Docket No. 798

GREENFIELD AND ASSOCIATES, A JOINT VENTURE

OSHRC Docket No. 798

Occupational Safety and Health Review Commission

July 17, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: On June 14, 1973, the Commission granted the Complainant and Respondent special permission to appeal from Judge Robert P. Weil's ruling denying their settlement agreement submitted pursuant to Commission Rule 100.

We have reviewed the record in this matter including the proposed settlement agreement. Based upon such review we find that the agreement is consistent with the provisions and objectives of the Occupational Safety and Halth Act of 1970.

Accordingly, it is ORDERED that (1) the Judge's ruling be and the same is hereby set aside; (2) the settlement agreement is approved, and (3) the Secretary's citations and proposed penalties are affirmed in all respects.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur with the approval of the settlement agreement pursuant to rule 100 of the Commission's Rules of Procedure. n1 However, it is incumbent upon the Commission to clarify what may be construed as mutually inconsistent statements contained in the agreement. The stipulations entered into by the parties state, in relevant part, as follows:

9. Respondent agrees to pay the proposed penalties, but the payment of the proposed penalties and signing of this Agreement are not an admission by Respondent of any violation of the Act, nor is it an admission of any of the allegations or conclusions set forth in the citations, the Complaint issued herein, or any other pleadings filed in this matter. Furthermore, its aforesaid payment shall not be construed as an admission of fault or liability as to any claim or proceeding which exists or may arise and be pursued by any person, agency, or entity other than before the Occupational Safety and Health Review Commission or its Judges.

10. The citations and proposed penalties herein shall be a final order of the Commission and nothing contained in this Agreement shall be construed to in any way limit the right of the Complainant to utilize such final order, pursuant to the provisions of the Occupational Safety and Health Act of 1970.

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n1 29 CFR 2200.100.

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I have no objection to a stipulation between the parties which recites the fact that a settlement agreement before this Commission is not an admission of fault or liability as to any proceeding without the purview of the Occupational Safety and Halth Act. The second sentence of paragraph nine, supra, is such a statement. But, the exculpatory language of the first sentence of paragraph nine, supra, appears to be inconsistent with paragraph ten, supra. I believe it is necessary to emphasize that the citations and proposed penalties which constitute a final order of the Commission are deemed violations for the purposes of the Act.

By the Commission: The Secretary's and Respondent's motion for special permission to appeal from the Judge's decision is granted. Further proceedings are stayed pending disposition of the Interlocutory Appeal.

[The Judge's decision referred to herein follows]

WEIL, JUDGE, OSAHRC: This application raises an important question of practice in proceedings under the Occupational Safety and Health Act of 1970, 29 USC Section 651, et seq. Will the Commission approve a settlement where the notice of contest is not withdrawn; where the answer, denying all the material allegations of the complaint, remains in force; where the stipulation expressly provides that it is not to constitute an admission of any allegation of the citations or complaint, or of any other breach of duty under the Act; but where the settlement is nevertheless to be implemented by an order affirming the citations and penalties? For the reasons hereinafter set forth the application must be denied. The question arises in the setting of the following facts.

The City of Detroit determined to tap the waters of Lake Huron as an adjunct to its reservoir system and to this end, it entered into a contract with respondent for the construction of a lateral tunnel about six miles long. At the easterly end, under the lake, the tunnel turns upward for the water intake. At the westerly end, about five miles north of Port Huron, Michigan, there is a shaft through which men, material and equipment were brought in to carry on the construction work and through which the excavated material was removed. This access shaft is about 270 feet from the northeasterly terminus of a main through which, when the tunnel and the main are connected, waters from the lake will flow into the reservoir system via the City of Flint. Detroit entered into another contract with Capital Dredge and Dock Corporation to construct a vertical ventilating shaft connecting with the tunnel a short distance west of the water intake. On December 11, 1971, there were about fifty employees of respondent at work in the tunnel. At about 3:00 p.m., Capital effected a junction between its ventilating shaft and the tunnel, whereupon a devastating explosion occurred, killing 22 of respondent's employees and seriously injuring many others. Complainant inspected the worksite and issued to respondent eight citations in respect of operations up to 3:00 p.m. on December 11, 1971, and an additional citation in respect of operations on December 23, 1971, when work had been recommended; and by notice complainant proposed penalties aggregating $16,000. Respondent has now probably completed all of the work which it will be called on to perform in connection with the project.

