply with 

the revised discovery dates if this matter is not settled.” See Motion (Exhibit 1). Respondent’s 

offer was set forth on the attachment9as follows: 

BIG LOTS SETTLEMENT OFFER #1 

Eliminate the Following: 

Citation 1 Item 1 Serious $4,400 Corrected during inspection

Citation 1 Item 2(a) Serious $3,300 Employees were previously trained on this OSHA 

Standard.

Employees were trained again during July and 

August 2014.

Citation 1 Item 2(b) Serious $0 Employees were previously trained on this OSHA 

Standard.

Employees were trained again during July and 

August 2014.

Citation 1 Item 3 Serious $5,500 Corrected during inspection

Citation 1 Item 4(a) Serious $7,000 Corrected during inspection

Citation 1 Item 4(b) Serious $0 Corrected during inspection

Modify the Following: 

Citation 2 Item 1 Repeat $27,500 Modify to Serious; Reduce penalty accordingly; 

$2,500 suggested penalty

*The “bend” on Rack 401-001-3-1 was minimal, 

at most, and in no way exposed employees to a 

“caught in” or “struck by” hazard.

*Racks 402-072-1-1 and 406-136-1-1 had 

minimal bend on the weld – more appropriately 

described as a small ding; The weight of the 

pallets were significantly below the pounds per 

pallet capacity; the ding in the weld was too 

minor to reduce the pounds per pallet capacity to 

a level below the weight on the pallets on the 

rack.

*The employer operates thousands of stores and 

 

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Respondent’s settlement offer attachment was set forth in landscape format and did not contain marked table 

rows and columns. 
4 

millions of feet of warehouse space throughout 

the U.S. The previous citation was 4 years ago at 

a retail store in a different state with a different 

rack system, different weight limit, different 

stored materials, and did not involve the stacking 

of pallets in a warehouse environment.

*This investigation was prompted by Big Lot’s 

2009 DART Rate. During the five years between 

the 2009 Rate and OSHA’s investigation, Big 

Lot’s DART Rate dramatically improved.

[DART Rate summarized for all years 

2008 to 2014.]

As you can clearly see, Big Lot’s is an incredibly 

safe place to work.

Citation 2 Item 2 Repeat $220 Willing to conceded (sic) to this and pay full fine 

if appropriate modifications are made elsewhere

See Motion (Exhibits B, 2). 

 By email, dated February 27, 2015, Ms. Bradley advised Mr. Austin that OSHA 

conditionally accepted Respondent’s settlement offer. This email read: 

Hi Matt, 

OSHA accepts your client’s offer of settlement, with the exception of the proposed 

penalty for Citation 2, Item 1. OSHA will only agree to the reclassification from Repeat 

to Serious if your client accepts a $7,000 penalty. 

Citation 1 Item 1 Serious $4,400 – Accept offer 

Citation 1 Item 2(a) and 2(b) Serious $3,300 – Accept offer 

Citation 1 Item 3 Serious $5,500 – Accept offer 

Citation 1 Item 4(a) and 4(b) Serious $7,000 – Accept offer 

Citation 2, Item 1 – Reclassified from Repeat ($27,500) to Serious ($7,000) 

Citation 2 Item 2 Repeat $220 – Accept offer 

Please review and advise if we have a deal. If so, I will contact the Review Commission 

and will prepare the settlement agreement. 

Thank you. 

MLB (Mary L. Bradley, Esq.) 

 

See Motion (Exhibits B, 3); Opposition (Exhibit A). 

By email message from Mr. Austin to Ms. Bradley, dated March 5, 2015, Respondent 

accepted the Secretary’s modified settlement proposal, as follows: 
5 

Hi Mary – Big Lot’s accepts the settlement proposal as modified by OSHA. Do you have 

a standard settlement / release you would like to use? Matt Austin. 

See Motion (Exhibits B, 4); Opposition (Exhibit B, K). 

