GENERAL MOTORS CORPORATION, TEREX DIVISION
OSHRC Docket No. 78-2792
Occupational Safety and Health Review Commission
September 30, 1982
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Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
William S. Kloepfer, Assoc. Regional Solicitor
Frank Jaworski, General Motors Corp., for the employer
Harley Richards, Sfty & Hlth Rep., International Union, UAAAWA, Local 296, for the employees
OPINION:
DECISION
BY THE COMMISSION:
The Secretary of Labor and General Motors Corporation ("GM") submitted to Administrative Law Judge Joe D. Sparks a settlement proposal for approval. Judge Sparks approved the settlement, finding a lack of objection from the United Automobile, Aerospace & Agricultural Implement Workers of America, Local 296, the authorized representative of the affected employees. Inasmuch as we are unable to find on this record that the union, which objects to the settlement, was afforded either the opportunity to participate in the settlement negotiations or received the notice of the settlement proposal to which it was entitled under the Commission's rules, we remand for further proceedings.
Shortly after a hearing was first scheduled, a union representative notified the Commission that he "wish[ed] to participated in the hearing . . . ." Judge Sparks notified the Secretary [*2] and GM of the union's election of party status. About two weeks later, Judge Sparks cancelled the hearing because the Secretary and GM had represented to him that a settlement had been reached. A settlement proposal was later filed with the judge. Although it stated that "[GM] agrees that notice of this settlement has been posted to the affected employees," it was not accompanied by a certificate that the settlement had been served on the union. After Judge Sparks approved the agreement, review of the judge's decision was directed, in part, on whether the union had been "afforded the opportunity for meaningful participation in the settlement process in accordance with Rule 100(c) of the Commission's Rules of Procedure, 29 C.F.R. § 2200.100(c) . . . ." n1
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n1 Commission Rule 100(c) states:
Rule 100 Settlement.
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(c) Filing; service and notice. When a settlement proposal is filed with the Judge or Commission, it shall also be served upon represented and unrepresented affected employees in the manner prescribed for notices of contest in § 2200.7. Proof of service shall accompany the settlement proposal. A settlement proposal shall not be approved until at least 10 days following service of the settlement proposal on affected employees.
[*3]
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The union and GM have since submitted affidavits in response to the direction for review. The affidavit of Mr. Richards, the union's safety and health representative, states that "the Union did not have an opportunity to be a party [to] this agreement nor did the Union have any knowledge that an agreement was in the process of being consummated." The affidavit of Mr. Hoover, the administrator of safety and security at GM's Terex division, states that during his frequent contacts with union officials, they did not inform him of objections to the settlement. The affidavit also states that the settlement agreement had been posted and that GM's attorneys had served Mr. Richards with the settlement proposal. The cover letter to Mr. Richards stated that "[e]nclosed for your records is a copy of the stipulation and settlement agreement . . . ."
The Secretary states that "[i]t is not clear that the terms of Rule 100(c) were in fact strictly followed . . . . If it appears that the [union] was not afforded the opportunity for meaningful participation in the settlement process, a remand would be in order." [*4] We agree.
A union that has elected party status must be afforded the opportunity for meaningful participation in the settlement process, including the opportunity to participate in settlement negotiations. Asarco, Inc., 80 OSAHRC 104/F5, 8 BNA OSHC 2200, 1980 CCH OSHD P24,913 (No. 79-5557, 1980); ITT Thompson Industries, Inc., 78 OSAHRC 70/D10, 6 BNA OSHC 1944, 1978 CCH OSHD P22,944 (No. 77-4174, 1978). A union is also entitled under the Commission's rules to be served with a settlement proposal regardless of its party status; posting is insufficient. Commission Rule 100(c) (service of settlement on union); Commission Rule 7(a), 29 C.F.R. § 2200.7(a) (service of documents on parties); Babcock & Wilcox Co., 80 OSAHRC 95/A2, 8 BNA OSHC 1102, 2107, 1980 CCH OSHD P24,812, p. 30,567 (No. 78-446, 1980). We have also held that the union must be given notice that the served settlement proposal has been filed with the judge or Commission for approval and, thus, that its period for filing objections has begun. Id.; see Hearst Corp., 82 OSAHRC , 10 BNA OSHC , 1982 CCH OSHD P (No. 80-6051, 1982); American Cyanamid Co., 80 OSAHRC 40/C8, 8 BNA OSHC 1346, [*5] 1348, 1980 CCH OSHD P24,424, p. 29,791 (No. 77-3752, 1980), rev'd on another ground sub nom. Marshall v. Oil, Chemical & Atomic Workers Int'l Union, 647 F.2d 383 (3d Cir. 1981).
We are unable to say on this record that the union was afforded these rights. Certainly, there is no evidence that it was afforded any opportunity to participate in the settlement negotiations. The record also does not show that the service on the union gave notice that the settlement proposal had been executed by the other parties and that it was being filed with the judge for approval. Under these circumstance, we shall remand this case to Judge Sparks for further proceedings in light of our recent decision in Mobil Oil Corp., 82 OSAHRC , 10 BNA OSHC 1905, 1982 CCH OSHD P26,187 (No. 77-4386, 1982). n2
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n2 Under Mobil, a union is entitled to be heard on its objections to a settlement agreement and to have the merits of its objections considered by the judge when determining whether the agreement should be approved as consistent with the requirements of Commission Rules 100(a) and (b), 29 C.F.R. § 2200.100(a) and (b). We note particulary the union's objections in this case that the settlement proposal lacks an express provision for quarterly progress reports and interim protective measures while feasible engineering controls are investigated and implemented, that interim and permanent measures should be undertaken in accordance with two of its agreements with GM, that painting employees should continue to be given blood tests for lead every six months, and that GM should "institute a better program to maintain and care [for] . . . [r]espirators in accordance with [29 C.F.R. § ] 1910.134(f)."
[*6]
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Accordingly, the judge's decision is vacated; the case is remanded for further proceedings. n3
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n3 Chairman Rowland dissents from this order of remand. For the reasons stated in his dissenting opinion in Mobil, the Chairman believes that consideration of the settlement agreement should be limited to any objection a union may have to the reasonableness of an abatement period agreed to by the Secretary and an employer. Inasmuch as the union's objections do not pertain to the reasonableness of the abatement period in the settlement, a remand for consideration of the adequacy of the settlement is inappropriate. Chairman Rowland would therefore affirm the judge's disposition on this ground.
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SO ORDERED.