As indicated above, respondent interposed a notice of contest covering all citations and proposed penalties. The Secretary then filed a complaint closely paraphrasing the citations and respondent answered, denying all allegations of breach of duty.

After months of preparation for trial, which included extensively contested motions for discovery on both sides and a motion for dismissal on multiple grounds, counsel worked out the settlement which, on the instant motion, they ask the Commission to effectuate by its order. The stipulation recites the proceedings to date; that no evidence has been received on the issues; that completion of the preparation for trial and the trial itself will be burdensome for both parties; that respondent is now in compliance with the Act at the tunnel; and that it will pay the proposed penalties, "but the payment of the proposed penalties and signing of this Agreement are not an admission by Respondent of any violation of the Act, nor is it an admission of any of the allegations or conclusions set forth in the citations, the complaint issued herein or any other pleading filed in the matter." The settlement contemplates that the stipulation will be given effect by an order in form submitted, pursuant to Rule 100, with the stipulation, which order would recite the provisions of the stipulations and would conclude as follows:

From the foregoing, I find that the following disposition is in the public interest and in furtherence of the purposes of the Act. Accordingly it is ordered that

(1) The citations and proposed penalties are affirmed and are a final order of the Commission;

(2) The Stipulation is approved;

(3) Respondent shall continue in compliance with the requirements of the Act and its regulations.

Thus the order would contain by necessary implication findings of fact that respondent committed a large number of acts, and conclusions of law that these acts constituted violations of respondent's duty under the statute, in various particulars as follows.

(1) On or about December 11, 1971, and during a period of time prior thereto, the employer willfully [within the meaning of Section 17(a)] (a) failed to adequately test the atmosphere quantitatively for carbon monoxide, nitrogen dioxide, flammable or toxic gases, dust, mist, and fumes that occur [red] in the tunnel or shaft and failed to conduct tests as frequently as is necessary to assure that the required quality and quantity of air was maintained even though a history of methane infiltration existed in the tunnel, in violation of 29 CFR Section 1926.800(c)(1)(i); and (b) the employer willfully [within the meaning of Section 17(a)] failed to furnish its employees working in and near the shaft and tunnel a place of employment which was free from recognized hazards that were causing or likely to cause death or serious physical harm to its employees [I.e., recognized as such in the construction industry, Vy Lactos Laboratories, Inc., OSAHRC No. 31, February 21, 1973] in that the employer failed to maintain communications or coordinate work activities with Capital Dredge and Dock Corporation which was engaged in drilling to penetrate the tunnel . . . and failed to inspect or test for the presence of methane or other flammable gases, mixtures, or vapors in idle or abandoned areas or prior to the beginning of welding operations in violation of Section 5(a)(1) of the Act.

The aforesaid violations together created a condition which constituted a willful violation of the. . . Act . . . by the employer.

(2) On or about December 11, 1971 and during a period of time prior thereto, the employer failed to provide adequate mechanically induced primary ventilation in all work areas in the tunnel in violation of 29 CFR Section 1926.800(c)(2)(i) and failed to supply fresh air at a minimum rate of 200 cubic feet per minute for each employee underground, and further failed to provide an air flow in the tunnel bore with a linear velocity of not less than 30 feet per minute for employees engaged in concrete finishing, grouting and patching in a tunnel where blasting or rock drilling was conducted or where there were other conditions that were likely to produce dust, fumes, vapors, or gases in harmful quantities, in violation of 29 CFR Section 1926.800(c)(2)(v).