That date, March 5, 2015, again by email message, Ms. Bradley advised Mr. Austin that 

she would prepare a standard settlement agreement for his review. The email read: 

Thank you, Matt, I will prepare a standard settlement and will forward to your attention 

for review and signature. In addition, I will contact the Review Commission to notify the 

Judge of this settlement. The matter will then be removed from the docket. MLB 

See Opposition (Exhibit C). 

 As mentioned above, the undersigned judge received settlement notification from 

Counsel for the Secretary on March 9, 2015. Thereafter, Counsel for the Secretary experienced a 

delay in completing the draft standard settlement stipulation and forwarding the draft settlement 

to Respondent Counsel for his review. See Motion (Exhibits B, 5, 6, 7); Opposition (Exhibits D, 

E). An extension of time to file the executed settlement agreement with the Commission was 

requested and granted. See Opposition (Exhibit F). 

 Ms. Bradley forwarded the draft stipulation and settlement agreement, together with a 

letter regarding the settlement agreement, to Mr. Austin for his review, via email attachment, on 

April 22, 2015. See Motion (Exhibit B, 8); Opposition (Exhibit G). The settlement agreement 

set forth the understanding of Ms. Bradley and her client OSHA regarding the settlement terms 

agreed to by the parties. In part, the settlement agreement read: 

1. Citation 1, Item 1, as amended herein, shall be affirmed as a serious violation with a 

$4,400 penalty. 

2. Citation 1, Items 2(a) and 2(b), as amended herein, shall be affirmed as a serious 

violation with a $3,300 penalty. 

3. Citation 1, Item 3, as amended herein, shall be affirmed as a serious violation with a 

$5,500 penalty. 

4. Citation 1, Item 4(a) and (b), as amended herein, shall be affirmed as a serious 

violation with a $7,000 penalty. 

5. Citation 2, Item 1, as amended herein, shall be reclassified and affirmed as a serious 

violation with a $7,000 penalty. 

6. Citation 2, Item 2, shall be affirmed as a repeat violation with a $220.00 penalty. 

7. The total penalty due in this proceeding is $27,420.00, which the Respondent agrees 

to pay to the Complainant . . . . 
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In addition, the stipulation and settlement, drafted by Ms. Bradley, contained the following 

terms: Respondent’s withdrawal of its notice of contest, Respondent’s agreement to comply with 

all applicable abatement verification provisions set forth in 29 C.F.R. § 1903.19, the parties’ 

agreement to the entry of a final order in this case consistent with the settlement agreement 

terms, an agreement that each party will bear its own attorney fees, costs and other expenses 

incurred in connection with this proceeding, a non-admissions agreement, Respondent’s 

certification that a copy of the settlement agreement will be posted in accordance with the 

Commission’s Procedural Rules in a manner that will afford notice to affected employees, and a 

Notice advising that any party, including any authorized employee representative of affected 

employees and any affected employee not represented by an authorized representative, who has 

any objection to the entry of an order, as set forth in the settlement agreement, should 

communicate their objections to the undersigned administrative law judge, within ten days of the 

posting of the agreement. See Motion (Exhibit B, 8); Opposition (Exhibit G). 

 On May 5, 2015, via email message, Respondent Counsel Austin notified Ms. Bradley 

that the stipulation and settlement agreement that Ms. Bradley drafted did not reflect the 

settlement terms as understood by Mr. Austin. Mr. Austin’s email read: 

Mary, 

Thank you for sending me the proposed settlement agreement. The document you sent, 

though, indicates a $27,420 penalty, but we agreed to a $7,220 penalty. Specifically, the 

document you sent erroneously kept full penalties for Citation 1, Items 1, 2(a), 2(b), 3, 

4(a), and 4(b) when we agreed to eliminate all of those. We further agreed to modify one 

of the repeats to a serious with a $7,000 penalty, and accept the repeat with a $220 

penalty. I trust this was just an oversight. Please correct the figures and resend. 

