GEUDER, PAESCHKE & FREY COMPANY, a Corporation

OSHRC Docket No. 6661

Occupational Safety and Health Review Commission

May 6, 1977

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Before BARNAKO, Chairman; CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor

Peter C. Karegeannes, for the employer

Thomas N. Lesch, President, Intern'l Assoc. of Machinists, AFL-CIO, Fabricated Metal Lodge No. 2110, for the employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge George W. Otto rendered on April 7, 1975, is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"].

Respondent is a corporation engaged in the business of fabricating metal products. Following an inspection, respondent was issued two citations. The first alleged a single serious violation of section 5(a)(1) of the Act. The second alleged forty-four nonserious violations of various occupational safety and health standards.

Respondent filed a notice of contest as to the alleged serious violation and a number of the alleged nonserious violations, and also requested extensions of abatement periods for five of the nonserious violations. The authorized employee representative, Fabricated Metal Lodge No. 2110, of [*2] the International Association of Machinists, AFL-CIO, elected to participate in the proceedings.

After numerous postponements of the scheduled hearing, a proposed settlement agreement was entered into by the Secretary and respondent. A copy of the settlement agreement was served on the employee representative. The union duly notified the Judge that it objected to the agreement and requested a hearing. Its request was granted.

Following the hearing, at which the employee representative participated, the Judge issued his order approving the settlement agreement proposed by the Secretary and respondent. In essence, the agreement provided that the Secretary would amend the citations and complaint to delete a number of the alleged nonserious violations, extend the abatement period for the alleged serious violation and one of the nonserious items, and reduce the amount of the penalty proposed for three of the alleged nonserious violations. In return, respondent agreed to withdraw its notice of contest as to the remaining items and penalties.

None of the parties petitioned the Commission for review of this decision. Commissioner Cleary issued a sua sponte direction for review, [*3] however, inviting submissions on the following issues:

(1) Whether the Judge erred in concluding that the authorized employee representative is not entitled to party status to contest the withdrawal by the Secretary of Labor of items included in the citation;

(2) Whether the Judge erred in approving the extension of the abatement dates in serious item number 1 and nonserious item number 40.

The Secretary and respondent each submitted briefs requesting that the Judge's decision be affirmed in all respects. The employee representative did not file a brief. n1 This is significant because the order for review involved only matters decided adversely to the employee representative's position. Under these circumstances we decline to rule upon the issues that have been raised sua sponte. Star Circle Wall Systems, Inc., BNA 4 OSHC 1011, CCH 1975-76 OSHD para. 20,502 (No. 3271, 1976); cf. Abbott-Sommer, Inc., BNA 3 OSHC 2032, CCH 1975-76 OSHD para. 20,248 (No. 9507, 1976).

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n1 Cf. Corhart Refractories, No. 6184-P (April 4, 1977), wherein a brief was filed on behalf of the employee representative.

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Accordingly, the Judge's decision is affirmed. It is SO ORDERED.