The aforesaid violations together created a serious violation of the. . . Act by the employer -- that is to say, a working condition involving "a substantial probability that death or serious physical harm could result" therefrom within the meaning of Section 17(k) of the Act.

(3) On or about December 11, 1971, and during a period of time prior thereto, the employer failed to post signs warning against smoking and open flames so that they could be readily seen in areas or places where fire or explosion hazards exist [ed]; and failed to adequately prohibit the carrying of matches, lighters, or other flame-producing smoking materials in all underground operations where fire or explosion hazards existed" in violation of 29 CFR Section 1926.800(e)(1)(ii) and (iii).

The aforesaid violations together created a serious violation of the. . . Act by the employer as above defined.

(4) On or about December 11, 1971 and during a period of time prior thereto, the employer directed and allowed its employees to work in a tunnel without developing or making known to the employees evacuation plans or procedures in violation of 29 CFR Section 1926.800(b)(1).

The aforesaid violation was a "serious violation" of the Act as above defined.

(5) On or about December 11, 1971 and during a period of time prior thereto, the employer directed and allowed its employees to work in a tunnel in which Bureau Of Mines approved self-rescuers when not available near the advancing face to equip each face employee; and such equipment was not available on the haulage equipment in the areas where employees might be trapped by smoke and gas in violation of Section 29 CFR 1926.800(b)(3).

The aforesaid violation was a "serious violation" of the Act as above defined.

(6) On or about December 11, 1971, and during a period of time prior thereto, the employer employed 25 or more employees at one time underground without annually training at least two rescue crews of ten employees divided between shifts in rescue procedures, in the use, care, and limitations of oxygen breathing apparatus, and the use and maintenance of fire fighting equipment in violation of 29 CFR Section 1926.800(e)(1)(xii).

The aforesaid violation was a "serious violation" of the Act as above defined.

(7) On December 11, 1971, and during a period of time prior thereto, the employer failed to fence and post a subsidence area that presented a hazard at the south side of the vertical portion of the shaft in violation of 29 CFR Section 800(a)(5).

The aforesaid violation was a "serious violation" of the Act as above defined.

(8) On or about December 23, 1971, the employer failed to furnish his employees working within 100 feet of the vertical shaft at the west end (portal) of the tunnel, a place of employment which was free from recognized hazards that were likely to cause death or serious physical harm to its employees in that the shaft was connected to a tunnel which was inflitrated with methane and the tunnel was not properly ventilated to prevent the build-up of explosive concentration of said gas within the tunnel.

The employer's acts in the premises constituted a breach of its duty under Section 5(a)(1) of the Act to furnish to each of its employees "employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm" to its employees, i.e., recognized as such in the construction industry, Vy Lactos Laboratories, Inc., supra.

(9) On December 11, 1971, and during a period of time prior thereto, the employer failed to provide or maintain a check-in and check-out system that would provide positive identification of every employee underground; and further failed to keep on the surface an accurate record of the location of employees" in violation of 29 CFR 1926.800(a)(6).

The aforesaid violation was a violation not of a serious nature, within the meaning of Section 17(b) of the Act.

In the decision of this motion the question is not reached as to whether or not the Commission will approve a settlement where, as here, a blanket notice of contest remains in force, where respondent's answer denies all the material allegations of the complaint, and where the stipulation provides that neither payment of the penalties nor anything else in the proceeding shall constitute an admission of breach of duty but where, unlike the case at bar, the Commission is not called upon, in implementing the agreement, to affirm the citations. This motion is denied because the record affords the Commission no basis on which to make the order which is part of the settlement, which order would, by necessary implication, make the findings and conclusions set forth above.