Matt Austin. 

See Motion (Exhibit B, 9); Opposition (Exhibit H). 

 On May 6, 2015, via email message, Ms. Bradley replied to Mr. Austin, acknowledging 

Ms. Bradley’s “misreading” of Respondent’s February 23, 2015 settlement offer and Ms. 

Bradley’s miscommunication of Respondent’s February 23, 2015 settlement offer to her client 

OSHA. Ms. Bradley’s May 6, 2015 email states: 

Hi Matt, 

Attached is the offer of settlement received by me on 2/23/2015. I re-read the 

attachment. I now see that I misread the offer believing it to say that Big Lots accepted 
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the items listed in the upper portion of the offer, with a request to modify citation 2, item 

1, from $27,200 to $7,000 and to accept Citation 2, Item 2. 

My sincere apologies to Big Lots, as I totally missed seeing the heading, “Eliminate The 

Following,” on the upper portion of the offer. Consequently, I communicated an 

inaccurate offer to OSHA. I am almost certain that OSHA would NOT have accepted an 

offer to vacate those items. However, I will forward the offer to OSHA and will notify 

you of OSHA’s response. 

MLB (Mary L. Bradley, Esq.) 

See Motion (Exhibit B, 10); Opposition10 (Exhibits I, J). 

 Later that day, May 6, 2015, in an email message to Mr. Austin, Ms. Bradley wrote that it 

appeared Mr. Austin had accepted OSHA’s March 5, 2015 settlement proposal (OSHA 

Counteroffer) as reflected in the settlement agreement drafted by Ms. Bradley. See Opposition 

(Exhibits G, K), 

The April 22, 2015, May 5, and 6, 2015, email messages with attachments, exchanged 

between the parties, clearly disclosed that the parties did not have a “meeting of the minds” 

regarding the settlement terms. 

 Respondent Counsel, however, viewed the email exchange otherwise. Mr. Austin 

regarded the email exchange as reflecting a firm agreement between the parties to accept 

Respondent’s February 23, 2015 settlement proposal, with a single change requested by Counsel 

for the Secretary regarding citation 2, item 1, set forth in Ms. Bradley’s March 5, 2015 email. See 

Opposition (Exhibits A, L). Mr. Austin’s May 8, 2015 email to Ms. Bradley, set forth 

Respondent’s understanding regarding the settlement terms to be included in the agreement. The 

May 8, 2015 email states: 

Mary, 

Thank you for providing me the [second May 6, 2015] email [Opposition Exhibit K]. By 

background, so we’re all on the same page, our settlement proposal unequivocally stated 

that we proposed to eliminate penalties 1, 2(a), 2(b), 3, 4(a), and 4(b) along with a 

reclassification of Citation 2, Item 1 to Serious with a corresponding reduction in penalty 

from $27,500 to $2,500. Your counteroffer specifically stated, “OSHA accepts your 

client’s offer of settlement, with the exception of the proposed penalty for Citation 2, 

Item 1. OSHA will only agree to the reclassification from Repeat to Serious if your 

 

10 Counsel for the Secretary had communicated Respondent’s settlement offer to her client, OSHA, as follows: (1) 

Accept all of the proposed “Serious” violations, as issued; (2) Modify the first “Repeat” item as a Serious violation, 

with a reduced penalty; and, (3) Accept the second “Repeat” violation, as issued. See June 25, 2015 Bradley 

Affidavit, page 2, n.1. 
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client accepts a $7,000 penalty.” To be clear, that was the only exception mentioned in 

your counterproposal and that singular exception is what my client accepted on March 5, 

2015. Please revise the settlement documents to reflect this agreement and forward it to 

me for signature. 

Matt Austin. 

