CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.  

OSHRC Docket Nos. 80-999; 80-1252

Occupational Safety and Health Review Commission

January 30, 1981

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Francis B. Conrad, for the employer

Utility Workers Union AFL-CIO, Local 1-2, for the employees

OPINION:

DECISION

BY THE COMMISSION:

These cases n1 arise under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge Seymour Fier vacating citations issued by the Secretary of Labor ("the Secretary") for the Secretary's failure to present evidence at the hearing is before the Commission for review pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i).   After the cases were directed for review, the parties filed a settlement agreement. We set aside the judge's decision and approve the settlement agreement.

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n1 The cases are hereby consolidated pursuant to Commission Rule 9, 29 C.F.R. §   2200.9.

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Respondent, Consolidated Edison Company of New York, Inc. ("Consolidated Edison"), received [*2]   and contested two citations issued by the Secretary following inspections of Consolidated Edison's worksite in Corona, New York.   The cases were assigned to Judge Fier, who scheduled both cases for a hearing on September 29, 1980.

At the outset of the September 29 hearing, the Secretary requested a postponement of approximately one month because of settlement negotiations in progress between representatives of the Secretary and Consolidated Edison.   The Secretary had consulted with the union representing the affected employees -- the Utility Workers Union, AFL-CIO, Local 1-2 ("the Union"), and, according to the Secretary, on September 23, 1980, the Secretary, Consolidated Edison, and the Union met and discussed "a possible avenue of settlement . . . with two positions that might lead to alternation forms of abatement." However, Consolidated Edison indicated that it would require one additional month to determine the feasibility of any abatement methods because of their complex nature. n2

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n2 The Secretary further stated that because of the ongoing settlement negotiations and Consolidated Edison's need for a one-month investigation period, the Secretary contacted Judge Fier on September 23rd and requested a postponement of the hearing.   According to the Secretary, Judge Fier denied the postponement.

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Consolidated Edison stated at the hearing that it agreed with the Secretary's postponement request for the reasons set forth by the Secretary.   Consolidated Edison declared that the many operations that could be affected by the abatement methods under consideration required Consolidated Edison's further investigation of the settlement proposal, and that all of the interested parties -- the Secretary, the Union, and Consolidated Edison -- have proceeded in the settlement negotiations in good faith.   Accordingly, Consolidated Edison emphasized that postponement of the hearing for further settlement negotiations would be the more "sensible use of the resources of the government" and the parties.

Judge Fier adjourned the hearing for his written ruling on the postponement request.   Thereafter, in his written opinion, he vacated the citations because of the Secretary's failure to present evidence at the hearing. n3

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n3 The judge also noted that vacation of the citations could be justified by the Secretary's failure to file a response to pretrial instructions the judge had issued, requiring the parties to file lists of witnesses they intended to call and documents they intended to offer into evidence.   At the hearing, both parties acknowledged that they had failed to comply with the judge's instructions.   The Secretary's counsel explained that a list of witnesses and documents had been prepared but had not been mailed because to do so would be inconsistent with the Secretary's request for a postponement.

We have previously held that the Secretary's failure to comply with a judge's order to file a prehearing report does not justify dismissal of the Secretary's case absent either contumacious conduct on the part of the Secretary or prejudice to an adverse party.   Duquesne Light Co., 80 OSAHRC    , 8 BNA OSHC 1218, 1980 CCH OSHD P24,384 (No. 78-5034, 1980).   In these cases, the Secretary's conduct was not contumacious, and the Secretary's failure to submit a list of witnesses and documents could not have prejudiced Consolidated Edison as no hearing has yet been held.   Moreover, in these cases both parties did not comply with the judge's prehearing order because of the ongoing settlement negotiations. In these circumstances, dismissal of the Secretary's case for conduct engaged in equally by both parties is unjustified. Accordingly, the judge erred in relying on the Secretary's failure to comply with the prehearing order as a basis for the order of dismissal.

