Authorized Employee

OSHRC Docket No. 88-2265


BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.


At issue in this case is an order by Administrative Law Judge Paul L. Brady approving an agreement between the Secretary and Respondent ("GE'') to settle citations issued by the Secretary under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-78. Shortly after GE filed its notice of contest to the citations, Local 647 of the United Auto Workers ("the union") elected party status in accordance with the provisions of Commission Rule 20(a), 29 C.F.R. 2200.20(a), which grants employees and their authorized representatives the right to appear as parties "concerning any matter in which the Act confers a right to participate." Thereafter, Judge Brady issued an order granting the union's request for party status and also directed that the union "be afforded the opportunity for meaningful participation in all proceedings, including settlement agreements."

The subsequent settlement agreement states that the union was afforded the opportunity to participate in the negotiations between the Secretary and GE that resulted in the agreement. Despite this representation, however, the union wrote a letter to the judge in which it asserted that it "had not been involved or allowed to participate in the settlement negotiations as guaranteed selecting party status." Although the union wrote its letter before the judge issued his order approving the settlement agreement, the Judge did not receive this letter after he had issued his order. Accordingly, former Commissioner Arey treated the union's letter as a petition for discretionary review of the judge's order and directed review. For the reasons that follow, we set aside Judge Brady's order and remand for further proceedings.

Two major issues are before us on review. The first concerns the judge's preliminary order directing that the union be allowed to participate in the settlement process. Review was directed on 1) whether the judge had authority to issue such an order, 2) whether the Secretary and GE failed to comply with the order, and 3) if the order was proper and was violated, what measures the Commission should take in response to such violation. The second issue regards the matter of service of the settlement agreement. Review was also directed on the judge erred by approving the settlement agreement less than 10 days after it had been served on the union.

Addressing the second issue first, we note that the certificate of service accompanying the settlement agreement states that the agreement was served on the union by mail on December 16, 1986. Nevertheless, the judge entered his order approving the settlement agreement on December 21, two days after the judge's office received a copy of the agreement. By not waiting at least 10 days after service before approving the settlement, the judge acted contrary to Commission Rule 100(c) , 29 C.F.R. 2200.100(c). [[1/]] This rule is intended to allow employees or their representatives who have elected, or who still have the opportunity to elect, party status an opportunity to make their objections to the settlement agreement known before the agreement is approved. [[2/]] Thus, we conclude that the judge erred by approving the settlement agreement less than 10 days after it was served on the union.

We now turn to the issue of whether the union was denied meaningful participation in the settlement process. This is an undecided factual issue. The union in its letter to the judge States that it did not participate in settlement negotiations. Since the settlement agreement avers that the union was permitted to participate, a conflict exists in the record that cannot be resolved without additional evidence. Accordingly, this case is remanded to the judge for findings on whether the union was afforded the opportunity to participate as required by his order.

In evaluating the evidence on remand, the general principles governing Commission review of settlement agreements must be applied. When determining whether employees have been denied participation, the legitimate interest of employees in being heard must be balanced against the well-settled principle that the Secretary has prosecutorial discretion in the conduct of a proceeding before the Commission, including the right to settle if, in her judgment, a settlement is justified. As the Supreme Court stated in Cuyahoga Valley Ry. Co. v. United Transportation Union, 474 U.S. 3, 7 (1985), "the detailed statutory scheme . . . contemplates that the rights created by the Act are to be protected by the Secretary . . . . It is also clear that enforcement of the Act is the sole responsibility of the Secretary. . . . " Id. Therefore, the Court cautioned that the Commission may not take any action that "would discourage the Secretary from seeking voluntary settlements with employers, thus unduly hampering the enforcement of the Act." Id. (emphasis added).

A specific constraint on the Commission's involvement in the settlement process relates to objections by employees or their representatives to settlements that have been executed by the Secretary and the employer and submitted for approval by the commission. It is well-settled that employees may object before the Commission only to the reasonableness of the period of time set forth in a settlement agreement for abatement of violations. Donovan v. Allied Industrial Workers (Archer Daniels Midland Co.), 760 F.2d 783 (7th Cir. 1985); Donovan v. Local 962, International Chemical Workers Union (Englehard industries), 748 F.2d 1470 (11th cir. 1984); 713 F.2d 918 (2nd Cir. 1984); Donovan v. OSHRC (Mobil Oil Corp.), (Cir. 1983); Pan American World Airways, 11 BNA OSHC 2003, 1984-85 CCH OSHD 26,920 (No. 83-249, 1984) (citing cases from other circuits as well). See Cuyahoga Valley (employees may not object to Secretary's decision to withdraw a citation).

