SECRETARY OF LABOR,

Complainant,

v.

BOISE CASCADE CORPORATION,

Respondent.

UNITED PAPERWORKERS' INTERNATIONAL UNION, LOCAL 900,

Authorized Employee
Representative.

Docket Nos. 89-3087 & 89-3088

DECISION AND ORDER

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

BY THE COMMISSION:

These cases present issues relating to the application of our recent decision in General Electric Co., 14 BNA OSHC 1763, 1990 CCH OSHD 29,072 (No. 88-2265, 1990) ("GE"), in which we held that when the Secretary and the employer seek to settle a case which is pending before the Commission, any affected employees or their representatives who have elected party status should be given the opportunity to offer their input to the proposed settlement before it is executed and submitted to the Commission or a judge for approval.  See National Steel & Shipbuilding Co., 14 BNA OSHC 1866, 1990 CCH OSHD 29,127 (Nos. 88-227 et al., 1990) ("National Steel").

In the cases now before us, the Secretary conducted an inspection over a period of several months at a pulp and paper mill in Rumford, Maine, operated by Boise Cascade Corporation ("Boise"), after which the Secretary issued a number of citations alleging numerous violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-78 ("the Act").  Boise and the Secretary then engaged in settlement negotiations over an extensive period of time.[[1/]]  In response to a joint request by the Secretary and Boise for an extension of time to file a settlement agreement, the United Paperworkers International Union, Local 900 ("UPIU"), which had elected party status as the representative of affected employees,[[2/]] asserted that it had not been allowed to participate in the settlement discussions between the Secretary and Boise.

After receiving briefs from each party on the question of the right of a union party to participate in settlement negotiations, as well as affidavits, Administrative Law Judge Delbert R. Terrill issued the order that is before us now.  Essentially, Judge Terrill interpreted our decision in GE as establishing a minimum level of employee involvement in the settlement process.  In his order, Judge Terrill viewed GE as entitling employees or their representatives to be present during all settlement negotiations, including conferences conducted by telephone.  However, the judge concluded that GE does not require that employees or their representatives actually be allowed to speak at those negotiations, i.e., employees can be limited to the role of "silent observers."  He therefore ordered that the UPIU be given reasonable notice of any future settlement discussions so that it would have an opportunity to be present at such discussions.  The judge also found from the parties' affidavits that the UPIU was not present at a settlement discussion held on June 12, 1990, nor was it informed of the substance of that discussion.   He further found that the record was not clear as to the extent of any prior settlement discussions or the degree to which the UPIU had been present at any such negotiations. Accordingly, he granted a request by the UPIU for disclosure of information regarding these settlement negotiations.

Both Boise and the UPIU filed petitions for interlocutory review.  Boise takes issue with Judge Terrill's orders directing that the UPIU be included in settlement negotiations and that information regarding the settlement negotiations be disclosed to the UPIU. Boise also disputes the judge's factual findings that the union was not allowed to participate in those negotiations.  The UPIU excepts to the judge's order limiting it to the status of a ''silent observer."   We granted both petitions and, in view of the importance of these issues to the enforcement of the Act, ordered oral argument in these cases.  For the reasons that follow, we conclude that Judge Terrill erred, and we set aside his order.

Essentially, Boise contends that Judge Terrill misapplied our decision in GE.  In Boise's view, while GE expresses the principle that employees or their representatives should have the opportunity to be heard when an employer and the Secretary seek to settle a case, GE does not authorize the judge to inject himself into the settlement process by ordering any particular type or manner of employee participation.  Furthermore, Boise asserts that the judge should not make any determination as to whether employees have been given the opportunity to be heard until after the settlement agreement is executed and submitted for approval.   The Secretary argues in support of Boise's position and asserts that it is his practice to receive views from affected employees or their proposal.  Conversely, the UPIU contends that the right to elect party status under the Act entitles employees to participate as full equals to the Secretary and the employer in the settlement process and, therefore, argues that employees or their representatives have the right to be present and to express their views at all settlement negotiations.

In GE, we noted that the Act reflects Congress' determination that while the Secretary has the ultimate responsibility for enforcing the Act, employees have a legitimate interest in providing input to the Secretary when he makes decisions on their behalf.  At the same time, however, we acknowledged the well-settled case law that the Commission and affected employees or their representatives have only limited roles in the settlement process.  14 BNA OSHC at 1764-65, 1990 CCH OSHD at pp. 38,849-50. Accordingly, we sought in GE to balance the interests of employees in having their views heard against the limitations placed on the Commission's authority when the Secretary and employer propose to settle a case.   We therefore held that the Secretary and employer should inform employees or their representatives that settlement negotiations are being conducted and should receive the input of employees or their representatives before executing any settlement agreement.   In addition, we indicated that after a settlement agreement is executed and submitted for approval by the Commission or judge, it would be examined to determine whether employees were given an opportunity to provide input during its formulation.   We did not expressly address the issue raised here of whether the Commission or a Commission judge can direct that the employees' input be received in any particular way through the issuance of orders enforceable in the Commission proceeding.  We also did not rule on whether the determination of the extent of employee input may be made before the settlement agreement is submitted for approval.  However, we believe that the basic principles underlying the enforcement of the Act that we referred to in GE provide a framework for resolving these issues as well.

While neither the Act nor its legislative history explicitly address the role of employees or their representatives in the settlement of a case pending before the Commission, it is clear that Congress intended and expected that affected employees would have an opportunity to be heard during the adjudicatory process.  Thus, Congress required in section 10(c) of the Act, 29 U.S.C. 659(c), that affected employees or their representatives be afforded an opportunity to participate as parties in commission proceedings. Furthermore, the history of the Act and its numerous provisions regarding the participation of employees in other contexts evince a plain understanding on the part of Congress that attainment of the Act's goal of a safe and healthful workplace requires a cooperative endeavor that can only be accomplished through the assistance and involvement of employees.

For example, the legislative history of the Act clearly reflects Congress's concern that employees be consulted at the very inception of an enforcement proceeding, that is, during the inspection of their employer's worksite.   As the House Committee on Education and Labor stated, "If an inspector determines that a danger to health and safety exists, he should be able to advise a worker's representative or be able to question workers, who ought to be permitted to disclose their concern with an alleged hazardous work area."  H.R. Rep. No. 1291, 91st Cong., 2d Sess. 22 (1970), reprinted in Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 852 (1971).  See S. Rep. 1282, 91st Cong., 2d Sess. 11 (1970), id. at 151 ("appropriate degree of involvement of employees themselves in the physical inspections of their own places of employment").  The Act's initial declaration of "Congressional Findings and Purpose" in several places also refers to the need to consult with employees.  Congress indicated, among other things, that the objectives of the Act would be met "by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and [by stimulating] employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions."  Section 2(b)(1), 29 U.S.C. 651(b)(1).  Similarly, Congress stated that the Act was intended to "[build] upon advances already made through employer and employee initiative for providing safe and healthful working conditions" and to foster "joint labor-management efforts to reduce injuries and disease arising out of employment."  Section 2(b)(4), (13); 29 U.S.C. 651 (b) (4), (13).   As we pointed out in GE, the clear intent of Congress that the views of employees be taken into consideration is implemented in specific statutory provisions which allow employees to participate both in the development of occupational safety and health standards and in the enforcement of the Act against a particular employer, including the opportunity to request an inspection, to accompany an inspector, and to consult with the inspector regarding possible violations of the Act.  14 BNA OSHC at 1766, 1990 CCH OSHD at p. 38,850; sections 6(b)(1), 6(b)(6)(A), 6(d), 8(e)-(f); 29 U.S.C. 655(b)(1), 655(b)(6)(A), 655(d), 657 (e)-(f).

Nevertheless, Congress's determination that the input of employees is essential to effectuating the purposes of the Act does not establish that Congress intended employees to constitute a separate and distinct enforcement authority under the Act.  On the contrary, as the Sixth Circuit observed in Marshall v. OSHRC (IMC Chem. Group), 635 F.2d 544, 550-51 (6th Cir. 1980), the Act does not grant employees a private right of action.  Rather, prosecutorial discretion in the enforcement of the Act is vested solely in the Secretary.  Id.; Donovan v. OSHRC (Mobil Oil Corp.), 713 F.2d 918, 927 (2d Cir. 1983).  Accordingly, it is the Secretary who is responsible for protecting the interest of employees in safe and healthful working conditions.  Cuyahoga Valley Ry. v. United Transp. Union, 474 U.S. 3 (1985).  As the court stated in Oil, Chem. & Atomic Workers Int'l v. OSHRC (American Cyanamid Co.), 671 F.2d 643, 649 (D.C. Cir.), cert. denied, 459 U.S. 905 (1982), "the Act creates public rights that are to be vindicated by the Secretary through government management and enforcement of a complex administrative scheme."  Thus, while Congress expected that employees would be heard during the enforcement process, Congress intended the Secretary to ensure that the views and concerns of employees have been taken into consideration in the exercise of his prosecutorial discretion.  See IMC Chem. Group, 635 F.2d at 551, in which the court cited with approval the Commission's statement in Southern Bell Tel. & Tel. Co., 5 BNA OSHC 1405, 1406, 1977-78 CCH OSHD 21,840, p. 26,295 (No. 10340, 1977) that "Congress intended to prelude employees and their representatives from usurping the Secretary's prosecutorial discretion."

