DURIRON CO., INC.  

OSHRC Docket No. 79-5329

Occupational Safety and Health Review Commission

March 31, 1982

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Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.  

COUNSEL:

Office of the the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

Robert A. Rapp, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

An order of Administrative Law Judge J. Paul Brenton approving a settlement agreement between the parties is before the Commission under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   The principal issue on review is whether the judge erred in entering that order.   I would find that he did not err.

The Respondent, Duriron Co., Inc., operates a foundry, in Dayton, Ohio, that was inspected by an Occupational Safety and Health Administration (OSHA") compliance officer.   As a result of that inspection, the Secretary of Labor ("the Secretary") issued two citations to Respondent, the first alleging a serious violation of the Act in that Respondent failed to comply with 29 C.F.R. §   1910.132(a) and the second alleging a repeated violation of section 5(a)(1) of the Act, 29 U.S.C. §   654(a)(1).   Respondent contested both of these citations and the accompanying proposed penalties.   After a   [*2]   complaint and an answer had been filed, but before a hearing was held, the parties entered into a settlement agreement resolving all of the disputed issues in this case.   The record establishes that the parties properly served and notified affected employees, who filed no objections to the agreement.   The settlement agreement was summarily approved by Judge Brenton, who entered an order effectuating the terms of the agreement.

My views on the proper role of the Commission in the settlement process are fully set forth in my separate opinions in Farmers Export Co., 80 OSAHRC 66/A2, 8 BNA OSHC 1655, 1980 CCH OSHD P24,569 (No. 78-1708, 1980), and Nashua Corp., 80 OSAHRC 121/A2, 9 BNA OSHC 1113, 1981 CCH OSHD P25,020 (No. 78-2146, 1980).

Applying my views in those cases to this case, I conclude that the settlement agreement before us should be approved.

The judge's order approving the settlement agreement is affirmed.

IT IS SO ORDERED.  

CONCURBY: ROWLAND

CONCUR:

ROWLAND, Chairman, concurring:

I agree that the settlement agreement should be approved.   In the circumstances of this case I believe that the Review Commission should not review the substance of a settlement agreement where the Secretary [*3]   and the Respondent have reached an agreement and no affected employees of their representative challenge the sufficiency of the abatement date.   Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir. 1980), cert. denied 449 U.S. 1061 (1980). See Oil, Chemical and Atomic Workers v. OSHRC, No. 81-1687 (D.C. Cit. Feb. 26, 1982).  

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

A settlement agreement that alters or waives a statutory duty under the Act is inconsistent with the provisions and objectives of the Act and is contrary to the public interest. "It is a necessary adjunct of the Commission's public interest and supervisory role [over the Act's enforcement] that settlement agreements that do not comport with the purposes of the Act be rejected." Farmer's Export Co., 80 OSAHRC 66/A2, 8 BNA OSHC 1655, 1656, 1980 CCH OSHD P24,569, p. 30,080 (No. 78-1708, 1980) (Cleary, Commissioner).   See John Deere Foundary, 81 OSAHRC 14/B9, 9 BNA OSHC 1351, 1354, 1981 CCH OSHD P25,218, pp. 31,145-6, (No. 78-5498, 1981).   The proposed settlement agreement in this case does not provide for the abatement required under the cited standard and therefore should be rejected.   [*4]  

I

An inspection of the Respondent's foundry in Dayton, Ohio resulted in the issuance of a citation alleging a serious violation of 29 C.F.R. §   1910.132(a) on the grounds that "[f]ull body protective equipment/clothing designed to provide protection against molten metal was not provided and worn [by employees tending the furnaces]." In settlement, the Secretary and the Respondent, Duriron Co., Inc., ("Duriron"), proposed the following:

9.   Abatement for Citation No. 1 shall be accomplished by provision of Ammonia cured pants and coats or other full body personal protective equipment of the same material to the induction furnace operators and first helpers. Said personal protective equipment is in addition to the eye, face, hand and foot protection, provided by Respondent to induction furnace operators and first helpers prior to August 20, 1979.

10.   Any violation of 29 C.F.R. 1910.132(a) will not be considered as a repeated violation based on the Citation No. 1 of this case, unless Respondent fails to comply with Paragraph 9 in providing personal protective equipment, as defined in Paragraph 9, for furnace operators and first helpers to protect against the danger of splashing   [*5]   molten metal.

