DORFMAN CONSTRUCTION COMPANY, INC.

OSHRC Docket No. 4341

Occupational Safety and Health Review Commission

July 22, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On February 19, 1974, Judge James A. Cronin, Jr., issued his decision and order in this case approving a stipulated settlement agreement executed by the parties.

On March 21, 1974, the Commission directed review of the decision and order of the Judge in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act"). Submissions were invited on the issue of whether the stipulated settlement agreement had been served on the authorized employee representatives as required by Commission rules 100 and 7.

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 August 8, 1973 the Secretary issued to respondent one citation for serious violation and one citation for nonserious violation together with a notification that a penalty of $980 was proposed. On August 21, 1973, respondent timely filed a notice of contest as to both citations and the proposed penalties.

After a complaint and answer were filed, complainant [*2] and respondent executed a stipulated settlement agreement. Complainant moved to amend the citation for serious violation to allege a nonserious violation and to amend the penalty proposed therefor to $175. Complainant also moved to withdraw item 3 of the nonserious citation and the penalty proposed therefor. Respondent agreed to the complainant's motions and moved to withdraw its notice of contest as to the complainant's proposed amended citations and amended notice of proposed penalty.

The stipulated settlement agreement was posted, but it was not served on the authorized employee representatives, Laborer's International Union of North America, and International Union of Operating Engineers.

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 accmpany the proposed settlement when submitted to the Commission or the Judge. [Emphasis added]

Commission Rule 7(d) [29 [*3] CFR 2200.7(d)] states the following:

Rule 7 Service and Notice

(d) Proof of service shall be accomplished 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.

Subsequent to the Commission's direction for review, respondent filed an affidavit of service verifying that the stipulated settlement agreement had been served on the authorized employee representatives. Although the quoted rules contemplate an opportunity to be heard on settlements before the Commission approves them, the authorized employee representatives have not requested a hearing as of this date.

Accordingly, it is ORDERED that the Judge's decision affirming the citations and notification of proposed penalty as amended is affirmed.

[The Judge's decision referred to herein follows]

CRONIN, JUDGE, OSAHRC: A stipulated agreement in settlement of this case was received from the parties on January 31, 1974.

On August 8, 1973, Respondent was issued a citation alleging a serious violation of 29 C.F.R. 1926.652(c) and a Notification of Proposed Penalty for $700. Complainant now moves to amend the Citation and Notification [*4] of Proposed Penalty to charge a violation other than serious and a reduction in the proposed penalty to $175, and this motion is granted.

Respondent was also issued on August 8, 1973 a citation alleging violations of 29 C.F.R. 1926.500(a)(6), 29 C.F.R. 1926.550(a)(7)(i), and 29 C.F.R. 1926.550(a)(7)(ii). Penalties of $70, $125, and $85, respectively, were proposed for these alleged violations.

On the representation that no violation of 29 C.F.R. 1926.550(a)(7)(ii) was committed by Respondent, Complainant now moves to withdraw item 3 of said Citation and the proposed penalty of $85 based thereon. This motion is granted.

Respondent by the terms of this agreement then moves to withdraw is Notice of Contest to the citation's alleged violations of 29 C.F.R. 1926.550(a)(6), 29 C.F.R. 1926.550(a)(7)(i) and 29 C.F.R. 1926.652(c) and the proposed penalties based thereon. Based on Respondent's representations that the conditions set forth in the citations have been abated, that it will continue to comply with the requirements thereof, that it will tender payment of the proposed penalties totaling $370 and that the agreement has been posted, this motion to withdraw [*5] is granted.

In accordance with the terms of said stipulated agreement and there being no objection, it is ORDERED that:

1. Item 3 of the citation issued August 8, 1973 alleging a violation of 29 C.F.R. 1926.550(a)(7)(ii) and the proposed penalty based thereon are hereby VACATED.

2. Items 1 and 2 of the citation issued August 8, 1973 are hereby AFFIRMED, and the proposed penalties based thereon are hereby ASSESSED.

3. The alleged violation of 29 C.F.R. 1926.652(c), as amended, is hereby AFFIRMED and the proposed penalty of $175 is hereby ASSESSED.