FARMERS EXPORT COMPANY

OSHRC Docket No. 78-1708

Occupational Safety and Health Review Commission

June 26, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Allan L. Bioff, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

As a result of an inspection at its Ama, Louisiana facility, Respondent, Farmers Export Company, was issued a citation for a serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Respondent filed a timely notice of contest. Prior to the scheduled hearing the parties entered into a Compromise Settlement Agreement which was filed with Administrative Law Judge David H. Harris.

In an Order issued October 5, 1978, Judge Harris disapproved the Compromise Settlement Agreement entered into between Respondent and the Secretary of Labor because it contained exculpatory language which he held did not comport with Review Commission policy.   On October 10, 1978, Respondent requested both special permission for interlocutory appeal and certification of the interlocutory appeal pursuant to Commission Rule 75. n1 Judge Harris certified the interlocutory appeal sought by Respondent.

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n1 29 C.F.R. §   2200.75.   This rule has since been revised.   See 44 Fed. Reg. 70106, 70111 (1979).

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I

Respondent's interlocutory appeal of Judge Harris' ruling raises two issues.   As the first issue, Respondent contends that the Review Commission has "no jurisdiction, power, or authority to contest or disapprove" the Compromise Settlement Agreement. Respondent argues that the Commission must, under the Administrative Procedure Act, n2 give parties an opportunity to determine controversies by consent.

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n2 5 U.S.C. § §   551-706 ("the APA").

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I reject Respondent's argument.   Inherent in the Commission's adjudicatory role is a policy-making function to protect the public interest and to act in a supervisory capacity over the Act's enforcement.   See Babcock & Wilcox Co. v. Marshall and OSHRC, 610 F.2d 1128 (3rd Cir. 1979). It is a necessary adjunct of the Commission's public interest and supervisory [*3]   role that settlement agreements that do not comport with the purposes of the Act be rejected.   American Airlines, 75 OSAHRC 43/F3, 2 BNA OSHC 1391, 1974-75 CCH OSHD P19,393 (No. 6087, 1974).   Thus, the jurisdiction of the Commission "to contest or disapprove" settlement agreements is essential to its statutory authority to review the actions of its administrative law judges, consistent with the purposes of the Act and with the public interest. n3 I therefore find that the Commission has jurisdiction over settlement agreements. n4

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n3 It is true that 5 U.S.C. §   554(c)(2) of the APA has been interpreted to require an adjudicatory agency to consider offers of settlement that are submitted to it.   I agree with this interpretation.   The agency, however, is under no obligation to approve a proposed settlement when it has valid reasons for rejecting it.   See Michigan Consolidated Gas Co. v. FPC, 283 F.2d 204, 224-25 (D.C. Cir. 1960); Pinkus v. Reilly, 178 F.Supp. 399, 406-07 (D.N.J. 1959).

The Congressional intent to grant the Commission adjudicatory power in all contested cases is manifested in the scheme established in § §   10 and 11 of the Act.   29 U.S.C. § §   659, 660.   These sections provide for the rights of the parties when a case is contested. Section 10(c), 29 U.S.C. §   659(c), requires that, upon the filing of a timely notice of contest, "[t]he Commission shall thereafter issue an order, based on findings of fact, affirming, modifying or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief." Thus, under the Act's adjudicatory scheme, it was contemplated that the relief, if any, to be granted in all contested cases be under the jurisdiction and by the order of the Review Commission.

n4 On May 29, 1980, the United States Court of Appeals for the Third Circuit issued its opinion in Marshall v. Sun Petroleum Products Co. and OSHRC, Docket Nos. 79-1822 and 79-1828 (3rd Cir. May 29, 1980) ("Sun Petroleum").   In that opinion, the Court held, among other things, that the Commission's authority to review settlement agreements in contested cases is limited to those instances in which employees or their authorized representative express some interest in the case either by filing a notice of contest under §   10(c) of the Act, 29 U.S.C. §   659(c), or by electing to participate as parties under Commission Rule 20, 29 C.F.R. §   2200.20.   The Court went on to hold that even in those cases in which the Commission does have the authority to review the proposed settlement agreements, our authority is limited to "entertaining objections from the employee or employees' representative that the abatement period proposed by the settlement is unreasonable." Sun Petroleum, slip op. at 20.   I respectfully disagree with the Court's overly narrow view of the Commission's role in the final administrative disposition of contested enforcement actions under the Act.   As we have stated previously, Congress established the Commission in an effort to achieve uniformity in adjudications involving national occupational safety and health policy.   29 U.S.C. §   651(b)(3); see Keystone Roofing Co. v. OSHRC, 539 F.2d 960, 963-64 (3d Cir. 1976); Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1262 (4th Cir. 1974). In fulfilling this statutory purpose, the Commission adheres to the principle that an administrative agency charged with the duty of formulating uniform and orderly national policy in adjudications is not bound to acquiesce in the views of United States courts of appeals that conflict with those of the agency.   See S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1264, 1979 CCH OSHD P23,480 at p. 28,437 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir. June 7, 1979); Monroe & Sons, Inc., 77 OSAHRC 14/B7, 4 BNA OSHC 2016, 1976-77 CCH OSHD P21,470 (No. 6031, 1977), aff'd, 615 F.2d 1156 (6th Cir. 1980); Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976).   Naturally, the Commission gives due deference to the views of the circuits, but unless reversed by the United States Supreme Court the Commission is obligated to establish its own precedent in carrying out its adjudicatory functions under the Act.

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II

The second issue before us is whether settlement agreements containing exculpatory language should be approved by the Commission because such language casts doubt as to whether the violations may be used in future proceedings against the Respondent.   In this case, paragraph I of the settlement agreement purports to exculpate Respondent from any consequences of a violation of the Act in any future proceeding.   Since it is not confined by its language to proceedings under the Act, it potentially relates to proceedings in other forums in unrelated causes of action.   Paragraph II states that the Commission's final order embodied in the compromise settlement agreement "may be considered" in subsequent proceedings involving Respondent's Ama, Louisiana facility.   Thus, this paragraph purports to limit Respondent's liability for the purpose of future enforcement actions under the Act.   Clearly, such language does cast doubt as to whether the violations may be used in future proceedings against Respondent and, apparently, the judge so found.