The discretion to settle a case pending before the Commission is an adjunct of the Secretary's prosecutorial and enforcement authority.   American Cyanamid, 671 F.2d at 650 ("necessarily included within the prosecutorial power is the discretion to withdraw or settle a citation issued to an employer.")  We conclude that since Congress intended the interests of employees to be effectuated through the Secretary's judgment as the enforcing authority under the Act, the entry of a Commission order directing either the method or degree of employee input into the process of a settlement that is ongoing between the Secretary and the employer would contravene the Secretary's enforcement authority and discretion.[[3/]]

Our conclusion that the Commission is not empowered to issue an order regarding the method or degree of employee input during the settlement process is supported by decisions addressing the difference between employee participation when there is ongoing litigation between the Secretary and the employer and the role of employees when the Secretary and employer seek to settle rather than litigate.  At oral argument, counsel for the UPIU referred us to decisions holding that, in cases in which the merits of the Secretary's enforcement action are in dispute and are being litigated before the Commission, employee parties are fully co-equal to the Secretary and employer and have the same right to litigate all the disputed issues.  E.g., Donovan v. International Union, Allied Industrial Workers (Whirlpool Corp.), 722 F.2d 1415, 1419 (8th Cir. 1983); Donovan v. Oil, Chemical and Atomic Workers International (American Petrofina Co.), 718 F.2d 1341, 1350 (5th Cir. 1983), cert. denied, 466 U.S. 971 (1984); American Cyanamid, 671 F.2d at 647.  However, these cases also recognize that the role of employee parties in the settlement process is subordinate to that of the Secretary and employer.

For example, the Eighth Circuit reasoned that because the employer invokes Commission review of the merits of citation items, the union can litigate matters other than the reasonableness of the abatement period only if those matters are in dispute between the Secretary and the employer.  722 F.2d at 1421.   That holding is consistent with the view the Commission previously stated in Southern Bell:

[I]f the employer contests a citation, the union can become a party to the hearing, but if the employer does not contest, the only way the union can become a party. . . is if it contests the abatement period.  [Where] the union has become a party in a proceeding initiated by the employer's notice of contest, its party status is, in effect, what might best be termed vicarious.

5 BNA OSHC at 1406, 1977-78 CCH OSHD at p. 26,295 (emphasis added).  With respect to the actual mechanism by which a settlement is achieved between the Secretary and the employer, the Fifth Circuit expressed agreement with the Second Circuit in Mobil oil that "employers would only be discouraged from entering settlement negotiations with the Secretary if they knew further proceedings before the Commission could be required."  718 F.2d at 1353, quoting 713 F. 2d at 927 (emphasis added).  Similarly, in describing the enforcement authority of the Secretary, the Supreme Court held that "a necessary adjunct of that power is the authority to withdraw a citation and enter into settlement discussions with the employer."  Cuyahoga Valley, 474 U.S. at 7 (emphasis added).

Accordingly, we conclude that the enforcement scheme created by the Act, which gives the Secretary responsibility for safe-guarding the interests of employees in the exercise of his prosecutorial discretion, precludes the Commission from directing the method and degree of involvement of employees in any settlement proceedings through the issuance of Commission orders.  Clearly, Judge Terrill exceeded his authority by his order requiring the Secretary and Boise to allow the UPIU to be present during their settlement negotiations.[[4/]]  His order is contrary to the enforcement scheme established by the Act and is therefore set aside.

However, we emphasize that while we cannot order the method by which the Secretary and employer receive the views of employees or the amount of input they receive, consistent with the principles expressed in GE we expect them to make every effort to provide employees with the opportunity for input in the settlement process as much as practicable.  We recognize that the manner in which the Secretary and employer conduct their settlement negotiations may vary from case to case.  In a relatively simple case involving only a few comparatively minor violations, the settlement process will likely not take the same form as in a case involving numerous and complex citations.  It is conceivable that in some cases the settlement process will consist only of correspondence or telephone conversations between counsel for the Secretary and employer, in contrast to proceedings, such as those before us here, in which settlement requires extensive and prolonged face-to-face discussions.   Thus, practical and effective methods of receiving the input of employees will vary depending upon the circumstances of the case.

We note that at oral argument, counsel for the Secretary assured us that it is the policy of the Secretary to confer with employees or give them the opportunity to confer prior to the finalization of a settlement agreement.   As part of this process, counsel for Boise suggested that employees be given a copy of a draft settlement agreement before it is submitted for approval by the judge so that employees can indicate whether they have any objections to the proposed settlement.   In certain cases, this would be an appropriate way for the Secretary and the employer to obtain input from employees.  However, it is not the only way to receive employee input. Instead, we emphasize again that the method and degree in which affected employees or their representatives will be heard is the responsibility of the Secretary.   We intend these remarks as guidance to the Secretary in exercising his discretion as the prosecutorial authority under the Act.

Nevertheless, while the Act vests authority in the Secretary to protect the interests of employees, it does not grant the Secretary discretion that is wholly unlimited.  Generally speaking, the Act recognizes some constraints on the Secretary's discretion and provides that the Secretary's exercise of his discretion is subject to review.  For example, section 8(f) (2), which allows employees to notify an inspector of any violation which they believe exists in their workplace, requires the Secretary "to establish procedures for informal review of any refusal by a representative of the Secretary to issue a citation with respect to any such alleged violation." Furthermore, section 10(c) of the Act also supports the proposition that the Secretary's exercise of his prosecutorial discretion is reviewable.   As we noted in GE, it is well-settled that employees or their representatives may object before the Commission to the substantive terms of a settlement agreement with respect to the reasonableness of the period of time prescribed for abatement of a violation.  14 BNA OSHC at 1765, 1990 CCH at p. 38,849.  This opportunity, which is recognized in the Commission's rules as well, [[5/]] arises from a specific provision of section 10(c) which allows employees or their representatives to contest a citation on the ground that the abatement period set forth is unreasonable.   Thus, while the Secretary generally has authority to act on behalf of employees, employees have an independent right to be heard where there is an objection to the abatement period.  Mobil Oil, 713 F.2d at 928-29.  Similarly, the Secretary's prosecutorial discretion does not take precedence over the rights of employees under section 11 of Act, 29 U.S.C. 660(a), which entitles any "person" aggrieved by an order of the Commission to file a petition for review in the courts of appeals.  Employees or their representatives have the right to appeal an adverse ruling of the Commission even if the Secretary, in the exercise of his discretion, chooses not to seek review.  American Cyanamid, 671 F.2d 648-49.

In view of the clear importance attached by Congress to employee input, we conclude that while we cannot order the method and degree by which the Secretary and employer receive the views of employees, we can review the Secretary's actions in this regard to determine whether the Secretary has abused his discretion.  We also note that the limited right of employees to object to the reasonableness of the abatement period in a settlement agreement once that agreement has been submitted to the Commission or judge for approval is distinct from the opportunity to provide input on all matters pertaining to the settlement before the agreement is finalized.  Therefore, we also reject Boise's contention that during the settlement process, employees may only be heard with respect to the reasonableness of the abatement period.  National Steel, 14 BNA OSHC at 1868, 1990 CCH OSHD at p. 38,920; GE, 14 BNA OSHC at 1766 n.5, 1990 CCH OSHD at p. 38,851 n.5.

As we have indicated, the Secretary assured us at oral argument that his policy is and has been to afford employees an opportunity to present their input before he enters into any settlement agreement.  In view of the Secretary's latitude to define the method and degree of employee input that he will receive in any particular case, we conclude that it will not be proper for the judge to inquire into the provision of employee input except in unusual or egregious cases where it appears that the Secretary has contravened his stated policy by denying employees an opportunity for input.  In such a situation, the absence of an opportunity for employees to offer input would in our view constitute an abuse of discretion on the part of the Secretary.  We emphasize that because of the limited authority of the Commission to review settlement agreements, the judge is obligated to avoid any undue interference in the settlement process.  We therefore conclude that, except in those rare cases where there clearly appears to be an abuse of discretion by the Secretary, the proper role for the judge is to advise the Secretary and employer of any claim that employees have not been given an opportunity for input so that the Secretary and employer may then reconsider their positions in light of the claim.

The judge must have discretion to entertain claims that employees have not been heard in the settlement process before the settlement agreement is finalized and executed by the Secretary and employer.  In that way, the Secretary and employer can take the employees' claims into consideration, and the Secretary will be better able to fulfill his responsibility to ensure that employees have had an adequate opportunity to be heard. [[6/]]  Considering that employee input will only be beneficial if it is received before the Secretary and employer have reached a final decision on the terms of a settlement, we think it would also be unwise to adopt the rule, advocated by Boise, that a judge must wait until after he receives the executed settlement agreement before addressing any concerns of the employees regarding the degree of their input into the settlement process.  Accordingly, we conclude that Judge Terrill did not err in considering the UPIU's objection before a settlement agreement was submitted to him for approval.

The UPlU's claim that it has not been given an opportunity to provide input in this matter is clearly without merit.  The record reflects that the UPIU was substantially involved in these proceedings from their inception.  Representatives of the UPIU were present both at the closing conference following the inspection and at an informal conference with the Secretary and Boise after the citations had been issued.  The UPIU at that time advised the Secretary and Boise that it wished to be granted party status at any Commission proceeding that arose from these citations.  Thereafter, all pleadings, as well as Judge Terrill's orders, were served on the UPIU.  While the UPIU was not present at the actual settlement negotiations between Boise and the Secretary, an affidavit from Stephen C. Perry, who appeared on behalf of the UPIU in these proceedings, concedes that "on several occasions, after settlement negotiations commenced, [he] received aspects of settlement negotiations."  It is also undisputed that during November 1989 Boise conducted a series of meetings at the worksite with representatives of the UPIU for the purpose of addressing approximately 800 citation items which remained unresolved following the informal conference.  According to the unrebutted affidavits of Jerry T. Fields, Boise's corporate safety and health director, and Thomas J. Wheeler, who at the time was safety and health coordinator for the Rumford plant, a consensus was reached regarding the methods and time for correcting these violations.  As part of this consensus, employee representatives stated their priorities for addressing the various violations.   Shortly thereafter, Fields and Wheeler as well as the UPIU representatives met with the Secretary's acting area director and other OSHA personnel to present the results and recommendations resulting from the management/employee meetings.