At the same time, however, Commission precedent that predates these appellate court decisions accords employees the right to "meaningful participation in the settlement process, including the opportunity to participate in settlement negotiations." E.g General Motors Corp., Terex Division, 10 BNA OSHC 2020, 2021, 1982 CCH OSHD 26,241, p. 33,132 (No. 78-2792, 1982), and cases cited therein. The Commission has never articulated precisely what it meant by "meaningful participation," nor has it set forth specifically how employees are to be included in settlement negotiations. [[3/]] Since it is now established that under the Act employees have only very limited rights to object to settlement agreements, they cannot be given the same broad, unrestricted opportunity to comment upon, and to request changes in, a settlement agreement filed with the Commission that they or their representatives might have had under prior case law. In this regard, we note that under Commission Rule 20(a), 29 C.F.R. 2200.20(a), employees and their representatives may elect party status only to the limited extent that their appearance relates to "any matter in which the Act confers a right to participate." Furthermore, Commission Rule 100(b), 29 C.F.R. 2200.100(b), which prescribes the requirements for settlement, provides that a settlement agreement must "state whether any affected employees who have elected party status have raised an objection to the reasonableness of the abatement time." This rule obligates the Secretary and the employer to ascertain whether the employees have any objection to the abatement period, the sole issue on which they have the right to object before the Commission. There is no requirement in the Commission's current rules that the views of the employees be presented to the Commission or a Commission judge on any other matter addressed in a settlement agreement.

These comments, however, are not intended to suggest that there is no mechanism by which employees can be given an opportunity for participation in the settlement process. Employees may be given such an opportunity by allowing them to present their views on a settlement agreement to the other parties, and particularly to the Secretary, before the agreement is fully executed and filed with the judge. This procedure would be consistent with other provisions of the Act that grant employees input into the decisions the Secretary makes in the interest of safeguarding employee health and safety. For example, employees are permitted to submit information to the Secretary in support of a standard, to participate in a hearing on an employer's request for a variance from a standard, to accompany an inspector during an inspection and to consult with the inspector "concerning matters of health and safety in the workplace", to request that the Secretary conduct an inspection, and to notify an inspector during an inspection of violations that may exist. Sections 6(b)(1), 6(b)(6)(A), 6 (d)-(f); 29 U.S.C. 655(b)(1), 655(b)(6)(A), 655 (d)-(f). Thus, consistent with the overall scheme of the statute and the obvious importance of ensuring that employees have a chance to be heard, we are of the opinion that when enforcement proceedings have been initiated before the Commission and the Secretary proposes to settle the case, any input offered by the affected employees should be received at some point before a settlement agreement is executed between the Secretary and the employer.[[4/]]

Accordingly, we conclude that the Secretary should inform employees or their representatives who have elected party status of settlement negotiations so that the employees may offer input concerning the proposed settlement to the Secretary and, for that matter, to the employer as well. The Secretary and the employer will then have the benefit of the employees' input, which they may consider in determining whether to proceed with the settlement. If the Secretary and the employer agree to a settlement, notwithstanding any contrary views or input on the part of the employees or the union, and present the settlement to the Commission judge for approval, the employees or their representatives are entitled to file objections with the judge, but only as to the reasonableness of the time period prescribed for abatement. See Reynolds Metals Co., 7 BNA OSHC 1042, 1046, 1979 CCH OSHD 23,295, p. 28,181 (No. 78-2485, 1979) (concurring and dissenting opinion). While the Commission can disapprove a settlement agreement on the basis of an employee objection only if the objection pertains to the reasonableness of the abatement period, we will examine a settlement agreement, submitted for approval by the Commission or a Commission judge, to determine that the employees have had an opportunity to provide input during the formulation of the agreement. In this way, the legitimate interest of employees in being heard on the terms of a proposed settlement can be accommodated in a manner consistent with the limited rights of employees or their representatives to object to a settlement agreement once that agreement has been filed with the Commission or commission judge.[[5/]]

Accordingly, the settlement agreement previously filed in this case and the judge's order approving that agreement are set aside. This matter is remanded to the judge, who may hold a hearing, take evidence in the form of sworn affidavits, or follow whatever other procedures he deems appropriate to develop a factual record sufficient for him to decide whether the union, as it alleges, was not permitted to express its views during the settlement process. In the event the judge concludes that the union was not accorded that opportunity, the union shall be allowed to submit its position to the other parties for consideration before any settlement agreement is finalized between the Secretary and GE. Should the Secretary and GE submit an amended settlement agreement to the judge for his approval, he shall accord the union the full 10-day period prescribed by our rules for filing any objections it may have to any abatement period set forth in such agreement. On the other hand, if the judge concludes that the union did have an adequate opportunity to present input during the settlement negotiations, the Secretary and GE may refile the original settlement agreement with the judge, and the judge may then reinstate his prior order approving that settlement.

Edwin G. Foulke, Jr.