Judge Harris disapproved the settlement agreement relying on the [*5]   Commission's early decisions in Matt J. Zaich Constr. Co., 73 OSAHRC 55/D5, 1 BNA OSHC 1225, 1973-74 CCH OSHD P16,867 (No. 756, 1973); Greenfield & Associates, 73 OSAHRC 28/A2, 1 BNA OSHC 1245, 1971-73 CCH OSHD P16,269 (No. 798, 1973); and Blaisdell Mfg., Inc, 73 OSAHRC 53/B8, 1 BNA OSHC 1406, 1973-74 CCH OSHD P16,915 (No. 1566, 1973).   While we have not overruled those decisions specifically, I believe that the Commission may have already departed from the holdings in Zaich, Greenfield, and Blaisdell. In Thorleif Larsen & Son, Inc., 74 OSAHRC 74/C8, 2 BNA OSHC 1256, 1974-75 CCH OSHD P18,826 (No. 370, 1974), the Commission provided a more lenient assessment of "public interest" considerations in weighing proposed settlement agreements than in the earlier decisions cited by Judge Harris in this case.   As long as a proposed settlement is consistent with the criteria set out in our decision in Dawson Bros. Mechanical Contr., 72 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971-73 CCH OSHD P15,039 (No. 12, 1972) ("Dawson Bros.") and Commission Rule 100, n5 particularly as to the abatement of the alleged hazards, the statutory purpose of assuring a safe and healthful [*6]   workplace n6 is served by a prompt voluntary disposition of a contested case.   Having reviewed the proposed settlement in this case, I conclude that it satisfies the Commission's basic criteria set out in Dawson Bros. and Rule 100. n7 Accordingly, to the extent Zaich, Greenfield, and Blaisdell are not consistent with the view expressed in this case, they are overruled.

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n5 29 C.F.R. §   2200.100.   This rule was revised by the Commission on December 5, 1979.   44 Fed. Reg. 70106, 70112 (1979).

n6 See 29 U.S.C. §   651(b).

n7 While this case is before us on interlocutory appeal, there is no need to remand the matter to the judge for an initial decision on the substance of the proposed settlement agreement.   Section 10(c) of the Act, 29 U.S.C. §   659(c), indicates clearly that enforcement controversies under the Act are to be heard, if necessary, in accordance with 5 U.S.C. §   554 of the APA.   Section 554(d) explains that an initial or recommended decision by an administrative law judge ("ALJ") is required when the "[ALJ] . . . presides at the reception of evidence pursuant to section 556 . . . ." Section 557(b) echoes this requirement.   It states, "When the agency did not preside at the reception of evidence, the [ALJ] . . . shall initially decide the case . . . ." Here, there has been no hearing before Judge Harris; he has not presided at the reception of evidence pursuant to §   556.   In short, what remains for resolution are essentially questions of law and policy, not matters of fact.   Therefore, there is no requirement that the judge make an initial decision pursuant to §   557 under these circumstances.   This is not to say that in the normal course of events I would not expect our judges to initially pass upon the substance of a proposed settlement agreement.   It simply means that in this case a remand is not necessary.   Cf. Quality Stamping Products Co., 79 OSAHRC 28/F11, 7 BNA OSHC 1285, 1979 CCH OSHD P23,520 (No. 78-235, 1979).

In any event, §   554(c) of the APA makes it clear that we need confront questions involving hearings pursuant to §   556 and initial decisions issued pursuant to §   557 "to the extent that the parties are unable so to determine a controversy by consent" and "time, the nature of the proceeding, and the public interest permit" the agency to accept the parties' agreement.   See ATT'Y GEN. MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT, at 48 (1947).   Here, the parties have resolved the controversy by consent in the form of a proposed settlement agreement, and I find that agreement acceptable.

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It adds nothing to the safety and health of employees to disapprove of settlements that contain exculpatory language.   Indeed, such an approach, that is, denying settlements because they contain exculpatory language, is not consistent with either the intent of the Act or the spirit of the Administrative Procedure Act. n8 Settlement of disputes arising under the Act by agreement of the parties is to be encouraged.   Needless to say, requiring further negotiation or litigation where the parties have reached accord is also judicially inefficient and wasteful of Commission resources.   The Solicitor of Labor appears in our proceedings as the representative of the Occupational Safety and Health Administration of the Department of Labor (OSHA), and I must assume that OSHA, as represented by the Solicitor, enters into settlement agreements freely and with "its eyes open." Therefore, I will not disapprove a settlement agreement freely entered into by the parties solely on the basis that the agreement contains exculpatory language.

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n8 See 5 U.S.C. §   554(c); ATT'Y GEN. MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT, at 48 (1947).

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III

While some settlement agreements, like the one now before us, may contain language that purports to exculpate Respondent from liability in causes of action commenced in other forums, this is no reason for the Commission to disapprove of the settlement. I find that such other forums are in a better position to rule on the effect of such settlements in the context of the separate action before them.   Similarly, while some settlement agreements may contain language that purports to exculpate Respondent from liability for the purpose of future enforcement actions under the Act, I see no reason to disapprove of such settlements.

Accordingly, the judge's decision is reversed and the settlement agreement submitted by the parties is approved.

IT IS SO ORDERED.

COMPROMISE SETTLEMENT AGREEMENT

Pursuant to Rule 100 of the Review Commission's Rules of Procedure, the Complainant, Secretary of Labor, United States Department of Labor, and the Respondent, Farmers Export Co., in order to avoid the cost [*9]   of further litigation, acting only in the interest of peace and in order to effectuate a settlement and compromise of this controversy, hereby enter into the following Compromise Settlement Agreement.

I.

Neither this settlement agreement, nor Respondent's consent to the entry of a final order by the Commission pursuant to this agreement, constitutes any admission by Respondent of any violation of the Occupational Safety and Health Act or regulations or standards promulaged thereunder.   Neither this settlement agreement nor any order of the Commission entered pursuant to this settlement agreement shall be offered, disclosed, used or admitted in evidence in any proceeding or litigation, whether civil, criminal or administrative, now pending or hereafter brought.   By entering into this Agreement, Respondent does not admit the truth of any alleged facts, any of the characterizations of Respondent's alleged conduct or any of the conclusions set forth in the citations or amended citations issued in this matter.

II.

Notwithstanding the provisions of paragraph I above, in any subsequent proceedings brought directly by the Secretary of Labor involving Respondent's Ama, Louisiana facility [*10]   under the provisions of the Occupational Safety and Health Act of 1970, including but not limited to, any citation issued, or penalty proposed by the Secretary under the provisions of Section 10(a) and 10(b) of the Act, this Compromise Settlement Agreement may be considered.

III.

Complainant hereby amends Citation No. 1, OSHA No. S7814 030, issued on March 29, 1978 as follows:

1.   Items 1 and 2 are vacated and withdrawn.

2.   The second paragraph of Item 7 is amended to read as follows:

On the 4th Floor of the headhouse in the stair-well where malathion drums were present.