On June 12, 1990, the Secretary and Boise met again to discuss issues which remained outstanding as of that date.  In an unrebutted affidavit, the Secretary's area director, C. William Freeman, averred:

That, on June 7 and 8, 1990, members of his staff had advised employee representatives of the meeting scheduled for June 12, 1990 and informed representatives that a latter [sic] meeting would be scheduled with them to discuss the June 12th meeting.  On June 12th his staff spoke with Mr. Perry and set up a meeting on June 13th at the Regional office.  Also on June 7 and 8, 1990, OSHA advised the employee representatives that no final decisions would be made in this matter until he had met with them.  This was explained at the meeting on July 12, 1991 to representatives of the Respondent.  In point of fact, no final decisions were (have been) taken until he consulted with Mr. Perry and other employee representatives.

That, on June 13, 1990, he, two of his staff, and the OSHA Acting Regional Administrator for Region I met with Mr. Stephen Perry, at Boston, Massachusetts for the purpose of obtaining from Mr. Perry and two union representatives from Respondent's Rumford, Maine mill the representatives' input into this matter, to allow for an informed evaluation of this matter (and to assist in the formulation of policy and recommendations which were subsequently made to counsel for OSHA regarding the sixteen items at issues between the parties).

That, on June 13, 1990, OSHA reviewed with Mr. Perry and the two union representative[s] all substantive facts regarding the matters at issue.

That, on June 13, 1990, OSHA verified with Mr. Perry and the two union representatives several assertions made by the Respondent on and prior to June 12, 1990.

That, on June 13, 1990, OSHA obtained and discussed at length the positions of Mr. Perry and the two union representatives as to hazards existing in the workplace in question, methods which might be implemented to abate these hazards, their priorities in this matter, and the like, all of which were specifically considered in [OSHA's] subsequent formulation of positions with [its] counsel for subsequent negotiation with the Respondent.

Since it is undisputed that on several occasions the Secretary informed the UPIU of the substance of the settlement discussions with the employer, and the UPIU was given general opportunities to fully discuss its concerns with respect to the citations, the UPIU has been afforded an opportunity for input in a manner consistent with this decision. [[7/]]

At the time of the June 12, 1990 settlement meeting there was an outstanding order of Judge Terrill directing Boise and the Secretary to submit their settlement agreement by July 12, 1990.  On that date, however, Judge Terrill directed that settlement negotiations cease pending his ruling on the issue of the right of the UPIU to be present at the settlement negotiations.  The judge also denied a request by the Secretary and Boise for an extension of time of slightly less than one month, from July 12, 1990, to August 9, 1990, to submit their settlement agreement. In our order granting interlocutory review, we also stayed all settlement discussions pending our decision. In view of the fact that settlement negotiations have been suspended since July 12, we conclude that the additional extension of time requested by Boise and the Secretary should be granted.

Accordingly, Judge Terrill's order is set aside, and the stay we previously entered is vacated.  Judge Terrill is instructed to allow the Secretary and Boise an additional period of 25 days to submit a settlement agreement for approval.  We emphasize that in view of our determination that an opportunity for employee input has been provided consistent with the Secretary's policy, the judge is to conduct no further inquiry into the matter of employee input and is to issue no additional orders relating to the provision of input by the UPIU.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Dated: February 1, 1991


MONTOYA, Commissioner, concurring:

I reluctantly join in the majority's opinion in this case.  I have no quarrel with the outcome here since I fully agree with my colleagues' conclusion that the Secretary and Boise have already provided UPIU with significant opportunities for input into their prospective settlement agreement, and they have stated their intention in oral argument to continue doing so until a final agreement is executed and filed with the judge.  I am disturbed, however, by the precedent of the courts of appeals regarding the role of the Commission and its judges when union or affected employee parties raise the claim that they have been denied an opportunity for input into the settlement process.  From a public policy viewpoint, I can see a great deal of merit to UPIU's arguments that the Commission and its judges should take a more active role in protecting affected employee interests and assuring that they are given an opportunity to provide input into the settlement process.  If I were "writing on a clean slate," I would undoubtedly support a position much closer to UPIU's position than the position taken by the Commission in this case.  Unfortunately, I am not writing on a clean slate, but am severely constrained by well established case law restricting the authority of the Commission in relation to affected employee objections to settlement agreements.  See Donovan v. OCAW (American Petrofina Co.), 718 F. 2d 1341, 1351-53 (5th Cir. 1983), cert. denied, 466 U.S. 971 (1984) (court adopts narrow interpretation of right of employees to participate in the settlement process in view of case law consistently supporting that position).  I therefore regretfully conclude that I can go no further in asserting Commission authority in this area than this decision has gone.

Velma Montoya
Commissioner


SECRETARY OF LABOR,

Complainant,

v.

BOISE CASCADE CORPORATION

Respondent,

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 2144
Affected Employees,

UNITED PAPERWORKERS'
INTERNATIONAL UNION, LOCAL 900
Affected Employees,

Docket Nos. 89-3087 & 89-3088

ORDER

STATEMENT OF CASE

On September 7, 1990, an order was issued directing that affected employees be offered the opportunity of being present as silent observers during all future settlement negotiations.  Also, the order provided that any party could seek a hearing if there was a factual dispute as to the extent of the participation of affected employees here in the settlement process.  On September 17, 1990, Respondent requested reconsideration and a stay (while noting its intent to seek an interlocutory appeal) of the September 7, 1990 order.  On September 18, 1990, an order was entered granting the stay of the implementation of the September 7, 1990 order.

On September 26, 1990, affected employees filed a Verified Motion for Reopening, Access to Information, and Other Relief and affidavits of their representatives asserting that as a party they were not present during settlement discussions as envisioned by the order dated September 7, 1990.  Further, the affected employees requested to be present at all future settlement discussions and that a hearing be convened to resolve matters at issue.  On September 27, 1990, affected employees filed their opposition to the motion for reconsideration.

On October 3, 1990, Complainant filed its pleading supporting Respondent's request for reconsideration and otherwise essentially reiterating its initial brief.  On October 4, 1990, Respondent filed a letter noting that its interpretation of the September 18, 1990 stay resulted in the affidavits of the employees being a nullity given that they were not part of affected employees response to Respondent's Motion for Reconsideration but were attached to a Verified Motion for Reopening, Access to Information and Other Relief.  Further, Respondent requested direction of the court as to the interpretation of the September 18, 1990 stay and whether a response was required to the motion of the employees.

On October 5, 1990, an order was issued clarifying that the stay in the September 7, 1990 order only related to requirement that affected employees be allowed to participate as silent observers in future settlement discussions.  The order also required that by October 10, 1990, the affected employees provide complete copies of their September 26 and 27, 1990, pleadings and supporting affidavits to Complainant and Respondent.  Finally, the order also granted Complainant and Respondent until October 17, 1990, to file their responses.

On October 10, 1990, the affected employees complied with the order. [[1]]  On October 17, 1990, Respondent filed its response. Respondent requested that its Motion for Reconsideration be granted in its entirety.   Noting that the legal issues raised in its Motion were ripe for decision and that it should not be required to engage in a time consuming costly "diversion" that "may well prove to be unnecessary", Respondent urged that its Motion be ruled on before any factual determination is made based on the affidavits submitted regarding the extent of affected employee participation in the settlement process.  Accordingly, Respondent opposed the affected employees request for hearing to determine whether there has been meaningful participation by affected employees in this matter.

Also on October 17, 1990, Complainant filed its response to the Verified Motion.[[2]]  Complainant's response rebutted the Perry and Patrick affidavits relying upon the Freeman affidavit.  On October 17, 1990, given that the undersigned had yet to rule on Respondent's Motion for Reconsideration, the Commission denied Respondent's Petition for Interlocutory Review without prejudice.

On October 18, 1990, Respondent initiated a telephone conference call among and between the parties including a representative of affected employees.  Respondent proposed, with Complainant concurring, that the settlement discussion process be restarted with affected employees being present and able to participate fully, and not simply as silent observers.  Affected employees, acknowledging that such was a good first step, requested that before restarting the settlement process they be informed regarding the substance of prior settlement discussions.  Respondent countered stating that on only June 12, 1990 were substantive issues discussed during which affected employees were not present and offered to provide affected employees memoranda which would inform affected employees of the June 12, 1990 discussions.  When questioned by the undersigned as to whether there was agreement that June 12, 1990 was the only date that affected employees were not present for settlement discussions, there was dispute as to this and other facts and an impasse was reached.

As articulated then, the undersigned noted that Respondent had made a convincing case for resolving the legal issues first and indicated the court's intention to issue this decision.

On October 19, 1990, responding to Respondent's concern about "reinventing the wheel" yet while reserving the right to request such information in the future, affected employees (UPIU) withdrew their request for "all notes and memoranda relating to settlement discussions so far".   Further, in order to preclude further delay of the settlement process, UPIU requested full participation in future settlement discussions.  Finally, UPIU clarified that the Perry and Patrick affidavits made assertions relevant only to the time periods the individuals were designated as representatives of affected employees.

