UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

August 22, 1980

DECISION

Before: CLEARY, Chairman; BARNAKO and COTTINE Commissioners.

BY THE COMMISSION:

These consolidated cases are before the Commission pursuant to 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’). Administrative Law Judge Edward V. Alfieri approved a settlement agreement entered into by the parties. Commissioner Cottine directed review of these cases on the limited issue of whether the judge erred in approving a settlement agreement containing the following exculpatory language:

Notwithstanding anything to the contrary herein, this Stipulation, Respondent’s withdrawal of its Notices of Contest or answers, abatement of the alleged violations or its payment of the penalty referred to herein may not be construed as an admission or as a finding of violations in any investigation or proceeding under the Occupational Safety and Health Act involving any facility of Respondent other than the Rensselaer, New York, facility involved in this proceeding.

Respondent, GAF Corporation, filed a brief in response to the direction for review. In addition to arguing that the settlement at issue is consistent with the policies and objectives of the Act and was thus properly approved by the judge, Respondent challenges (a) the authority of a Commission member to direct review when no party has requested review, and (b) the jurisdiction of the Commission to review and pass upon settlement agreements. The Secretary of Labor (‘Secretary’) responds to the direction for review by challenging the Commission’s jurisdiction to review settlements as well as arguing in favor of the settlement at issue.1

  Section 12(j) of the Act generally grants to each Commission member the authority to direct a judge’s decision for review. This authority is not dependent upon the filing of a petition by one of the parties requesting discretionary review. Rule 92(d).2 Furthermore, Commission Rule 92(a)3 makes it clear that ‘[r]eview is a matter of sound discretion of a member of the Commission.’ Accordingly, it is for each Commission member to decide the novelty of a particular issue or the presence of ‘extraordinary circumstances’ warranting a direction for review on an issue flowing from the judge’s disposition of the case regardless of whether the issue was raised by one of the parties. See Rule 92(d). Thus, Commissioner Cottine had the authority to sua sponte direct review of the judge’s decision in this case on the issue specified in the direction.

Since the issuance of the judge’s decision in this case, the Commission has reaffirmed its jurisdiction over settlement agreements and has held that such agreements which meet the requirements set out in Dawson Brothers-Mechanical Contractors, 72 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971–73 CCH OSHD ¶15, 039 (No. 12, 1972) as adopted by Commission Rule 100,4 will be approved by the Commission even if they contain exculpatory language. Farmer’s Export Company, 80 OSAHRC ——, 8 BNA OSHC 1655, 1980 CCH ¶—— (No. 78–1708, 1980).

Commission Rule 100, with essentially codifies the criteria set forth in Dawson Brothers-Mechanical Contractors, supra, provides, in pertinent part, as follows:

Rule 100 Settlement.

(b) Requirements. Every settlement proposal submitted to the Judge or Commission shall include, where applicable, the following:

(1) A motion to amend or withdraw a citation, notification of proposed penalty, notice of contest, or petition for modification of abatement;

(2) A statement that payment of the penalty has been tendered or a statement of a promise to pay; and

(3) A statement that the cited condition has been abated or a statement of the date by which abatement will be accomplished.

(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 settlement agreement in this case complies with the criteria set forth in Commission Rule 100. The agreement includes Respondent’s motion to withdraw its notice of contest to the citations as amended, a promise to pay the amended penalty, a statement that the conditions have been abated, and a statement that a copy of the agreement has been served on the authorized representative of affected employees. The record reflects that more than 10 days has lapsed since service on the authorized representative of affected employees and no objection has been filed. Moreover, this agreement is not clearly repugnant to the Act’s objectives and provisions.

Accordingly, the judge’s decision is affirmed and the settlement agreement is approved.

SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: AUG 22, 1980

COTTINE, Commissioner, dissenting:

I join my colleagues in concluding that the Commission is authorized to review and rule upon settlement agreements between parties to our proceedings. However, I dissent from the majority’s approval of the settlement agreement in this case.

In addition to the service and proposal requirements quoted in the majority opinion, Commission Rule 100 provides:

(c) Policy . . . A settlement proposal shall be approved when it is consistent with the provisions and objectives of the Act.