3.   Items 3, 4, 5, 7 (as amended in paragraph 2 above) and 10 are combined into one citation item alleging one serious violation with a proposed penalty of $500.

4.   The proposed penalty for Item 6a is reduced to $400.

5.   Item 6b is vacated and withdrawn.

6.   Item 9a is amended to read as follows: 29 CFR 1910.134(e)(3): Written procedures were not prepared covering safe use of respirators or other applicable operating procedures in dangerous atmospheres that might have been encountered in normal operations or in emergencies:

(a) in the headhouse where pesticides and fumigants are in use;

(b) in railroad [*11]   car unloading where treated grain may be received;

(c) in the area of the barge dock where loaded barges may be received.

7.   Items 8 and 9 (including Item 9a as amended in paragraph 6 above) are combined into one citation item.   The nature of said combined citation item shall be "other" rather than "serious." The proposed penalties for Items 8 and 9 are withdrawn.

8.   The proposed penalty for Item 11a is reduced to $400.

9.   Items 11b and 11c are withdrawn.

IV.

With regard to Item 6a of the citation, Complainant stipulates that personal protective equipment and an audiometric testing program constitute the only necessary protection referred to in Item 6a.

V.

With regard to Item 11a of the citation, Respondent denies that the standard and table listed in Item 11a are applicable to Respondent in the cited circumstances.   Respondent agrees that approved respirators shall be provided and used by the bobcat operator(s).   Nothing contained herein shall be construed as an admission by Respondent that the cited standard or table apply to Respondent in the circumstances cited.

VI.

Having reconsidered the gravity of the remaining alleged violations in the citation issued to Respondent [*12]   on March 29, 1978 and as amended herein, and Respondent's good faith, size and prior history under the Act, Complainant agrees to reduce the total proposed penalty set forth in his notification of proposed penalty to $1,300.

VII.

Respondent denies that it violated the Occupational Safety and Health Act or any regulations or standards promulgated thereunder but solely for the purpose of effectuating a compromise settlement of this controversy and to satisfy procedural requirements of the Review Commission in connection with settlement agreements, Respondent withdraws its Notice of Contest filed on April 17, 1978, except with regard to Items 1, 2, 6b, 11b and 11c, and agrees to pay the revised proposed penalty of $1,300.

VIII.

Respondent states that the remaining alleged violations in the citation as amended herein have been abated, and Respondent agrees that Occupational Safety and Health Administration may conduct a follow-up inspection at its discretion to verify such abatement.

IX.

Respondent states that it will continue to comply with the Occupational Safety and Health Act of 1970, 29 USC 65, et seq.

X.

Respondent certifies that a copy of this Settlement Agreement [*13]   has been served upon affected employees in the manner set forth in Rule 7 of the Commission's Rules of Procedure.

XI.

The parties stipulate and agree that Exhibit A hereto is the form of order which should be entered by the Administrative Law Judge and the form of order is approved by each party as to form and content.

Dated this 15th day of September, 1978.

Exhibit A

ORDER APPROVING COMPROMISE SETTLEMENT AGREEMENT

The Compromise Settlement Agreement dated 1978 between the parties is approved.

Dated this     day of      , 1978.

Administrative Law Judge, on behalf of the Occupational Safety and Health Review Commission

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Commissioner, Concurring:

This case raises two issues of extreme significance to adjudication by the Commission under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 (th Act): whether the Commission has authority to review and disapprove a settlement agreement by the parties and, if so, whether a settlement agreement should be approved if the agreement provides that Respondent does not admit and indeed denies that it violated the Act and if the settlement agreement by its terms is restricted in the extent to which it [*14]   may be used in order proceedings.   The Chairman concludes that the Commission has authority to consider and decide whether or not to approve a settlement agreement by the parties and that in the exercise of that authority the Commission should approve the agreement before it in this case.   I agree with these conclusions and therefore concur in the result.   I do so, however, for reasons substantially different than those advanced by the Chairman.

I.

Because the disposition of cases on a voluntary resolution by the parties is vital to the efficient operation of the Commission, the questions whether and on what criteria the Commission will review settlement dispositions must be decided with the greatest care and thoughtfulness.   Moreover, because the possibility that parties will enter into a settlement in a given case may well depend on the likelihood that any disposition on which they might agree will be accepted by the Commission, it is essential that the parties who appear before us be apprised with as much specificity as possible of the grounds, if any, on which their agreements will be evaluated so that they may make intelligent and informed decisions as to how to proceed.

Since [*15]   the Commission's authority is conferred by the Act, my inquiry into the role and function of the Commission with respect to settlement agreements commences with the language of the statute.   The jurisdiction of the Commission vests with the filing of a timely notice of contest in accordance with section 10 of the Act, 29 U.S.C. §   659, n1 American Airlines, Inc., 74 OSAHRC 81/B3, 2 BNA OSHC 1326, 1974-75 CCH OSHD P18,908 (No. 4532, 1974), or with the docketing of a petition for modification of the abatement period prescribed in a citation (PMA) in accordance with 29 U.S.C. §   659(c) and Commission Rule 34, 29 C.F.R. §   2200.34. n2

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n1 This section provides in pertinent part:

(a) If, after an inspection or investigation, the Secretary issues a citation . . . he shall . . . notify the employer by certified mail of the penalty, if any, proposed to be assessed . . . and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty.

(b) If the Secretary has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction . . . the Secretary shall notify the employer by certified mail of such failure and of the penalty proposed to be assessed . . . and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the Secretary's notification or the proposed assessment of penalty.

(c) If an employer notifies the Secretary that he intends to contest . . . or if, within fifteen working days of the issuance of a citation . . . any employee or representative of employees files a notice with the Secretary alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing . . . .

n2 29 U.S.C. §   659(c) further provides that "[u]pon a showing by an employer of a good faith effect to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control . . . ." the Commission shall afford an opportunity for a hearing.   See H.K. Porter Co., 74 OSAHRC 59/E3, 1 BNA OSHC 1600, 1973-74 CCH OSHD P17,471 (No. 1210, 1974).   Commission Rule 34 implements this requirement by providing that a PMA to which either the Secretary or affected employees object must be forwarded to the Commission.

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Once a case is docketed with the Commission, the adjudicatory phase of the administrative process arises, necessitating the entry of an appropriate order by the Commission.   When a notice of contest has been filed, 29 U.S.C. §   659(c) requires that the Commission "shall issue an order . . . affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief . . . ." In the case of a PMA, the Commission "shall issue an order affirming or modifying the abatement requirements . . . ."