See Opposition (Exhibit L)(emphasis added). The specificity set forth by Mr. Austin in his May 

8, 2015 email is absent in the brief email messages and attachments exchanged during the 

parties’ earlier email settlement negotiation. This degree of clarity, ensuring that all parties were 

“on the same page,” would have disclosed the misunderstanding between the parties regarding 

agreeable settlement terms earlier during their settlement communications. 

 Ms. Bradley reiterated to Mr. Austin the parties’ miscommunication and 

misunderstanding regarding the settlement terms, in a May 12, 2015 email message, as follows: 

Hi Matt, 

As previously indicated, I made an error communicating Big Lots’ offer to OSHA (as 

indicated by my communication, below). Consequently, I am not authorized to sign off 

on the settlement agreement, as it does not accurately reflect OSHA’s understanding of 

the offer made by Big Lots. 

In good faith, OSHA agreed to reclassify Citation 2, Item 1, from a repeat violation to a 

serious violation, with a $7,000 penalty and accepted Big Lots’ offer to affirm Citation 2, 

Item 2, only. Please advise if Big Lots would like to make an offer of settlement, for 

consideration by OSHA, on Citation 1, Items 1-4. 

My sincere apology for this error. 

MLB (Mary L. Bradley, Esq.) 

See Opposition (Exhibit M). 

Positions of the Parties

 Respondent contends that during the email exchange, set forth above, the Secretary and 

Respondent entered into a settlement agreement that created a binding contract between the 

parties. Respondent argues that the email exchange includes all essential elements of a contract 

including, offer, acceptance, contractual capacity, consideration, manifestation of mutual assent, 

and legality of object and of consideration. Motion at p. 5-7. Respondent contends that the 

settlement agreement terms “reflected in the emails between the parties’ counsel” complies with 

the Commission Rule 100 requirements, as Respondent served a copy of Respondent’s Motion 

on all parties and posted the Motion, on June 5, 2015, where affected employees would see it. 
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Motion at p. 5, certificate of service. Respondent further argues that the email exchange between 

the parties complies with the requirements of Commission Rule 100, as the email exchange 

reflects “written” settlement terms, “signed” by counsel in the email signature blocks. Reply at 

p. 8. Respondent moves for an Order enforcing and approving the settlement agreement entered 

into between the parties and terminating this proceeding. 

 In Opposition, the Secretary contends that the parties never reached agreement regarding 

settlement terms. The Secretary argues that even if an “oral” or “email agreement” was reached 

between the parties, any agreement to the proposed settlement terms was rescinded by the 

Secretary prior to the entry of the Commission’s final order in this case. The Secretary 

emphasizes that a written settlement agreement is required to effectuate the service and notice 

requirements of Commission Rule 100. The email exchange relied upon by Respondent, even 

when considered in conjunction with Respondent’s posting of its Motion, does not comply with 

the Commission Rule 100 requirements. In this proceeding, the parties never fully executed or 

filed a settlement agreement with the Commission for approval. As no binding settlement 

agreement exists between the parties, Respondent’s Motion must be denied. 

Discussion 

Disputes concerning the settlement of cases pending before the Commission are resolved 

in accord with the principles of federal common law. As settlement agreements are contracts, 

normal contract interpretation rules generally apply. See Lumex Medical Products, Inc., 18 BNA 

OSHC 2002, 2006 (No. 97-1522, 1999); Phillips 66 Co., 16 BNA OSHC 1332, 1338, 1340-41 

(No. 90-1549, 1993). 

A primary requirement for a valid contract is that it reflect a “meeting of the minds.” The 

Commission will review the settlement agreement to determine whether the proposed settlement 

agreement represents a genuine, mutual, agreement between the parties and a “true meeting of 

the minds” on all settlement terms. See Billie Gowans, 21 BNA OSHC 1927, 1927 (No. 06-

0936, 2007); 84 Components Co., 20 BNA OSHC 2063, 2064 (No. 02-0363, 2003). 

