GARDINIER, INC.
OSHRC Docket No. 78-3895
Occupational Safety and Health Review Commission
September 24, 1979
[*1]
Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor
E. John Dinkel, III, for the employer
Joel C. Page, President, International Chemical Workers Union, Local # 439, for the employees
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
Respondent, Gardinier, Inc., was issued two citations on July 28, 1978, for alleged violations n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (hereinafter "the Act"). In a letter dated August 16, 1978, respondent timely contested every item of Citation No. 1 and several items of Citation No. 2. n2 A total penalty of $900 was proposed. After the case was scheduled to be heard by Judge Joe D. Sparks, the International Chemical Workers Union Local 439 filed a letter dated October 8, 1978, which expressed the desire "to participate at the hearing. . . ."
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Respondent was cited in Citation No. 1 for the alleged serious violations of 29 CFR § § 1910.1000(b)(1), 1910.1000(e), 1910.134(b)(3), and in Citation No. 2 for the alleged non-serious violations of 29 CFR § § 1910.1000(c), 1910.1000(e), 1910.134(a)(2), 1910.134(b)(3), 1910.134(b)(8), 1910.134(b)(9), 1910.95(a), 1910.95(b)(1).
n2 Respondent did not contest Items 2(a) and 2(b) of Citation No. 2 which alleged violations of 29 CFR § § 1910.95(a) and 1910.95(b)(1) respectively.
[*2]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
On October 12, 1978, the Secretary filed a Motion for Continuance. n3 In support of the motion the Secretary stated that he and the respondent were negotiating a settlement agreement that would dispose of the case. The Secretary's motion makes no mention of the union.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 The Secretary's motion was granted by an Order dated October 18, 1978. Since the parties entered into a settlement agreement which was approved by the judge, the hearing was subsequently cancelled.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
On October 18, 1978, Judge Sparks issued an Order granting the union leave to intervene. n4 Copies of this Crder were sent to the Secretary and the respondent, both of whom received notice of the union's status on October 20, 1978.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 Although the judge characterizes the union's request "to participate at the hearing" as a request for party status, his ultimate disposition treated the union's request as a motion to intervene.
[*3]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
On October 20, 1978, the Secretary and respondent entered into the proposed settlement agreement, a copy of which was sent to the union. Judge Sparks issued an Order dated November 15, 1978, that approved the proposed settlement agreement.
There is no evidence in the record indicating whether the union assented or objected to the settlement agreement. In the absence of this evidence, on December 15, 1978, Commissioner Cottine directed the judge's Order for review sua sponte in accordance with section 12(j) of the Act, 29 U.S.C. § 661(i). The parties were requested to brief the issues of whether the authorized employee representative, having elected and been granted party status, was properly served with, and whether it assented to, the proposed settlement agreement filed by the Secretary and respondent.
Although all three parties indicated their intent to file briefs on the issues, none of the parties did so. Only the Secretary chose to respond at all to the direction for review. In a letter dated January 19, 1979, the Secretary stated that rather than file a formal brief, he would simply [*4] direct the Commission's attention to certain pertinent facts.
According to the Secretary's letter, settlement negotiations had begun before the union even requested party status and no notice of the union's request for party status had been given to the Secretary or respondent until after the settlement agreement had been reached. After the agreement was reached, the union president contacted the Secretary's attorney, who explained the provisions of the settlement agreement. The union president informed the Secretary's attorney that the union had no objections to the settlement agreement. A copy of the settlement agreement was then sent to the union by the respondent. Finally, the Secretary states that the judge held the record open from October 20, 1978, the date the judge was informed that the settlement agreement had been reached, until November 15, 1978, to give the union an opportunity to comment on or object to the proposed settlement agreement. When no objections were made by the union during this time, the judge approved the settlement agreememt.
We note initially that the facts contained in the Secretary's letter are not considered to be evidence of record. Although [*5] the record is silent as to whether the union explicitly assented to the settlement agreement, the union had an opportunity to review the settlement agreement and made no objection.
After being granted party status, the union was sent an Order cancelling the scheduled hearing. In his October 20, 1978, Order, the judge stated that the hearing was being cancelled because of the "representations of counsel that a settlement has been reached." The union was apprised of the settlement agreement a second time when the settlement agreement was sent to the judge for his approval. The settlement agreement itself specified that a copy of the stipulation would be provided to the union. The union also failed to file a brief in response to the Commission's Direction for Review after indicating that it would do so.
As provided in Commission Rule 20(a), party status is conferred by right upon affected employees if they manifest an intent to be heard before commencement of a hearing. By its letter requesting the right to participate at the hearing, the authorized employee representative elected party status. Election of party status entitles the authorized employee representative to meaningful [*6] participation in settlements. n5 ITT Thompson Industries, Inc., 78 OSAHRC 70/D10, 6 BNA OSHC 1944, 1978 CCH OSHD P22,944 (Docket No. 77-4174 & 77-4175, 1978); Reynolds Metal Co., 79 OSAHRC 4/A2, 7 BNA OSHC 1042, 1979 CCH OSHD P23,295 (Docket No. 78-2485, 1979); Aspro, Inc., Spun Steel Division, 78 OSAHRC 78/C8, 6 BNA OSHC 1980, 1978 CCH OSHD P23,032 (No. 78-1381, 1978). Under the facts presented in this case, we find that the union was afforded an opportunity for meaningful participation in the settlement before it was approved. Since none of the parties has taken issue with the judge's decision, we hereby affirm the Order approving the settlement agreement.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 Commissioner Barnako's views with respect to the right of an employee representative who has elected party status to participate in settlement are set forth in Reynolds Metals Co., 79 OSAHRC 4/A2, 7 BNA OSHC 1042, 1979 CCH OSHD P23,295 (No. 78-2485, 1979) (concurring and dissenting opinion); Kaiser Aluminum & Chemical Corp., 78 OSAHRC 103/A2, 6 BNA OSHC 2172, 1978 CCH OSHD P23,200 (No. 76-2293, 1978) (dissenting opinion), petition for review docketed, No. 79-7047 (9th Cir., Feb. 2, 1979); ITT Thompson Industries, Inc., 78 OSAHRC 70/D10, 6 BNA OSHC 1944, 1978 CCH OSHD P22,944 (Nos. 77-4174 & 77-4175, 1978) (concurring opinion).
[*7]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
So ORDERED.