BASF WYANDOTTE CORPORATION

OSHRC Docket No. 79-987

Occupational Safety and Health Review Commission

December 7, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

William R. D'Armond, for the employer

Dan C. Edwards, International Rep., Oil, Chemical and Atomic Workers International Union, for the employees

OPINION:

DECISION

BY THE COMMISSION:

This case is before the Commission on interlocutory appeal n1 of Administrative Law Judge Joe D. Sparks' order disapproving a settlement between the Secretary of Labor and Respondent, BASF Wyandotte Corporation ("BASF"). The Oil, Chemical and Atomic Workers International Union, Local 4-620 ("the Union"), an authorized employee representative, objected to the settlement, claiming that the settlement would not abate the principal hazard in this case. Judge Sparks held that the settlement agreement could not be approved because it allowed an item of the citation to be withdrawn without affording the Union an opportunity to be heard on the merits. We reverse Judge Sparks' decision and remand for specific findings on whether the settlement is consistent with the provisions and objectives of the Act.

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n1 See Commission Rule 75, 29 C.F.R. 2200.75.

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I

At BASF's chemical production plant, chlorine gas is produced by an electrolytic process in devices referred to as chlorine cells. The chlorine cells, which are approximately five feet high, three feet wide and about ten feet long, are set in long rows with catwalks running between the rows to provide workers access to the cells. The cells, which contain exposed, energized electrical parts, are located in two huge rooms with each room containing 156 cells. While in the cell room, the employees are protected against electric shock by rubber gloves and boots. Warning sings are posted on the doors of the cell rooms and the rooms are restricted to authorized personnel.

On September 18, 1978 John Courtney, a BASF employee, was accidentally electrocuted. There were no eyewitnesses to the incident, but apparently Courtney stepped into a 4-1/4 inch by 16-1/2 inch floor hole beside the step leading to an elevated catwalk in the chlorine cell room, lost his balance, tumbled from the narrow elevated catwalk and came in contact with the live portion [*3] of a chlorine cell. Shortly after the incident, BASF repaired the floor hole. The decedent was a qualified cell room operator.

The Secretary issued a single citation alleging willful violations of 29 C.F.R. 1910.23(a)(8) (a floor hole standard) and 29 C.F.R. 1910.309(a), incorporating section 110-17(a) of the National Electric Code (the guarding of live electrical parts).

Shortly after the citation was issued, the Secretary and BASF engaged in settlement talks. The Secretary kept the Union up to date with the settlement negotiations and the Union suggested employees the Secretary might depose for the case. The Union and BASF also engaged in unsuccessful settlement negotiations of their own. Eventually, BASF and the Secretary entered into a settlement agreement. BASF agreed to accept a serious violation of the floor hole standard and the Secretary agreed to withdraw the part of the citation concerned with BASF's alleged failure to guard live electrical parts. n2 The Union objected to this settlement and a hearing was held on whether the settlement should be approved. In disapproving the agreement, Judge Sparks did not rely on any evidence presented at the hearing but held, [*4] as a matter of law, that a settlement agreement which withdraws an item of a citation cannot be approved over the objection of an employee party.

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n2 The Secretary offered to withdraw the second citation because the facts seemed to indicate that BASF was in compliance with the NEC. The pertinent portions of the NEC provide:

110-17. Guarding of Live Parts. (Not more than 600 Volts)

(a) Except as elsewhere required or permitted by this Code, live parts of electrical equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures, or any of the following means:

(1) By location in a room, vault, or similar enclosure which is accessible only to qualified persons.

The cell rooms had warning signs and were restricted to authorized personnel.

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II

Recently, the Commission held that an employee party is entitled to be heard on any objection it had to a settlement agreement between the Secretary and the employer. Mobil Oil Corp., 82 OSAHRC [*5]    , 10 BNA OSHC 1905, 1982 CCH OSHD P26,187 (No. 77-4386, 1982). The Commission stated that the judge must hear the objections of an employee party in order to determine if the settlement agreement is consistent with the provisions and objectives of the Act. See Mobil Oil, supra, and Commission Rule of Procedure 100, 29 C.F.R. 2200.100.

The overriding purpose of the Act is the elimination of conditions hazardous to employees. In general, a settlement agreement that leaves a serious hazard uncorrected will not be consistent with this objective and should not be approved. Mobil Oil Corp., supra. In this case, the crux of the Union's objection is that the settlement agreement, by deleting the item involving unguarded electrical parts, leaves uncorrected the electrocution hazard that has already proven fatal to one employee.

If the judge determines that the Union's objections have merit, and the settlement agreement is inconsistent with the purpose of the Act, then the judge should disapprove the settlement. Since Judge Sparks made no specific findings concerning the merits of the Union's objections, the case must be remanded for such findings. n3 If the [*6] judge disapproves the agreement, the case should proceed on the merits. n4

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n3 In determining whether the Union's objection has merit, the judge must consider several factors. He must first decide whether the conditions at BASF's workplace, which will remain unabated if the settlement agreement is approved, are in fact hazardous to employees. If so, he must inquire into whether there exists a statutory basis for requiring the abatement of the hazard. In this case, the Union does not contend that BASF violated the electrical standard cited by the Secretary, but argues that BASF violated section 5(a)(1) of the Act. In determining whether the case should proceed on the merits, the judge must determine whether amendment to a section 5(a)(1) charge is appropriate.

Section 5(a)(1), 29 U.S.C. 654(a)(1), provides:

Sec. 5.(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

n4 Commissioner Cleary would have the judge approve the settlement only if he concludes that the Union's objections are without merit as a matter of law. If the judge finds merit in the objections, he should deny the Secretary's motion and schedule the case for a hearing. If the Secretary does not appear at the hearing to prosecute the citation, the judge should permit the Union to prosecute if it chooses to do so. Cuyahoga Valley Railway Co., 82 OSHARC    , 10 BNA OSHC 2156, 1982 CCH OSHD P26,296, (No. 76-1188, 1982) (concurring opinion). Commissioner Cottine presumes that the Secretary will proceed appropriately on the merits if the settlement agreement is disapproved. Mobil Oil Corp., 10 BNA OSHC at 1916 n. 30, 1982 CCH OSHD at p. 33,030 n. 30; see Dunlop v. Bachowski, 421 U.S. 560, 574-6 (1975).

[*7]

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The case is remanded to Judge Sparks for specific findings on the Union's objections and for further proceedings as necessary. n5 SO ORDERED. n6

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n5 Since Judge Sparks has already held a hearing concerning whether the settlement agreement should be approved, it may not be necessary to request any further evidence. Should Judge Sparks determine that more evidence is needed, the Commission would encourage the use of less formal means of fact finding such as depositions and affidavits.

n6 Chairman Rowland adheres to his position in Mobil Oil Corp., supra (dissenting opinion), and in Cuyahoga Valley Railway Co., supra note 4, 10 BNA OSHC at 2158 n. 5, 1982 CCH OSHD at p. 33,229 n. 5. The Chairman believes that except where the abatement date is an issue, the terms of a settlement agreement lie within the prosecutorial discretion of the Secretary. Hence, the withdrawal of a citation in a settlement by the Secretary is not subject to review by the Commission. Chairman Rowland notes further that in this case remand to the judge is particularly inappropriate since the judge concluded that but for the objection of the union, the agreement would have been approved as consistent with the objectives of the Act.

[*8]

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