SECRETARY OF LABOR,
Complainant,

v.

UNITED STATES STEEL CORP.,
Respondent.

ROY LEE SMITH,
Intervenor.

OSHRC Docket No. 80-2425

DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
ROWLAND, Chairman:

The issues before us in this case are whether Administrative Law Judge Barbara L. Hassenfeld erred in (1) approving a settlement agreement between the Secretary and Respondent despite the claim by an affected employee that the agreement did not require Respondent to pay the full amount of medical removal protection benefits due him under 29 C.F.R. §1910.1025(k)(2)(i) and (2) classifying the violation of that standard as repeated in nature. For the reasons that follow, we conclude that the judge did not err in disregarding the employee's claim but that the violation was not shown to be repeated in nature.

I

The Respondent, United States Steel Corp., operated a manufacturing facility in New Haven, Connecticut, that was inspected by an Occupational Safety and Health Administration ("OSHA") compliance officer. As a result of that inspection, the Secretary of Labor ("the Secretary") issued a citation to Respondent alleging a repeated violation of the Occupational Safety and Health Act, 29 U.S.C. §§651-678, in that Respondent failed to comply with 29 C.F.R. §1910.1025(k)(2)(1), a standard requiring the provision of medical removal protection (MRP) benefits to employees who are removed from their jobs due to exposure to lead. Roy Lee Smith, the employee who allegedly did not receive MRP benefits from Respondent, sought to intervene in the proceeding. Since Smith was at the time of the alleged violation an employee in a bargaining unit represented by the United Steelworkers of America, Local 2141, which has not made any appearance in this case, both the Secretary and Respondent opposed Smith's petition for intervention on the ground that Smith's participation in this proceeding is precluded under Commission Rule of Procedure 22(c), 29 C.F.R. §2200.22(c).[[1/]] After considering these arguments, Judge Hassenfeld granted the employee's petition under Commission Rule 21(c), 29 C.F.R §2200.21(c),[[2/]] but set forth several restrictions on the extent of the employee's participation. These limitations were warranted, in the judge's view, on the ground that Rule 22(c) required that the employee "be represented by his union if he wishes to fully intervene."

The case was subsequently submitted to Judge Hassenfeld for a decision on the merits based on a stipulation of facts in lieu of an evidentiary hearing.Included in the stipulation was an agreement by the parties that under the terms of the cited standard Roy Lee Smith was entitled to medical removal protection benefits in the amount of $973.27. The stipulation also stated that the contested violation was alleged to be repeated because a citation alleging a violation of the same standard previously had been issued to Respondent. That prior citation, which had also been contested, was then pending before Administrative Law Judge Foster Furcolo in OSHRC Docket No. 80-749.

In her decision, Judge Hassenfeld found, based on the stipulated facts, that Respondent had failed to comply with the cited standard. Furthermore, she concluded that the violation before her was repeated because she had been advised that the parties had filed a stipulation in Docket No. 80-749 providing for affirmance of the citation in issue in that case.

In accordance with Judge Hassenfeld's prior order granting Smith a limited right of intervention, Smith had been given the opportunity to file comments on the parties' stipulation of facts "for informational purposes only." Smith had filed extensive comments challenging the agreement of the parties concerning the amount of MRP benefits he was entitled to under the cited standard. In her decision affirming the alleged violation, the judge did not consider Smith's objections to the parties' stipulation.

II

A

Under Commission Rule 20(a),[[3/]] affected employees may elect to participate as parties in Commission proceedings. In Babcock & Wilcox Co., 80 OSAHRC 95/A2, 8 BNA OSHC 2102, 1980 CCH OSHD ¶24,812 (No. 78- 446, 1980), a divided Commission held that an individual who was an "affected employee" within the meaning of the Commission's rules could not elect party status because he was a member of a union that was an "authorized employee representative" within the meaning of the Commission's rules. The majority reached this conclusion notwithstanding the fact that the union had not elected party status or otherwise been involved in any other manner in the Commission's proceedings. It based its holding on what it asserted were "the clear terms of Rule 22(c)," thereby implicitly interpreting the term "represented" as it is used in that rule as meaning represented for purposes of collective bargaining.