Nothing in the Act distinguishes between contested matters submitted to the Commission for adjudication and contested matters the parties propose to settle. Nor is there any indication in the Act that parties can divest the Commission of jurisdiction by their own actions.   To the contrary, section 12(j) of the Act, 29 U.S.C. §   661(i), provides that the Commission's administrative law juges shall hear and

make a determination upon any proceeding instituted before the Commission and any motion in connection therewith [emphasis added].

Moreover, section 10(b) of the [*17]   Act, 29 U.S.C. §   659(b), provides that the period permitted for correcting a violation shall not begin to run "until the entry of a final order by the Commission in the case of any review proceedings . . . ." It follows from section 10(b) that the Commission's authority must extend to all contested matters regardless of whether such matters are settled in order that there will be a final order from which the abatement period shall run.

Finally section 10(c) of the Act, 29 U.S.C. §   659(c), provides that the Commission shall afford an opportunity for a hearing in accordance with 5 U.S.C. §   554. That section, a part of the Administrative Procedure Act (APA), governs the procedure to be followed in formal administrative adjudication.   5 U.S.C. §   554(c) provides:

The agency shall give all interested parties opportunity for --

(1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit; and

(2) to the extent that the parties are unable so to determine a controversy by consent, hearing, and decision on notice and in accordance with sections 556 and 557 of this title.   [*18]  

The APA thus contemplates that parties shall submit settlements to administrative bodies performing adjudicatory functions.   Pursuant to the APA, therefore, the Review Commission -- the administrative agency here -- must receive and enter orders concerning offers of settlement.

However, the fact that a settlement by the parties can only be effectuated through a Commission order does not resolve the extent to which the Commission should review settlement agreements.   In my opinion, our review of settlements should be limited.

In addressing what criteria the Commission should use in evaluating a settlement agreement, the Chairman correctly observes that the purpose of the Act is the protection of workers from hazards. n3 However, as the Chairman properly notes, the Commission must also take into consideration its interests in the disposition of cases before it and in the efficient management of its resources.   These legitimate interests of economy and efficiency, however, are not necessarily consistent with the goal of employee protection.   A considerable number of voluntary dispositions filed with the Commission include provisions by which the Secretary wishes to withdraw all or [*19]   part of his citation.   Obviously approval of such dispositions serves the Commission's interests in prompt adjudication and conservation of its resources.   On the other hand, if the Commission does not review the appropriateness of the Secretary's action, the Secretary's withdrawal of a citation may result in employees not receiving the protectin which would have been afforded had the Secretary's action been subject to Commission scrutiny. n4

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n3 29 U.S.C. §   651(b) reads in pertinent part:

The Congress declares it to be its purpose and policy . . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources --

(3) by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, and by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act.

n4 Although the Secretary is charged with promoting employee safety and health and therefore is expected to act in furtherance of this goal, review by the Commission of the Secretary's action in withdrawing a citation may demonstrate that issuance of the citation was proper.   In such circumstances, unless the Commission reviews and disapproves the settlement employees would not receive the protection which would have been required as a matter of law had the citation become a final order. See 29 U.S.C. §   659(a).

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Accordingly, it is possible that in a given case the Commission's interest in the speedy disposition of cases through settlement may conflict with the statutory purpose to insure safe working conditions.   The Chairman's opinion offers no guidance for the resolution of this type of conflict, despite the fact that the very settlement agreement before us in this case provides for the withdrawal of some citation items.   Accordingly, under the Chairman's own reasoning, approval of this agreement may not serve a stated purpose of the Act.   Plainly, analysis of the issues raised in this case requires the weighing and evaluation of competing interests.

In cases that do not involve settlement agreements, the Commission has long recognized that it should not foster disputes where none exist nor force the parties to litigate issues in which they have no interest, unless there is a compelling need to do so.   E.g., Gilbert Manufacturing Co., 79 OSAHRC 68/A2, 7 BNA OSHC 1611, 1979 CCH OSHD P23,782 (No. 76-4719, 1979); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No.   [*21]   9507, 1976).   I would apply this same policy to settlements and hold that the Commission should ordinarily defer to the parties' decision to resolve the case voluntarily.

Valid reasons support this conclusion.   Parties may choose to settle a case for any one or more of a great variety of reasons.   The parties may themselves have weighed precisely the same factors which the Commission would have considered had the case proceeded to hearing and decision on the merits.   For example, settlement may represent the parties' own evaluation of economic, technological, or other circumstances and may embody their reasoned judgment as to the proper disposition of the matter in the light of those circumstances.   Additionally, one or both parties may conclude that the evidence which they could adduce would be insufficient to support their respective positions in the case or that an opponent's position is more likely to prevail for such diverse reasons as the unavailability of a necessary witness or an intervening change in controlling case law which significantly affects the elements of proof or alters the burden of proof on a particular issue. n5 Finally, the parties may seek a settlement for [*22]   entirely different -- but in my opinion equally valid -- reasons of a pragmatic nature, including the cost of protracted litigation or the need to allocate limited legal resources to other cases considered more significant.

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n5 For example, in Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1975), and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 PNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3694 & 4409, 1976), the Commission created a new defense not previously recognized.   In other instances we have imposed additional requirements of proof on the Secretary.   Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973 et al., 1976), or on the employer, S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), petition for review docketed, No. 79-2358 (5th Cir. June 7, 1979).   On occasion the Commission has overruled or otherwise modified its own prior case law and thereby altered the precedent on which a party had relied in presenting its case.   E.g., Owens-Illinois, Inc., 78 OSAHRC 105/C8, 6 BNA OSHC 2162, 1978 CCH OSHD 23,218 (No. 77-648, 1978).   Cf. Truland-Elliot, A Joint Venture, 4 BNA OSHC 1455, 1976-77 CCH OSHD P20,908 (No. 11259, 1976) (on review of a judge's decision by the Commission, employer afforded an opportunity to present additional evidence pertaining to a defense which had not been established when the case was originally tried.) Such changes in case law are a natural incident of the Commission's adjudicatory function in determining liability under the Act.   See Limbach Co., 77 OSAHRC 216/D14, 6 BNA OSHC 1244, 1977-78 CCH OSHD P22,467 (No. 14302, 1977).

