THE FEDERAL GLASS COMPANY

OSHRC Docket No. 4258

Occupational Safety and Health Review Commission

May 28, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On January 30, 1974, Judge John S. Patton issued his decision and order in this case granting the Secretary of Labor's motion to amend the citation and complaint and granting respondent's motion to withdraw its notice of contest.

On February 26, 1974, the Commission directed review of that decision and order on the issues of: (1) whether the motion to withdraw the notice of contest and citation was properly served upon the authorized representatives of affected employees; and if not, (2) what is the proper remedy.

The Commission has reviewed the entire record in this case. We adopt the Judge's decision to the extent that it is consistent with the following:

On July 30, 1973, the Secretary issued to respondent one citation for non-serious violation of the Act together with a notification that a penalty of $30 was proposed. On August 21, 1973, respondent timely filed a notice of contest as to the fourth item of the citation.

Subsequent to the filing of a complaint and answer, the Secretary moved to extend the abatement date for item 4 from July 30, 1974, to December 31, 1975. Thereafter respondent [*2] filed a motion to withdrawn its notice of contest. After the Judge received further clarification regarding the extended abatement date, he granted the motions of both parties.

Considering the record as a whole, we find that the Secretary's motion for an extended abatement date together with respondent's motion for withdrawal of its notice of contest constitute a settlement agreement as that term is commonly used. See Words and Phrases, "Settlement."

Respondent did not simply move to withdraw its notice of contest from a citation, as issued, and pay the proposed penalty. See Newspaper Agency Corp., No. 1902 (May 6, 1974). In the instant case respondent moved to withdraw its notice of contest after the Secretary moved to extend the abatement date. n1 Respondent is not in the same position as if a notice of contest had not been filed. By reason of the extended abatement date, it is in a better position than if it had not contested. Clearly there has been an adjustment of the differences of the parties; i.e., a settlement.

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n1 The date prescribed for abatement had not arrived. Accordingly the citation was amended by the Secretary and resort to the procedures under section 10(c) of the Act was not necessary.

[*3]

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The record discloses that Local Nos. 596 and 151, American Flint Glass Workers' Union of North America (AFL-CIO) are the authorized representatives of respondent's affected employees. Service of the motions was not made upon these authorized representatives of employees, nor was the Secretary's motion posted. n2

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n2 Respondent's motion stated that it was posted.

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Commission Rule 100(c) [29 CFR 2200.100(c)] states the following concerning service on representatives of affected employees:

Rule 100 Settlement

(c) Where the parties to 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. [Emphasis added]

Commission Rule 7(d) [29 CFR 2200.7(d)] states the following:

Rule 7 Service and Notice

(d) Proof of service shall be accomplished [*4] by a written statement of the same which sets forth the date and manner of service. Such statement shall be filed with the pleading or document. Rule 100(c) can only be properly complied with where the documents constituting a settlement agreement are served upon the authorized employee representative and posted before a Commission Judge grants approval. U.S.I. Clearning, No. 2922 (July 25, 1974).

Accordingly, it is ORDERED that a copy of this decision be served upon the authorized employee representatives of affected employees and posted at respondent's worksite. If no objection is filed within ten (10) days of such service and posting, the Judge's decision will be approved without further proceedings.

CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: I concur with the disposition position of this case because there is no evidence that any document posted at the worksite advised the affected employees of the amended abatement date and because the respondent has suggested that this disposition is a reasonable alternative. It should be noted, however, that the general rule that posting of a settlement agreement is adequate notice to employees, as set forth is Secretary [*5] v. Marine Terminals Corporation, 15 OSAHRC 172 (1975), is not altered by this decision.

[The Judge's decision referred to herein follows]

PATTON, JUDGE: This case is before the undersigned Judge on the complaint of the Secretary of Labor, United States Department of Labor, hereinafter referred to as complainant versus The Federal Glass Company, hereinafter referred to as respondent, alleging violation of section 5(a)(2) of the Occupational Safety and Health Act, hereinafter referred to as the Act and occupational safety and health standard 29 CFR 1910.95(b), in that respondent was alleged to have failed at its plant at 555 Woodrow Avenue, Columbus, Ohio to maintain sound level at or below the limits set in Table G-16 at the following workplaces:

1. #6 tank "turnabout" operator; 2. #41 press operator. 3. #42 press operator; 4. #43 Hartford operator; 5. #44 Hartford operator; 6. #45 press operator; 7. #31 press operator; 8. #11 Hartford operator; 9. #12 press operator; 10. #13 Hartford operator; 11. #15 Hartford operator; 12. #21 press operator; 13. #24 Hartford operator.

No penalty for said violation was proposed.

The abatement date prayed was July 30, 1974. The [*6] complainant filed a motion to amend the complaint and citation requesting an abatement date of December 31, 1975, rather than the abatement date of July 30, 1974. The respondent filed a withdrawal of notice of contest.

Both parties have submitted letters to this Judge which have been filed in this cause setting forth that there are substantial engineering and technical difficulties involved in properly abating said alleged violations which make it imposible for the respondent to meet the abatement date of July 31, 1974, and which, in the opinion of the parties, make the date of December 31, 1975, the earliest reasonable abatement date.

It appears to this Judge that in view of said representations of both parties it would effectuate the purposes of the Act to grant said motion to amend and to approve said motion to withdraw notice of contest of citation.

It is therefore Ordered that:

The motion to amend the complaint be and the same hereby is granted and the complaint is amended as prayed.

The request to withdraw notice of contest of citation filed by respondent be and the same hereby is approved.

The respondent is, as alleged in the complaint as amended, in violation of section [*7] 5(a)(2) of the Act and standard 29 CFR 1910.95(b).

No penalty is assessed for said violation.

The violation must be abated by December 31, 1975.