HEARST CORPORATION, PEJEPSCOT PAPER CORPORATION
OSHRC Docket No. 80-6051
Occupational Safety and Health Review Commission
August 31, 1982
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Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
Albert H. Ross, Regional Solicitor, USDOL
Robert E. Hirshon, for the employer
Mr. Robert Frase, Director UPIU, for the employees
Mr. John Chonko, President, UPIU Local #23, for the employees
OPINION:
ORDER OF REMAND
BY THE COMMISSION:
The Secretary of Labor and Hearst Corporation submitted a settlement proposal to Administrative Law Judge Richard J. DeBenedetto. The judge approved the settlement proposal, finding in part that the United Paperworkers International Union Local No. 23 had been afforded "adequate notice." We find that the union was not afforded the opportunity to respond that it was entitled to under the Commission's rules. We therefore vacate the judge's decision and remand for consideration of the union's objections to the settlement proposal.
The Commission's rules of procedure afford representatives of affected employees a ten-day period for objecting to a settlement proposal. n1 Although this period begins to run from the day the proposal is served on a union, n2 our rules contemplate that service on a union would be simultaneous with the filing of the proposal with the [*2] judge or the Commission. n3 In this way, a union served with a settlement proposal that has been filed with a judge or the Commission would understand that its ten-day period for filing an objection is running.
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n1 Commission Rule 100(c), 29 C.F.R. § 2200.100(c). This requirement applies whether a union is a party or not. If, as here, a union is a party, it is in any event entitled to a 10-day response period under Commission Rule 37, 29 C.F.R. § 2200.37 (response to motions); American Cyanamid Co., 80 OSAHRC 40/C8, 8 BNA OSHC 1346, 1348, 1980 CCH OSHD P24,424, p. 29,791 (No. 77-3752, 1980) (filed settlement proposal is in the nature of a motion), rev'd on another ground sub nom. Marshall v. Oil, Chemical & Atomic Workers Int'l Union, 647 F.2d 383 (3d Cir. 1981). This period is extended by three days when the union has been served by mail. Commission Rule 4(b), 29 C.F.R. § 2200.4(b).
n2 Commission Rules 37 and 100(c), 29 C.F.R. § § 2200.37 and 2200.100(c).
n3 Commission Rules 7(a) and 100(c), 29 C.F.R. § § 2200.7(a) and 2200.100(c). See American Cyanamid, note 1 supra.
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The union in this case was twice served with a settlement proposal far more than ten days before a settlement proposal was either filed with or approved by the judge. However, the letters to the union representatives that accompanied the proposal they received did not give them any notice that the proposal would be filed with the judge for approval if the union failed to object. n4 Weeks later, when the proposal was filed with the judge, it was evidently not served on the union and it was not accompanied by a certificate of such service. n5 In short, there is no evidence that the union knew that its ten-day period for filing objections had begun.
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n4 The letters to the union representatives stated:
Enclosed please find a copy of the Settlement Agreement in this case. Union acceptance of settlement agreements is now requested, and we will therefore appreciate your signature and title on the last page of the agreement. The agreement has already been explained to union representatives who have called this office. After signing it, please return it to this office for filing with the Administrative Law Judge.
n5 See Commission Rule 7(d), 29 C.F.R. § 2200.7(d) (proof of service, stating date and manner of service, must accompany filed document). Although the settlement proposal was posted, this is not sufficient service upon represented employees. See Commission Rules 100(c) and 7(h), (f) and (c); Asarco, Inc., 80 OSAHRC 104/F5, 8 BNA OSHC 2200, 1980 CCH OSHD P24,913 (No. 79-5557, 1980).
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Accordingly, the judge's decision is vacated and the case is remanded for consideration of the union's objections to the settlement proposal. We also call the parties' and the judge's attention to our recent decision in Mobil Oil Corp., 82 OSAHRC , 10 BNA OSHC , 1982 CCH OSHD P (No. 77-4386, 1982). n6
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n6 For the reasons explained in his dissenting opinion in Mobil, the Chairman believes that consideration of the settlement agreement should be limited to any objections the union may have to the reasonableness of the abatement period agreed upon by the Secretary and Hearst.
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SO ORDERED.