THE ANACONDA COMPANY, WIRE AND CABLE DIVISION

OSHRC Docket No. 79-5449

Occupational Safety and Health Review Commission

October 30, 1980

COUNSEL:

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Baruch A. Felliner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor, USDOL

Richard L. Croiter, for the employer

OPINION:

ORDER

An order of Administrative Law Judge Richard J. Murphy approving a settlement agreement entered into by the Secretary of Labor and Respondent is before the Commission pursuant to a direction for review by Commissioner Barnako issued under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678.

After the judge entered his order, the parties filed a joint motion stating that the settlement agreement submitted to the judge did not reflect in certain respects the agreement reached by the parties.   They asked that they be permitted to substitute a revised agreement.   Because both parties agree that the agreement as approved by the judge does not reflect their intent, we set aside the judge's order and remand the case for further proceedings.

We note that the agreement submitted to the judge provided that the agreement has been served "(1) [b]y mailing or personal delivery . . . to those employees represented by an authorized employee representative, if any . . . and/or (2) by posting . . . a copy [*2]   of this Agreement so as to inform employees who are not represented by an authorized employee representative, if any." This certification is insufficient to show that the settlement agreement was served on affected employees in the manner prescribed in Rules 7 and 100 of the Commission's Rules of Procedure. *

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* The pertinent parts of Rule 7, 29 C.F.R. §   2200.7, and Rule 100, 44 Fed. Reg. 70106, 70112 (1979) [to be codified in 29 C.F.R. §   2200.100], state as follows:

Rule 7 Service and notice.

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(c) Unless otherwise ordered, service may be accomplished by postage pre-paid first class mail or by personal delivery.

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(f) Service and notice to employees represented by an authorized employee representative shall be deemed accomplished by serving the representative in the manner prescribed in paragraph (c) of this section.

(g) In the event that there are any affected employees who are not represented by an authorized employee representative, the employer shall, immediately upon receipt of notice of the docketing of the notice of contest or petition for modification of the abatement period, post, where the citation is required to be posted, a copy of the notice of contest . . . .

Rule 100 Settlement.

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(c) Filing; service and notice. When a settlement proposal is filed with the Judge or Commission, it shall also be served upon represented and unrepresented affected employees in the manner prescribed for notices of contest in §   2200.7.   Proof of service shall accompany the settlement proposal. A settlement proposal shall not be approved until at least 10 days following service of the settlement proposal on affected employees.

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In order for certification of service of a settlement agreement to comply with Rule 100, the proof of service must clearly indicate whether affected employees are represented and, if so, must identify the authorized employee representative or representatives.   Service must be made on any such representative, whether or not it has elected party status, by first class mail or personal delivery. Reynolds Metals Co., 79 OSAHRC 4/A2, 7 BNA OSHC 1042, 1979 CCH OSHD P23,295 (No. 78-2485, 1979).   If any affected employees are not represented, the proof of service must indicate that the agreement has been posted in order to notify the unrepresented employees.   The reference in the settlement agreement in this case to "an authorized employee representative, if any," does not meet these requirements.   Id, 7 BNA OSHC at 1044 n. 5, 1979 CCH OSHD at 28,179 n. 5. On remand, the judge must assure that any settlement agreement contains adequate certification of service before approving that agreement.   [*4]  

Accordingly, the judge's order is set aside and the case is remanded for further proceedings.   SO ORDERED.