UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

ORDER OF REMAND

April 27, 1973

Before VAN NAMEE and BURCH, Commissioners

VAN NAMEE, COMMISSIONER:

On October 5, 1972, Judge James A. Cronin, Jr., issued an Order affirming the Complainant’s citation and proposed penalties in accordance with the terms of a settlement agreement executed between the parties on September 18, 1972.

On November 9, 1972, I directed that the Judge’s order be reviewed by the Commission pursuant to Section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et. seq., 84 Stat. 1590, hereinafter referred to as ‘the Act’).

We have reviewed the record, the Judge’s order and the briefs filed by the parties. For the reasons given hereinafter we reverse and remand.

The settlement agreement, in pertinent part, provides as follows:

3. The parties in entering into this Settlement Agreement have done so with the intent and on the basis that it is determinative of and related solely to the disposition of this case. The parties further agree that as to subsequent acts or events this settlement and disposition in no way affects any rights or remedies which may be exercised in the future by either party pursuant to the Occupational Safety and Health Act. It is further agreed that neither Respondent’s action in entering into this Settlement, its abatement of the alleged violations, its withdrawal of its Notice of Contest, or its payment of $125.00 shall be construed as an admission of fault or liability as to any claim or proceeding which exists or may exist or may arise, and be pursued by any person, agency, or entity; further by entering into this stipulation and Settlement Agreement and by performing in accordance with its terms, Respondent does not admit to any violation of the Occupational Safety and Health Act of 1970.

4(e). Extent to which provisions were violated. Respondent does not admit that it violated the provisions for which it was cited and disputes said violations in the contest proceeding that is settled pursuant to this agreement.’ (Emphasis added.)

In his decision Judge Cronin said that this agreement ‘. . . is consistent with the provisions of the Occupational Safety and Health Act of 1970.’ We cannot agree with the Judge’s conclusion.

We do not agree for the reason that the above-quoted language of the agreement creates doubt as to whether the violations in this case may be used against Respondent in a possible future proceeding before this Commission. This conclusion is fully supported by the Complainant’s brief on review.

He therein points to the following language in paragraph 3:

‘as to any subsequent acts or events this settlement and disposition in no way affects any rights or remedies which may be exercised in the future by either party pursuant to the . . . Act.’

And, he argues that the agreement should not be construed as barring him from using the citation and penalty notice of this case in a future proceeding, such as: a proceeding to prove a willful or repeated violation (section 17(a)), a proceeding to prove a failure to abate (section 17(d)), or as evidence in a proceeding to establish a history of previous violations (section 17(j)).

However, by arguing that the agreement should be construed in his favor Complainant admits that it is ambiguous and might be construed against him. In this regard the following words (which also appear in paragraph 3):

It is further agreed that neither Respondent’s action in entering into this Settlement, its abatement of the alleged violations, its withdrawal of its Notice of Contest, or its payment of $125.00 shall be construed as an admission of fault or liability as to any claim or proceeding which exists or may exist or may arise and be pursued by any person, agency, or entity . . .

contradict the language relied upon. Certainly, Respondent can argue that ‘agency’ means the Complainant and a ‘proceeding which .. . may exist or may arise’ means a proceeding for willful or repeated violation, a proceeding for failure to abate, or a proceeding where the present violation is evidentiary of prior history. This language alone creates doubt.

In addition, by paragraph 4(e) Respondent goes beyond a simple failure to admit violations. Respondent disputes the violations. This factor when added to the contradictory language of paragraph 3 gives support to the conclusion that the agreement should be interpreted as not permitting use of the citation in a future proceeding.

A settlement agreement which contains language which casts doubt concerning the future usability of a citation should not be approved in that it is incompatible with the avowed legislative purpose of the Act and therefore is not in the public interest (5 U.S.C. 554(c)). We have said that ‘the principal purpose of this Act is to obtain compliance with its requirements in order to ensure a safe and healthful workplace.’ Secretary of Labor v. J. E. Chilton Millwork & Lumber Company, Inc., OSHRC Docket No. 123 (1972).

Obviously, this goal cannot be achieved solely through utilization of the Act’s enforcement provisions. Practicality dictates that sufficient resources cannot be made available to achieve total compliance by enforcement alone. Accordingly, the achievement of safe and healthful workplaces and employments will in large measure depend on the extent to which employers and employees will voluntarily strive to achieve the goal.

