Docket No. 85-1257

SECRETARY OF LABOR,
Complainant,

AERLEX CORPORATION,
Respondent.

OSHRC Docket No. 85-1257

ORDER

An order of Judge Louis G. LaVecchia approving a settlement agreement in which Respondent withdrew its notice of contest to citations and penalties of $58,000 proposed therefor is before the Commission for review. The citations were issued following an explosion which, according to the attorney who filed Respondent's notice of contest, totally destroyed Respondent's business. In a subsequent letter filed with the judge, Respondent, then appearing without counsel, stated that although it had a defense to the citations it was unable to pursue its defense because it no longer had any income and had exhausted its financial resources. Therefore, Respondent stated that it entered into the settlement agreement despite its defense.

Thereafter, Respondent, once again appearing through counsel, filed with the judge a motion to withdraw from the settlement agreement, restating Respondent's prior reason for entering into the agreement and also asserting that Respondent assented to the agreement "without benefit of counsel and without legal advice"[[1]] and that "Respondent was not aware of the ramifications of entering into the settlement agreement." The motion also asserted that because of the "pressures" on Respondent it did not enter into the agreement "freely and without coercion." Judge LaVecchia did not rule on this motion.

In opposition to Respondent's motion, the Secretary has filed affidavits which indicate that discussions were conducted with Respondent concerning the effect of a settlement on possible criminal prosecution. The Secretary's affidavits do not otherwise address the matters raised in Respondent's motion to withdraw from the settlement agreement, particularly Respondent's concerns regarding its financial status.

The Commission encourages voluntary dispositions by parties to Commission proceedings. At the same time, however, the Commission must be assured that a proposed settlement represents a genuine agreement between the parties and a true meeting of the minds on all provisions thereof. See Metro Waterproofing, Inc., 85 OSAHRC ____, 12 BNA OSHC 1601, 1986 CCH OSHD ś 27,535 (Nos. 85-321 & 85-430, 1985) and Wheaton Injection Molding Co., 82 OSAHRC 26/B11, 10 BNA OSHC 1589, 1982 CCH OSHD ś 26,052 (No. 81-1412, 1982). See also Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir. 1980), cert denied, 449 U.S. 1061 (1980) (Secretary allowed to withdraw from settlement agreement under certain circumstances).

In this case the submissions of the parties raise a dispute as to whether Respondent fully understood the provisions of the settlement and intended to enter into an agreement providing for the affirmance of all citations and the assessment of a substantial penalty therefor. Accordingly, we set aside the judge's order and remand this case for a ruling on Respondent's motion to withdraw from the settlement. The judge shall conduct a hearing on Respondent's objections to the settlement agreement or shall otherwise afford the parties an opportunity to submit evidence in support of their respective positions.[[2]] The judge shall make factual findings with respect to the grounds Respondent asserts for withdrawal and shall allow the parties to submit arguments on the question whether on the facts as found a sufficient basis exists on which to set aside the settlement agreement. In the event the judge grants Respondent's motion to withdraw, he shall conduct further proceedings as appropriate.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: AUG 19 1986

BUCKLEY, Chairman, Dissenting

I dissent because, even if the unsworn representations of counsel in Respondent's motion to withdraw from the settlement agreement are taken as true, they do not constitute a legal basis for setting aside the judge's order approving the settlement agreement. Respondent claims that it did not enter into the agreement freely and without coercion, but that conclusion cannot reasonably be inferred from the factual assertions made. A body that freely permits pro se representation should not lightly conclude that failure to consult counsel prevents an employer from entering into settlement "freely and without coercion."

As the majority states, the Commission encourages the parties to disputes before us to reach agreements that voluntarily dispose of the disputed issues. In this case, Judge LaVecchia was assured that Respondent wished to settle as stated in the settlement agreement. In a letter submitted by Respondent with the signed settlement agreement, Respondent's president indicated that he wanted to withdraw the notice of contest in order to terminate the costly litigation despite having a "complete defense." Respondent signed the settlement agreement, which plainly stated that the withdrawal "has been made freely and without coercion"; that the penalties proposed total $58,000; and that "Respondent understands and agrees that, as a result of its withdrawal of its notice of contest, the citation and penalties proposed therefore shall become a final order of the Commission."

Nothing that Respondent has submitted to us since signing the settlement agreement indicates that there was any lack of understanding as to the terms and effect of the settlement agreement. In fact, Respondent has simply repeated what was either told to or evident to the judge when the signed settlement was submitted to the judge before the judge approved it--that Respondent entered into the settlement agreement while lacking counsel, during financial difficulties, and despite having a "complete defense." Respondent's motion does not state how any of the plain terms of the settlement were misunderstood and, although Respondent said that it was not aware of the ramifications of the settlement agreement since they were not explained by counsel, Respondent has not stated what ramifications were not understood. The Secretary's affidavits represent that Respondent had been represented by counsel during discussions of settlement at an informal conference. From the Secretary's affidavit it also appears that the possibility of criminal charges even if the civil case was settled was discussed at that time and again immediately prior to the final settlement agreement. In view of this, it appears that Respondent's president was fully aware of the circumstances surrounding the settlement agreement and had an adequate opportunity to understand the plainly stated terms of it.

To set aside the judge's order in this case involving numerous charges of serious and willful violations and a large penalty when Respondent has not even alleged a sufficient basis for out doing so, will seriously undermine the policy to encourage settlement. We have little Commission precedent to guide the judge's decision on remand. The proper course of action, in my judgment, would be to permit both parties to submit briefs and affidavits in support of their position to the Commission. Should they convince us that the allegations, if proven, would constitute a sufficient basis for permitting an employer to withdraw from a settlement agreement, we can then remand the case for proof of the allegations.

SECRETARY OF LABOR,
Complainant,

AERLEX CORPORATION,
Respondent.

OSHRC Docket No. 85-1257

ORDER

The settlement agreement submitted for approval by the parties is approved.

Incorporated in the agreement is a motion by the respondent to withdraw its notice of contest to the citation which initiated the proceeding.

Accordingly, the respondent's motion to withdraw its notice of contest is granted, and the citation is affirmed in all respects.

A civil penalty of $58,000 is assessed for the violations affirmed.

So ORDERED.

Louis G. LaVecchia
Judge, OSHRC

DATE: June 13, 1986

FOOTNOTES:

[[1]] The attorney who had originally represented Respondent withdrew prior to the execution of the settlement because of a fee dispute with Respondent.

[[2]] The dissent agrees that this case merits further proceedings on both the factual and legal issues presented. The dissent, however, would require the Commission to rule on a legal issue--the circumstances under which an employer may withdraw from a settlement agreement--before the nature of, and factual support for, Respondent's objections has been determined. We think that the better procedure is for the judge initially to make the requisite factual findings. The judge may decide that Respondent's objections are unsupported and therefore avoid reaching the legal issue with which the dissent is concerned. Furthermore, should the Secretary feel that any error of law has been committed on remand, he may petition the Commission for review on that issue.