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Merely to recite the variety of conditions which may result in parties desiring to settle a case as well as the kinds of evaluations the parties may have made in reviewing those conditions is to demonstrate the enormity of the task confronting the Commission if all voluntary dispositions by the parties were to be judged according to whether they effectuated or were consistent with the policies and the legal principles that the Commission has established in contested cases.   Indeed, such review and judgment on the part of the Commission would be futile for it would require that in every case the Commission examine and itself evaluate not only the basis for the parties' decision to dispose of the case voluntarily but also the provisions of the proposed disposition.   Obviously, such an approach could well require the Commission to make both factual and legal determinations and to that extent would eliminate any distinction between a contested case and a voluntarily settled case.   Moreover, the parties before us would be much less likely to consider voluntary disposition in the first instance if their disposition [*24]   were subject to such stringent review by the Commission.

I have often recognized the discretion of the Secretary as prosecutor to settle a case by withdrawal of a citation.   In my opinion, as the enforcing authority under the Act, the Secretary has the right to decide how the Act may best be enforced in a particular instance including withdrawal if in the Secretary's judgment such action is appropriate. n6 For the same reason the Commission ordinarily should not second-guess decisions of the Secretary which relate to settlement. Similarly, in the usual case the Commission should defer to the judgment of an employer who wishes to terminate the litigation through withdrawal of his notice of contest. As the Commission stated in Gilbert Manufacturing, supra, "the goal of expeditious adjudication suggests that proceedings before the Commission should not be required in the absence of a dispute requiring adjudication." 79 OSAHRC 68/A2, p. 9, 7 BNA OSHC at 1614, 1979 CCH OSHD P23,782 at 28,847.

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n6 In my view the Secretary has an absolute right to withdraw his citation prior to the filing of an answer or a motion for summary judgment by the respondent, whichever occurs first.   Nevertheless, such withdrawal must still be effectuated through a Commission order.   IMC Chemical Group, Inc., 78 OSAHRC 95/C14, pp. 17-20 & n.19, 6 BNA OSHC 2075, 2080-2081 & n.19, 1978 CCH OSHD P23,149 at 27,993-94 & n.19 (No. 76-4761, 1978) (dissenting opinion).

  [*25]  

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This is not to say, however, that the Commission should always defer to the wishes of the parties and blindly accept all settlement agreements.   As the Chairman notes, the Commission is not simply an adjudicatory body but it has enforcement responsibility and sets policy under the Act. n7 Moreover, the Commission, like the Secretary, is concerned with enhancing workplace safety and health.   Accordingly, although the Commission's interest in reviewing the Secretary's enforcement of the Act as well as its responsibility to establish policy through adjudication should be of paramount concern only in cases where there is an actual controversy, the Commission must retain authority to disapprove settlements which it considers so clearly repugnant to the Act's objectives and provisions as to infringe upon legitimate rights and duties of any party to the agreement or other affected person.

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n7 It is well-established that Congress established the Commission as an independent administrative agency with technical expertise in the field of employment health and safety.   Congress intended that the Commission, in the exercise of its adjudicatory functions, make policy determinations as to the proper interpretation and application of the Act by affording due consideration to the economic and industrial realities of the affected employers, with which the Commission is presumed to be familiar.   Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974); Brennan v. OSHRC (Republic Creosoting Co.), 501 F.2d 1196 (7th Cir. 1974).

  [*26]  

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Disapproval on these grounds, however, must be evident from the plain wording of the proposal on its face; the Commission should not examine the parties' motives for settlement or the basis for the provisions one or both parties propose. n8 In such instances the deference I believe should ordinarily be given the parties in matters of settlement is not accorded.   Nevertheless, by limiting Commission review to the face of the settlement agreement, the proper balance between deference to the wishes of the parties and the Commission's interest in enhancing workplace safety and health, setting policy and disposing of cases efficiently can be achieved.

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n8 For example, a settlement agreement providing for or otherwise allowing an assessment of a penalty in excess of that permitted under the Act should be disapproved, but the Commission should not otherwise examine the document to determine whether its penalty provisions are consistent with the Act's criteria for the assessment of penalties.   See Triple "A" South, Inc., 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979) (concurring and dissenting opinion).

  [*27]  

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Finally, I would not approve any settlement that does not comply with the requirements of Commission Rule 100, 29 C.F.R. §   2200.100, as recently amended. n9 That rule recognizes the right of the Commission to oversee the interests of all affected persons in the settlement of cases.   It provides that every settlement proposal submitted to the judge or to the Commission must contain, where applicable, a statement that payment of the penalty has been or will be tendered as well as a statement that the cited conditions have been abated or will be abated by a specified date.   A proposed settlement must also include the appropriate motions to amend or withdraw a citation, notification of proposed penalty, notice of contest, or PMA and must be served on employees in the prescribed manner. n10

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n9 44 Fed. Reg. 70106, 70108, 70112 (1979).

n10 In fotnote 4, supra, of Chairman Cleary's opinion, he notes that in Marshall v. Sun Petroleum Products Co. & OSHRC, Docket Nos. 79-1822 & 79-1828 (3rd Cir. May 29, 1980), the United States Court of Appeals for the Third Circuit stated that the Commission's authority to review settlements is limited to those instances in which employees or their authorized representative express some interest in the case and in such instances extends only to objections relating to the reasonableness of the abatement period proposed in the settlement. For the reasons given by Chairman Cleary, I agree with him that the Commission is not obligated to follow the Third Circuit's decision in Sun Petroleum insofar as it relates to the Commission's authority to review settlements.

  [*28]  

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II.

The settlement agreement at issue in this case complies with the requirements contained in 29 C.F.R. §   2200.100.   It contains the requisite motions by which certain items of the citation are withdrawn, certain other items and penalties are amended, and Respondent withdraws its notice of contest to the citation as amended.   The agreement also contains Respondent's statement that it has abated the cited conditions as required by the amended citation and that it will tender payment of the penalty on which the parties have agreed.   Finally, the settlement includes Respondent's certification that it has been served in the manner prescribed by our rules.

Furthermore, the agreement on its face contains no provisions that are so clearly repugnant to the Act's provisions and objectives as to warrant disapproval.   Accordingly, the agreement should not be disapproved on the basis that it contains exculpatory language.

According to the agreement Respondent denies having violated the Act.   Such denial is of no practical force and effect, however, since the settlement agreement otherwise states that Respondent [*29]   consents "to the entry of a final order by the Commission pursuant to this agreement . . . ." The parties' agreement, therefore, allows the Commission to exercise its jurisdiction under 29 U.S.C. §   659(c) to enter an order affirming the citation as amended by the settlement. In my opinion, so long as a withdrawal of an employer's notice of contest does not contain any language precluding the Commission from entering an order effectuating the abatement requirements of the citation, or any other abatement requirements on which the parties may have jointly agreed in conformity with Commission Rule 100, the statutory goal of employee safety and health has been served, and the Commission should not demand further concessions by the employer.   The Commission therefore should not require the employer to admit that the allegations of the citation are correct nor should it be of concern to the Commission that the employer may wish to state affirmatively that it has not violated the Act.

