SECRETARY OF LABOR,
Complainant.
v.
A. E. STALEY MFG. CO.,
Respondent.

ALLIED INDUSTRIAL WORKERS
OF AMERICA, LOCAL UNION NO. 837,

Authorized Employee Representative.

OSHRC Docket No. 90-2129

ORDER

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

BY THE COMMISSION:

Review Commission Administrative Law Judge Louis LaVecchia approved a settlement agreement between the Secretary of Labor and the Respondent, A. E. Staley Manufacturing Co. ("Staley"), in this case. The Allied Industrial Workers of America, Local Union No. 837 ("AlW"), the authorized employee representative in the case, requested in writing that the Commission review the circumstances surrounding the settlement agreement. The AIW maintains that its rights to participate in the case were denied. The AIWs' letter was construed as a petition for discretionary review, and review was directed under 29 U.S.C. § 660(j).

In his order approving the settlement agreement, the judge did not address the AlWs contentions that it had been denied its opportunity to provide input on that agreement before it was finalized and executed by the Secretary and Staley. However, upon review of the record, we find that the AIW was clearly afforded an opportunity to participate in the settlement process, as that opportunity was established by the Commission in Boise Cascade Corp., 14 BNA OSHC 1993, 1991 CCH OSHD ¶ 29,222 (No. 89-3087, 1991). Thus, we affirm the judge's order. [[1]]

In Boise Cascade, the Commission held that "it is the Secretary who is responsible for protecting the interest of employees in safe and healthful working conditions.... The discretion to settle a case pending before the Commission is an adjunct of the Secretary's prosecutorial and enforcement authority." 14 BNA OSHC at 1995, 1991 CCH OSHD at p. 39,121. The Commission held that it can "review the Secretary's actions in this regard to determine whether the Secretary has abused his discretion." 14 BNA OSHC at 1997, 1991 CCH OSHD at p. 39,123. However, the Commission concluded that it would not be proper "to inquire into the provision of employee input except in unusual or egregious cases where it appears that the Secretary has contravened his stated policy by denying employees an opportunity for input." 14 BNA OSHC at 1998, 1991 CCH OSHD at p. 39,124.

We find that the Secretary's counsel extended to the AIW a sufficient opportunity for input on all aspects of the proposed settlement, before it was finalized and executed. A document entitled "Affidavit," signed by the Secretary's counsel, Stephen Walanka, was submitted to the judge. It describes the settlement process and the AlW's role in it. The document states, among other things, that Mr. Walanka spoke with AlW's representative, Milan Racic, about the case from its early stages; that Mr. Racic received a copy of the draft settlement agreement in October, 1991, about three months before the Secretary signed the final version. that Mr. Racic and other AlW officials attended a conference with Staley and the Secretary's counsel in November, 1991, at which the union's objections to the settlement were expressed; and that the AIW officials then met privately with the Secretary's counsel to go over their objections further. Those objections did not go to any abatement matters, including the reasonableness of the abatement date.

Mr. Racic discussed that document in detail in a letter to the judge. However, he did not dispute the statements mentioned above. Those statements, made under penalty of perjury, show that the AIW was given a sufficient opportunity to provide input on the settlement agreement, before it was finalized and executed by the Secretary and Staley. Cf. Ficks Reed Co., 14 BNA OSHC 2222, 1991 CCH OSHD ¶ 29,305 (No. 90-1337, 1991) (where AlW claimed that it had been denied the opportunity for input on settlement agreement, Commission gave AlW opportunity, because judge had approved settlement agreement before Commission announced its current policy).

As the judge noted, the AlW does not contend here that the period permitted for abatement of the violation is unreasonable. Cf. General Electric Co., 14 BNA OSHC 1763, 1765, 1990 CCH OSHD ¶ 29,072, p. 38,849-50 (No. 88-2265, 1990) (once employees have had sufficient opportunity for input into settlement agreement, they may only object before Commission to the reasonableness of the abatement period set forth in that agreement).

Thus, we affirm the judge's order approving the settlement agreement between the Secretary and Staley in this case.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: May 21, 1992

SECRETARY OF LABOR,
Complainant.
v.
A. E. STALEY MFG. CO.,
Respondent.

ALLIED INDUSTRIAL WORKERS
OF AMERICA, LOCAL UNION NO. 837,

Authorized Employee Representative.

OSHRC Docket No. 90-2129

ORDER

The objections filed by the Union to the Settlement Agreement presented to me for approval by the Secretary and the Respondent in this matter have been considered. Since the objections do not address abatement periods I am constrained to find them irrelevant.

The Settlement Agreement is approved.

So ORDERED.

Louis G.LaVecchia
Administrative Law Judge

Date: March 30, 1992

FOOTNOTES:

[[1]] "The Commission ordinarily will request the parties to file briefs on issues before the Commission." Commission Rule 93(a). 29 C.F.R. § 2200.93(a). However, requesting briefs on review is discretionary with the Commission. In this case, we have determined that brick are unnecessary. The record below is clear that the AIW'S was given the necessary opportunity for input on the proposed settlement agreement. The AIW's letter requesting Commission review actually corroborates that fact, because it states, "we stated our objections [regarding the settlement agreement] to the Solicitor, Region V ....." Thus, this case may be decided without briefs on review.

[[2]] In its Motion to Vacate Direction for Review. Staley assert that the AlW fail to serve it with a copy of its letter to the Commission. The Commission's Rules of Procedure require service. on all other parties and intervenors, of a copy of all documents that are filed with the Commission. 29 C. F. R. § 2200.7(a). In view of our disposition of this case. we need not resolve whether Staley objection is well-founded. Because the only reasons given by Staley in this motion for vacating the direction for review relate the lack of service of the petition. we deny Staley's motion as moot.