 In the instant case, Respondent contends that the parties’ email exchange reflects an offer 

and acceptance of settlement terms that created a binding contract between the parties. 

Specifically, Respondent contends that the binding settlement terms are set forth in Counsel for 

the Secretary’s February 27, 2015 email to Respondent Counsel stating that “OSHA accepts your 

client’s offer of settlement, with the exception of the proposed penalty for citation 2, item 1,” 
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read in conjunction with Respondent Counsel’s March 5, 2015 email to Counsel for the 

Secretary accepting the Secretary’s proposal to modify the proposed penalty for citation 2, item 1 

to $7,000. Respondent contends that at this point – the March 5th email – a binding contract was 

created: a contract binding based upon Respondent’s understanding of the contract terms. See 

Motion at p. 6-7. Respondent’s contention is rejected. 

Review of the email negotiation between the parties reveals that the parties never reached 

a “true meeting of the minds” and agreement regarding the settlement terms. The parties’ lack of 

agreement regarding the settlement terms was not apparent until the complete, written, draft 

settlement agreement was prepared by Counsel for the Secretary for the parties’ review, 

acceptance, and execution. As there was no meeting of the minds between the parties regarding 

the settlement terms, mutual acceptance of the draft written settlement agreement was not 

achieved and a full written settlement agreement was never executed by the parties. 

Commission Rules and case precedent set forth several procedural requirements that must 

be satisfied before a settlement agreement may be approved by the Commission. The settlement 

agreement must be complete, written, fully executed by the parties, and served or posted to 

afford affected employees meaningful participation in the proceeding and settlement process. 

Certification of the service and posting requirements must be provided to the Commission. 

Commission Rules 7 and 100; 29 C.F.R. §§ 2200.7; 2200.100. 

The settlement agreement must be complete. The Commission reviews and considers for 

approval complete settlement agreements. It is not the Commission’s practice to approve 

settlement agreements in a “piecemeal fashion.” See 84 Components, 20 BNA OSHC at 2064 

n.3; Phillips 66, 16 BNA OSHC at 1335. 

The settlement agreement must be in writing and signed by the parties. Commission 

Rule 100(d); Consolidated Aluminum Corp., 9 BNA OSHC 1144, 1154 (No. 77-1091, 1980). 

See General Motors Corp. 14 BNA OSHC 1753, 1753 (No. 88-1112, 1990); McKie Ford, Inc. v. 

Secretary, 191 F.3d 853, 857 (8th Cir. 1999). See also, Empire-Detroit Steel Div. v. 

Occupational Safety and Health Review Comm’n, 579 F.2d 378, 382-83 (6th Cir. 1978). “A case 

is not truly ‘settled’ until a settlement agreement has been executed by all the parties.” Chartwell 

Corp., 15 BNA OSHC 1881, 1884 n.2 (No. 91-2097, 1992). 

Affected employees must be afforded the opportunity to review and comment on the 

settlement agreement, regarding the reasonableness of the abatement period, before the 
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settlement agreement may be approved by the Commission. Accordingly, Commission Rules 

state that the settlement agreement, upon filing with the Commission, shall contain a proof of 

service upon all parties and authorized employee representatives and “the posting of notice to 

non-party affected employees,” in the manner prescribed by Commission Rule 7. An Order 

approving the settlement agreement and terminating the litigation before the Commission shall 

not issue until at least 10 days after service or posting of the settlement agreement. Any 

objection to the reasonableness of the abatement time raised by an affected employee or 

authorized employee representative shall be filed within that 10 day time period. Commission 

Rules 7(c)(g); 100(c); 29 C.F.R. §§ 2200.7(c)(g); 2200.100(c). See General Electric Co., 14 

BNA OSHC 1763, 1763-67 (No. 88-2265, 1990); General Motors, 14 BNA OSHC at 1753-54; 

Consolidated Aluminum, 9 BNA OSHC at 1154; McKie Ford, 191 F.3d at 857.