I also agree with the Chairman that the inclusion of language restricting the use of the settlement agreement in other litigation is not a basis on which to disapprove the agreement.   Language in a settlement [*30]   agreement which purports to exculpate Respondent from liability in other forums should be of no concern to this Commission.   Not only does such language address interests outside the scope of the Commission's statutory authority but, as the Chairman properly observes, the Commission should not presume to comment on or anticipate the effect which a different forum may wish to accord to the settlement of a Commission proceeding.

I would also accept exculpatory language which limits the use to which the settlement agreement may be used in future enforcement actions under the Act as within the discretion of the Secretary as prosecutor. n11 Hence, I agree with the Chairman that to the extent that Matt J. Zaich Construction Co., 73 OSAHRC 55/D5, 1 BNA OSHC 1225, 1971-73 CCH OSHD P15,683 (No. 756, 1973); Greenfield & Associates, 73 OSAHRC 28/A2, 1 BNA OSHC 1245, 1971-73 CCH OSHD P16,269 (No. 798, 1973); and Blaisdell Manufacturing, Inc., 73 OSAHRC 53/B8, 1 BNA OSHC 1406, 1973-74 CCH OSHD P16,915 (No. 1566, 1973) are inconsistent with this decision, they are overruled.   I caution, however, that I consider provisions of a settlement agreement restricting its use in subsequent   [*31]   Commission proceedings to be binding.   In my view, the Secretary would be estopped from using a prior settlement agreement in a manner contrary to its terms. n12

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n11 The fact that a settlement agreement providing for affirmance of a citation and imposition of an abatement requirement according to its terms may not be usable in a subsequent proceeding is not inconsistent with the objective of employee protection.   Should the Secretary upon a future inspection discover that the same violation still exists, he may issue another citation with a further abatement requirement.   Moreover, in the appropriate circumstances the Secretary may allege the subsequent violation as willful in nature.

n12 The settlement agreement in this case precludes the Secretary from using it in any other proceedings arising under the Act except as to those involving Respondent's facility at Ama, Louisiana.

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Accordingly, for the reasons stated I join in the decision to approve the settlement agreement in this case. n13

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n13 I agree with the Chairman that it is not necessary to remand this case for the judge to review the substance of the proposed settlement agreement and to determine whether, apart from its exculpatory language, the settlement agreement satisfies the Commission's criteria.   However, I do not join in the Chairman's reasoning, which erroneously relies on the provisions of the APA codified at 5 U.S.C. § §   554(d) and 557(b).   These provisions merely require that decisions be made by the same judge who presided at the evidentiary hearing; they are hardly authority for the proposition that the APA requires no decision by a judge unless a hearing has been held.

In its present posture this proceeding is governed by the principles pertaining to interlocutory appeal rather than by the statutory review procedure set forth in 29 U.S.C. §   661(i).   Normally on an interlocutory appeal the appellate body will decide only the specific issue on which the appeal was taken.   Nevertheless, the authority of the appellate body on an interlocutory appeal is plenary, and as an exception to the general rule a dispositive order terminating the entire proceeding may be entered even on an interlocutory appeal when in the interest of judicial economy the appellate authority deems such action appropriate.   Hurwitz v. Directors Guild of America, Inc., 364 F.2d 67 (2d Cir.) cert. denied, 385 U.S. 971 (1966); 9 Moore's Federal Practice P110.25[1], at 269-70, 273 (2d ed. 1980).   Since the settlement agreement in this case on its face complies with the criteria set forth in 29 C.F.R. §   2200.100 and is not clearly repugnant to the Act's objectives and provisions, it is appropriate that the Commission issue a final order approving the settlement agreement in its entirety.   To remand to the judge to review the settlement in these circumstances not only would be wasteful of the Commission's resources but would unnecessarily delay the final disposition of this matter.

  [*33]  

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DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

A settlement proposal "is not final until the Commission approves the proposal as consistent with the intent of the Act and the public interest." Kaiser Aluminum & Chemical Corp., 78 OSAHRC 103/A2, 6 BNA OSHC 2172, 2173, 1978 CCH OSHD P23,200 at p. 28,048 (No. 76-2293, 1978), appeal dismissed, No. 79-7047 (9th Cir. Feb. 7, 1980). n1 Moreover, as the lead opinion in this case acknowledges, "settlement agreements that do not comport with the purposes of the Act should be rejected." A proposed settlement agreement containing exculpatory language that seeks to limit the use of a Commission final order in future proceedings under the Act is inconsistent with the remedial purposes of the Act and, accordingly, must be rejected.

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n1 I join with my colleagues in rejecting the Third Circuit's narrow view of the Commission's role in this type of proceeding.   See note 4 of lead opinion supra.

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I

The exculpatory language contained in settlement agreements presented to the Commission for approval appears in two distinct types.   The first type involves language designed to avoid any admissions that could be used against the employer in proceedings other than those arising under the Act, e.g. personal injury litigation.   Obviously, an employer may be more willing to settle a case if language can be included that may offer it protection against the use of a Commission final order in non-Commission proceedings.   I consider this language to be a unilateral representation by the employer that this settlement is not intended to be an extrajudicial admission regarding the violative condition.   This representation involves no legally recognized exchange between the parties because the Secretary has no interest in the legal effect sought to be achieved by this exculpatory language.   See 29 U.S.C. §   653(b)(4). n1a Thus, this representation by the employer is outside the scope of the purposes and provisions of the Act and is irrelevant to its enforcement.   Commission approval of a settlement agreement with this type of exculpatory language is not inappropriate.   However,   [*35]   Commission acceptance of this language in an approved agreement has no legal effect on the representation by the employer. n2

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n1a 29 U.S.C. §   653(b)(4), §   4(b)(4) of the Act, provides:

(4) Nothing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

n2 The legal significance of this representation by the employer is exclusively reserved to non-Commission forums such as a state trial court or workers compensation board.

