CARLING ELECTRIC, INC.
OSHRC Docket No. 6762
Occupational Safety and Health Review Commission
May 14, 1975
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Before MORAN, Chairman; and CLEARY, Commissioner
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: On June 19, 1974, Judge William J. Risteau issued his decision and order in this case approving a settlement agreement executed by the parties.
On July 18, 1974, review of the decision before the full Commission was directed 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"]. Presentations by the parties were invited on the issue of whether there was compliance with Commission rule 100(c) n1 requiring that a settlement agreement be served on affected employees.
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n1 29 CFR § 2200.100(c).
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On January 30, 1974, the Secretary issued to respondent, Carling Electric, an amended citation for non-serious violations of the Act with a notification that a penalty of $40 was proposed therefor. On February 12, 1974, Carling timely filed a notice contesting item three of the citation. After the Complaint and Answer were filed, Carling and the [*2] Secretary executed a settlement agreement. The Secretary agreed to an extension of the abatement date for item three to November 1, 1974, and the parties requested that the Commission enter an order affirming the citation and proposed penalty.
Review of the record in this case reveals that there is no evidence that the settlement agreement was served on Carling's employees. Commission rule 100(c) requires the following:
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.
In addition. Commission rules 7(d) & (e) require proof of service of a settlement agreement. n2
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n2 Commission rules 7(d) & (e) [29 CFR § 2200.7(d) & (e)] state:
(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.
(e) Where service is accomplished by posting, proof of such posting shall be filed not later than the first working day following the posting.
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In addition, the employees should have been afforded party status under the Administrative Procedure Act and entitled to participate in the settlement to the extent that they were interested. American Airlines, No. 6087 (December 4, 1974). Any complaints by employees at this stage may be processed by the Secretary under section 8(g) of the Act.
Nevertheless, the case is now moot because the extended abatement date for item three is now passed. Accordingly, the Judge's decision is affirmed.
SO ORDERED.
CONCURBY: MORAN
CONCUR:
MORAN, CHAIRMAN, concurring: I agree with the conclusion that the directed issue is moot and with the affirmance of the Judge's decision. However, since no employee or employee representative has elected party status in the case, posting of the settlement agreement at the worksite would have constituted adequate notice to the employees. Secretary v. Marine Terminals Corporation, 15 OSAHRC 172 (1975).
[The Judge's decision referred to herein follows]
RISTEAU, JUDGE: This case has been assigned to the undersigned by the Occupationsl Safety and Health Review Commission for [*4] hearing and decision. Respondent was charged by a Citation dated January 30, 1974, with violation of the Occupational Safety and Health Act of 1970; at the same time a fine of $40 was proposed. Following the filing of a Notice of Contest, Complaint and Answer, counsel for the Secretary and Respondent jointly submitted a "Settlement Agreement" dated June 10, 1974, which is hereby adopted and made part of this Order. As amplified and amended by the terms of this Agreement, the Citation and recommended penalty of January 30, 1974, are hereby ORDERED affirmed.