SECRETARY OF LABOR,
Complainant,
v.

GENERAL ELECTRIC COMPANY,
Respondent.

INTERNATIONAL ASSOCIATION
OF MACHINES AND AEROSPACE
WORKERS, AFL-CIO,

Authorized Employees Representative.

OSHRC Docket No. 83-1227

DECISION

Before: BUCKLEY Chairman; RADER and WALL, Commissioners.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupation Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission in an adjudicatory agency independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C.§ 659(c).

The Secretary issued a citation alleging that the General Electric Company ("GE") had exposed employees to burn hazards associated with hot slag produced in a molten metal furnace. After GE filed a notice of contest, the Secretary and GE agreed upon a settlement. In the agreement GE stated that it would monitor all its furnaces for slag buildup, follow "to the extent possible" its normal practice of shutting down a furnace to perform rebricking, and review "necessary safety precautions" before performing maintenance other than rebricking. The administrative law judge approved the agreement over the objections of the employee representative, the International Association of Machinists and Aerospace Workers, AFL-CIO, which had elected party status.

On review, the union continues to object to the settlement. The union argues that the settlement should be rejected because it does not specify the procedures GE must use for hot slag removal, and does not state what remedies will be available to the union if the union disagrees with GE's determination what safety precautions are "necessary" and "possible."

The issue of whether the Commission can consider a union-party's objection to the adequacy of the abatement method in a settlement agreement has been settled. In Pan American World Airways, Inc., 84 OSAHRC 19/C9, 11 BNA OSHC 2003, 1984 CCH OSHD ¶ 26,920 (No. 83-249, 1984), the Commission held that a union-party could not object to the adequacy of the abatement method, that it could object only to the reasonableness of the abatement date. See 29 U.S.C. § 659(c). Recently, the Supreme Court considered a closely- related question: whether the Commission can consider a union-party's objection to a withdrawal of a citation by the Secretary. The Court held that the Commission cannot consider such an objection. Cuyahoga Valley Railway Co. v. United Transportation Union,. 54 U.S.L.W. 3299 (Nov. 4, 1985). The Court reasoned that the Commission's review of the Secretary's decision to withdraw a citation would impermissibly interfere with a prosecutorial decision that is exclusively the Secretary's province under the Act. The reasoning of Cuyahoga and Pan Am is generally consistent with that of a number of courts of appeals that have held or implied that unions lack the right to object to the adequacy of an abatement method in a settlement. Donovan v. Allied Industrial workers of America, 760 F.2d 783 (7th Cir. 1985); Donovan v. Local 962, International Chemical Workers Union, 748 F.2d 1470 (11th Cir. 1984); Donovan v. International Union, Allied Industrial Workers of America, 722 F.2d 1415 (8th Cir. 1983); Donovan v. United Steelworkers of America, AFL-CIO, 722 F.2d 1158 (4th Cir. 1983); Donovan v. Oil, Chemical, and Atomic Workers International Union, 718 F.2d 1341 (5th Cir. 1983), cert. denied, 104 S.Ct. 2344 (1984); Donovan v. OSHRC (Mobil Oil Corp. and Petroleum Trades Employees Union, Local 419 ), 713 F.2d 918 (2d Cir. 1983); Oil, Chemical and Atomic Workers International Union v. OSHRC, 671 F.2d 643 (D.C. Cir.), cert. denied, 456 U.S. 969 (1982); Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir.), cert. denied, 449 U.S. 1061 (1980). Indeed, the Supreme Court cited all these cases with approval. Accordingly, we do not consider the union's objection to the method of abatement in the settlement agreement. Because the union did not object to the reasonableness of the abatement date, the judge properly approved the settlement agreement.[[1]]

Accordingly, the judge's decision is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

Dated: December 11, 1985