Docket No. 88-1112

SECRETARY OF LABOR,

Complainant,

GENERAL MOTORS CORP., DELCO
ELECTRONICS DIVISION,

Respondent.

LOCAL 438, UNITED AUTOMOBILE, AEROSPACE
AND AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA,

Authorized Employee
Representative.

OSHRC Docket No. 88-1112

DECISION AND ORDER

BEFORE: MONTOYA and WISEMAN, Commissioners.[[*/]]

BY THE COMMISSION:

At issue in this case is an order by Administrative Law Judge Edwin G. Salyers approving a settlement agreement between the Secretary and Respondent. Review was directed on a petition for review by one of the parties to this proceeding, the authorized employee representative. Local 438 of the United Auto Workers (hereinafter "the union") stated in its petition that it objected to the settlement agreement and requested a hearing. For the reasons that follow, we set aside the judge's order and afford the union a further opportunity to present its objections.

The settlement agreement here stated that it was served on the union by mail on November 18, 1988. Nevertheless, the judge entered his order approving the settlement agreement on November 23, two days after the judge's office received a copy of the agreement. The judge's action was contrary to Commission Rule 100(c),[[1/]] which is intended to allow employees or their representatives an opportunity to make their objections to the settlement agreement known before the agreement is approved. See General Motors Corp., 6 BNA OSHC 2056, 1978 CCH OSHD ś 23,126 (No. 78-1764P, 1978).

The judge also acted prematurely because he approved the settlement agreement before it had been fully executed. At the time the judge approved the settlement agreement, the agreement itself was undated and was signed only by Respondent's counsel. It was not until November 23, 1988, the same day the judge issued his order approving the settlement, that the Secretary sent the judge a fully executed copy of the agreement, signed by both counsel, and dated November 22. The judge did not receive this fully executed copy until November 28. In other words, not only did the judge fail to wait the prescribed 10 days following service on the union before acting on the settlement agreement, but he also failed to comply with the Commission's rules, because he approved the agreement before it had been fully executed and properly filed with him. See Babcock & Wilcox Co., 8 BNA OSHC 2102, 2107, 1980 CCH OSHD ś 24,812, p. 30,567 (No. 78-446, 1980) (union is entitled to receive a copy of the executed settlement agreement after it has been filed with the judge) Furthermore, because the first copy of the settlement agreement signed by Respondent's counsel had a postdated service date,[[2/]] the judge could not have been assured that the union was in fact served on that date. Thus, the judge could not have known whether the union had in fact received the settlement agreement when he issued his order.[[3/]]

It is well-settled that, once the Secretary and a Respondent have executed and filed a settlement agreement that wholly or partially terminates the dispute between them, employees or their representatives may only object to the reasonableness of the abatement period specified in that settlement agreement.[[4/]] See Pan American World Airways, 11 BNA OSHC 2003, 1984-85 CCH OSHD ś 26,920 (No. 83-249, 1984), and cases cited therein. See also 29 C.F.R.§ 2200.100(b) & (c). Nevertheless, the procedural irregularities set forth above clearly demonstrate that the union was not afforded the opportunity to make any objections to the settlement agreement known to the judge in the manner required by the Commission's rules. Based on the facts and the case law, it is clear that the judge erred in approving the settlement agreement. See Kaiser Aluminum & Chemical Corp., 6 BNA OSHC 2172, 1978 CCH OSHD ś 23,200 (No. 76-2293, 1978) (a settlement agreement cannot be approved where there is reasonable doubt whether employee representatives were aware of the proposed terms of the settlement sufficiently in advance to enable them to render a considered opinion).

Accordingly, the Commission grants the union an additional period of 10 days from the date of receipt of this Decision and Order to state whether it objects to the length of time prescribed for abatement. If the union does object, it must do so in writing, identifying the particular abatement date or dates it is objecting to and the reasons for its objections. This objection must be filed with the Commission's Executive Secretary, and copies must be served on the representatives of the other parties to this proceeding, the Secretary and the Respondent. In the event that the union does not state such an objection within this 10-day period, the judge's order approving the settlement agreement will be reinstated.

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: August 29, 1990

SECRETARY OF LABOR,

Complainant,

GENERAL MOTORS CORPORATION,
DELCO ELECTRONICS,

Respondent,

and

UNITED AUTOMOBILE, AEROSPACE
AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW),
LOCAL NO. 438,

Authorized
Employee
Representative.

OSHRC Docket No. 88-1112

ORDER APPROVING SETTLEMENT

This matter is before the undersigned upon a settlement entered into between the parties and duly executed. The parties advise that all matters in dispute have been amicably resolved. After consideration, it is ORDERED:

1. The settlement agreement is approved and the terms thereof are incorporated into this order.

2. The citation, as modified, is affirmed.

3. No civil penalties are assessed.

EDWIN G. SALYERS Judge

Date: November 23,1988

FOOTNOTES:

[[*/]] Chairman Foulke did not participate in this decision.

[[1/]] In pertinent part the rule, which is published at 29 C.F.R. § 2200.100(c), provides:

[I]f party status has been elected [by an authorized employee representative or an affected employee], an order terminating the litigation before the Commission because of the settlement shall not be issued until at least 10 days after service to consider any affected employee's or authorized employee representative's objection to the reasonableness of any abatement time.

[[2/]] The copy of the settlement agreement signed by Respondent's counsel was mailed on November 16. The date of November 18 was written on the certificate of service accompanying the agreement; in other words, that copy of the agreement, which is the copy the judge approved, could be interpreted as anticipating service on November 18.

[[3/]] Another procedural oversight in this case, which was noted in the direction for review, is that both the copy of the agreement on which the judge acted and the final, executed copy signed by both the Secretary and Respondent left blank the name of the authorized employee representative that was to be served.

[[4]] On the record before us, the Commission is unable to determine whether the union objects to the abatement dates prescribed in the settlement agreement. The union's letter objecting to the settlement agreement does not identify either the particular provisions it disagrees with or the nature of its objections. Nor does the settlement agreement itself state whether the union objects to the abatement dates. This omission is contrary to 29 C.F.R. § 2200.100(b), which requires the Secretary and a Respondent to state in their settlement agreement "whether any affected employees who have elected party status have raised an objection to the reasonableness of any abatement time."