OSHRC Docket Nos. 2975; 4349; 4684; 14999 (Consolidated)

Occupational Safety and Health Review Commission

January 18, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor

Marshall H. Marris, Regional Solicitor

Norman Winston, Assoc. Regional Solicitor

W. L. White, Jr., United States Steel Corp., for the employer

John C. Bird, U.S. Steel Corporation, for the employer

Daniel W. Hannan, Safety & Health Representative, United Steelworkers of America, Local Union 2405, for the employees

A. E. Lawson, United Steelworkers of America, AFL-CIO, for the employees

Harry Piasecki, President, USWA - Local Union No. 1014, for the employees

Robert R. Morris and Daniel K. Mayers, for American Iron & Steel Institute, for the employees




BARNAKO, Chairman:

In these consolidated cases, Judge James D. Burroughs approved a settlement agreement entered into by Complainant (Labor) and Respondent (U.S. Steel). In so doing, he rejected objections to the agreement raised by the United Steelworkers of America, AFL-CIO (Steelworkers). n1 On review, the Steelworkers continue to object to certain aspects of the agreement. n2 For the reasons which follow, we affirm the Judge's decision.

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n1 Pursuant to 29 C.F.R. 2200.20, the Steelworkers elected party status in these cases.

n2 Neither Labor, U.S. Steel, nor the Steelworkers petitioned for review of the Judge's decision. Commissioner Moran, however, directed that the Judge's decision should be reviewed "for error." The Steelworkers responded to the direction for review, asking that the Judge's decision be modified.

Both Labor and U.S. Steel contend that the direction for review is invalid because it specified no issue or issues to be decided by the Commission. They ask that the direction for review be vacated. Alternatively, U.S. Steel requests summary affirmance of the Judge's decision. Labor requests that, if the direction for review is not vacated, it be given an opportunity to file a brief.

We have concluded that directions for review which fail to state specific issues should not be vacated when a party has responded to the direction for review and asked for modification or reversal of the Judge's decision. The reasons for reaching this conclusion are set forth in a Policy Statement, published at 41 F.R. 53015 (Dec. 3, 1976). In such cases, the issues raised by the responding party will be considered, and the other parties will be given an opportunity to file briefs if appropriate.

Because our decision in this case approves the settlement agreement between Labor and U.S. Steel, neither of these parties is aggrieved by our decision, and there is no reason to further delay the disposition of this case by affording them a further opportunity to file briefs.


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At issue are citations alleging violations of Labor's coal tar pitch volatile standard n3 at coke oven batteries in four U.S. Steel plants. Following extensive pretrial procedures, Labor and U.S. Steel entered into negotiations aimed at reaching a settlement. Certain provisions to which Labor and U.S. Steel agreed were modified to accommodate objections raised by the Steelworkers. The final agreement submitted to Judge Burroughs was satisfactory to the Steelworkers as to all but the Fairfield, Alabama plant. The agreement provided, inter alia, that abatement by engineering or administrative controls at the Fairfield plant would be achieved within two years from the date the agreement was approved. The Steelworkers agreed that two years in which to achieve complete abatement was reasonable, but objected to the agreement because it did not provide for interim controls within the two year period, and did not provide that U.S. Steel submit a plan of abatement or interim progress reports.

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n3 At the time this case arose, the standard was codified at 29 C.F.R. 1910.93. It provided an exposure limit of 0.2 mg/M<3> of the benzene soluble fraction of coal tar pitch volatiles, and specified that if this limit was exceeded, engineering or administrative controls should be implemented whenever feasible. The standard is now codified at 29 C.F.R. 1910.1000.


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In approving the settlement, Judge Burroughs reasoned that Labor, by virtue of its enforcement authority under the Act, n4 could have required that a plan of abatement be included as a condition of its consent to the agreement. He held, however, that because the standard leaves to the employer the discretion to choose the means of compliance, the Commission could not require that the agreement detail the specific engineering and administrative controls which U.S. Steel must implement. The Judge noted that employees or their representatives, pursuant to Section 10(c) of the Act, had the right to object to whether the time allotted for abatement was reasonable, but held that this did not include the right to insist that the Commission's order specify the particular steps an employer must follow to achieve abatement. As the Steelworkers had agreed that the two year period for abatement was reasonable, the Judge approved the agreement.

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n4 The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.


