THE DAVIES CAN COMPANY

OSHRC Docket No. 8182

Occupational Safety and Health Review Commission

May 19, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Lucius M. Dyal, Jr., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On March 28, 1974, complainant, the Secretary of Labor, inspected the Tampa, Florida, plant of the respondent Davies Can Co. As a result of the inspection, a citation for a violation of the Act n1 was issued by the Secretary on April 25, 1974, and later amended on May 15, 1974. The citation, as amended, alleged respondent's failure to comply with the standard at 29 CFR 1910.95(b)(1). n2 The Secretary proposed that no penalty be assessed.

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n1 The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.

n2 The standard reads as follows:

1910.95 Occupational noise exposure

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(b)(1) When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

[*2]

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Respondent timely contested the amended citation and a hearing on the matter was set for August 21, 1974 before Judge James D. Burroughs. Before the hearing date, the parties entered into a settlement agreement on stipulated facts and filed the agreement with the Commission on September 13, 1974.

In the settlement agreement, respondent admitted the the noise levels in its Tampa, Florida, plant as well as those in its Solon, Ohio, and Leetsdale, Pennsylvania, plants exceed the levels permitted by Table G-16 of the standard at 29 CFR 1910.95(b)(1). Respondent agreed to withdraw its notice of contest and to use feasible engineering and administrative controls to attempt to bring the levels within those permitted by the standard by December 1, 1975. In the meantime, respondent represented that it would maintain and enforce a mandatory hearing protection program that would include the use of personal protective equipment. The Secretary reserved the right to continue inspection and investigation activities concerning matters other than noise at respondent's plants. In addition, the Secretary agreed [*3] not to cite respondent for noise violations during the period of the agreement so long as the terms of the agreement (that is, the filing of periodic progress reports by respondent) were met. A copy of the settlement agreement was posted at each of respondent's plants and mailed to the authorized representatives of the employees for each of the plants. No objection was raised by any employee or employee representative.

Judge Burroughs found the settlement agreement to be "consistent with the objectives of the Act" and approved it as to respondent's Tampa, Florida, plant. The Judge declined, however, to approve the agreement as to the Ohio and Pennsylvania plants finding that the Commission lacked jurisdiction to pass on the portion of the agreement dealing with the additional plants since they were not mentioned in the citation.

On November 11, 1974, the Commission directed review of the Judge's order on the following issue:

Whether the Administrative Law Judge erred in finding the Commission lacked jurisdiction to approve the settlement agreement insofar as it pertained to respondent's Solon, Ohio and Leetsdale, Pennsylvania plants?

Both the Secretary and respondent filed [*4] briefs on review urging approval of the agreement with respect to all three of respondent's plants. No brief was filed by either the employees or their authorized representatives in opposition to the settlement agreement.

In his brief on review, the Secretary asserts that the Commission's authority to ratify the settlement agreement between the parties insofar as it pertains to the Ohio and Pennsylvania plants is "analogous to the exercise of a court's ancillary jurisdiction." We agree.

In its simplest terms, the concept of ancillary jurisdiction provides that once jurisdiction attaches to the primary dispute, a court is considered to have jurisdiction over "subsidiary" or "subordinate" matters "even though it might not independently be able to proceed to adjudicate them." Jersey Land & Development Corp. v. United States, 342 F. Supp. 48, 52 (D.N.J. 1972). The analogy holds up so long as the subject matter is within the framework of the Commission's adjudicative duties under the Act. The Commission is empowered to grant the parties "appropriate relief" when proceedings are commenced before it, Section 10(c). Even though there is no immediate citation or contest concerning [*5] the Ohio or Pennsylvania plants, the Secretary would be empowered to cite the employer concerning the plants, and the employers would have a right to contest the citations.

Moreover, we note that agencies ought not to engage in formal proceedings when the parties are willing to adjust the situations informally. Sen.Doc. No. 248, 79th Cong. 2d Sess. entitled "Administrative Procedure Act - Legislative History," p. 361.

We also note that the employees at these two additional plants have been notified of the agreement and have voiced no objection to its terms. One of our major concerns in reviewing settlement agreements is that the affected employees and their representatives have been notified and given an opportunity to be heard. We are satisfied that this has been accomplished in this case.

Having found the necessary jurisdiction, we agree with Judge Burroughs that the settlement agreement is appropriate in light of the Act's purpose and, thus, would apply it to all three of the plants mentioned in the agreement. n3

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n3 In my own opinion, even if we were to ignore the concept of ancillary jurisdiction, we could reach the same result by applying Rule 15(b) of the Federal Rules of Civil Procedure to conform the pleadings to the evidence presented. The Commission has employed Rule 15(b) on a number of occasions. Park Constr. Co., No. 2044 17 OSAHRC 343, BNA 3 OSHC 1120, CCH OSHD para. 19,591 (1975); Gerstner Electric, Inc., No. 997, 10 OSAHRC 441, BNA 2 OSHC 1130, CCH OSHD para. 18,406 (1974); Advance Air Conditioning, Inc., No. 1036, 7 OSAHRC 736, BNA 1 OSHC 1626, CCH OSHD para. 17,585 (1974) and there is considerable precedent for the use of stipulations or similar consent agreements as the basis for conforming the pleadings. Fall River Line Pier, Inc. v. International Trading Corp. of Virginia, 399 F.2d 413 (1st Cir. 1968); Lumberman's Mutual Insurance Co. v. Massachusetts Bonding & Insurance Co., 310 F.2d 627 (4th Cir. 1962); Gibbs v. Randolph, 250 F.2d 41 (5th Cir. 1957).

[*6]

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Accordingly, it is ORDERED that the order of Judge James D. Burroughs approving the settlement agreement of the parties is affirmed as modified by this decision.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I agree that the settlement agreement entered into by the parties to this case should be approved. In my judgment, if the parties agree to settle a case, that agreement should end the litigation. This Commission was created to resolve contested cases and its function is limited to adjudication. "It may not contest settlements made by the Secretary." Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278, 281 (9th Cir. 1974). The Secretary of Labor is responsible for obtaining compliance with the act. The Commission therefore should not interfere with the Secretary's prosecutorial function, a national incident of which is the power to settle cases.

There is, however, unsupported dicta in footnote 3 of the majority's decision which should not go unchallenged. is a unique document which is a creature of statute. Citations are not pleadings and, therefore, Rule 15(b), Federal Rules of Civil Procedure, cannot and does not apply to them.