SECRETARY OF LABOR,

Complainant,

v.

FICKS REED COMPANY,

Respondent.

ALLIED INDUSTRIAL WORKERS UNION,

Authorized Employee
Representative.

OSHRC Docket No. 90-1337

DECISION

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

This case involves the role of employees in settlement negotiations.  The Secretary of Labor ("Secretary") cited Ficks Reed for violating the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651-678 ("the Act").  On August 3, 1990, a little more than two weeks after the Secretary filed her Complaint, the Secretary's counsel sent a copy of a proposed stipulation and settlement agreement (signed by the Secretary) to Ficks Reed.  According to the certificate of service, copies of the agreement were served on Commission Administrative Law Judge James Burroughs and Milan Racic of the Allied Industrial Workers of America ("the union"), which had previously elected party status.  Counsel for Ficks Reed filled in the date of posting, August 9, signed the agreement and sent it back to the Secretary.  The judge received the executed agreement from the Secretary on August 27, 1990. He issued an order affirming the agreement on August 29, 1990.

Also on August 29, the judge received the first of two letters from Racic, who indicated that he had seen the settlement agreement, but expressed concern that the union had not been consulted in drafting the agreement.   He asked the judge to "order the parties involved to engage in a meaningful discussion with this labor union before executing any stipulations or agreements pertaining to this OSHRC case" On August 31, 1990, the judge received Racic's response to his order approving the settlement.  Racic asked the judge not to approve the settlement agreement.

Commissioner Velma Montoya construed one of the letters as a petition for discretionary review and granted review on the issue of:

Should the Administrative Law Judge's decision approving the settlement agreement between the Secretary and the Respondent be set aside on the ground that the Authorized Employee Representative was denied its right of meaningful participation in the settlement agreement process?

In General Electric Co., 14 BNA OSHC 1763, 1990 CCH OSHD ¶ 29,072 (No. 88-2265, 1990) ("GE"), the Commission recently addressed the issue of employee involvement in the settlement process.  We concluded that when the Secretary and an employer seek to settle a case which is pending before the Commission, the extent to which employees participate in settlement negotiations is largely left to the discretion of the Secretary.  We did find, however, that affected employees or their representatives should be given the opportunity to offer input concerning the proposed settlement before it is executed and submitted to the Commission or a judge for approval.

In Boise Cascade Corp., 14 BNA OSHC 1993, 1991 CCH OSHD ¶ 29,222 (Nos. 89-3087 & 89-3088, 1991), we articulated the Commission's limited role in overseeing employee input in the settlement process.  We noted that we could not order the method by which the Secretary and the employer receive the views of employees or the amount of input they receive.  We did, however, "expect [the Secretary and the employer] to make every effort to provide employees with the opportunity for input as much as practicable."  14 BNA at 1996.   We further stated that "employees or their representatives concerned about their opportunity for input" should "make their concerns known in a reasonable and prudent manner in order to avoid undue delay of the settlement process."  14 BNA OSHC at 1998 n.6, 1991 CCH OSHD at p. 39,124 n.6.  In addition, the Commission held that it would not be proper for the judge to inquire into the provision of employee input except where it appeared that the Secretary had contravened her policy, stated at oral argument, of affording employees an opportunity to present their input before she enters into any settlement agreement.  14 BNA OSHC at 1997, 1991 CCH OSHD at p. 39,124.  The Commission concluded that in most cases the proper role for the judge would be to advise the Secretary and the employer of any claim that employees have not been given an opportunity for input so that the Secretary and the employer can reconsider their positions in light of the claim. 14 BNA OSHC at 1998, 1991 CCH OSHD at p. 39,124.

In this case, neither the parties nor the judge were able to benefit from the developments in GE or Boise Cascade Corp., which were issued after the judge approved the settlement agreement.  Accordingly, in keeping with the Commission's policy of affording the parties an opportunity to address the effects of intervening precedent, see Truland-Elliot, A Joint Venture, 4 BNA OSHC 1455, 1976-77 CCH OSHD ¶ 20,908 (No. 11259, 1976), we issue a conditional order affirming the judge's order unless within 20 days from the date of this order, the Secretary or the employer files a motion to withdraw the settlement agreement.   During this 20-day period, the union may contact the Secretary and the employer concerning the settlement agreement.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: April 18, 1991

SECRETARY OF LABOR,

Complainant,

v.

FICKS REED COMPANY,

Respondent,

and

ALLIED INDUSTRIAL WORKERS OF AMERICA,

Authorized Employee
Representative.

OSHRC Docket No. 90-1337

ORDER APPROVING SETTLEMENT

Respondent, by letter dated April 26, 1990, from its counsel, contested a serious citation and "other" citation issued to it on April 17, 1990.
On August 27, 1990, an executed stipulation and settlement agreement was received from the parties.  The stipulation having been read and considered, it is ORDERED:

(1) That the terms of settlement are approved and incorporated as part of this order;
(2) That the serious citation, "other" citation, and proposed penalties issued to respondent on April 17, 1990, are modified and affirmed in accordance with the terms of settlement;
(3) That respondent's motion to withdraw its notice of contest, pursuant to the terms of settlement, is granted; and
(4) That the hearing scheduled in this matter for September 7, 1990, is cancelled.

Dated this 27th day of August, 1990.
JAMES D. BURROUGHS
Judge