The objectionable provisions in the settlement agreement in this case do not promote voluntary compliance. A recalcitrant employer armed with the shield of such provisions might well place its confidence in its defenses rather than comply with the Act’s requirements. The result in such case would frustrate achievement of the principal goal. Accordingly, it would be contrary to the public interest; we cannot approve an agreement containing provisions of the kind involved in this case.

It should also be noted that Complainant’s position in this case contradicts the position taken by him in Secretary of Labor v. California Blowpipe and Steel Co., Inc., OSHRC Docket No. 1034. Respondent there submitted a motion to withdraw its notice of contest. The motion contained exculpatory language in the nature of a refusal to admit liability. The motion was opposed by the Regional Solicitor having overall responsibility for the present case for, inter alia, the reason that an agreement containing such language was contrary to the purposes of the Act. Respondent California Blowpipe and Steel Co., Inc. thereafter submitted a second motion to withdraw. The second motion did not contain the language considered objectionable by the Complainant, and it was granted.

A consistent result is required. Accordingly, the agreement presented for approval in this case would comport with our requirements for hospitable consideration if paragraphs 3 and 4(e) are deleted therefrom.

It is therefore ORDERED that (1) the Judge’s decision be and the same is hereby set aside; (2) the case be remanded; (3) the parties be given 10 days from the date of receipt of this decision to either conform the settlement agreement as indicated herein or indicate their intent to proceed to a hearing; and (4) the notice of contest be dismissed and the citation and proposed civil penalties be affirmed in all respects in the event the parties do not comply with requirement (3) hereof.

[The Judge’s decision referred to herein follows]

CRONIN, JUDGE, OSAHRC:

A settlement agreement executed by the parties on September 18, 1972, was filed with the undersigned on September 20, 1972 and it appears that said agreement complies with Section 2200.100 of the Rules of Procedure of the Occupational Safety and Health Review Commission (29 C.F.R. 2200.100).

Essentially, the Respondent agrees to the entry of a final order affirming the citation issued to Respondent on April 3, 1972, and assessing the proposed penalties based thereon, while denying its liability under the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.).

Respondent has represented that it has abated the conditions set forth in the citation of April 3, 1972; and will continue to comply with the safety standards designated therein; will pay the proposed penalties, and that it has fully conformed with the applicable posting and service requirements as required by the Commission rules.

On the basis of the foregoing, and no objection having been received, the undersigned approves the said settlement agreement, finding that such settlement is consistent with the provisions and objectives of the Occupational Safety and Health Act of 1970.

In accordance with the terms of said settlement agreement, it is ORDERED, that the citation issued April 3, 1972 is hereby affirmed and the proposed penalties totaling $125.00 and designated in the Notification of Proposed Penalty, dated April 3, 1972, are hereby assessed.

There being no further contest in this case, it is further ORDERED, that the proceedings are hereby dismissed.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

December 3, 1973

CRONIN, JUDGE, OSAHRC:

A settlement agreement in this case was executed by the parties and filed by the Complainant on October 16, 1973, and it appears that said agreement complies with Section 2200.100 of the Rules of Procedure of the Occupational Safety and Health Review Commission (29 C.F.R. 2200.100).

Essentially, Respondent agrees to the entry of a final order affirming the Citation issued to Respondent on April 3, 1972 and assessing the proposed penalties based thereon. The parties agree that Respondent’s consent to the entry of a final order pursuant to the Settlement Agreement shall not constitute an admission by Respondent of violations of the Act.

Respondent has represented that it has abated the conditions set forth in the Citation issued to Respondent on April 3, 1972; that it will continue to comply with the safety standards designated therein; and will pay the proposed penalties totalling $125.00.

The record reflects that the Complainant has fully conformed with the applicable service requirements of the Commission’s Rules of Procedure.

On the basis of the foregoing, and no objection having been received, the undersigned approves the said settlement agreement, finding that such settlement is consistent with the provisions and objectives of the Occupational Safety and Health Act of 1970.

In accordance with the terms of said Settlement Agreement, it is ORDERED that the Citation issued April 3, 1972 is hereby AFFIRMED, and the proposed penalties totalling $125.00 and designated in the Notification of Proposed Penalty, dated April 3, 1972, are hereby ASSESSED.

There being no further contest in this case, it is further ORDERED, that the proceedings are hereby DISMISSED.