Review was directed under 29 U.S.C. §   661(i) and Commission Rules 92(a) and (d), 29 C.F.R. § §   2200.92(a), (d), on the following issues: (1) Whether paragraphs 9 and 10 above are consistent with the provisions and objectives of the Act, (2) whether paragraphs 9 and 10 limit the Respondent's obligation to comply with the requirements of 29 C.F.R. §   1910.132(a) that protective equipment "be provided, used, and maintained," and (3) whether the judge erred in approving a settlement agreement containing the limitations set forth in paragraphs 9 and 10.

II

Workplace injuries and illnesses exact a heavy toll in terms of both human and economic loss.   In passing the Occupational Safety and Health Act, 29 U.S.C. § §   651-678, Congress "place[d] pre-eminent value on assuring employees a safe and healthful working environment." American Textile Manufacturers Institute, Inc. v. Donovan, 101 S.Ct. 2478, 2506 (1981). The Commission encourages the settlement of enforcement actions arising under the Act.   However, when strong public interests are involved in a legislative attempt to correct public harm, "[t]he interests involved are far broader than those of the particular parties [*6]   in a particular lawsuit . . . [and] the parties cannot be permitted to settle for less than, or for more than, the facts of the case and public policy expressed in . . . [the statute] mandate." Patterson v. Newspaper & Mail Deliverers' Union of N.Y. & Vicinity, 384 F.Supp. 585, 588 (S.D.N.Y. 1974), aff'd, 514 F.2d 767 (2d Cir. 1975), cert. den. sub nom. Larkin v. Patterson, 427 U.S. 911 (1976).

Commission Rule 100(a), 29 C.F.R. §   2200.100(a), provides in pertinent part that "[a] settlement proposal shall be approved when it is consistent with the provisions and objectives of the Act." Section 5(a)(2) of the Act, 29 U.S.C. §   654(a)(2), requires each employer to "comply with occupational safety and health standards promulgated under this Act." n1 The cited standard specifically requires that personal protective equipment be "provided, used, and maintained in a sanitary and reliable condition." An employer's duty under the standard is not satisfied by merely providing appropriate equipment.   Lukens Steel Co., 81 OSAHRC 96/A2, 10 BNA OSHC 1115, 1124, 1981 CCH OSHD P25,742, p. 32,120 (No. 76-1053, 1981) and cases cited.   The use of provided equipment must [*7]   be enforced.   Astra Pharmaceutical Products, Inc., 81 OSAHRC 79/D9, 9 BNA OSHC 2126, 2130, 1981 CCH OSHD P25,578, p. 31,900 (No. 78-6247, 1981), appeal filed, No. 81-1672 (1st Cir., Sept. 23, 1981); The Budd Co., 74 OSAHRC 12/A2, 1 BNA OSHC 1548, 1973-74 CCH OSHD P17,387 (Nos. 199 & 215, 1974), aff'd, 513 F.2d 201 (3d Cir. 1975). In contrast to the requirements of the cited standard, paragraph 9 of the agreement states that abatement "shall be accomplished by provision of . . . personal protective equipment." This limitation of the employers's compliance responsibilities is reinforced by paragraph 10 which states that any subsequent violation of the cited standard will not be considered repeated unless Duriron fails to provide personal protective equipment for the designated employees. n2 The stipulated limitation on Duriron's statutory duty to comply with the requirements of a safety standard promulgated under the Act is inconsistent with the Act's specific duty clause, 29 U.S.C. §   654(a)(2), n3 and the Act's stated purpose of assuring "so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. §   651. Accordingly,   [*8]   it is inconsistent with the settlement approval criteria in Commission Rule 100(a), 29 C.F.R. §   2200.100(a), that a settlement proposal be "consistent with the provisions and objectives of the Act."

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n1 An employer seeking a variance from a promulgated standard must demonstrate by a preponderance of the evidence that alternative safety measures "to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard." 29 U.S.C. §   655(d).

n2 Whether the parties interpret their agreement in a manner different from what I view as an impermissible limitation on an employer's statutory duty is unknown since the Commission, over my dissent, declined to receive briefs on the directed issues in this case.

n3 The limited abatement provision in this agreement is also inconsistent with the Act's variance provision, supra note 1, because it permits less than full compliance with a promulgated standard without the employer's assurance that working conditions will be "as safe and healthful as those which would prevail if he complied with the standard." 29 U.S.C. §   666(d).

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The proposed settlement should be rejected. n4

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n4 The limitation on future repeated violations contained in paragraph 10 of the agreement is inconsistent with Commission law regarding repeated violations under 29 U.S.C. §   666(a) and provides another basis for rejecting the agreement.   See Farmer's Export Co., supra (Cottine, Commissioner, dissenting)

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