APPLICABLE LAW, RULES AND REGULATIONS

The issue here is one of first impression interpreting the Commission's decision in General Electric Co., OSHRC Docket No. 88-2265 (August 29, 1990).  In addition to the applicable law, rules and regulations recited in the September 7, 1990 order which are incorporated herein, the Administrative Procedure Act ("APA") [5 U.S.C. 554 (c)] also requires that agencies afford interested parties the opportunity to provide input during the settlement process.   Further, Commission Rule 101 provides an existing Commission mechanism to resolve issues arising during the settlement process.

CONTENTIONS OF THE PARTIES

Respondent argues that the September 7, 1990 order exceeds the intent of the Commission's ruling in General Electric ("GE") and that GE only requires affected employee "input" at "some point before a settlement agreement is executed between the Secretary and the employer".   Respondent further argues that whether affected employees had a "meaningful opportunity" to participate in the settlement process is a determination to be made by the administrative law judge only after the complainant and a respondent have submitted their settlement to the judge.

Otherwise, Respondent contends that the judge is cast in the role as referee which Respondent asserts to be both "improper and impractical" and an "unnecessary intrusion" into the settlement process.

Respondent also opposes the Verified Motion of affected employees arguing that it is a "sweeping request... totally without basis". Respondent argues that affected employees are here essentially requesting discovery.  Accordingly, Respondent argues that their requests for information be controlled by the rules of discovery.  Finally, Respondent argues that the motion by seeking information beyond the scope of discovery amounted to a "fishing expedition" by affected employees.

The affidavits submitted by Respondent indicate affected employee participation until a June 12, 1990 meeting between Respondent and Complainant.

Complainant essentially asserts that the September 7, 1990 order may remove opportunities for spontaneous settlements and otherwise will result in a more a formal process than what is necessary and effective to reaching settlements.  Complainant also argues that the request for information by affected employees be treated as and controlled by the rules of discovery.  Finally, Complainant argues its concern that the hazards cited are not being abated while the issues here are being debated.

The affidavit of OSHA Area Director C. William Freeman states that: employee representatives have consistently had input into the negotiation of this matter; after the citations were issued, his office staff met with representatives of Respondent and representatives of employees; OSHA solicited and received the views and priorities of the employee representatives before reaching settlement with respondent as to certain items; a second meeting with OSHA staff and employee representatives on the remaining sixteen items in dispute was held; on June 7 and 8, 1990, employee representatives were informed of an impending June 12 settlement discussion to be held between OSHA staff and representatives of the respondent on these sixteen items; employee representatives and representatives of the Respondent were also informed that a subsequent meeting would be scheduled with employee representatives to discuss the June 12 meeting and that no final decisions would be made on this matter until then; a June 13 meeting was held between OSHA staff, the OSHA Acting Regional Administrator for Region I, Stephen Perry, and two union representatives from respondent's mill during which all substantive facts regarding the matters were reviewed; and that OSHA canvassed the union and Mr. Perry's views regarding hazards in the workplace, methods of abatement, and other items germane to subsequent negotiations with respondent.  As a result, Complainant argues that the only discussions at issue involve Perry who "was not actually present, as a silent observer, during one conference and one follow-up telephone call".  Given OSHA's interaction with affected employees, Complainant argues that employee representatives cannot credibly argue that they have been denied the opportunity for meaningful participation in the negotiation and resolution of this matter.

The affected employees on the other hand argue that the Commission in its GE decision ruled clearly that whether affected employees as a party were permitted to participate in a settlement negotiation was "clearly within [the judge's] discretion under the Commission's rules."  GE, slip op. at 8, n. 4, citing Commission Rule 51, 29 C.F.R. 2200.51.   Further, they contend that Respondent's proposed mechanism for applying the GE standard requires waiting until petitioner and respondent submit a settlement agreement to the judge which affected employees claim is contrary to the "expeditious, just and inexpensive determination in every case" given that if it is determined that meaningful opportunity had been denied, the judge would be required to have the parties restart the settlement process.  In support they cite Commission Rule 2 and Rule 1 of the Federal Rules of Civil Procedure.  Finally, the affected employees argue that the issue of the meaningful opportunity to participate here is not premature, but is ripe for judicial determination and that in so ruling the September 7, 1990 order correctly applied the Commission's GE decision to the facts herein.

The affidavits submitted by affected employees indicate that: one individual designated as a representative for affected employees since the time of the walkaround [Trawick] had not participated in any discussions since the informal conference; one individual designated as a representative for affected employees since the time of the inspection [Cook] had not participated in any settlement discussions and had not been afforded an opportunity of submitting meaningful input; one employee designated as a representative for affected employees beginning at an undetermined point [Patrick] and one individual designated as a representative of affected employees on June 7, 1990 [Perry] had been "totally denied presence at all settlement discussions".  Accordingly, the affected employees requested "all memoranda, notes, recordings and information of every kind regarding all such settlement negotiations now and on a continuing basis, including a list showing dates and locations of all previous discussions by telephone or in person". Seeking full participation in future settlement discussions, affected employees (UPIU) dropped their request for the above information.

DISCUSSION

Respondent's point that the September 7, 1990 order did not afford the parties an opportunity to include within their briefs the GE decision, given its recent issuance, is well taken.  Accordingly, its motion for reconsideration is hereby granted in part.

As a result of Respondent's request for reconsideration, the parties have had the opportunity of briefing the issues here at hand in light of the recent Commission GE decision and as a result the undersigned has benefited from such insights provided by the parties. Accordingly, there appears to be little basis for requiring further briefing from the parties before ruling.  The September 7, 1990 order is therefore reconsidered as follows.

Respondent acknowledged that the Commission in its GE decision envisioned a "mechanism by which employees can be given an opportunity for participation in the settlement process."  GE slip op. at 7.

Contrary to Respondent's concern that the judge will become a "referee", Commission Rule 101 provides for a mechanism for appointing a settlement judge to mediate such issues.  The role of the settlement judge, as contemplated in Commission 101, comports with the contemporary view of judges as "case managers" or "managerial judges".  See Resnick, Managerial Judges, 96 Harvard L. Rev. 374, 378 (1982); Resnick, Managerial Judges and Court Delay: The Unproven Assumptions, 23-24 Judges Journal 8 (1984-85); Constantino, Judges as Case Managers, Trial, March 1981 at 56-60.  This contemporary and arguably now majority view adopted by judges departs from the American legal establishment's embrace of the classical view of the judicial role personified by the mystic goddess Justicia, who "carries scales, reflecting the obligation to balance claims fairly; [who] possesses a sword, giving her great power to enforce decisions; and [who] wears a blindfold, protecting her from distractions" and who remains "aloof and stoic... represent[ing] [the] psychological distance between the judge and litigants."   Resnick, Managerial Judges, supra, at 376 and 383.[[3]]  Today's "[m]anagerial judges are not silent auditors of retrospective events retold by first-person storytellers. . . [but] remove their blindfolds and become part of the saga themselves."  Id. at 408.  This contemporary view is not however limited to judges designated as settlement judges but contemplates that judges in every matter before them carry the responsibility of settlement judge.

The 1983 amendment to Rule 16 of the Federal Rules of Civil Procedure codified the concept that the "trial judge was indeed ruler, not only of pretrial conference, but of the entire pretrial process."  McKay, Rule 16 and Alternative Dispute Resolution, 63 Notre Dame L. Rev. 818, 823 (1988).   "Rule 16 was amended in 1983 with the unmistakable purpose of encouraging ADR [alternative dispute resolution] as a significant part of the judicial process."   Id. at 824.[[4]]  See also, Peckham, The Federal Judge as a Case Manager: The New Role in Guiding a Case from Filing to Disposition, 69 California L. Rev. 770 (1981).

Commission Rule 51, as noted in General Electric, expands the prehearing and scheduling procedures which a judge may direct under F.R.Civ.P. 16.  While Commission Rule 51 and Rule 16 of the F.R.Civ.P. address pretrial conferences, they implicate the settlement process as well.  Rather than straitjacket the agencies settlement process with a formal rule for every agency, "Congress intentionally left the agencies free to develop the precise manner by which they implement the opportunity for settlement.  Thus, a single accepted settlement process or even guidelines within the APA or administrative law do not exist."   Harter, Neither Cop nor Collection Agent: Encouraging Administrative Settlements by Ensuring Mediator Confidentiality, 42 ABA Admin L. Rev. 315, 316 (1989) noting the U.S. Department of Justice "Attorney General's Manual on the Administrative Procedure Act" 48 (1947), reprinted in the Administrative Conference of the U.S., "Federal Administrative Procedure Sourcebook" 97 (1985).

Further, support for the requirement that affected employees be at least silent observers to settlement discussions is found in the APA at 5 U.S.C. 554 (c).  Section 554 (c) requires that agencies "give all interested parties opportunity for-

(1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit...

The emergent concept of a managerial judge once instituted here is one that may not only foster quicker or more efficiently reached settlements, but responsible ones as well.  Contrary to the concerns raised by Complainant and Respondent that tripartite negotiations will impose "unacceptable restraints" which will lead the parties to litigate rather than settle, given the Commission decision in GE, the participation of affected employees as silent observers may expedite rather than delay settlements.  Further such participation will certainly allow the parties to reach a more sound agreement as well as give substance and meaning to the affected employees right to participate in the settlement process.   Finally, the disruption envisioned by Complainant and Respondent to the settlement process from inclusion of affected employees as silent observers rings hollow given the exceptionally few number of cases in which affected employees even seek party status.   In those few cases where, as here, party status is obtained by affected employees, a more structured settlement process as established here may prove helpful.  Allowing affected employees to participate as silent observers from the start of the settlement process will preclude any restart of the settlement process.