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In his petition for review, which was granted by Commissioner Cottine, the Secretary contends that a postponement of the hearing was justified because the parties had reached "a tentative settlement" which they "anticipated would be finalized within a month and a half" and both parties had therefore agreed to a postponement of the hearing.   The Secretary further argues, relying on Ralston Purina Co., 79 OSAHRC 31/E6, 7 BNA OSHC 1730, 1979 CCH OSHD P23,897 (No. 78-145, 1979), that absent inexcusable delay or contumacious conduct, involuntary dismissal with prejudice n4 for failure to prosecute is unjustified. Accordingly, the Secretary argues that the judge's vacation of the citations for the Secretary's failure to present evidence at the hearing was an abuse of discretion.

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n4 The Federal Rules of Civil Procedure are applicable to Commission proceedings in the absence of a specific Commission rule. 29 U.S.C. §   661(f); 29 C.F.R. §   2200.2(b).

Rule 41(b) of the Federal Rules governs involuntary dismissal for the failure of the plaintiff to prosecute.   Among other things, the rule provides that "[u]nless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision . . . operates as an adjudication upon the merits." Thus, inasmuch as Judge Fier did not specify otherwise, the dismissal in these cases was with prejudice.

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While the cases have been on review, the Secretary has filed with the Commission a fully executed settlement agreement between the Secretary and Consolidated Edison.   By the agreement, the Secretary moves to amend the citations in these cases to change the classifications of the violations and to withdraw the proposed penalties.   Respondent moves to withdraw its notices of contest and states that the violations have been abated. Respondent certified that the agreement was to be posted on December 24, 1980, and also certifies, in a certificate of service submitted with the agreement, that the Union was served with a copy of the agreement on December 23, 1980.   The Secretary asks that the judge's decision be set aside and the settlement agreement be approved.

Commission Rule 100(a), 44 Fed. Reg. 70112 (1979) [to be codified in 29 C.F.R. §   2200.100(a)], provides that "[s]ettlement is permitted at any stage of the proceedings." Moreover, the Commission has indicated that the voluntary settlement of disputes is to be encouraged.   See Farmers Export Co., 80 OSAHRC    , 8 BNA OSHC 1655, 1980 CCH OSHD [*6]   P24,569 (No. 78-1708, 1980).   Since the parties pursued settlement in good faith and agreed to postpone the evidentiary hearing to further the possibility of settlement, the efficient use of the parties' and of the Commission's resources justified a postponment to permit the settlement negotations to continue.   Moreover, no prejudice resulted from the delay, and the Secretary's failure to present evidence at the hearing was not contumacious. Accordingly, we conclude that the judge abused his discretion in denying the postponement request and in vacating the citations.   See Ralston Purina Co., supra; see also Circle T Drilling Co., 80 OSAHRC    , 8 BNA OSHC 1681, 1980 CCH OSHD P24,583 (No. 79-2667, 1980); Duquesne Light Co., 80 OSAHRC    , 8 BNA OSHC 1218, 1980 CCH OSHD P24,384 (No. 78-5034, 1980).

We have examined the parties' settlement agreement and we conclude that it should be approved.   The agreement is consistent with the provisions and objectives of the Act n5 and meets the requirements of Commission Rules 100(b) and (c). n6

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n5 Commission Rule 100(a), 44 Fed. Reg. 70112 (1979) [to be codified in 29 C.F.R. §   2200.100(a)], provides that "[a] settlement proposal shall be approved when it is consistent with the provisions and objectives of the Act."

n6 Commission Rules 100(b) and (c), 44 Fed. Reg. 70112 (1979) [to be codified in 29 C.F.R. § §   2200.100(b) and (c)], provide:

§   2200.100 Settlement.

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(b) Requirements. Every settlement proposal submitted to the Judge of Commission shall include, where applicable, the following:

(1) A motion to amend or withdraw a citation, notification of proposed penalty, notice of contest, or petition for modification of abatement;

(2) A statement that payment of the penalty has been tendered or a statement of a promise to pay; and

(3) A statement that the cited condition has been abated or a statement of the date by which abatement will be accomplished.

(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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Accordingly, the judge's order is set aside and the settlement agreement of the parties is approved.   SO ORDERED.