29 C.F.R. § 2200.100(a). My colleagues approve the agreement in this case because it ‘is not clearly repugnant to the Act’s objectives and provisions.’ This test is not only contrary to the Commission Rules of Procedure, but is inconsistent with Commission precedent. American Cvanamid Co., 80 OSAHRC ___, 8 BNA OSHC 1346, 1980 CCH OSHD ¶24,424 (No. 77–3572, 1980);5 Kaiser Aluminum & Chemical Corp., 78 OSAHRC 103/E8, 6 BNA OSHC 2172, 1978 CCH OSHD ¶ 23,200 (No. 76–2293, 1978), appeal dismissed, No. 79–7047 (9th Cir. Feb. 7, 1980);6 American Airlines, 75 OSAHRC 43/F3, 2 BNA OSHC 1391, 1974–75 CCH OSHD ¶19,393 (No. 6087, 1974). But see Thorleif Larsen & Son of Indiana, Inc., 74 OSAHRC 74/C8 2 BNA OSHC 1256, 1974–75 CCH OSHD ¶18, 826 (No. 370, 1974), appeal dismissed, No. 73–1232 (7th Cir. Jan. 22, 1974) (stipulation only as to appropriateness of penalty in issue). The majority’s failure in this case to explain its departure from established Commission precedent and the published rules of procedure leaves Commission judges without guidance regarding the test to be applied when reviewing settlement proposals. A proposal may not be consistent with the provisions and objectives of the Act, yet not be ‘clearly repugnant’ to the Act. There is a difference between affirmatively enforcing the Congressional mandate to assure a safe and healthful workplace and permitting parties to agree upon any provision as long as it is not manifestly antithetical to the Act.

The exculpatory language contained in the agreement before us explicitly precludes the use of the affirmed ‘violations in any investigation or proceeding under the Occupational Safety and Health Act involving any facility of Respondent other than the Rensselaer, New York, facility involved in this proceeding.’ In attempting to preclude the use of the violations as the basis for future repeated violations at other worksites, the provision may not be clearly repugnant to the Act, but it is contrary to the preventive purposes of the Act and the Act’s enforcement scheme.7 Accordingly, for the reasons set forth in my dissenting opinion in Farmer’s Export Co., 80 OSAHRC ___ 8 BNA OSHC 1655, 1980 CCH OSHD ¶24,569 (No. 78–1708, 1980), the agreement should not be approved.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

April 2, 1979

Appearances:

Francis V. LaRuffa, Regional Solicitor United States Department of Labor

1515 Broadway, Room 3555 New York, New York 10036

Attorney for Complainant by Stephen Dubnoff, Esq., of Counsel and James Magenheimer, Esq., of Counsel

Carpenter, Bennett & Morrissey, Esqs.

744 Broad Street Newark, New Jersey 07102

Attorneys for Respondent, by Francis X. Dee, Esq., of Counsel

ORDER

Alfieri, Judge.

This is a proceeding under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), in which the Respondent contests the following citations, dated February 9, 1978, issued in case 78–867.

A. Serious citation 1 comprising eight items and 20 sub-items.

B. Willful citation 2 comprising 26 items and five sub-items.

C. Repeated citation 3 comprising two items and one sub-item.

D. Nonserious citation 4 comprising 11 items and 3 sub-items.

In case 78–1339 Respondent contests the serious citation, comprising 1 item, issued on March 22, 1978.

These cases which present numerous and complex issues of fact and law were scheduled to be heard at Albany, New York, on June 22, 1978. Several applications for adjournment were granted when counsel for both sides demonstrated their willingness to seek an amicable settlement of the numerous issues involved.

In addition to several informal pretrial conferences, formal pretrial conferences were conducted on October 12, 1978 and February 8, 1979. As a result thereof, and the diligent efforts of counsel, the parties resolved all of the issues in both cases and entered into a settlement agreement, a copy of which was served upon the representatives of I.C.W.U. Local 227, on February 26, 1979. More than 10 days lapsed and the union has filed no objection.

The terms of the agreement were stipulated as follows:

1. The Secretary hereby moves to withdraw the citation, penalty and complaint in Docket No. 78–1399 and add the item as instance (g) to citation (1) item 5 in Docket No. 78–0867. This amendment is based upon the Secretary’s belief that the above item more properly belongs in citation one, item 5, rather than as a separate citation.

