“Docket No. 88-0227_88-0731_88-1647 SECRETARY OF LABOR,Complainant,v.NATIONAL STEEL AND SHIPBUILDING COMPANY,Respondent.INTERNATIONAL ASSOCIATION OF BRIDGE,STRUCTURAL AND ORNAMENTAL IRON WORKERS,SHOPMEN’S LOCAL 627,INTERNATIONAL ASSOCIATION OF MACHINISTSAND AEROSPACE WORKERS, LOCAL 389,et al.,Authorized EmployeeRepresentatives.OSHRC DocketNos. 88-0227, 88-0731, and88-1647DECISION AND ORDERBEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:These cases arose from three inspections conducted at aworksite of Respondent, National Steel and Shipbuilding Company (\”NASSCO\”), inSan Diego, California, between July 1987 and June 1988. The Secretary’s OccupationalSafety and Health Administration (\”OSHA\”) issued a total of eight citations,setting forth 20 separate allegations that NASSCO willfully violated the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-78 (\”the Act\”), over 300allegations that NASSCO committed serious violations of the Act, and approximately 160allegations of nonserious violations. OSHA proposed penalties totaling $165,100. NASSCOcontested all of the willful allegations as well as many of the serious and nonseriouscharges. The unions representing NASSCO’s employees then elected party status pursuant toCommission Rule 20(a), 29 C.F.R. ? 2200.20(a), which provides that affected employees andtheir authorized representatives may make such an election at least 10 days prior to thehearing.[[1\/]]Thereafter, the cases were assigned to two Administrative LawJudges for disposition. Docket number 88-0227 was assigned to Judge James A. Cronin, Jr.,and the remaining two cases were assigned to Judge Benjamin R. Loye. The Secretary andNASSCO then entered into a single settlement agreement disposing of all three cases, andJudges Cronin and Loye issued orders approving the settlement agreement as it pertained totheir respective cases. Two of the unions which had elected party status, Shopmen’s Local627 of the International Association of Bridge, Structural, and Ornamental Iron Workers(\”Ironworkers\”) and Local 389 of the International Association of Machinists andAerospace Workers (\”Machinists\”) then filed petitions for discretionary reviewobjecting to the approval of the settlement agreement. Former Commissioner Linda L. Areydirected review on the issue of whether the judges’ orders should be set aside in light ofthe unions’ objections.Since these cases raise a common legal issue and involveidentical parties, we formally consolidate them pursuant to Commission Rule 9, 29 C.F.R.? 2200.9. For the reasons that follow, we conclude that the judges erred in approving thesettlement agreement.The Machinists union objects that it was not served with a copyof the settlement agreement. It points out that it was not listed on the certificate ofservice despite the representation in the agreement that \”Complainant has served acopy of this Settlement Agreement upon the authorized representatives of employees thathave elected party status….\” Commission Rule 100(c), 29 C.F.R. ? 2200.100(c),imposes a mandatory requirement that a settlement agreement be served \”upon allparties and authorized employee representatives\” and that proof of service to thateffect \”shall be filed with the settlement agreement.\” We recently reaffirmedthe importance of the service requirement in General Electric Co., 14 BNA OSHC1763, 1990 CCH OSHD ? 29,072 (No. 88-2265, 1990), where we emphasized that Rule 100(c) isintended to allow employees or their representatives who have elected, or who still havethe opportunity to elect, party status an opportunity to make known their objections tothe reasonableness of any abatement time provided for in the settlement agreement beforethe agreement is approved. We further pointed out that Rule 100(c) also is intended toensure that all employee representatives have notice of the terms of a settlementagreement whether or not they have elected party status. Id., 14 BNA OSHC at1764-65 & n.2, 1990 CCH OSHD at p. 38,849 & n.2. Accordingly, the settlementagreement is deficient for failure to certify service on the Machinists, and the judgeserred in approving the agreement without assurance that the Machinists had been served asrequired by Rule 100(c). [[2\/]]In addition to the procedural question of service on theMachinists, both the Machinists and the Ironworkers raise essentially the same substantiveobjections to the settlement agreement. Both unions assert that the agreement contains amaterial misstatement of fact regarding the cause of an accident that resulted in theinspection at issue in docket number 88-1647. According to the unions, the representationin the agreement that NASSCO’s rigging practices were not responsible for this accident iscontrary to an investigative report prepared for the Secretary by an outside expert. Bothunions also object to provisions of the agreement that allow NASSCO to offset a portion ofthe penalties originally proposed by making certain expenditures for improving safety atthe worksite. They contend that some of the expenditures approved by the agreement as acredit against the penalties are for employee safety instruction and training alreadyrequired either by union contracts with NASSCO or by other OSHA standards. In the unions,view, funds to be expended under the settlement agreement should be used for new oradditional safety measures \”beyond the minimum requirements of law\” and notmerely for \”normal operating costs like the training of newly-hired employees.\”The Ironworkers union also opposes a provision of the agreement giving NASSCO credit forexpenditures made before the settlement agreement was signed, contending that thisprovision defeats the deterrent value of penalties. Finally, the Ironworkers union objectsthat it and the other authorized employee representatives were \”excluded from thesettlement process\” and that the settlement agreement was negotiated without their\”participation or knowledge.