Commissioner Cottine dissented from the majority's interpretation of Commission Rule 22(c). In essence, he concluded that the term "represented," as it is used in that rule, refers to representation in a proceeding before the Commission rather than representation in collective bargaining with the employer. Thus, he stated:

The proper interpretation of this rule . . . is that a member of a collective bargaining unit is prevented from appearing only when actually represented by tile union in our proceedings. If the union does not enter an appearance, affected employees who are members of a collective bargaining unit should be permitted to appear in the same manner as affected employees who do not have a collective bargaining agent.

(Emphasis supplied by Commissioner Cottine; footnote omitted.) Id., 8 BNA OSHC at 2109, 1980 CCH OSHD at p. 30,569.

After carefully considering the positions of both the majority and the dissenting Commissioner in Babcock & Wilcox, I conclude that that case was erroneously decided. I do not, however, agree with all of the reasoning of the dissenting opinion in that case. Indeed, much of that reasoning is inconsistent with my own views as expressed most recently in Mobil Oil Corp., 82 OSAHRC __, 10 BNA OSHC 1905, 1982 CCH OSHD ¶26,187 (No. 77-4386, 1982) (dissenting opinion). Nevertheless, I conclude that Commissioner Cottine's interpretation of Commission Rule 22(c) is correct. The caption of Rule 22 is "Representatives of parties and intervenors" and the subject matter of the entire rule is the representation of parties and intervenors in Commission proceedings. These facts strongly support the view that the term "represented" as it is used in Rule 22(c) refers to representation in our proceedings. Cf. Chesapeake Operating Co., 82 OSAHRC ___, 10 BNA OSHC 1790, 1982 CCH OSHD ¶26,142 (No. 78-1353, 1982) (concurring and dissenting opinion) (OSHA standards interpreted in light of their headings and subject mattor). I further note, as did Commissioner Cottine, that section 10(c) of the Act, 29 U.S.C. §659(c), requires that the Commission's rules provide "affected employees or representatives of affected employees an opportunity to participate as parties . . . . " (emphasis added). Other sections of the Act demonstrate that, when Congress intended rights to be granted only to employee representatives as opposed to employees themselves, it so expressly provided. [[4/]]

Accordingly, I join Commissioner Cottine in overruling Babcock & Wilcox to the extent that it holds that an affected employee who is a member of a collective bargaining unit cannot elect party status even though its authorized representative for collective bargaining purposes has not elected party status. We hold that under Rule 22(c) the affected employee is only precluded from electing party status when the bargaining unit representative has elected to appear in the proceedings before the Commission. [[4a/]]

In the case now before us, Local 2141 of the United Steelworkers of America did not elect party status or otherwise appear in this proceeding and it is undisputed that Smith is an "affected employee" within the meaning of Rule 20(a). Therefore, Commissioner Cottine and I conclude that the judge erred to the extent that she did not accord Smith full party status. [[5/]]

B

The next issue to be determined is whether the judge erred in disregarding Smith's objections to the stipulation of facts that had been agreed upon between and filed by the Secretary and Respondent. I conclude that the judge did not err.

In Mobil Oil Corp., supra, I recently concluded that an authorized employee representative that had elected party status had no standing under the Act to object to the provisions of an abatement plan set forth in a settlement agreement that had been agreed upon between the Secretary and the employer. I observed that the Secretary's decision to enter into a settlement agreement is an exercise of the prosecutorial discretion reserved to him under the Act, further noted that the decisions of several United States Courts of Appeals had rejected attempts by the Commission and affected employees to interfere with such exercises of prosecutorial discretion, and continued as follows:

In my opinion, the courts are precisely correct in recognizing that the procedural right of employees to elect party status does not confer on them the right to challenge the Secretary's prosecutorial authority in Commission proceedings except on the specific issue of the abatement date.