Finally, requiring that affected employees be at least silent observers does not preclude Complainant and Respondent from allowing affected employees to participate more fully. Respondent and Complainant may exercise discretion to allow, without court intervention, expanded participation by affected employees as they deem appropriate. The mechanism envisioned herein and in the September 7, 1990 order however is the minimum participation required to insure that affected employees participation is "meaningful".

Respondent's concern that it and Complainant will be faced with an "endless 'reinventing of the wheel'" by a

"limitless number of 'employee representatives' in an OSHA proceeding and that these 'representatives' can step forward at any time to claim that because they have not personally participated in past settlement discussions--although other employee representatives have participated--employees have been precluded from meaningful participation in the settlement process.

while understood, overstates the problem and is easily resolved.  The opportunity to participate as a silent observer is granted not to the particular representative but to the union or group obtaining party status.   So long as the party has been afforded reasonable notice of any forthcoming settlement discussions, a representative for that group or union can not later step forward and claim that because they were not personally present as a silent observer that there has been a lack of meaningful participation for the union or group.  Likewise, once given such notice, if a party fails to have a representative present, it forgoes any right to be informed of the discussions that took place.

Based on the affidavits submitted, there appears to be no factual dispute that the affected employees were not present for settlement discussions on at least June 12, 1990.  The affidavit of OSHA Area Director Freeman indicates that the affected employees were given notice of the June 12, 1990 settlement meeting, and that affected employees were given ample opportunity to provide input. However, nowhere did Area Director Freeman indicate that affected employees were informed as to the substance of the settlement discussions.  Area Director Freeman's affidavit substantiates the basis for this court's concern as articulated in the earlier order; i.e. that even an ample opportunity to provide input is meaningless without a foundation of knowledge (including knowledge of the settlement discussions of the parties) to make the input meaningful.  Regarding the presence of affected employees at other settlement discussions, the facts are not clear at this time as to the extent of such discussions and the extent to which affected employees were present.  Further, in addition to the presence of employees at the settlement discussions, there appears to be a factual dispute as to the extent to which affected employees have meaningfully participated vis a vis their opportunity to provide input.  Respondent and Complainant both seek to have the order reconsidered here on the basis that affected employees have had meaningful participation which the affected employees dispute.  However, both Respondent and Complainant also argue that there should be no hearing to resolve this dispute.   Respondent's position is based on its desire to seek interlocutory review of the legal issues.  Complainant on the other hand bases its argument on the position that affected employees have already been afforded meaningful participation, thereby appearing to either desire a ruling on the written record or otherwise appearing to beg the issue generally.  Complainant and Respondent can not have it both ways.  Accordingly, Respondent's request for reconsideration is hereby granted in part as noted above and denied in part as contained below.

FINDINGS

Affected employees who had obtained party status while given notice of proposed settlement discussions, were not allowed to have their representatives (who were duly designated) present during settlement discussions that took place one June 12, 1990.

CONCLUSION

Given that it is clear that employees were not present during at least the June 12, 1990 settlement, the matter is ripe for review at least on both a factual and legal basis regarding this meeting.  Given Respondent's argument that no further factual determination be made including any hearing to resolve the other factual disputes, affected employees motion for hearing is denied pending resolution of Respondent's interlocutory appeal.  Affected employees request for certain documents and information is granted in part and denied in part as described below.

Accordingly, the undersigned envisions the following mechanism for effectuating the Commission's GE decision and implementing the undersigned's order of September 7, 1990:

1) Once affected employee(s) obtain party status, from that point forward only, they or their authorized representatives must be given reasonable notice to observe any and all parts of the settlement process including any discussions, negotiations or other communications regarding settlement between petitioner and respondent in person or by telephone conference.

2) Throughout the settlement process, affected employee(s) or their authorized representatives will have the opportunity to observe [or in the case of telephone conferences hear] all such communications but will not participate in such discussions other than as silent observers.

3) If during the settlement process problems arise regarding the denial of the presence of or regarding the participation of any party, a party may, by motion pursuant to Commission Rule 101, seek the appointment of a settlement judge to mediate such problems.  If the appointment of a settlement judge is objected to by Complainant or Respondent then the judge assigned must resolve the problems.

4) Prior to the submission of any final settlement to the judge, affected employee(s) or their authorized representatives will be afforded the opportunity of providing input to Complainant regarding any and all matters at issue in addition to the reasonableness of the period of abatement including but not limited to the inspection, citation(s), and/or other issues arising during the settlement process.

5) Subsequent to the submission of a settlement agreement to the judge, affected employee(s) or their authorized representative(s) may file with such judge their objections as to the reasonableness of the time period prescribed for abatement.  The issue of the failure of a settlement judge to provide for or the general issue of meaningful participation by affected employees may be grounds for an interlocutory appeal.

6) On interlocutory appeal or once a settlement is approved, the Commission only may entertain any complaint by affected employees that they were denied meaningful participation.

Given that much of the settlement process here "has passed under the bridge" and in order to comply with the above settlement mechanism effectuating the Commission's GE decision as reasonably as practicable and to encourage efficient disposition of this matter, Complainant including its client the Occupational Safety and Health Administration and Respondent are hereby ordered to disclose to the affected employees who have obtained party status all memoranda, notes, recordings and information of every kind describing the substance of the settlement discussions of the June 12, 1990 meeting.  Given that this order is issued after Complainant and Respondent initially disclosed or produced such documents or information without the knowledge of the consequences of this order, Complainant or Respondent may seek to limit, beyond what may be excised as noted below, specific documents or information from being disclosed to affected employees by filing a motion pursuant to Commission Rule 101 seeking the appointment of a settlement judge to mediate any such disclosure issue.  Complainant and Respondent may excise from such memoranda, notes, recordings and any other information being provided, as ordered above, to affected employees any language contained therein which is not descriptive of the discussions but which analyzes the settlement process or otherwise might be described as attorney work product.  Complainant and Respondent will also submit to affected employees an affidavit of lead counsel for Complainant and Respondent containing a chronology listing dates and locations of all other settlement discussions by telephone or in person which have taken place since the issuance of the citations.[[5]]  Finally, settlement discussions may begin 15 days after the affected employees have received from Complainant and Respondent the information required above.  Representatives of affected employees shall be present during the remaining communications comprising the settlement process and numbers 1) et seq of the above settlement process mechanism shall remain in effect for the balance of this proceeding.  If affected employees, once having been provided reasonable notice of an intent of Complainant and Respondent to enter into settlement communications, chose not to be present nor to be included in any telephone conference, neither Complainant nor Respondent are under any obligation to apprise such affected employees of the substance of such communication.

SO ORDERED.

DELBERT R. TERRILL, JR.
Judge, OSHRC
Dated: October 23, 1990

Boston, Massachusetts

SECRETARY OF LABOR,

Complainant,

v.

BOISE CASCADE CORPORATION
Respondent,

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 2144
Affected Employees,

UNITED PAPERWORKERS'
INTERNATIONAL UNION, LOCAL 900
Affected Employees,

Docket Nos. 89-3087 & 89-3088

 

ORDER GRANTING EMPLOYEE REPRESENTATIVE'S REQUEST
TO BE PRESENT DURING ALL SETTLEMENT DISCUSSIONS

STATEMENT OF CASE

On September 13, 1989, Complainant issued Citations and Notifications of Proposed Penalty to Respondent alleging violations of the Occupational Safety and Health Act, 29 U.S.C. 651 et seq ("Act").   Respondent timely filed with a representative of the Secretary of Labor a notification of intent to contest the citations and proposed penalties. Complainant and Respondent subsequently engaged in settlement negotiations to resolve the issues raised in the citations. A motion for extension of time was granted on May 21, 1990 in order for the parties to complete the settlement process and to file an anticipated Settlement Agreement on or before July 12, 1990.

On June 7, 1990, Stephen Perry filed a notice of appearance as representative of United Paperworkers International Union (UPIU) Local 900.   On June 7, 1990, an Order was issued designating UPIU, Local 900 as a party to this matter and the authorized representative of affected employees.

On July 6, 1990, in response to a July 3, 1990 motion for extension of time to file the anticipated Settlement Agreement filed by Complainant and Respondent, Perry filed a response asserting that the employee representative has been "completely excluded from any meaningful participation in any settlement discussions regarding the citations."  A July 12 Order was subsequently issued ordering all parties to file briefs relating to the issue of rights of a union with party status in a Review Commission proceeding to participate in settlement negotiations.

Stephen Perry and UPIU Local 900 filed a brief on July 31, 1990, in response to the Judge's Order of July 12, in support of its position that it be accorded full participation in settlement conferences which may be held between representatives of the Complainant and Respondent to resolve the citations in the instant matter.  Complainant and Respondent filed briefs in opposition to this position, stating that authorized employee representatives have no right under the Act to participate directly in settlement negotiations between Complainant and the employer.

APPLICABLE LAW, RULES AND REGULATIONS
Section 10 (c) of the Act provides employees and their authorized representatives two alternatives to participate in proceedings before the Review Commission. First, Section 10(c) provides that after a citation has been issued, employees or their representatives may file a notice of contest "alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable," and the Commission shall then "afford an opportunity for a hearing." 29 U.S.C. 659(c). Secondly, Section 10(c) provides that "the rules of procedure prescribed by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this subsection." [[1]] It has been noted extensively that these two sentences in section 10(c) have caused much controversy concerning the scope of employee and union rights to participate in Commission proceedings. [[2]]

Before 1977, the Commission held that it had the authority to entertain union and employee objections to proposed settlements on matters other than the reasonableness of the period of time for abatement.  See American Airlines, 2 BNA OSHC 1391 (Review Commission 1974).  In 1977, the Commission held that employees' and union's objections to proposed settlement agreements were limited to challenging the length of the abatement period.  United States Steel Corp., 4 BNA OSHC 2001 (Review Commission 1977).  In Southern Bell Tel. & Tel. Co., 5 BNA OSHC 1405 (1977), the Commission held that employees and unions have no right to object to the Secretary's motion to withdraw a citation.

