UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 8932

H. L. VOKES COMPANY

 

                                              Respondent.

 

 

January 26, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BY THE COMMISSION:

An order of Review Commission Judge Erwin L. Stuller, dated October 4, 1974, is before this Commission for review pursuant to 29 U.S.C. § 661(i). Review was directed on (1) whether the Judge erred in approving a settlement agreement which extended the abatement date of June 28, 1974, as fixed in the original citation, to November 26, 1974, and (2) whether there had been a failure to comply with the Commission Rules of Procedure with regard to service of the settlement agreement on affected employees.

Since the extended abatement date is long past; the first directed issue is moot. As to the second issue, there is evidence that the agreement was posted by the respondent. This constitutes adequate notice to the respondent’s employees because no employee or employee representative has elected party status in the case. Secretary v. Marine Terminals Corporation, 15 OSAHRC 172 (1975). Moreover, no party has expressed an interest in the directed issues at any stage of the proceedings.

Accordingly, the Judge’s order is affirmed.

 

FOR THE COMMISSION:

 

William S. McLaughlin

Executive Secretary

DATED: JAN 26, 1976

 

CLEARY, Commissioner, DISSENTING:

I disagree with my colleague’s disposition. The majority decision casts umbrage upon the right of affected employees and their authorized representatives to be effectively heard when the Secretary and the employer settle a case without a hearing.

On July 8, 1974, respondent was cited for failure to abate a violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., [hereinafter cited as the ‘Act’] for failure to comply with the safety and health standard published at 29 CFR § 1910.107(d)(2)[1], which it had been previously cited for violating on March 22, 1974. The Secretary proposed a $30 penalty for respondent’s failure to abate the violation.

On September 25, 1974, the parties executed a settlement agreement in which the Secretary amended the original abatement date from June 28, 1974, to November 26, 1974, and respondent paid the proposed penalty, promised to abate the violative condition by the amended abatement date, and moved to withdraw its notice contesting the failure to abate citation. Although a copy of the settlement agreement was posted at respondent’s workplace, no copy was served on the authorized employee representative.[2]

On September 30, 1974, the Administrative Law Judge signed an order approving the settlement agreement. Although only five days had elapsed between submitting the agreement and the Order, Judge Stuller declared that ‘a reasonable time has passed since the posting of the documents.’

The majority would approve treating the failure of the employee representative formally to elect to participate in this proceeding before the entry of the settlement agreement as depriving the representative of party status. This view is contrary to the Act as well as to the Commission’s rules of procedure.

Section 10(c) of the Act requires the Commission to provide rules of procedure permitting affected employees or their representatives to participate as parties in hearings. In accordance with that Congressional mandate, the Commission promulgated rule 20(a),[3] 29 CFR § 2200.20(a), which allows employees to elect to participate as parties at any time before the commencement of the hearing.

Clearly, if there is to be a voluntary disposition and a hearing is not held, employees wishing to exercise their right to participate may not be denied that opportunity.[4] The service requirement of Commission rule 100(c),[5] 29 CFR § 2200.100(c), is intended to preserve the right of employees to participate by requiring other parties to settlement agreements to serve the proposal on affected employees and their representatives.

Evidence establishes that the employee representative in this case was never served with a copy of the settlement agreement. Although a copy of the agreement was posted at the workplace, it is not clear that this apprised the employee representative of the provisions of the agreement, or even of its existence.

Assuming arguendo that the employee representative was aware of the agreement I do not agree with the Judge that a reasonable time elapsed without objection before approval of the agreement. Only five days elapsed between the parties’ submitting the agreement and the Judge’s signing the order approving it. In that time it would have been necessary for the employee representative to decide whether to object to any provision of the agreement, to draft a notice of objection, perhaps after securing counsel, and forward those objections to the Commission.[6]

The essential purpose of the Act is to protect employees. The consent of employees when they choose to be interested parties is vital to any settlement. When the failure of employees to object to a settlement may be caused by a lack of proper service, it is not known if the employees would seek to exercise their right to participate as parties. Hence, it cannot be said that any silence on their part should be construed as consent. American Airlines, Inc., 16 OSAHRC 512, 1974–75 CCH OSHD para. 19,108, 2 BNA OSHC 1391 (No. 6087, 1974).

Nevertheless, the majority would find that, because the extended abatement date has passed, the case is moot. Such a holding divests this Commission of its authority to assure that the right of employee participation in Commission proceedings is not infringed. It is our duty to review settlement agreements in order to assure that employee rights are being preserved. This duty cannot be realistically met under the majority’s broad concept of mootness. See Coleman Co., Inc., No. 7885–P (January 26, 1976) (dissenting opinion).

Accordingly, I would reverse the Judge and remand the case with instructions that the employee representative be given at least ten days[7] in which to object to the settlement agreement.

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 8932

H. L. VOKES COMPANY,

 

                                              Respondent.

 

 

FINAL ORDER DATE: November 04, 1974

ORDER

On September 25, 1974, the parties entered into a settlement agreement whereby the complainant moved to amend Item 2 of the Citation, the only item in issue, by deleting June 28, 1974 as the abatement date and setting in its place November 26, 1974. The motion was to also correct the Notification of Failure to Correct the Alleged Violation and of Proposed Penalty to reflect the previously stated amendment. The parties stated that the proposed additional penalty had been paid and that the respondent will abate the violation on or prior to November 26, 1974. The respondent then moved to withdraw its Notice of Contest to the Notification of Failure to Correct Alleged Violation and proposed additional penalty, as amended. The respondent certified that it had posted copies of their agreement and motion. As a reasonable time has passed since the posting of the documents without objection having been filed, the motions are GRANTED; the respondent’s Notice of Contest as to the Notification of Failure to Correct Alleged Violation and of proposed additional penalty, as amended, is withdrawn, and the Notification of Failure to Correct Alleged Violation and of proposed additional penalty, as amended, is AFFIRMED; and the case is DISMISSED.

 

Erwin L. Stuller

Judge

Dated: October 04, 1974


[1] § 1910.107 Spray finishing using flammable and combustible materials

(d) Ventilation

(2) General—All spraying areas shall be provided with mechanical ventilation adequate to remove flammable vapors, mists, or powders to a safe location and to confine and control combustible residues so that life or property is not endangered. Mechanical ventilation shall be kept in operation at all times while spraying operations are being conducted and for a sufficient time thereafter to allow vapors from drying coated articles and drying finishing material residue to be exhausted.

 

[2] Local #468, International Association of Bridge, Structural and Ornamental Iron Workers (AFL-CIO).

[3] 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, unless, for good cause shown, the Commission or the Judge allows such election at a later time.

 

[4] An example is the following:

An authorized employee representative intends to participate in a case by appearing at the hearing. Before the hearing the Secretary and the employer enter into a settlement agreement which is not served on the employee representative. The Judge issues an order approving the agreement. The hearing is cancelled and the representative is denied its statutory right of participation.

 

[5] Rule 100 Settlement

(c) Where parties to a settlement agree upon a proposal, it shall be served upon represented and unrepresented affected employees in the manner set forth in rule 7 hereof. Proof of such service shall accompany the proposed settlement when submitted to the Commission or the Judge.

[6] It should be noted that the settlement agreement was signed on Wednesday, September 25, 1974, and approved by the Judge on Monday, September 30, 1974. Therefore, assuming expeditious posting, the employee representative had only three work-days in which to comment on the agreement.

 

[7] See Commission Rule 37, 29 CFR § 2200.37, which allows any party or intervenor 10 days from service of a motion to file a response.