10 BNA OSHC at 1930, 1982 CCH OSHD at p. 33,044.

Technically, the case now on review is distinguishable from Mobil Oil Corp., In this case, employee objections were filed in response to a provision contained in a stipulation of facts rather than in response to an abatement plan set forth in a settlement agreement. However, this distinction is inconsequential. The stipulation that under the terms of the cited standard Smith was entitled to abated by paying Smith that amount. More importantly, the Secretary's decision to "settle" what otherwise would have been a disputed issue was no less an exercise of prosecutorial discretion than his decision in Mobil Oil Corp. to settle a tested citation. Accordingly, because Smith's objections did not go to "the specific issue of the abatement date," I conclude that he had no "right to challenge the Secretary's prosecutorial authority." Id.

For the reasons stated in his separate opinion, Commissioner Cleary also concludes that Judge Hassenfeld did not err in disregarding Smith's objections. Accordingly, the Commission holds that the judge properly based her decision and order on the stipulation of facts filed by the Secretary and Respondent.

III

The remaining issue before the Commission is whether the judge erred in classifying the violation as repeated. In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ¶23,294 (No. 16183, 1979), the Commission held that "[a] violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation." 7 BNA OSHC at 1063, 1979 CCH OSHD at p. 28,171. Consistent with this requirement, the Commission has in other cases vacated allegations that a violation is repeated because of the Secretary's failure to prove that the earlier citation upon which he relied became a final order of the Commission prior to the date of the alleged violation then under review. See, e.g., Dic- Underhill, 80 OSAHRC 109/A2, 8 BNA OSHC 2223, 1980 CCH OSHD ¶24,959 (No. 10789, 1981); Otis Elevator Co., 80 OSAHRC 14/A2, 8 BNA OSHC 1019, 1980 CCH OSHD ¶24,236 (No. 14899, 1980), appeal withdrawn, No. 80-4070 (2d Cir. May 13, 1980).

In this case, the record establishes that the repeated allegation is based on an antecedent citation that was not a final order of the Commission at the time of the instant violation. That prior citation cannot serve as a basis for finding that the violation before us was repeated within the meaning of section 17(a) of the Act. Therefore, the Commission finds that the judge erred in affirming the violation as repeated.

Accordingly, the Commission affirms the judge's decision and order to the extent that it finds Respondent in violation of the Act for failure to comply with the standard at 29 C.F.R. §1910.1025(k)(2)(i) and affirms the judge's assessment of a penalty of $200.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: APR 27 1983

 


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FOOTNOTES:

[[1/]] The rule states:

§2200.22 Representatives of parties and intervenors.
* * *

(c) Affected employees who are represented by an authorized employee representative may appear only through such authorized employee representative.

Commission Rule 1(g), 29 C.F.R. §2200.1(g), defines "Authorized employee representative" as "a labor organization which has a collective bargaining relationship with the cited employer and which represents affected employees."

[[2/]] The rule states:

§2200.21 Intervention; appearance by nonparties.
* * *

(c) The Commission or the judge may grant a petition for intervention to such an extent and upon such terms as the Commission or the judge shall determine.


[[3/]] The rule states:

§2200.20 Party status
* * * *

(a) Affected employees may elect to participate as parties at any time before the commencement of the hearing before the judge, unless, for good cause shown, the Commission or the judge allows such election at a later time. See also §2200.21.


[[4/]] For example, 29 U.S.C. §669(a)(6) provides that a determination of whether a workplace contains potentially toxic substances must be made upon the request of "any employer or authorized representative of employees."

[[4a/]] However, I would limit this holding to the facts of this case, where the affected employee is a member of the union which represents him for collective bargaining purposes. I do not now decide whether an employee in a state having a "right-to-work" law who chooses not to join the union which represents his collective bargaining unit would be precluded from electing party status before the Commission if the representative of the bargaining unit made an appearance.


[[5/]] Commissioner Cottine also directed review on whether the judge erred in limiting Smith's intervention to the submission of comments for informational purposes only. In view of our conclusion that Smith was entitled to participate as a party under Commission Rule 20, it necessarily follows that the judge erred in relying on Commission Rule 21 regarding intervention as a basis for limiting the scope of Smith's participation.