CONNECTICUT AEROSOLS, INC.  

OSHRC Docket No. 78-25

Occupational Safety and Health Review Commission

February 22, 1980

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BEFORE: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

H. Graff, for the employer

OPINION:

DECISION

BY THE COMMISSION:

On January 11, 1979, the order of Administrative Law Judge Abraham Gold, approving a settlement agreement filed by the parties, was directed for review under section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   At issue is whether the language of the settlement agreement stating in part that

Respondent certifies that the violations alleged have been abated or will be abated by the time permitted by OSHA or as soon thereafter as practicable . . .

complies with the Commission requirement that settlement agreements reflect the date on which abatement of the violation has been or will be accomplished.   Dawson Brothers, Mechanical Contractors, 75 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971-73 CCH OSHD P15,039 (No. 12, 1972). n2

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n1 29 U.S.C. §   661(i).

n2 The Commission has codified the Dawson Brothers requirements by a revision to the rules of procedure effective Jan. 1, 1980.   Commission Rule 100(b)(3), 44 Fed. Reg. 70,112 (1979) [to be codified in 29 C.F.R. §   2200.100(b)(3)].

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Connecticut Aerosols was issued two citations on December 7, 1977, alleging 38 serious and 7 nonserious violations of the Act.   The citations specified dates by which the violations had to be abated. A notification of proposed penalties accompanied the citations.   On December 29, 1977, Connecticut Aerosols filed a Notice of Contest with the Secretary contesting only the proposed penalties for certain items listed in one of the citations. n3

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n3 We note that it is the policy of the Commission to liberally construe a notice of contest that appears to contest only the penalty to include a contest of the citation when a respondent has subsequently indicated that its intent was to contest both.   Haugan Construction Co., 77 OSAHRC 182/G3, 5 BNA OSHC 1956, 1977-78 CCH OSHD P22,248 (No. 14675, 1977), aff'd 586 F.2d 1263 (8th Cir., 1978); Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD P20,221 (No. 7413, 1975).   In keeping with that policy, we have carefully reviewed the record and find that precedent inapplicable.   First, the notice to contest the penalties only is unambiguous.   Second, unlike the respondents in Haugan and Turnbull, Connecticut Aerosols has never indicated that it intended to contest the citation as well as the penalties.   Third, the Secretary alleged in the complaint that Connecticut Aerosols contested the penalties only and that the citation had therefore become a final order by operation of law. Connecticut Aerosols admitted this allegation.   Finally, Connecticut Aerosols has attempted to settle this case and in the process has admitted the violations alleged in the citation, thereby indicating an absence of intent to contest the citation.

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Under the Act an employer can contest either a citation, the proposed assessment of penalty, or both a citation and the proposed assessment of penalty.   Section 10(a) of the Act, 29 U.S.C. §   659(a); Florida East Coast Properties, Inc., 74 OSAHRC 5/C7, 1 BNA OSHC 1532, 1973-74 CCH OSHD P17,272 (No. 2354, 1974); Brennan v. OSHRC (Bill Echols Trucking Co.), 487 F.2d 230 (5th Cir. 1973). If an employer does neither, the citation and proposed penalties become a final order of the Commission by operation of law and are "not subject to review by any court or agency." Section 10(a) of the Act, 29 U.S.C. §   659(a).   If an employer contests only the proposed assessment of penalty, the citation, including the abatement date, becomes a final order of the Commission.   See Florida East Coast Properties, Inc., supra. Consequently, because Connecticut Aerosols contested only the proposed penalties, the abatement dates for the violations in this case have become part of a final order of the Commission.   Accordingly, they are nor properly a part of any settlement agreement.

The agreement filed [*4]   with the judge on December 11, 1978, and approved by him on December 12, 1978, provides in part:

(5) . . . respondent hereby withraws its Notice of Contest and the parties agree that the citation and proposed penalty, as amended by this agreement, shall be affirmed and become the final Order of the Occupational Safety and Health Review Commission.

(6) Respondent certifies that the violations alleged have been abated or will be abated by the time permitted by OSHA or as soon thereafter as practicable, and that the penalty, as amended above, has been paid.   (Emphasis added).

As indicated above, these two paragraphs of the settlement agreement cannot be approved.   First, under paragraph (5) of the agreement, the parties agree that the citation shall become the final order of the Commission.   Under the circumstances here, however, all parts of both citations had already become a final order of the Commission by operation of law. Consequently, the Commission has no authority to review an order concerning the citations in this case.   Florida East Coast Properties, Inc., supra. Second, under paragraph (6) of the agreement the parties agree that the violations [*5]   "will be abated by the time permitted by OSHA or as soon thereafter as practicable". n4 Again, the date for abatement of the violations had become a final order of the Commission n5 and the Commission has no authority to review that aspect of the Secretary's enforcement action. n6 Florida East Coast Properties, Inc., supra.

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n4 Commissioner Cottine notes that the original language of the agreement provided "Respondent certifies that the violations alleged have been abated." The language quoted above was inserted into the original with the initials "a.g." next to it.   These initials appear to be those of a representative for Connecticut Aerosols who is a signatory to the agreement.   The insertion does not bear any other initials indicating acquiescence by the Secretary.   Accordingly, Commissioner Cottine would not conclude that this attempt to change the employer's abatement responsibilities has the concurrence of all parties to the agreement or that it is a part of the bargained-for-exchange between the parties.   This is reinforced by the status of the original uncontested abatement requirements of the citation made final by operation of law, 29 U.S.C. §   659(a); modification is permissible only through the statutory procedure for modification of the abatement date, 29 U.S.C. §   659(c), set forth in Commission Rule 34, 29 C.F.R. §   2200.34.

n5 The abatement dates set out in the citation were either March 6, 1978, or earlier.   The settlement agreement was submitted in December, 1978.

n6 Commissioner Cottine notes that both the Secretary and the Commission are without authority to alter the obligations of an employer contained in a Commission final order except through the abatement modification procedure cited in note 4 supra.

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Thus, because our authority to review is limited under the circumstances, we cannot approve the entire settlement agreement. Although we have authority over other parts of the settlement agreement, we are reluctant to approve those parts because our action might not reflect the intent of the parties.   See Logan County Farm Enterprises, Inc., 79 OSAHRC 18/G9, 7 BNA OSHC 1275, 1979 CCH OSHD P23,425 (78-4535, 1979); Cf. Seaboard Coast Line Railroad Co., 76 OSAHRC 125/G4, 3 BNA OSHC 1760, 1975-76 CCH OSHD P20,184 (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.   Consequently, the entire stipulation was cancelled).

Accordingly, the judge's order approving the settlement agreement is set aside and this case is remanded for further proceedings.

IT IS SO ORDERED.