\”The objections raised by the Machinists and the Ironworkers tothe statements in the settlement agreement regarding the cause of the accident in docketnumber 88-1647 and to the provisions of the agreement regarding offset of penalties do notrelate to the reasonableness of the time prescribed for abatement and therefore are beyondthe purview of the Commission or Commission judge. [[3\/]]However, the unions may make these concerns known to the Secretary and NASSCO in themanner indicated by our recent decision in General Electric.In General Electric we reconsidered our past precedentsaccording employees or their representatives \”meaningful participation\” in thesettlement process in light of the limited opportunity employees have to make objectionsto the Commission or judge regarding the terms of a settlement agreement. We concludedthat employees or their representatives who have elected party status should be permittedto provide input regarding a settlement agreement to the other parties before theagreement is fully executed and filed with the Commission or judge. This opportunity is inaddition to the right provided by Commission Rule 100(c) to have 10 days to object to thereasonableness of the abatement period(s) contained in a settlement agreement before it isapproved by the judge. We further stated that when a settlement agreement is submitted forapproval by the Commission or judge, it is to be examined to ensure that the employees ortheir representatives have had an opportunity to provide input before the other partieshave finalized the agreement.In these cases, as in General Electric, there is noevidentiary record from which we can determine whether the authorized employeerepresentatives were \”excluded from the settlement process,\” as the Ironworkersunion alleges. Consistent with General Electric, the judges’ orders approving thesettlement agreement are therefore set aside. These cases are remanded to the judge fordevelopment of a factual record through a hearing, affidavits, or other appropriate meansand for factual findings, based on that record, as to whether the authorized employeerepresentatives did have the opportunity to provide input. In the event it is determinedthat the employee representatives were not afforded that opportunity, they shall bepermitted to provide input for consideration by the other parties before any settlementagreement is executed between the Secretary and NASSCO, as required by GeneralElectric.Since these three cases are interrelated and the unions raisethe same concerns with respect to all three, we think it appropriate for the cases toremain consolidated. We therefore direct that docket number 88-0227 be reassigned to JudgeLoye and that all three docket numbers be remanded to Judge Loye for further proceedingsin accordance with this opinion.Should Judge Loye determine that the authorized employee representatives did in fact havean opportunity to provide their input in accordance with General Electric, NASSCOand the Secretary are free to refile their original settlement agreement. However, we notetwo apparent discrepancies in that agreement. It states that an aggregate penalty of$24,200 is due in docket number 88-0731. However, the total of the individual penaltiesassessed for the citation items affirmed in that docket number comes to $24,500. Inaddition, the agreement fails to dispose of subitem 53(i) of citation number 1 in docketnumber 88-0731. The Secretary and NASSCO may make appropriate corrections to the penaltyamounts and disposition of the citation items in any settlement agreement executed underthe terms of this decision.Edwin G. Foulke, Jr. ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: October 25, 1990FOOTNOTES: [[1\/]] The record reflects that NASSCO’s employees are represented by unions for seventrades: carpenters, painters, machinists, iron workers, teamsters, electrical workers, andoperating engineers. Specific elections of party status were received from theInternational Association of Bridge, Structural , and Ornamental Iron Workers; Theinternational Association of machinists and Aerospace Workers; the United Brotherhood ofCarpenters and Joiners of America; and the International Union of operating Engineers. Inaddition, two individuals, each of whom identified himself as a \”full-time unionhealth and safety representative\” for NASSCO, stated that they elected party statuson behalf of \”all seven unions which have members employed at [NASSCO].\”[[2\/]] As we emphasized in another recent decision addressingthe rights of employees, General Motors Corp., Delco Electronics Div., 14 BNA OSHC1753, 1990 CCH OSHD ? 29,069 (No. 88-1112, 1990), Rule 100(c) provides that employees andtheir representatives who have elected party status or whose time for electing partystatus has not expired shall be granted a period of at least 10 days after service of acopy the executed settlement agreement to make known their objections to thereasonableness of the time for abatement provided for in the settlement agreement. TheMachinists union did not receive a copy of the settlement agreement until June 7, 1989,after it had asked the OSHA area office about the status of these cases. Judge Croninissued his order approving the agreement on June 2, and Judge Loye’s order was entered onJune 8. Therefore, the union was not accorded the 10-day consideration period prescribedby Rule 100(c).[[3\/]] Commission Rule 100(b), 29 C.F.R. ? 2200.100(b), whichsets forth the provisions that must appear in a settlement agreement, requires that asettlement agreement \”state whether any affected employees who have elected partystatus have raised an objection to the reasonableness of any abatement time.\” Incompliance with this requirement, the agreement here contained the following declaration:All conditions cited have been abated. There being no cited conditions which remainunabated at the time of execution of this Agreement, the matter of unreasonableness ofabatement time is not at issue, and no affected employee having elected party status hasraised an objection thereto.In its petition for discretionary review, the Machinists unionclaims that because it was not properly served with the agreement, it was denied theopportunity to \”review, determine or possibly object to the current status of thosecited conditions.\” However, the right to make objections to the Commission concerningthe reasonableness of the abatement period set forth in a settlement agreement does notentitle employees or their authorized representatives to challenge a settlement agreementon the ground that abatement has not occurred. OCAW v. OSHRC (American Cyanamid Co.),671 F.2d 643, 649 (D.C. Cir. 1982), cert, denied, 459 U.S. 904 (1982).”