Subsequently, in its Mobil Oil Corp., 10 BNA OSHC 1905 (Review Commission, 1982) and IMC Chem. Group, 6 BNA OSHC 2075 (Review Commission, 1980) decisions the Commission overruled its holdings in U.S. Steel and Southern Bell.

In 1984 the Commission again reversed itself and overruled the IMC and Mobil Oil decisions in Pan American World Airways, Inc., 11 BNA OSHC 2003 (Review Commission 1984).  In Pan Am, the Commission noted its alignment with U.S. Courts of Appeal from eight circuits[[3]] which had ruled that "a union lacks the right to object to the adequacy of the abatement methods specified in a settlement agreement between the Secretary and an employer, and that a union may object only to the reasonableness of the abatement period specified by the agreement." (Emphasis added).  The Commission further held that "[all] decisions to the contrary are overruled."  Accord, General Electric Co., 12 BNA OSHC OSHC 1597 (Review Commission, 1985); Willamette Iron & Steel Co., 11 BNA OSHC 1955 (1984) (employees may not object to a change in characterization of a violation contained in a settlement agreement).  However, in its 1985 General Electric decision, the Commission also noted that, pursuant to Rule 10 (c), judge's may direct that unions be permitted to participate in any settlement negotiations.  General Electric, supra, at n.4.

Rule 100 of the Commission Rules of Procedure, effectuating the above Commission decisions, explicitly provides that employee objections to settlements are limited to the reasonableness of the abatement time.  Rule 100 (b) states:

b) Requirements.  The Commission does not require that the parties include any particular language in a settlement agreement, but does require that the agreement specify the terms of settlement for each contested item, specify any contested item or issue that remains to be decided ... and state whether any affected employees who have elected party status have raised an objection to the reasonableness of any abatement time....

29 CFR 2200.100 (b).  Rule 100 (c) also declares, in pertinent part:

(c) Filing; Service and notice. ...When a settlement agreement is filed with the Judge or the Executive Secretary, proof of service shall be filed with the settlement agreement, showing service upon all parties and authorized employee representatives...and the posting of notice to non-party affected employees.... If the time has not expired under these rules electing party status, or if party status has been elected, an order terminating the litigation before the Commission because of the settlement shall not be issued until at least ten days after service to consider any affected employee's or authorized employee representative's objection to the reasonableness of any abatement time.  The affected employee or authorized employee representative shall file any such objection within this time.  If such objection is filed or stated in the settlement agreement, the Commission or the Judge shall provide an opportunity for the affected employees or authorized employee representative to be heard and present evidence on the objection, which shall be limited to the reasonableness of the abatement time.

(Emphasis added) 29 CFR 2200.100(c).

While affected employees and their authorized representatives have the right to object to the reasonableness of an abatement period, the Secretary retains enforcement authority under the Act.  In Cuyahoga Valley Railway Co. v. United Transp. Union, 474 U.S. 3; 106 S.Ct. 286; 88 L.Ed.2d 2 (1985), the Supreme Court ruled that the rights created by the Occupational Safety and Health Act are to be protected by the Secretary, who also has sole responsibility for its enforcement.   The Court stated:

It is the Secretary, not the Commission, who sets the substantive standards for the work place, and only the Secretary has the authority to determine if a citation should be issued to an employer for unsafe working conditions.  29 U.S.C. 158.  A necessary adjunct of that power is the authority to withdraw a citation and enter into settlement discussions with the employer.

Cuyahoga, supra, at p. 288, citing Donovan v. International union, Allied Industrial Workers (Whirlpool), 722 F.2d 1415, 1420 (8th Cir., 1983) ; Donovan v. Occupational Safety and Health Review Com'n (Mobil Oil), 713 F.2d 918, 927 (2d Cir. 1983).[[4]]  In reversing the Sixth Circuit's conclusion, the Court stated that the Sixth Circuit's decision "would discourage the Secretary from seeking voluntary settlements with employers in violation of the Act, thus unduly hampering the enforcement of the Act." Cuyahoga, at 288.

Recently, the Commission raised the general issue of union participation in settlement discussions in its very recent decision in General Electric Co. (Docket No. 88-2265, August 29, 1990).  In this 1990 General Electric decision, the Commission noted that precedent provided for "meaningful participation" of employee and employee representatives in the settlement negotiating process. However, the Commission in this recent General Electric decision further recognized, "[t]he 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."

The Commission in this recent General Electric decision noted the reason for the ambiguity of these principles.  While employees are limited as a result of the Pan American decision to objecting only to the reasonableness of the abatement period, Pan American "did not disturb the Commission's holdings that employees may participate in the settlement process."   General Electric, at n.3.[[5]]

As a result the General Electric left intact the holding of Pan American and left intact Rule 100 which "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."  The Review Commission continued by stating:

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...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.

General Electric, supra.

The Commission concluded by noting that if Complainant and Respondent reach a settlement notwithstanding the contrary views of employees or their representatives, the employees or their representatives may file an objection with the judge limited to the reasonableness of the period of abatement.   The Commission will examine a settlement agreement "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."

CONTENTIONS OF THE PARTIES

In the instant matter, both Complainant and Respondent recognize that the Review Commission has accorded employee representatives the right to "meaningful participation in settlements." Reynolds Metals Company, 7 BNA OSHC 1042 (1979).  They contend, however, that such "meaningful participation" is fully protected by the notice provisions of Rule 100. [[6]]

The Complainant and Respondent further argue that the Supreme Court decision in Cuyahoga is dispositive of the issue.  In that case, the Court held that the Secretary has unreviewable discretion to withdraw a citation charging an employer with violating the Occupational Health and Safety Act," and noted its agreement with decisions of eight other Courts of Appeals which were consistent with this holding.  Cuyahoga Valley Ry. Co., supra, at p. 287.[[7]]

UPIU in the instant case does not dispute that the Complainant has unreviewable prosecutorial discretion to withdraw a citation and enter into settlement discussions with an employer pursuant to Cuyahoga.  Nor does UPIU take issue with the Commission's lack jurisdiction to review a citation, penalty or settlement agreement between the Secretary of Labor and an employer, except as to the reasonableness of the abatement period set forth in that agreement.  Delco Electronics Division, 13 BNA OSHC 1639 (1988); Pan American, supra.

The union argues, however, that the issue here, instead, is the Review Commission Judge's power to require Complainant and Respondent to open settlement discussions to all parties including employee parties and their representatives.  UPIU cites Commission Rule 51 as the source of authority for the ALJ to invoke such an order.  Rule 51 provides in relevant part:

2200.51 Prehearing conferences and orders.

... In addition to the prehearing and scheduling procedures set forth in Fed.R.Civ.P. 16, the Judge may upon his own initiative or on the motion of a party direct the parties to confer among themselves to consider settlement, stipulation of facts or any other matter that may expedite the hearing....
29 CFR 2200.51.  This discretionary rule comports with Rule 100(a), which states that "[s]ettlement is permitted and encouraged by the Commission at any stage of the proceedings."  29 CFR 2200. 100 (a).[[8]]  Further, the preamble to Rule 51 states that it applies to all parties.  51 Fed. Reg. 32009 (1986).

The union advances several strong policy arguments in favor of allowing its participation in settlement discussions.  These arguments have been echoed by several commentators on the subject.[[9]]  Most persuasive is its argument that allowing its participation in settlement discussions is not the same as invoking judicial review of employee objections to terms in the settlement agreement other than those having to do with the reasonableness of abatement time.   "Employees want meaningful participation before the terms become final and 'unreviewable'," the union argues.

DISCUSSION

Complainant's and Respondent's reliance on the Cuyahoga decision as being dispositive here is misplaced.  The facts in Cuyahoga are clearly distinguishable.  In Cuyahoga, the Complainant chose to withdraw the citation and accordingly there was no abatement period on the settlement table.  It is only when the abatement period is on the settlement table that employees have the right to participate in settlement discussions.

Objections to the abatement period under Rule 100 (c) must be based on credible evidence.  Much of such evidence will be within the possession of either Respondent or Complainant and would presumably be discussed during settlement.  The right of affected employees and their representatives to object to the reasonableness of the abatement periods can, in part, only be given substance if the employee or employee representative is given a meaningful basis upon which to formulate such an objection.  Since the abatement period is necessarily part of a negotiated settlement, then the employees or their representatives ought to be able to at least be present to observe the give-and-take of settlement discussions leading to the agreed upon abatement period.  A right without the opportunity to obtain information upon which to exercise that right is a meaningless right.

Further, UPIU's position, is consistent with the Commission's recent General Electric decision.

However UPIU's contention that Commission Rule 51 is appropriate here is also misplaced as to relying on this rule to the initiate settlement discussions since settlement discussions have already been initiated and nearly consummated.  However, given General Electric, it is also clear that in order to assure that affected employees are given proper participation during settlement discussions, Rule 51 may be used to direct same.

The Secretary notes that from the affidavit of OSHA Area Director C. William Freeman, it is clear that employee representatives have consistently had input into the negotiation of this matter.  After the citations were issued, his office staff met with representatives of respondent and representatives of employees, at which time Stephen Perry was not an employee representative. OSHA solicited and received the views and priorities of the employee representatives before reaching settlement with respondent as to certain items.

