Docket No. 89-2713

SECRETARY OF LABOR,

Complainant

GEORGIA-PACIFIC CORPORATION,

Respondent.

LOCAL 3-469, INTERNATIONAL WOODWORKERS
OF AMERICA,

Authorized Employee Representative.

OSHRC DOCKET NO. 89-2713

DECISION

BEFORE: FOULKE, Chairman; WISEMAN, Commissioner.

BY THE COMMISSION:

An order of Administrative Law Judge Sidney J. Goldstein approving a settlement agreement between the Secretary and Georgia-Pacific Corporation ("Georgia-Pacific"), is before us for review on issues relating to the participation of employees and representatives of employees in Commission proceedings. We conclude that the judge acted properly in approving the settlement agreement, and we affirm his order.

Following an inspection by the Occupational Safety and Health Administration ("OSHA"), the Secretary alleged that Georgia-Pacific had committed one willful and seven serious violations of standards issued under the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-78 ("the Act"), and one violation of section 5(a)(1) of the Act, the "general duty clause," 29 U.S.C. ї 654 (a)(1). Georgia-Pacific timely contested the Secretary's citations, thus invoking the Commission's jurisdiction.

All of the allegations relate to the exposure of Georgia-Pacific's employees to hazards of polychlorinated biphenyls ("PCB's"). Shortly after the Secretary filed her complaint with the Commission, a former employee, Treva VandenBosch, requested the right to participate as a party to the Commission's proceedings. VandenBosch stated that, while she was no longer employed at Georgia-Pacific's plant, during the time she was an employee she had complained to OSHA about a discharge of PCB's at the facility. In response, Judge Goldstein advised VandenBosch that since she was not a current employee of Georgia-Pacific, she was not entitled to elect party status. Thereafter, the authorized collective bargaining agent for Georgia-Pacific's employees, Local 3-469 of the International Woodworkers of America ("IWA"), filed an election of party status.

Several employees then wrote to Judge Goldstein, advising him that they had "no confidence" in the IWA's business agent and that they did not "authorize" the IWA to serve as their representative. The employees requested that they be represented by two other individuals, Judi Bari and Anna Marie Stenberg, and that Bari and Stenberg be granted party status. VandenBosch joined in this letter. At the same time, Bari and Stenberg wrote to the judge, requesting party status on behalf of "affected employees." Both Bari and Stenberg identified themselves as representatives of Local 1 of the Industrial Workers of the World ("IWW"). The IWW concedes that it is not an authorized collective bargaining agent for Georgia-Pacific's employees.

Georgia-Pacific and the Secretary subsequently entered into a settlement agreement that amended the alleged willful violation to a serious violation, amended the alleged violation of section 5 (a) (1), and reduced the penalties the Secretary had proposed. The IWW objected to the settlement agreement on the ground that it would not adequately protect employees from hazards in the plant and would encourage Georgia-Pacific to continue harassing and retaliating against employees who file complaints with OSHA. The IWA objected on the ground that it was not notified of the settlement agreement or consulted with respect to the provisions of the agreement.

In approving the settlement agreement, Judge Goldstein concluded that neither the IWW nor any other individuals designated by the employees were entitled to elect party status under the Commission's rules governing the election of party status by employees or their representatives. He also concluded that the objection to the settlement agreement raised by the IWA was not an objection cognizable by the Commission. We directed review of the judge's order and requested briefs on the issues of: (1) whether the judge erred in denying the requests for party status filed by the employees and Stenberg and Bari, (2) whether the judge erred in denying VandenBosch's request for party status as a former employee, and (3) whether the IWA had been "afforded an opportunity for meaningful participation in the settlement agreement process."

The IWW contends that internal operating procedures established by OSHA for the guidance of its field personnel allow affected employees the right to freely choose their representatives in a proceeding before the Commission. In addition, the IWW asserts that under the Commission's Rules of Procedure, there similarly are no restrictions on the employees' choice of a representative. For the reasons set forth below, we reject the IWW's arguments.

The right of employees to elect party status is conferred by the Act, which requires that ''[t]he rules of procedure prescribed by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings [before the Commission]."[[1/]] Commission Rule 20(a), 29 C.F.R. ї 2200.20(a), states that "affected employees and authorized employee representatives" may elect party status. Rule 22(a), 29 C.F.R. ї 2200.22(a), generally permits "any party" to appear "through an attorney, or through another representative who is not an attorney." However, a specific limitation applies in the case of employees who are members of a collective bargaining unit.