Respondent’s reliance on the parties’ February and March 2015 email messages, to 

support the claim that a binding settlement agreement had been created between the parties, is 

misplaced. Review of the February 27 and March 5, 2015, email exchange, discloses a 

negotiation regarding partial – not complete - settlement agreement terms. The email exchange 

includes no discussion regarding several substantive settlement terms included in the complete, 

draft, written settlement stipulation, prepared by Counsel for the Secretary, such as withdrawal of 

Respondent’s notice of contest, abatement verification, non-admissions, agreement by each party 

to pay their own fees and expenses, among other terms. See Motion (Exhibits B, 8); Opposition 

(Exhibit G). The March 5, 2015 email exchange between counsel confirms their intention to 

draft, review, and execute a complete settlement agreement and not to rely simply on their email 

exchange. See Motion (Exhibits B, 4), Opposition (Exhibits B, C, K). The Commission does not 

approve settlement agreements in piecemeal fashion. 

Respondent’s Motion included a certificate of service indicating service on Counsel for 

the Secretary and posting of the Motion, on June 5, 2015, at a location where it would be seen by 

affected employees. The certificate of service also stated that the affected employees are not 

represented by an authorized employee representative. Respondent contends that posting the 

Motion complies with the Commission Rule 100 service and posting requirements. Respondent’s 

contention is incorrect. 

Posting of the complete, executed, settlement agreement is required by Commission Rule 

100 to ensure that affected employees are afforded an opportunity to meaningfully participate in 
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the process and, if appropriate, file an objection regarding the reasonableness of the abatement 

period. Posting of Respondent’s Motion does not comply with the Commission Rule 100 notice 

and posting requirements. Posting Respondent’s Motion was not a posting of the complete, 

written, executed, settlement agreement reached between the parties, rather it was a posting of 

Respondent’s contentions regarding Respondent’s understanding – or misunderstanding –

regarding certain settlement terms negotiated with Counsel for the Secretary. 

Finally, unlike a traditional contract, one party, the Secretary, may withdraw from the 

agreement prior to the entry of a final decision by the Commission, as the Secretary has been 

entrusted by Congress with the “unique role in effectuating the purposes” of the Act. Marshall v. 

Sun Petroleum Products Co., 622 F.2d 1176, 1187-88 (3d Cir. 1980). Although, the Secretary’s 

authority to withdraw from a complete, fully executed, settlement agreement is not directly 

relevant in this case, it does reflect on the ability of the Commission to force the Secretary to 

accept partial terms of a settlement negotiation, especially where that negotiation had not yet 

been reduced to a formal settlement agreement.11 

As discussed, the facts reveal that the parties never reached full agreement and a 

“meeting of the minds” regarding settlement terms. Review of the email negotiation, together 

with the Motion, Objection, and Reply, reveals that a complete, fully executed, settlement 

agreement was never served and posted, to afford affected employees an opportunity for 

meaningful participation in the proceedings. Accordingly, no complete, fully executed, 

settlement agreement, compliant with the Commission Rules, has been filed with the 

undersigned Commission Judge for approval. As the parties have not yet reached full agreement 

regarding settlement terms this case has been rescheduled for hearing. 

 

11 Irrelevant is Respondent’s contention, based on the court’s decision in Marshall v. Sun Petroleum, that if the 

Secretary is permitted to withdraw from a full settlement agreement reached between the parties, then OSHA 

must conduct a de novo inspection of Respondent’s facility. Reply at p. 10-11.
13

Order 

For the reasons stated above, Respondent’s Motion is denied. 

The parties are strongly encouraged to continue settlement discussions to reach a 

mutually agreeable resolution of all citation items in this case without the necessity of litigation. 

SO ORDERED. 

 /s/ Carol A. Baumerich

Dated: August 13, 2015 Honorable Carol A. Baumerich 

Washington, D.C. Judge, OSHRC