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The Steelworkers continue to raise the same objections to the agreement that they raised before the Judge. Judge Burroughs' decision and reasoning, however, correctly anticipated our subsequent decision in United Automobile Workers, Local 588 (Ford Motor Co.), 76 OSAHRC 58/B8, BNA 4 OSHC 1243, CCH OSHD para. 20,737 (May 25, 1976), pet. for review filed, No. 76-1718 (7th Cir., July 23, 1976). Our decision in United Automobile Workers is controlling in this case, and we therefore affirm the Judge's decision.



MORAN, Commissioner, Concurring:

I agree with the affirmance of Judge Burroughs' decision on the basis of the rationale expressed in the body of the lead opinion. I did not join in the policy statement mentioned in note 2, supra. My views on that policy are expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976.



CLEARY, Commissioner, Dissenting:

In my view, the majority's reliance on United Automobile Workers, Local 588 (Ford Motor Co.), BNA 4 OSHC 1243 CCH 1976-77 OSHD para. 20,737 (No. 2786, 1976) [*6] is misplaced, and extends the rule of that case to facts not contemplated in that decision.

In that case, the notice of contest was filed by the authorized employee representative, and the majority held that section 10(c) of the Act permits employee contests of the time for abatement only. This case differs in a significant regard. Here, the notice of contest was filed by the employer and the authorized employee representative was admitted as a party. The steelworkers did not enter this action pursuant to the authority of section 10(c) to file a notice of contest, but pursuant to that portion of section 10(c) requiring that "[t]he rules of procedure prescribed by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this subsection." Commission Rule of Procedure 20, 29 CFR 2200.20, provides for affected employees election to participate "as parties." There is nothing in either the Act or in the Commission Rules that limits the participation of an employee representative once party status has been elected. Neither the Act nor our rules envision that an employee representative be a party [*7] for limited purposes. I submit that an employee representative is a full party with all rights of any party, including the right to join or object to settlement.

This is consistent with the Commission's precedent on the necessity for posting of settlements for the information of employees and approval of such posted settlements in the absence of objection by affected employees. Clark Equipment Co., BNA 3 OSHC 1241 (No. 10412, 1975), Federal Glass Co., BNA OSHC    , CCH 1974-75 OSHD para. 19,674 (No. 4258, 1975), U.S.I. Clearing, BNA 2 OSHC 1094, CCH 1973-74 para. 18,324 (No. 2922, 1974).

In these cases, the Commission has not indicated that only objection to the abatement date would be considered. No limitation was ever intimated by the Commission, and I do not understand why a party is now held to be so limited when Commission precedent in the posting cases appears to allow unrestricted objection to a settlement by affected employees.

Indeed, in American Airlines, Inc., BNA 2 OSHC 1391, CCH 1974-75 OSHD para. 19,108 (No. 6087, 1974), the authorized employee representative objected to terms of a settlement agreement between the employer and the Secretary [*8] other than the time for abatement. The Commission permitted their objections to be heard. Commissioner Moran dissented, but only on the ground that the objection came too late, for the authorized employee representative had shown no interest in the case until long after the proceedings had begun.

Moreover, section 5(b) of the Administrative Procedure Act, codified in 5 U.S.C. 554(c), concerning settlement contains a clear indication that offers of settlement shall be submitted to "interested parties." The employee representative in this case is a full party and plainly "interested," as indicated by its actions in this case. For this reason, I believe that section 5(b) of the Administrative Procedure Act and Commission precedent require express or implied consent of the authorized employee representative to the settlement agreement.

Even assuming for the sake of argument that the majority is correct in concluding that the Steelworkers could not participate as a full party as a matter of right, the majority still errs in not permitting as a matter of discretion their participation as a full party. The Steelworkers timely applied to be admitted as a full party, and at the [*9] very least, should have been permitted to intervene as a full party under Commission Rule 21. The participation would, I submit assist in determining the abatement issues.

The action of the majority may be cast in sharp relief by noting that under section 11 of the Act an employee who is aggrieved by Commission action has recourse to the Courts of Appeals. See Godwin v. O.S.H.R.C., 540 F.2d 1013 (9th Cir. 1976) (employee appeal of Commission decision). Since an employee has this right to judicial review it makes little sense to deprive an employee, or his union, the opportunity to participate fully in the case at the Commission level.