A second meeting with OSHA staff and employee representatives on the remaining sixteen items in dispute was held; on June 7 and 8, 1990, employee representatives were informed of an impending June 12 settlement discussion to be held between OSHA staff and representatives of the respondent on these sixteen items.   Employee representatives and representatives of the respondent were also informed that a subsequent meeting would be scheduled with employee representatives to discuss the June 12 meeting and that no final decisions would be made on this matter until then.   A June 13 meeting was held between OSHA staff, the OSHA Acting Regional Administrator for Region I, Stephen Perry, and two union representatives from respondent's mill.  At this meeting, all substantive facts regarding the matters were reviewed; OSHA canvassed the union and Mr. Perry's views regarding hazards in the workplace, methods of abatement, and other items germane to subsequent negotiations with respondent.   The Secretary argues that employee representatives cannot credibly argue that they have been denied the opportunity for meaningful participation in the negotiation and resolution of this matter.

CONCLUSION

There is no explicit provision authorizing the Judge to direct that settlement negotiations be held between parties and employee representatives.[[10]]  Decisional law of the Circuit Courts of Appeals and the Review Commission as well as the Review Commission Rules of Procedure consistently pronounce that an employee or employee representative's objection to a settlement agreement is limited to that which concerns the reasonableness of the time for abatement.  Given the recent General Electric decision, it is clear that affected employees and their authorized representatives shall participate in settlement discussions when they so request.  As articulated above, that means at a minimum being present for all settlement discussions and at least an opportunity prior to settlement to present its views to the Secretary.  Such is "meaningful participation".

It is unclear, given the facts presented, whether the union was given the opportunity for meaningful participation in the negotiating process.  It is therefore ORDERED:

1. That within 20 days of the date of this order, Local 900 file a notice of election of party status pursuant to Rule 2200.20, noting its designation of Stephen C. Perry as its representative pursuant to Rule 2200.23(a)(3).

2. That within 20 days of the date of this order, the authorized employee representative file affidavits or other evidence in support of its assertion that it has been denied meaningful participation in settlement negotiations.

3. If there is a factual dispute as to the actual extent of participation of the affected employee's representatives and if there is a desire by any party for a factual hearing on the merits regarding this issue, any party may move for a hearing to resolve such factual disputes.

4. If there is no factual dispute regarding participation of affected employee's representatives and if in fact such representatives have been denied participation consistent with this order, the parties have 15 days after the filings complying with numbers 1 and 2 above, to file proposed means to rectify such lack of participation.

SO ORDERED.

DELBERT R. TERRILL, JR.
Judge, OSHRC
Dated: September 7, 1990
Boston, Massachusetts

SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR,
Complainant,
v.
BOISE CASCADE CORPORATION,
RUMFORD MILL,
Respondent.

UNITED PAPERWORKERS' INTERNATIONAL
UNION, LOCAL 900,
Authorized Employee
Representative.

OSHRC Docket Nos. 89-3087 and 89-3088
Region I

ORDER GRANTING CONSOLIDATION
AND APPROVING SETTLEMENT

Respondent in OSHRC Docket Nos. 89-3087 and 89-3088, by letter dated October 2, 1989, timely contested the Citations issued to it by Complainant on September 13, 1989.  Respondent also contested the penalties proposed by Complainant for the Citations.

The parties have moved that these cases be consolidated for purposes of settlement.  In addition, an executed Settlement Agreement addressing this case has been received from the parties, and this Agreement addresses all matters at issue between the parties regarding these cases.  The Motion and the Agreement having been read and considered, it is

ORDERED: (1) That the parties' Motion is granted and that these cases are hereby consolidated for settlement purposes;

(2) That the terms of the Settlement Agreement are approved and incorporated as part of this order;

(3) That the Citation items are affirmed, modified, or vacated in accordance with the terms of the Settlement Agreement; and

(4) That this Order, pursuant to Section 12(j) of the Act, 29 U.S.C. 661(j), shall become the final order of the Commission at the expiration of 30 days from the date of docketing by the Executive Secretary, unless within that time a member of the Commission directs that it be reviewed.

Dated this 23rd day of April, 1991.
Richard DeBenedetto

Judge

SECRETARY OF LABOR,

UNITED STATES DEPARTMENT
OF LABOR,

Complainant,

v.

BOISE CASCADE CORPORATION,
RUMFORD MILL,

Respondent.

UNITED PAPERWORKERS' INTERNATIONAL UNION, LOCAL 900, Authorized Employee Representative.

OSHRC Docket Nos. 89-3087 and 89-3088
Region I

MOTION FOR CONSOLIDATION
AND SETTLEMENT AGREEMENT

The parties, BOISE CASCADE CORPORATION, RUMFORD MILL ("Boise" or "the Company") and its successors; the SECRETARY OF LABOR, the UNITED STATES DEPARTMENT OF LABOR ("the Secretary" or "OSHA"); and the UNITED PAPERWORKERS' INTERNATI0NAL UNION, LOCAL 900, by their undersigned representatives, have reached full and complete settlement of OSHRC Docket Nos. 89-3087 and 89-3088 under Rule 2200.100, the Occupational Safety and Health Review Commission's ("the Commission") procedural rule on settlement.   Accordingly, the parties state as follows:

1. The Commission has jurisdiction of this matter under Section 10 (c), 29 U.S.C. 659 (c), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").

2. The parties move, pursuant to Commission Rule 2200.9, that these matters, OSHRC Docket Nos. 89-3087 and 89-3088, be consolidated for purposes of settlement.  The two matters have common parties and involve the same overall worksite.

3. The Secretary amends the Citations at issue in OSHRC Docket Nos. 89-3087 and 89-3088 in accordance with the attached Appendices A, B, and C.  In addition, all characterizations of alleged violations as "willful" in the Citations are amended by deleting all such characterizations; and, except for the final abatement date for each item, all references in the Citations to an "Abatement Schedule" are amended by deleting all such references.

4. The total proposed penalty for OSHRC Docket Nos. 89-3087 and 89-3088 is amended to $750,000.  One half of the penalty amount, as amended, shall be paid within 30 days of the Commission's Final Order in this matter; the remaining half of the amended penalty amount shall be paid by July 31, 1991.  Both payments shall be made to "DOL-OSHA" and filed with the Augusta, Maine, Area Office of OSHA.

5. In addition to the proposed penalty, as amended, Boise will give a grant to the Center for Occupational Safety and Health in Maine in the amount of $125,000.  The grant shall be by July 31, 1991.

6. Boise specifically denies any and all allegations that it violated the Act.   Nothing in this Agreement, including the Agreement itself, its execution, as well as any final order, is an admission or evidence, nor is it to be construed as an admission or treated as evidence, of any fact or of any violation of the Act by Boise, other than in a proceeding brought by the Secretary under the Act. Boise withdraws its notice of contest to the Citations, as amended; this withdrawal, however, is not intended to be, nor is it to be construed as, inconsistent in any way with other language in this Agreement.   For purposes of proceedings brought by the Secretary under the Act, the parties agree to treat the Citations in OSHRC Docket Nos. 89-3087 and 89-3088, as amended, as uncontested citations.  This Agreement is being entered into solely to avoid further litigation and expense to the parties.

7. There are no citation items in OSHRC Docket Nos. 89-3087 and 89-3088 that remain to be decided by the Commission.

8. The parties agree that this Agreement shall become a Final Order of the Commission.  Included with this Agreement is a draft Order Granting Consolidation and Approving Settlement.  The form and content of this draft Order have been negotiated.  The parties hereby consent to the entry of this draft Order so that the litigation of this matter may be brought to an end.

9. The parties agree to bear their own attorneys' fees, and costs, and other expenses that have been incurred in connection with any stage of these proceedings up to and including the filing of this Agreement and entry of the Final Order in these matters.

10. Boise certifies that the original Notice of Contest as well as all pleadings in OSHRC Docket Nos. 89-3087 and 89-3088, including a copy of this Agreement, have been served on affected employees at the Rumford Mill in accordance with Commission Rule 2200.7.

Respectfully submitted, this ___ day of ___1991.

Robert G. Gombar

JONES, DAY, REAVIS & POGUE
Metropolitan Square

Counsel for Respondent,

BOISE CASCADE CORPORATION

Robert P. Davis
Solicitor of Labor

Albert H. Ross
Regional Solicitor

Paul J. Katz
Attorney

U.S. DEPARTMENT OF LABOR
Counsel for Complainant,
SECRETARY OF LABOR

Stephen C. Perry
Representative

UNITED PAPERWORKERS'
INTERNATIONAL UNION, LOCAL 900

FOOTNOTES:

[[1/]] The Secretary issued several citations alleging willful, repeated, serious, and nonserious violations.  The citations totaled literally hundreds of pages in length, with proposed penalties well in excess of $1 million.  Boise filed its notice of contest on October 2, 1989.  The parties originally informed the judge that they expected to reach a settlement by January 30, 1990.  The judge thereafter granted several requests for an extension of time to file a settlement agreement.

[[2/]] Boise's employees are also represented by Local 2144 of the International Brotherhood of Electrical Workers ("IBEW").   The orders entered by the Administrative Law Judge and some of the pleadings filed in these cases were served on the IBEW, as well as the UPIU, and during the course of these proceedings the IBEW was included as a party on the case caption.  However, the IBEW has not filed an election of party status or a notice of appearance.  Although we invited the IBEW to participate in the oral argument of these cases, it chose not to do so, nor has it otherwise expressed any interest in these proceedings.  Accordingly, we conclude that the IBEW should not be treated as an employee party, and we amend the case caption accordingly.