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The second type of exculpatory language is designed to preclude or limit the use of the settlement agreement in any future proceeding under the Act.   Without this intended future effect this type of exculpatory language is meaningless.   Paragraph I of the agreement in this case provides:

Neither [*36]   this settlement agreement, nor Respondent's consent to the entry of a final order by the Commission pursuant to this agreement, constitutes any admission by Respondent of any violation of the Occupational Safety and Health Act or regulations or standards promulgated thereunder.   Neither this settlement agreement nor any order of the Commission entered pursuant to this settlement agreement shall be offered, disclosed, used or admitted in evidence in any proceeding or litigation, whether civil, criminal or administrative, now pending or hereafter brought.   By entering into this Agreement, Respondent does not admit the truth of any alleged facts, any of the characterizations of Respondent's alleged conduct or any of the conclusions set forth in the citations or amended citations issued in this matter.

Paragraph II of the agreement limits the comjprehensiveness of this exculpatory language by providing that "in any subsequent proceedings brought directly by the Secretary of Labor involving Respondent's Ama, Louisiana facility . . . this Compromise Settlement Agreement may be considered."

In order to promote a high degree of voluntary compliance by employers, Congress provided for the [*37]   imposition of greater maximum penalties when an employer commits a repeated or willful violation, 29 U.S.C. §   666(a), or when an employer fails to abate a prior violation of the Act, 29 U.S.C. §   666(d). n3 For example, when an employer repeatedly violates the Act, "the employer has demonstrated that the penalties provided for first instance violations are not sufficient to produce the incentive necessary to comply, and that the further incentive provided by higher potential penalties is necessary." George Hyman Construction Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1322, 1977-78 CCH OSHD P21,774 at p. 26,166 (No. 13559, 1977), aff'd, 582 F.2d 834 (4th Cir. 1978). A limitation on the use of prior violations in future enforcement and adjudicatory proceedings removes a major statutory incentive for employers to voluntarily comply because the risk of higher penalties for noncompliance or failure to abate has been removed.   Therefore, language that casts doubt on the future use of Commission final orders is incompatible with the statutory enforcement mechanism through which Congress intended to accomplish the purpose of assuring safe and healthful working conditions.

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n3 Serious and non-serious violations involve a maximum penalty of $1000 per violation, 29 U.S.C. §   666(b) and (c), whereas a repeated or willful violation involves a maximum penalty of $10,000, 29 U.S.C. §   666(a), and a failure to abate a prior violation involves a maximum penalty of $1000 per day, 29 U.S.C. §   666(d).

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II

The proposed agreement in this case explicitly precludes the use of the Commission final order in any "administrative [proceeding], now pending or hereafter brought," except as to the cited Ama, Louisiana facility.   Thus, in the future this citation may not be the basis for a repeated violation at any other worksite. n4 Because the language of the agreement limits the use of the affirmed violation in future proceedings before the Commission, it is contrary to the preventive purposes of the Act and the Act's enforcement scheme.

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n4 In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,924 (No. 16183, 1979), the Commission held that the geographic proximity of violations is not relevant to whether a violation is repeated.

  [*39]  

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Chairman Cleary would approve this agreement because he believes it comports with the "basic criteria" set out in Dawson Bros. and Rule 100, "particularly as to the abatement of the alleged hazards. . . ." In addition, he relies on the policy of encouraging settlement, but apparently without regard to whether that settlement is consistent with all provisions and objectives of the Act, rather than solely the abatement of the hazard in a particular case. n5 This represents a reaffirmation of the Chairman's view that, "the Act's reason for being is abatement of hazards." American Cyanamid Co., No. 77-3752, slip op. at 10 n.7 (April 30, 1980).   That view dem nstrates an overly narrow reading of the Act and a simplistic approach to our adjudicatory responsibilities.   The primary purpose of the Act is the prevention of workplace hazards and resulting injuries.   See Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717, 721 (4th Cir. 1979); B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1370-71 (5th Cir. 1978); Marshall v. Western Electric, Inc., 565 F.2d 240, 245 (2d Cir.   [*40]   1977); Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649, 653 (8th Cir. 1976); Brennan v. OSHRC & Underhill Construction Corp., 513 F.2d 1032, 1039 (2d Cir. 1975); Lee Way Motor Freight, Inc. v. Secretary, 511 F.2d 864, 870 (10th Cir. 1975); Brennan v. OSHRC & Gerosa, Inc., 491 F.2d 1340, 1343 (2d Cir. 1974); National Realty and Construction Co., Inc. v. OSHRC, 489 F.2d 1257, 1266-67 (D.C. Cir. 1973); J.M. Martinac Shipbuilding Co., 78 OSAHRC 46/A2, 6 BNA OSHC 1646, 1978 CCH OSHD P22,792 (No. 14767, 1978), aff'd, No. 78-2633 (9th Cir. Jan. 16, 1980).   It has long been recognized that the civil enforcement provisions of the Act were designed to obtain maximum voluntary compliance with the Act's requirements.   George Hyman Construction Co., supra, 5 BNA OSHC at 1320, 1977-78 CCH OSHD at p. 26,164-65; Crescent Wharf and Warehouse Company,    OSAHRC   /   , 1 BNA OSHC 1219, 1221-22, 1971-73 CCH OSHD P15,687 at p. 20,980 (No. 1, 1973).   Focusing solely on the abatement of the particular hazard cited, while ignoring the impact on future voluntary compliance, is contrary to the Act's enforcement scheme and to the continual maintenance   [*41]   of a safe and healthful workplace. n6

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n5 Although both Dawson Bros. and revised Rule 100 set forth the minimum technical and procedural requirements for settlement agreements submitted to the Commission for approval, neither authority addresses what the Commission would accept substantively as being consistent with the provisions and objectives of the Act.

n6 To the extent that the Chairman's reference to OSHA entering into settlements with "its eyes open" suggests deference to the Secretary's prosecutorial discretion, it is inappropriate.   The Commission has long recognized that the interests of the Secretary do not always coincide with the interests of those the Act is designed to protect.   IMC Chemical Group, Inc, 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 2077 & n.8, 1978 CCH OSHD P23,149 at p. 27,990 & n.8 (No. 76-4761, 1978), appeal filed, No. 79-3041 (6th Cir. Jan. 16, 1979); American Airlines, Inc., 75 OSAHRC 43/F3, 2 BNA OSHC 1391, 1392, 1974-75 CCH OSHD P19,108 at p. 22,838 (No. 6087, 1974); cf. Trbovich v. United Mine Workers of America, 404 U.S. 528 (1968).

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The parties' request for approval was properly denied by the judge under the authority of Matt J. Zaich Construction Company, 73 OSAHRC 55/D5, 1 BNA OSHC 1225, 1971-73 CCH OSHD P15,683 (No. 756, 1973), appeal dismissed, No. 73-1995 (9th Cir. Sept. 13, 1973).   In Zaich, the Commission correctly concluded that it was not in the public interest to approve a settlement agreement that on its face was incompatible with the purposes and provisions of the Act. n7 The majority errs in overruling this precedent.