2. The Secretary hereby moves to amend citation one, items one, two and five in Docket No. 78–0867 and the corresponding paragraphs in the Secretary’s complaint to reduce said items from serious to nonserious violations. This amendment is based upon the Secretary’s belief that he would be unable to prove the alleged seriousness of the violations at a hearing.

3. The Secretary hereby moves to amend citation number two in Docket No. 78–0867 and the corresponding paragraphs in the Secretary’s compliant as follows: Items 1(a), 1(b), 1(c), 2(e), 3, 4(a) from willful to serious violations. This amendment is based upon the Secretary’s belief that he would be unable to prove the alleged willfulness of the violations at a hearing.

4. The Secretary hereby moves to further amend citation number two in Docket No. 78–0867 and the corresponding paragraphs in the Secretary’s complaint as follows: Items 1(d), 1(e), 2(a)(b), 2(b), 2(c), 2(d), 2(f), 2(g), 2(h), 4(b), and 4(c) from willful to nonserious. This amendment is based upon the Secretary’s belief that he would be unable to prove the alleged willfulness of these violations at a hearing.

5. The Secretary hereby moves to further amend citation number two in Docket No. 78–0867 and the corresponding paragraphs in the Secretary’s complaint to delete the following items: 2(a)(a) and items 5(a) through (j). This amendment is based upon the Secretary’s belief that he would be unable to meet his burden of proof as to these items at a hearing.

6. The Secretary hereby moves to amend citation three in Docket No. 78–0867 and the corresponding paragraphs in the Secretary’s complaint to change the characterization of item 1(a) from repeated to nonserious; item 2 from repeated to serious and to delete item 1(b). This amendment is based upon the Secretary’s belief that he would be unable to meet his burden of proof as to the alleged repeat nature of the violations or the characterizations as alleged in the citation at a hearing.

7. The Secretary hereby amends citation number 4, item two in Docket No. 78–0867 and the corresponding paragraph in the Secretary’s complaint to read as follows: 29 CFR 1910.22(a): The first floor storage area in building 83 was not kept in as dry a condition as was possible. This amendment is made to more precisely describe the condition cited.

8. The Secretary hereby amends the proposed penalty as follows:

Citation I

Citation II

Citation III

Citation IV

9. Based upon the above and in consideration of the other terms of this agreement, the Respondent herein withdraws its notice of contest and answers as to the citations, proposed penalties and complaints as modified.

10. Respondent affirmatively states that:

a. All violations alleged in citations as amended have been abated since Respondent no longer owns the facilities which are the subject of these proceedings.

b. It will continue to comply in the future with the Occupational Safety and Health Act.

c. This Stipulation has been served upon the authorized employee representative.

d. It will pay the amended proposed penalty of $2,000.00.

11. General Provisions

11.1 This Stipulation is being entered into in recognition of the difficulties of meeting the burden of proof and solely in the spirit of conciliation and to avoid protracted litigation.

11.2 This Stipulation has been entered into solely with the intent and on the basis that it is solely determinative of and relates only to the disposition and settlement of this proceeding.

11.3 Neither the Company’s decision to enter into this Stipulation, its abatement of the alleged violations, its withdrawal of the Notice of Contest, nor its payment of the $2,000.00 penalty shall be construed as an admission of any allegation made in the complaints or citations, an admission of any fault or liability or a finding of any violations as to any claim or proceeding which exists or may exist or may arise, or be pursued by any person, agency or entity, except in proceedings under the Occupational Safety and Health Act currently authorized by statute and the Occupational Safety and Health Administration Field Operations Manual. The use of this Stipulation shall not shift any burden of proof which the Secretary must by law bear and shall not be deemed to deprive Respondent of any and all defenses or rights which it may have by law.

11.4 Notwithstanding anything to the contrary herein, this Stipulation, Respondent’s withdrawal of its Notices of Contest or answers, abatement of the alleged violations or its payment of the penalty referred to herein may not be construed as an admission or as a finding of violations in any investigation or proceeding under the Occupational Safety and Health Act involving any facility of Respondent other than the Rensselaer, New York, facility involved in this proceeding.

