ASARCO, INC.  

OSHRC Docket No. 79-5557

Occupational Safety and Health Review Commission

October 22, 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

William O. Hart, ASARCO, INC.

B. J. Ferraro, Safety Chairman, United Steelworkers of America, Local 5022, for the employees

OPINION:

DECISION

BY THE COMMISSION:

An order of Administrative Law Judge Dee C. Blythe is before the Commission pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Judge Blythe approved a settlement agreement between the Secretary of Labor ("Secretary") and Respondent, Asarco, Inc. ("Asarco").   We set aside the judge's order and remand for further proceedings.

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n1 29 U.S.C. §   661(i).

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The Secretary cited Asarco for allegedly violating sections 5(a)(1) and 5(a)(2) of the Act. n2 Asarco filed a timely notice of contest, and the case was docketed with the Commission.   Before the case was scheduled for hearing, the United Steelworkers of America, Local No. 5022 ("the Union") notified the Commission [*2]   that it was electing party status in the proceedings. n3

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n2 29 U.S.C. § §   654(a)(1) and (a)(2).

n3 Commission Rule of Procedure 20(a), 29 C.F.R. §   2200.20(a), provides in pertinent part:

Rule 20 Party status.

(a) Affected employees may elect to participate as parties at any time before the commencement of the hearing before the Judge . . . .

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Thereafter, Judge Blythe scheduled the case for a hearing.   However, upon being notified that a settlement had been reached, the judge cancelled the hearing.   His order of cancellation required that "[T]he proposed settlement agreement be served upon represented and unrepresented employees as provided by Rule 7 of the Review Commission's Rules of Procedure and that service of the settlement agreement be certified in the agreement itself or by separate certificate." n4

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n4 The judge's reference to Rule 7 of the Commission's Rules of Procedure is based on Commission Rule 100(c), 44 Fed. Reg. 70106, 70112 (1979) [to be codified in 29 C.F.R. §   2200.100(c)], which provides:

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.

The pertinent parts of Commission Rule 7, 29 C.F.R. §   2200.7, state as follows:

Rule 7 Service and notice.

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(a) At the time of filing pleadings or other documents a copy thereof shall be served by the filing party or intervenor on every other party or intervenor.

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(c) Unless otherwise ordered, service may be accomplished by postage pre-paid first class mail or by personal delivery. Service is deemed effected at the time of mailing (if by mail) or at the time of personal delivery (if by personal delivery).

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(f) Service and notice to employees represented by an authorized employee representative shall be deemed accomplished by serving the representative in the manner prescribed in paragraph (c) of this section.

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The settlement agreement submitted to the judge was signed by representatives of the Secretary and Asarco.   It did not state whether the Union had agreed to the settlement, had participated in the settlement negotiations, or had been informed that settlement negotiations were in progress.   Paragraph 6 of the agreement recited: "Respondent certifies that a copy of this settlement agreement has been served upon represented and unrepresented affected employees in the manner set forth in Rule 7 of the Rules of Procedure, by posting same on the 15 day of May, 1980."

Following the judge's approval of the settlement agreement, Commissioner Cottine directed that the case be reviewed on the following issues: n5

(1) Whether proper service of the settlement agreement and other documents in the case has been made upon all parties and represented affected employees, including, but not necessarily limited to, affected employees represented by United Steelworkers of America Local 5022;

(2) Whether affected employees have had an opportunity for meaningful participation in the settlement process; and

(3) Whether   [*4]   the judge erred in approving the settlement agreement in the circumstances.

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n5 Pursuant to Commission Rule of Procedure 93, 44 Fed. Reg. 70106, 70111-12 (1979) [to be codified in 29 C.F.R. §   2200.93], the parties have not been afforded the opportunity to brief these issues.   However, because the issues are clearly controlled by Commission rules and precedent, an opportunity to file briefs is unnecessary and would unduly delay the disposition of the case.

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Service of the settlement agreement on affected employees was not made in accordance with Commission Rule 7.   The Union had elected party status and therefore, pursuant to Rule 7(a), was entitled to service of a copy of all pleadings and other documents filed with the Commission.   Moreover, Rule 100 requires that a settlement agreement be served upon represented and unrepresented employees in the manner provided in Rule 7, which requires service upon an authorized employee representative by either first class mail or personal delivery. That requirement applies whether [*5]   or not the employee representative has elected party status.   Reynolds Metals Co., 79 OSAHRC 4/A2, 7 BNA OSHC 1042, 1979 CCH OSHD P23,295 (No. 78-2485, 1979).   Thus, the certification in paragraph 6 of the settlement agreement that the employees were notified "by posting" of the agreement is insufficient to show compliance with Rules 7 and 100 as to the Union.   Moreover, the record does not indicate whether any of the affected employees are represented by another union or unions.   If so, service of the agreement also was inadequate as to such representatives.   In order for the Commission to accept service of a settlement agreement by posting only, the record must clearly reflect that no affected employees are represented by an authorized employee representative. In view of the lack of adequate service of the agreement, the judge erred in approving the settlement.

Furthermore, the Commission has held that an authorized employee representative that has elected party status must be afforded the opportunity for meaningful participation in any settlement. E.g., Reynolds Metals Co., supra. n6 Nothing in the record indicates that the Union either agrees to the settlement or [*6]   that it was afforded an opportunity to participate in the settlement negotiations. For this reason also, the judge erred in approving the settlement.

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n6 Commissioner Barnako's views regarding the right of an employee party to participate in the settlement process differ from those of his colleagues.   See American Cyanimid Co., 80 OSAHRC    , 8 BNA OSHC 1346, 1980 CCH OSHD P24,424 (No. 77-3752, 1980), pet. for review filed, No. 80-1942 (3d Cir. June 26, 1980) (dissenting opinion); Reynolds Metals Co., supra (separate opinion).   He agrees, however, that an employee representative that has elected party status must be afforded the opportunity to make its views known during settlement negotiations, and that the settlement agreement in this case should not have been approved in the absence of any indication that the Union was afforded such an opportunity.   Reynolds Metals Co., supra (separate opinion).

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Accordingly, the judge's order is set aside and the case is remanded for further [*7]   proceedings consistent with this decision.   SO ORDERED.