That order would not be the mere approval by an interested third party of a contract between two others. The Commission is not a protagonist. It is a judicial body, and the order would be a judicial act. As such it could be performed only if based on the weight of the evidence taken at a due process hearing, or on express admissions by the respondent, or on admissions which the law would imply from the respondent's default, as where he fails to contest, see Act, Section 10(a), last sentence, or to answer, see Rules 33(b)(1) and 38, Commission's Rules of Procedure, or, having contested, where respondent withdraws his notice of contest, see Rule 50, id., as is done in the great majority of settlements in Commission cases. Here, on the contrary, the stipulation expressly refers to the notice of contest, not withdrawn, and to the general denial contained in the answer, not withdrawn, and as above indicated, it goes on to specify that respondent's payment of the penalties and its execution of the stipulation constitute no admission of any fact alleged or any other breach of duty. Hence the stipulation leaves no basis for the judicial act -- the making of findings and conclusions as to the mine citations -- which the agreement contemplates that the Commission shall make in implementing the settlement.

Thus the motion has to be denied despite the strong impetus which judicial tradition imparts to every tribunal to aid the parties before it by all proper steps to settle rather than to litigate their differences, given further force here by the circumstance that the settlement is advocated by the Secretary of Labor, in whom Congress has vested the function of conducting as complainant the litigation of contested cases under the Act, and of determining when to continue to litigate and when and how to settle. Furthermore litigation of the case, involving the death of 22 of respondent's employees and serious injuries to many others, would require much effort and expense by the Commission and the parties; and to avoid this counsel have negotiated long and earnestly over the stipulation and its provisions. Finally, since respondent has completed its operations at the workplace, the employee hazards alleged in the citations no longer exist, and the penalties proposed by the Secretary are to be paid in full. But none of these considerations, persuasive as they are, can make up for the lack of a basis upon which to perform the judicial act here called for, especially since the conclusion stated above in terms of principle has previously been reached by the Commission in a decision which is a binding precedent.

In California Blowpipe and Steel Co., Inc., Respondent filed a notice of contest and answer in the nature of a general denial. Going further toward concession than Greenfield in the case at bar, California Blowpipe moved to withdraw its notice of contest, but like Greenfield it proposed that the case be disposed of "without any finding as to the alleged fault of respondent and with acknowledgment of respondent's disclaimer of responsibility or liability in this matter." In following paragraphs its motion recited that

1. Respondent has lodged with this motion a check in the amount of $500 which is intended to be payment in full of the penalty assessed in this case. Payment of such amount if made without admission of responsibility or liability and is conditioned on termination of all liability herein.

2. Although Respondent disclaims all liability herein it desires to effect settlement.

3. Respondent believes that the purposes of the Act are served by the granting of said motion in that the proposed penalty is paid in full and respondent has eliminated any alleged safety deficiency and is presently maintaining compliance with the provisions of the. . . Act. . . .

In Gifford-Hill Pre-Stress, OSAHRC No. 11, Fed. 15, 1972, a divided Commission had affirmed a hearing examiner's order which granted respondents' unopposed motions to withdraw their notices of contest where respondents had paid the proposed penalties amounting to $2150 and alleged present and continuing compliance with the Act, but disclaimed any violation. Unlike the position which he had taken in that case and in the case at bar, the Solicitor of Labor opposed California Blow Pipe's motion, representing that "The Secretary of Labor could not agree on the settlement of this matter based on a motion or accompanying order containing the exculpatory language sought by respondent and set forth in its Motion to Withdraw. . . ." Thereafter, without any action of record by the judge on the first motion, respondent made a second motion to withdraw its notice of contest, in which second motion it omitted exclupatory language and recited that

Respondent does not believe that it has violated the provisions of the. . . Act. . . . However, in order to avoid further costs of litigation, inconvenience to respondent and its witnesses and to avoid the possible impact on other pending litigation, Respondent desires to effect settlement of this matter.