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n7 Also Blaisdell Manufacturing, Inc., 73 OSAHRC 53/B8, 1 BNA OSHC 1406, 1973-74 CCH OSHD P16,915 (No. 1566, 1973); Greenfield & Associates, 73 OSAHRC 28/A2, 1 BNA OSHC 1245, 1971-73 CCH OSHD P16,269 (No. 798, 1973).

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The lead opinion acknowledges that there is no reason for the Commission to disapprove settlement agreements purporting to exculpate an employer from liability in other forums.   The Chairman then indicates that [*43]   it is the responsibility of those other forums to rule on the effect of these settlements in the context of the litigation pending before them.   Similarly, the lead opinion would decline to disapprove settlements containing language purporting to exculpate an employer from liability in future enforcement actions under the Act.   However, the Chairman fails to address the effect that the Commission will give to this exculpatory language limiting the use of a final order in future proceedings before the Commission.   It is the responsibility of this forum to clearly apprise the parties and the public of the effect exculpatory language included in a settlement will be given in a subsequent enforcement action. n8 Settlement agreements are governed in many respects by the principles of contract construction.   As long as all parties have negotiated the settlement agreement in good faith, the parties are bound by the language of the agreement, and the provisions of the agreement are enforceable against them.   See Winn-Dixie Stores, Inc. v. FTC, 377 F.Supp. 773, 784 (M.D. Fla. 1974). Consequently, if the Commission approves a settlement agreement containing language that precludes   [*44]   the use of the violations in future proceedings under the Act, the Secretary would be estopped from using those violations as the basis of future enforcement proceedings involving alleged repeated, willful, and failure-to-abate violations.   Furthermore, the Secretary would be estopped from introducing these violations as evidence of either prior history for penalty assessment or prior knowledge of the requirements of the Act and its standards.   As stated by the Supreme Court in United States v. Armour & Co., 402 U.S. 673, 682 (1971),

[T]he scope of a consent decree must be discerned within its four corners . . . .   Because the defendant has, by the decree, waived his right to litigate the issues raised, a right guaranteed to him by the Due Process Clause, the conditions upon which he has given that waiver must be respected, and the instrument must be construed as written, and not as it might have been written had the plaintiff established his factual claims and legal theories in litigation.

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n8 The failure to confront issues and to fully explain the rationale for a decision contributes to the subsequent issuance of inconsistent decisions by the Commission's administrative law judges and the need for Commission review of such decisions, thereby unnecessarily adding to the Commission's case load and the general confusion and delay that characterize the adjudication of OSHA cases.

  [*45]  

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By entering into the proposed settlement agreement, the employer has similarly relinquished its right to litigate the legal claims raised by its notices of contest. The waiver of this fundamental right should not be viewed lightly by the Commission.   The settlement agreement represents a bargained for exchange between the employer and the Secretary.   In ruling on the settlement agreement the Commission is not free to selectively approve some provisions and selectively reject others.   Instead, the Commission must treat the settlement proposal as a non-severable, integrated agreement. n9 See United States v. Armour & Co., supra. Furthermore, what the Commission approves today it may not selectively reject tomorrow on the grounds that the provision is against public policy or unenforceable in a subsequent repeat, willful or failure-to-abate action.   Such a slight-of-hand has no place in adjudication.   Consequently, when the employer has relinquished its right to an adjudicatory hearing, basic fairness requires the Commission to inform the parties of whether the Secretary's promise to forego [*46]   use of the settlement in future proceedings under the Act is to be given legal effect.

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n9 In a unanimous decision, the Commission recently held that where all provisions of a settlement agreement cannot be approved, approval of only part of the agreement would be inappropriate, "because our action might not reflect the intent of the parties." Connecticut Aerosols, Inc.,    OSAHRC   , 8 BNA OSHC 1052, 1980 CCH OSHD P    (No. 78-25, 1980).   See also Logan County Farm Enterprises, Inc., 79 OSAHRC 18/G9, 7 BNA OSHC 1275, 1979 CCH OSHD P23,425 (No. 78-4535, 1979); cf. Seaboard Coast Line Railroad Co., 76 OSAHRC 125/G4, 3 BNA OSHC 1760, 1975-76 CCH OSHD P20,184 (No. 10541, 1975), appeal dismissed, No. 76-1058 (D.C. Cir. March 15, 1976) (Commission found that it would be unfair to a respondent for the Commission to abrogate one term of a stipulation while leaving the remainder intact).

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III

I further dissent on procedural grounds from the majority disposition of this case.   Because the issue before [*47]   the Commission on interlocutory appeal is limited to the judge's ruling that the exculpatory language contained in the agreement "does not accord with Review Commission policy," the appropriate disposition would be to remand to the judge for consideration of the remaining provisions of the agreement. n10 There is no suggestion in the judge's order that he considered whether, notwithstanding the exculpatory language contained in paragraph I, the settlement agreement submitted by the parties is otherwise consistent with the provisions and objectives of the Act.   Commission Rule 100(a), 29 C.F.R. §   2200.100(a).   Furthermore, even though my colleagues approve the settlement agreement as filed, there is no indication in their individual written opinions that they considered whether the substantive provisions of the agreement are consistent with the Act and the public interest. See Boston Gear, A Div. of Murray Co., of Texas, Inc., 79 OSAHRC 38/E3, 7 BNA OSHC 1414, 1979 CCH OSHD P23,595 (No. 76-967, 1979) (Cottine, dissenting).

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n10 By its very nature an interlocutory appeal is a method of obtaining review in an appellate forum before a final judgment disposing of all matters in a case is entered.   As a general rule, an appellate forum will not go any further into the merits of a case than is necessary to decide the specific matter on which interlocutory appeal was taken.   9 Moore's Federal Practice P110.25[2] (2d ed. 1980).   In this case it is clear that the judge's interlocutory order disapproving the settlement agreement filed by the parties was limited to his rejection of the exculpatory language contained in the agreement.   Commission action should be limited to that order.   Furthermore, because the judge's order in this case is interlocutory, there is no judge's report constituting his "final disposition of the proceedings" within the meaning of 29 U.S.C. §   661(i), the statutory provision that establishes Commission review authority.   Accordingly, the Commission does not have jurisdiction over the entire case for the purposes of review and final disposition.   29 U.S.C. §   661(i).

  [*48]  

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