11.5 The execution of this Agreement by the Respondent shall not in any way affect the right of the Respondent to challenge, pursuant to 29 U.S.C. § 655(f), any standard which may be hereafter promulgated by the Secretary.

NOW, THEREFORE, the Stipulated Settlement having been reviewed, and finding that it is consistent with the purposes of the Act, it is hereby ORDERED that:

1. The Stipulated Settlement filed on March 2, 1979 is approved, the motions contained therein are granted and Respondent’s notice of contest is dismissed. The citations as amended in the following respects are affirmed:

Case 78–1399

2. Serious citation 1 and the proposed penalty are deleted and made part of case 78–0867.

Case 78–0867

3. Serious citation 1 is amended by adding thereto the serious citation 1, item 1, deleted from case 78–1399 and numbering it as part ‘g’ of item 5.

4. Serious citation 1. Items 1, 2 and 5 are reclassified to nonserious and the proposed penalties are vacated. Items 3, 4, 6, 7 and 8 are serious violations for which the penalties are reduced.

5. Willful citation 2, items 1(a), 1(b), 1(c), 3 and 4(a) are reclassified to serious and the penalties are vacated. Item 2(e) is reclassified to serious and the proposed penalty is reduced.

6. Willful citation 2, Items 1(d), 1(e), 2(a)(b), 2(b), 2(c), 2(d), 2(f), 2(g), 2(h), 4(b) and 4(c) are reclassified to nonserious from willful and the proposed penalties are vacated.

7. Willful citation 2, Items 2(a)(a) and items 5(a) through (j) are vacated.

8. Repeated citation 3, Item 1(a) is reclassified to nonserious from repeated; item 2 is reclassified to serious from repeated and item 1(b) is vacated and the proposed penalties, are reduced.

9. Nonserious citation 4. The violative condition is amended to read:

29 CFR 1910.22(a): The first floor storage area in building 83 was not kept in as dry a condition as was possible.

The following penalties are assessed:

Citation 1

No penalties are assessed for items 1, 2 and 5.

Citation 2

No penalties are assessed for 1(a), 1(b), 1(d), 1(e), 2(a) through 2(d) and 2(f) through (h), 4(b) and 4(c), 5(a) through 5(j).

Citation 3

Citation 4

No penalties are assessed.

A total penalty of $2,000,00 is assessed

EDWARD V. ALFIERI

JUDGE, OSHRC

Dated: April 2, 1979

New York, New York

1 While some of the arguments raised by both the Respondent and the Secretary are beyond the scope of Commissioner Cottine’s direction for review, they may be interpreted as ‘jurisdictional’ issues which may be raised at any time in the proceedings. See, Service Specialty, Inc., 79 OSAHRC ___, 7 BNA OSHC 1770, 1979 CCH OSHD ¶ 23,928 (No. 16033, 1979). Accordingly, we will address the issues.

2 To be codified at 29 C.F.R. § 2200.92(d). This Rule, formerly Commission Rule 91a(d), was redesignated Rule 92(d) by the Commission on December 5, 1979.44 Fed. Reg. 70106, 70111 (1979).

3 To be codified at 29 C.F.R. § 2200.92(a). This Rule, formerly Commission Rule 91a(a), was redesignated Rule 92 by the Commission on December 5, 1979. 44 Fed. Reg. 70106, 70111 (1979).

4 29 C.F.R. § 2200.100. This Rule was revised by the Commission on December 5, 1979. 44 Fed. Reg. 70106, 70112 (1979).

5 The Commission will approve ‘settlements only ‘where such settlement is consistent with the provisions and objectives of the Act.’ Commission rule 100(a).’ 8 BNA OSHC at 1349, 1980 CCH OSHD ¶24,424 at p. 29,792.

6 A settlement proposal filed with the Commission ‘is not final until the Commission approves the proposal as consistent with the intent of the Act and the public interest.’ 6 BNA OSHC at 2173, 1978 CCH OSHD ¶23,200 at p. 28,048.

7 In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23, 294 (No. 16183, 1979) the Commission stated that the geographic proximity of violations is not relevant to whether a violation is repeated within the meaning of 29 U.S.C. § 666(a).