Velma Montoya

Donald G. Wiseman

Dated: August 29,1990








LOCAL 647,

Authorized Employee

OSHRC Docket No. 88-2265


A settlement agreement was filed in this case which adequately resolves the issues pending before the Commission.

The agreement provides for the amendment of the penalty proposed for Citation No. 1 and amendment of the citation and penalty proposed for Citation No. 2 and allows respondent to withdraw its notice of contest.

Respondent represents that the alleged violations have been abated; that it will pay the proposed penalties, as amended, and that it has conformed with the applicable posting and service requirements as fixed by the rules of the commission.

Therefore, it is ORDERED:

1. The motions of the parties are granted and the agreement is hereby approved and incorporated as part of this order.

2. The notice of contest is hereby dismissed.

3. Citation No. 1 is affirmed and a penalty in the amount of $1,350.00 is hereby assessed.

4. Citation No. 2, as amended, is affirmed and a penalty in the amount of $600.00 is hereby assessed.

Dated this 21st day of December, 1988.



[[1/]] In pertinent part, this rule imposes a mandatory requirement that: "[i]f party status has been elected [by employees or an authorized employee representative], an order terminating the litigation before the Commission because of the settlement shall not be issued until at least ten days after service."

[[2/]] This rule also is intended to insure that all employee representatives have notice of the terms of a settlement agreement. Thus, Rule 100(c) requires service of the settlement agreement "upon all parties and authorized employee representatives in the manner prescribed by 2200.7(c)" (emphasis added). As explained in the preamble to the Commission's rules, "all parties as well as non-party authorized employee representatives must be served in accordance with 2200.7 (c)." 51 Fed. Reg. 32014 (1986) (emphasis added).

[[3/]] The Commission did not define these principles more concretely because at the time it announced them, it allowed employees wide latitude to object to any aspect of a settlement agreement, once that agreement was filed with the Commission. E.g., Mobil Oil Corp., 10 BNA OSHC 1905, 1919, 1982 CCH OSHD 26,187, p. 33,033 (No. 77-4386, 1982), rev'd, 713 F.2d 918 (2d Cir. 1983) (employees may object to settlement agreement on the ground that the settlement would not abate the hazardous conditions). Subsequently in Pan American, the Commission overruled its previous case law on the permissible scope of employee objections and adopted the narrow rule of the Federal courts limiting employee objections to only the abatement period. However, the decision in Pan American did not disturb the Commission's holdings that employees may participate in the settlement process. Nevertheless, the scope of such participation must be viewed in light of the limited opportunity employees have to object to fully executed settlements before the Commission, as well as the limited role of the Commission in reviewing settlement agreements that have been filed with the Commission or a Commission judge for approval.

The Commission previously recognized the principle of employee participation in 1986 when it amended its rules on settlement agreements to delete language in the prior version of Rule 100, 29 C.F.R. 2200.100, that a settlement agreement would be approved "when it is consistent with the provisions and objectives of the Act." The Commission reasoned that "deletion of [this] provision from the Commission's rules is in keeping with the Commission's limited role in reviewing settlement agreements." 51 Fed. Reg. 32013 (1986).

[[4/]] We note that Commission Rule 51, 29 C.F.R. 2200.51, authorizes the judge to "direct the parties to confer among themselves to consider settlement, stipulation of facts, or any other matter that may expedite the hearing" (emphasis added). The preamble to the Commission's rules specifically states that Rule 51 "applies to all parties, not just the Secretary and the employer." 51 Fed. Reg. 32009 (1986). Thus, the judge's order directing that the union here be permitted to participate in any settlement negotiations was clearly within his discretion under the Commission's rules.

[[5/]] Two of the violations cited here related to fall protection: a violation of 29 C.F.R. 1910.24(b) for providing mobile ladder stands rather than fixed stairs for access from one level to another and a violation of 29 C.F.R. 1910.132(a) for failure to provide protective equipment for employees working up to 20 feet above the floor. In its letter to the judge the union argued that "additional citations should have been issued because of previous records of OSHA citations on fall protection." This contention, that the citations issued did not adequately address the hazard in GE's facility, is precisely the sort of objection that should be voiced to the Secretary prior to the final settlement, since it directly relates to the Secretary's prosecutorial discretion.

However, the union's letter also asserts that the union attended an informal conference after the citations were issued, but before Respondent filed its notice of contest, at which it advised the Secretary of its concern that further citations were warranted. The Secretary's regulation at 29 C.F.R. 1903.19 allows an employer, affected employee, or representative of employees to request a conference "for the purpose of discussing any issues raised by an inspection, citation, notice of proposed penalty, or notice of intention to contest." While we recognize that this regulation does provide a mechanism by which both the Secretary and the employer can receive input from employees, it is not a substitute for providing employees who elect to participate as a party to the Commission proceeding an opportunity to provide input in the settlement of citations once those citations have been contested and are before the Commission for disposition.