Rule 22(b), 29 C.F.R. ї 2200.22(b), provides as follows: "Where an authorized employee representative (see ї 2200.1(g)) elects to participate as a party, affected employees who are members of the collective bargaining unit may not separately elect party status." Rule 1(g) defines "authorized employee representative" as a "labor organization that has a collective bargaining relationship with the cited employer and that represents affected employees."

Under the plain language of these rules, if the affected employees' authorized collective bargaining agent elects party status, the employees themselves cannot make any separate election of party status. United States Steel Corp., 11 BNA OSHC 1361, 1364, 1983-84 CCH OSHD І 26,523, p. 33,780 (No. 80-2425, 1983). Because the affected employees are precluded from electing party status in such circumstances, it necessarily follows that the representation by the authorized collective bargaining agent is exclusive, and the affected employees cannot appear through any other representative. Babcock & Wilcox Co., 8 BNA OSHC 2102, 2106, 1980 CCH OSHD І 24,812, pp. 30,565-66 (No. 78-446, 1980) [[2/]] Since the authorized collective bargaining representative for the affected employees, the IWA, timely elected party status under the Commission's rules, Judge Goldstein properly held that the IWW cannot elect party status in these proceedings.

For the same reason, we conclude that the judge did not err in denying the request for party status by former employee VandenBosch. In the circumstances presented here we find it unnecessary to decide whether an individual who at one time was an employee affected by the allegedly hazardous working conditions that are the subject of the Secretary's citations may either elect or maintain party status after his or her employment ends. To the extent that VandenBosch seeks to present the same interest as Georgia-Pacific's current affected employees, we conclude that she may not do so separately and distinct from the IWA, since under the Commission's rules the IWA, having elected party status, is the only representative who may appear on behalf of Georgia-Pacific's affected employees. To the extent that VandenBosch seeks to present some other interest that would not be adequately protected by the participation of the IWA, the Commission's rule on intervention, Rule 21, applies rather than the rules governing party status. See Brown & Root, Inc., 7 BNA OSHC 1526, 1979 CCH OSHD І 23,731 (No. 78-127, 1979) (union which represents employees of a subcontractor at a construction site but does not represent employees of the cited employer cannot be granted party status and can only enter the proceeding as an intervenor). However, while VandenBosch sought to elect party status, she has not moved for leave to intervene and has not made the factual showing necessary to support intervenor status. [[3/]]

We also requested briefs on the question of whether the authorized employee representative, the IWA, was afforded an opportunity for meaningful participation in the settlement process. In General Electric Co., 14 BNA OSHC 1763, 1990 CCH OSHD І 29,072 (No. 88-2265, 1990) and more recently in Boise Cascade Corp., 14 BNA OSHC 1993 1991 CCH OSHD І 29,222 (No. 89-3087, 1991), we held that employees or their authorized representatives who have elected party status should be allowed to present their input to a proposed settlement before it is executed and submitted to the Commission or Commission judge for approval. The IWA, however, neither filed a petition for review of Judge Goldstein's decision approving the settlement agreement nor responded to our briefing order. In short, the IWA has expressed no interest in review of this matter. We therefore decline to address the question of whether the IWA should have been afforded an opportunity to present input to the proposed settlement agreement. See Marmon Group, Inc., 11 BNA OSHC 2090, 2090 n.1, 1984-85 CCH OSHD І 26,975, p. 34,641 n.1 (No. 79-5363, 1984) (Commission declines to reach issues on which the aggrieved party indicates no interest).

Accordingly, the judge's order denying the requests for party status by the individual employees and by Stenberg and Bari as representatives of the IWW, and approving the settlement agreement, is affirmed.[[4/]]

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Dated: June 28, 1991

SECRETARY OF LABOR,

Complainant,

GEORGIA-PACIFIC CORPORATION,

Respondent.

OSHRC DOCKET NO. 89-2713

FINAL ORDER

After a representative of the Occupational Safety and Health Administration inspected a workplace of the respondent, that Agency issued to the company two citations for the alleged violation of regulations adopted under the Occupational Safety and Health Act of 1970. The respondent disagreed with the citations and submitted a notice of contest.

Thereafter the Secretary filed a Complaint with this Commission to affirm the citations, and the respondent forwarded its Answer. The International Woodworkers of America, Local Union 3-469, AFL-CIO, filed a notice to the effect that it intended to participate in this case. The union was granted party status in this proceeding.