Without any further written submission by the Secretary, the judge apparently treated the matter as presented on one composite application, and granted "the" motion, affirmed the citation and proposed penalty. The Commission took the order up on review and unanimously amended the order "to reflect that respondent is granted leave to withdraw its first motion and that respondent's second and last motion to withdraw is hereby affirmed as the Final Order of the Commission." Thus the Commission sub silentio overruled Griffin-Hill and made it clear that, where accompanied by exclupatory language, even withdrawal of the notice of contest would no longer afford sufficient basis for action by a Commission judge affirming the citation and proposed penalty. To be sure, California Blowpipe was a motion to withdraw the notice of contest under Rule 50, whereas here the parties move to settle under Rule 100 without withdrawing the notice of contest; and in California Blowpipe the Secretary opposed, whereas in Griffin-Hill he acquiesced, and in the case at bar he is one of the moving parties. But none of these distinctions bears on the lack which barred Commission approval of the settlement on the first motion in California Blowpipe and which here bars such action. Here, as there, citations which allege conduct in breach of the employer's duty under the Act, cannot be judicially affirmed as part of a settlement based, inter alia, on the proposition that nothing in the proceeding establishes any breach of duty by the employer. As above indicated, if the Secretary were willing to settle without affirmation of the citations and penalties, a different question would be presented.

Nothing in the other decisions of the Commission regarding the disposition of cases or of portions of cases on stipulation, and nothing in such decisions by its judges which have become final is inconsistent with the above; indeed, in none of such other cases was there exculpatory language in the stipulation approved.

Nacirema Operating Co., OSAHRC No. 4, February 7, 1972, was a case involving two separate violations. The second had to do with respondent's failure to report an accident requiring hospitalization, for which violation the Secretary proposed no penalty. At final hearing, the parties filed with the hearing examiner a stipulation providing in part that there would be no litigation as to the second violation. In his decision the hearing examiner found that the Secretary had acted unreasonably in failing to propose a penalty in respect to the second violation and proceeded to assess one. Holding that th hearing examiner had "departed from the stipulated issues" the Commission reversed, affirming the Secretary's position. In a note to his opinion for the Commission, Chairman Moran pointed out that on a motion to approve a settlement the hearing examiner is not obliged to approve but that where he does so, he is bound by the terms agreed upon by the parties.

In American Home Products Corp., OSAHRC No. 3, the Commission's decision of February 28, 1972, brought to an end lengthy litigation in that case as to the proper role of the Commission in connection with settlements. By a divided vote the Commission approved the hearing examiner's order confirming a settlement on findings that all violations had been abated; that the notice of contest had been withdrawn and the proposed penalties of $770 paid; and that all affected employees and their representatives had received notice of the motion for approval of the settlement and had not opposed.

In American Shipbuilding Co., OSAHRC No. 70, a decision of Judge Oringer which became final June 9, 1972, approved settlement in a case involving four willful and two non-willful serious violations. The stipulations provided that all violations had been abated; that respondent would comply with the Act in the future and would pay the proposed penalties, amounting to $10,000; but that the settlement was being entered into to avoid further litigation and that it was not to be deemed an admission of fault in any other proceeding. On the stipulation, without taking evidence, Judge Oringer found that all violations had been abated; that respondent was in continuing compliance with the Act; that the proposed penalties were appropriate in amount and had been paid; and that all interested employees had been given notice of the motion for approval of the settlement and that none had opposed. Thereupon the notice of contest was dismissed and the citation and penalties were approved.

In Anderson Excavating & Wrecking Co., OSAHRC Nos. 628 and 629, which became final December 24, 1972, Judge Weinman approved a settlement in the midst of trial. The agreement, joined in by the affected employees, provided that one citation be vacated; that several violations alleged to be serious were in fact non-serious; and that respondent would pay penalties totaling $655, which amount complainant had proposed based on components slightly different from those set forth in the order. The workplace in question was no longer in existence. There was no finding as to abatement or as to the appropriateness of the penalties and no withdrawal of the notice of contest. On that record, Judge Weinman reasoned, Section 5 of the Administrative Procedure Act prevented him from obliging the parties to litigate where they wish to settle.

International Harvester Company, OSAHRC No. 389, which became final December 21, 1972, was another case in which some items were settled in the course of trial. There were violations alleged in 14 departments of respondent's plant at Melrose Park, Illinois. Items of the citation alleging violations in some departments were withdrawn; allegations of violations in other departments were amended, whereupon respondent withdrew its notice of contest as to those items; and the allegations as to other departments were found to have been admitted by respondent's answer. As to tte remaining departments the allegations were tried and decided.

In Thorleif Larsen and Son, Inc., OSAHRC No. 370, January 17, 1973, a divided Commission extended its doctrine regarding stipulations. There the stipulation provided that if the alleged violations were proved, the penalties proposed by the Secretary, amounting to $688, would be appropriate. A divided Commission held that the stipulation must be disregarded and that the judge must take evidence and make findings as to the amount in which the penalties should be assessed.

In E.F. Houghton & Co., OSAHRC No. 1553, February 22, 1973, a divided Commission held that an employer may not withdraw its notice of contest without a showing that all alleged violations have been abated.

In Seneca Foods Corp., OSAHRC No. 1290, which became final February 26, 1973, as in Anderson Excavating, there was no withdrawal of the notice of contest. Instead there was a settlement under which the citations were modified and as modified, affirmed, and penalties proposed in the amount of $2100 were assessed at $1155.

And in The Wackenhut Corporation, OSAHRC No. 2069, March 22, 1973, a majority of the Commission held that the Secretary of Labor could not successfully move to withdraw a citation without notice to the bargaining representative of affected employees and due opportunity to oppose.

In another particular the stipulation which the Commission would have to approve goes too far. Thus it provides that

The citations were not directed to a determination of the origin, cause, or responsibility for the explosion which occurred at the tunnel on December 11, 1971, but to alleged violations of the Act.

Of course post hoc ergo propter hos is a fallacy; and in some cases a violation may exist without anyone being injured. But where, as here, an accident has occurred, it seems clear that Congress intended that the circumstances be investigated "with a view to preventing repetitious occurrences. . . ." See Weinfield, D.J., in Pizzo v. National Shipping Corporation v. International Terminal Operating Co., Inc., F. Supp. SDNY Feb. 19, 1973. As pointed out by Judge Burroughs in Koppers Company, Incorporated, OSAHRC No. 402, an accident case in which the decision became final August 18, 1972,

A citation is issued to force correction of an unsafe or unhealthful working condition. If the cause of an accident has not been determined, then what is the employer to correct? It seems obvious that petitioner must show what caused the accident and that the cause was a violation of the standard cited (p. 14).

Furthermore where, as here, the Secretary must prove not only violation but "serious" violation within the meaning of Section 17(k), it is very material for him to show that injury or death resulted from a condition which violated respondent's duty under the Act and the Regulations. As held by the Commission in Dreher Pickle Co., OSAHRC No. 48, February 13, 1973,

The death of an employee while not probative of the existence of a violation, nevertheless is probative evidence on the issue of gravity if the condition which constituted the violation contributed to the fatality (p. 4).

Thus inclusion in the stipulation of the provision above quoted, which stipulation the settlement would call upon the Commission to approve, is an alternative reason why the instant motion must be denied.

III

Having announced at the close of the oral argument in Detroit that I would deny the motion, the parties orally moved for certification by me that my decision is one from which an interlocutory appeal to the Commission ought to be permitted as of right.

Rule 75(c) of the Commission's Rules of Procedure permits interlocutory review by the Commission as of right where the judge certifies

that (1) the ruling involves an important question of law concerning which there is substantial ground for difference of opinion and (2) an immediate appeal from the ruling will materially expedite the proceedings.

I certify that the ruling involves an important question of law; but on further consideration of the Commission's decisions on the subject, I am unable to certify that there is substantial ground for difference of opinion in the premises and that review by the Commission now will therefore expedite final decision. California Blowpipe and Dreher Pickel were decided by the Commission without dissent and I do not see how, on principle, they could have reached different results. However I will withhold decision on the motion for certification for ten days from the date hereof in order to enable the parties to submit authority for the proposition that there is substantial ground for difference of opinion as to the Commission's role in connection with settlement in the form here proposed.