After a Notice of Hearing was served upon the parties, approximately fifty-one individuals requested permission to attend the proceedings. In addition a few employees wrote to the effect that they were displeased with the union's efforts on their behalf and requested that they and the International Workers of the World, Local No. 1, represent them in this matter.

Prior to the hearing, the Secretary of Labor and respondent entered into and submitted a Settlement Agreement, and the hearing was therefore cancelled.

On January 31, 1990, John C. Smith, Jr., wrote to me as follows:

Be advised that my client, International Woodworkers of America, Local No. 3-469, objects to the purported settlement of this matter. We were not notified or consulted about any settlement and as a necessary party, we will require that the parties include us in any attempts at resolving this case.

As noted, a few employees submitted a request that they or the International Workers of the World, Local Union No. 1, instead of the International Woodworkers of America, Local Union 3-469, AFL-CIO, represent them in this case. In this connection Section 2200.22(b) provides:

(b) Affected employees in collective bargaining unit. Where an authorized employee representative (see 2200.1(g) elects to participate as a party, affected employees who are members of the collective bargaining unit may not separately elect party status.

Section 2200.1(g) defines the term "authorized employee representative" as a labor organization that has a collective bargaining relationship with the cited employer and that represents affected employees.

Inasmuch as neither those individuals who desire to represent the employees nor the International Workers of the World, Local Union No. 1, do not fall within the definition of a labor organization that has a collective bargaining relationship with the cited employer, their requests for party status must be denied.

The employee representative objects to the Settlement Agreement on the ground that it was not notified or consulted about any settlement. In this regard the case of Secretary of Labor v. General Electric Co., 1985 CCH OSHD 27,452 (No. 83-1227) is determinative of the issue in the current proceeding. In that case the Secretary and the company agreed upon a settlement which was approved by the administrative law judge over the objections of the employee representative. On review, the union argued that the settlement should be rejected for a number of reasons. The Commission held that the issue of whether it can consider a union-party's objection to the adequacy of the abatement method in a settlement agreement has been settled. The Commission's position is that a union-party could object only to the reasonableness of the abatement date. Since there has been no disagreement with the abatement date, the International Woodworkers of America, Local No. 3-469, AFL-CIO's objection to the Settlement Agreement is denied.

There being no objection to the abatement date, the citations, as amended, and proposed penalties, as amended, are AFFIRMED.

Sidney J. Goldstein
Judge, OSHRC
Dated: March 29, 1990

FOOTNOTES:

[[1/]] In its briefs, the IWW relies on OSHA Instruction CPL 2.45B, Field Operations Manual, Chapter IX, section A.2.c (June 15, 1989), amended by OSHA Instruction CPL 2.45B CH-1 (Dec. 31, 1990). The provisions to which the IWW refers deal only with the filing with the Secretary of complaints of unsafe working conditions. They have no bearing on the question presented here, the designation of a representative to appear on behalf of affected employees in a Commission proceeding.

[[2/]] Babcock & Wilcox held that an affected employee who is a member of a collective bargaining unit may only appear through his bargaining unit even if that collective bargaining unit declined to participate as a party. In United States Steel, the Commission overruled this portion of Babcock & Wilcox, but otherwise left undisturbed its general principle that "once employees have selected an exclusive bargaining representative, they may deal with their employer only through that representative concerning their conditions of employment." 8 BNA OSHC at 2105, 1980 CCH at p. 30,565.

[[3/]] Rule 21 provides, in pertinent part, as follows:

ї 2200.21 Intervention; Appearance by non-parties.

(a) When allowed. A petition for leave to intervene may be filed at any time prior to ten days before commencement of the hearing. A petition filed less than ten days prior to the commencement of the hearing will be denied unless good cause is shown for not timely filing the petition. A petition shall be served on all parties in accordance with ї 2200.7.
(b) Requirements of petition. The petition shall set forth the interest of the petitioner in the proceeding and show that the participation of the petitioner will assist in the determination of the issues in question, and that the intervention will not unduly delay the proceeding.

The IWW alleges on review that VandenBosch has an interest in emissions from Georgia-Pacific's plant because she lives close to the facility and is caring for family members disabled from respiratory conditions. Even assuming these unsworn representations are factually correct, the IWW has failed to show how VanderBosch's concerns regarding environmental emissions from the worksite relate to the occupational safety and health issues that are the subject of the Secretary's citations.

[[4/]] In view of our disposition, we deny the pending motions for oral argument filed by Georgia-Pacific and Stenberg.