[[3/]] This conclusion is not intended to diminish the authority granted a judge by Commission Rule 51, 29 C.F.R. 2200.51, to "direct the parties to confer among themselves to consider settlement."   The judge retains authority to direct the parties to confer under Rule 51, but Rule 51 does not permit the judge to order that employees be included in settlement conferences between the Secretary and the employer.

We note that in GE, the judge issued an order directing that employees be included in settlement negotiations, and we briefly commented in our decision that under Rule 51, such an order was within the judge's discretion.  14 BNA OSHC at 1766 n.4, 1990 CCH OSHD at p. 38,850 n.4.  However, we did not in GE decide whether employees are entitled as a matter of right to participate in settlement negotiations; rather, we simply held that they should be given the opportunity to provide input.  The purpose of this footnote was merely to support our view that employees should be allowed to give input.  To the extent that this footnote may be construed as endorsing any particular method or degree of employee input, it is dicta in the overall context of GE.

[[4/]] In view of our decision, we do not need to directly address whether Judge Terrill acted improperly in ordering that the UPIU could not speak during the settlement negotiations, i.e., that it was limited to the role of a "silent observer."

[[5/]] Commission Rule 20(a), 29 C.F.R. 2200.20(a), provides that employees and their representatives may elect party status to the limited extent that their appearance relates to "any matter in which the Act confers a right to participate."  Commission Rule 100(b), 29 C.F.R. 2200.100(b), 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."

[[6/]] Employees do not need to be given notice of every settlement discussion in order to effectuate their opportunity for input.   In view of the fact that the amicable resolution of contested citations will be facilitated by cooperation among all parties, we are hopeful that employees or their representatives concerned about their opportunity for input will make their concerns known in a reasonable and prudent manner in order to avoid undue delay of the settlement process.  We emphasize that the determination of when to consider a claim regarding employee input is within the sound discretion of the judge, who is responsible for ensuring that the proceedings are conducted in both an expeditious and just manner.   Commission Rule 2(c), 29 C.F.R. 2200.2(c).  However, the judge must take into account that input can be received at any time prior to the execution of the settlement agreement.

[[7/]] One of the issues which we requested the parties to address at oral argument was whether the judge erred in ordering the Secretary and Boise to disclose all materials relating to the June 12, 1990 settlement discussion and in ordering their counsel to submit affidavits providing a chronology of all settlement discussions occurring since the citations were issued.  However, at oral argument counsel for the UPIU advised us that the union had withdrawn its request for this information and that it did not consider a ruling on the propriety of such a request to be necessary under the circumstances.

[[1]] The affected employees did not send complete copies of the filings and affidavits to Complainant in that the affected employees confirmed in a letter to Complainant dated October 10, 1990, that Complainant had "misspoke" when Complainant had indicated during a telephone conference [for which call affected employees were not present although efforts were made to have them present] that it had not received all of the affected employees pleadings.   Complainant did not dispute the confirmation.

[[2]] Complainant failed to timely file in accordance with the undersigned's October 5, 1990 order its response dated October 17, 1990 which, however, is nevertheless considered herein.

[[3]] The now predominant and current role of judges as managers is not without criticism.  Even proponents such as Resnick agree that this type of "judicial activism" is not unlimited.

[[4]] McKay notes that the term "alternative dispute resolution" has been misunderstood as a system which must necessarily exist outside of the judicial system.  He notes, however, that '[w]hile arbitration and mediation, for example, may be initiated and completed outside the judicial framework, some of the most promising devices, such as court-annexed arbitration, summary jury trial, and the various processes of judge-assisted settlement, are all ADR processes within the judicial system."  Id. at 822.  The ADR concept is embodied in Commission Rule 101.

[[5]] Once this matter is resolved on interlocutory appeal, and if this decision is essentially sustained by the Commission, affected employees will be further and likewise informed of any other meetings for which they were not present.  Complainant and Respondent will not obligated to disclose to affected employees settlement discussions engaged in prior to affected employees obtaining party status.  If different unions or groups of affected employees obtained party status at different times, the date for obtaining party status shall govern which union or group of affected employees get what settlement discussion information.  As a result, it is understood that different unions or groups of affected employees will be entitled to different dated materials.

[[1]] Rule 20 of the Commission Rules of Procedure provides for the election of party status by affected employees and authorized employee representatives.  29 CFR 2200.20.

[[2]] Mark Rothstein notes that 10(c) is "well known to be one of the most poorly drafted and error-filled sections of the Act. "ROTHSTEIN, Occupational Safety and Health Law (2nd Ed.) 369, noting H.K. Porter Co., 1 BNA OSHC 1600 (1974)  See also, Note, Employee Participation in Occupational Safety and Health Review Commission Proceedings, 85 Colum. L. Rev. 1317, 1320 (1985) ("The unclear language of the Occupational Safety and Health Act has led to vacillation by the Occupational Safety and Health Review Commission and a division of opinion among the circuits that have considered the extent to which employees may participate in Occupational Safety and Health Review Commission proceedings").

[[3]] The Commission noted Donovan v. OSHRC (Mobil Oil Corp.), 713 F.2d 918 (2d Cir. 1983); Donovan v. International Union, Allied Industrial Workers (Whirlpool Corp.), 722 F.2d 1415 (8th Cir. 1983); Donovan v. United Steelworkers (Monsanto Co.), 722 F.2d 1158 (4th Cir. 1983); Donovan v. Oil, Chemical & Atomic Workers International Union (American Petrofina Co.), 718 F.2d 1341 (5th Cir. 1983); Oil, Chemical & Atomic Workers International Union v. OSHRC (American Cynamid Co.), 671 F.2d 643 (D C. Cir. 1982) cert. denied, 103 S.Ct. 206 (1983); Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3rd Cir.) cert. denied 449 U.S. 1061 (1980); Marshall v. OSHRC (IMC chemical Group), 635 F.2d 544 (6th Cir. 1980); Automobile Workers v. OSHRC (Ford Motor Co.), 557 F.2d 607 (7th Cir. 1977).

[[4]] The decision in Mobil Oil elaborated the rights conferred by the Act upon the Secretary and employees pursuant to settlement of citations:

[T]he legislative scheme of the Act does not evidence a Congressional intent to subordinate the Secretary's prosecutorial discretion in reaching settlement agreements to the rights of employees.  Indeed, allowing employees to challenge the efficacy of an abatement plan in a settlement would constitute a continued prosecution of the citation by employees and, hence, is proscribed under the Act.

[[5]] The Commission also cautioned, however, that "[n]evertheless, 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." General Electric, at n.3

[[6]] Respondent notes that there has been language in Review Commission decisions to suggest that such meaningful participation includes the right to take part in settlement negotiations.  See, General Motors Corp., Terex Division, 10 BNA OSHC 2020 (Review Commission, 1982).  Respondent notes that the decision in General Motors was directed for review in order to determine whether the union had been given an opportunity "for meaningful participation in the settlement process in accordance with Rule 100 (c)."  In addition, that the basis for the Review Commission's remand in General Motors was its decision in Mobil Oil Corp. which was later overturned by the Second Circuit.   See also, Asarco, Inc., 8 BNA OSHC 2200 (Review Commission, 1980); ITT Thompson Industries, Inc., 6 BNA OSHC 1944 (1978).

[[7]] The Supreme Court noted decisions of the Seventh, Eleventh, Eighth, Fourth, Fifth, Second, Third, and D. C. Circuits in reviewing the Sixth Circuit's decision in Donovan V. United Transportation Union, 748 F.2d 340 (1984).  The Supreme Court reversed the Sixth Circuit's holding that the prosecutorial discretion of the Secretary ends with the decision to issue a citation and that once an employer has initiated a contest, the Review Commission may hear all objections raised by employees or their representatives who have elected party status and may review the Secretary's withdrawal of the citation.

In the Second, Third, Fourth, Seventh, Eighth, and Eleventh Circuits, employee rights at the adjudicatory stage and in opposition to settlements are limited to challenging the reasonableness of the abatement date whether the initial notice of contest is filed by the employer or by employees.  In the Fifth Circuit, however, employees who elect party status after the employer initiates a notice of contest may "litigate fully" the merits of the citation and the terms of the settlement agreement.  Donovan v. Oil, Chem, and Atom. Workers Intern, 718 F.2d 1341 (5th Cir. 1983).  The Court analogized the position of an employee in this case to an intervenor of right under Rule 24 (a) of the Federal Rules of Civil Procedure, who "is treated as if he were an original party and has equal standing with the original parties."

However, the Court ruled that once an employer withdraws its notice of contest pursuant to settlement, "[t]he employee is in a position analogous to an intervenor in a civil lawsuit in which the original parties have settled or sought dismissal."  Thus, if the employer withdraws its notice of contest, the Court stated that it was constrained by the decisions of the aforementioned Circuits to hold that the employees are limited to challenging the abatement period and the Commission loses jurisdiction to entertain the employees' petition for review of the settlement agreement's terms.

[[8]] This is also consistent with Fed.R.Civ.P. 16(a) which allows the court in its discretion to direct attorneys and unrepresented parties to appear before it for a pretrial conference for such purposes, among others, as "(5) facilitating the settlement of the case." Rule 16(c) states that a subject to be discussed at a pretrial conference may include, "(7) the possibility of settlement or the use of extrajudicial procedures to resolve the dispute."

[[9]] Rothstein notes that the majority of employee challenges in adjudicatory proceedings involve the method rather than the time for abatement.  "Indeed," he notes, "the time for abatement is irrelevant if the method is inadequate.  Both the first and last sentences of 10(c) should be read together to mean that employees and unions may challenge the method of abatement in employee and employer contests."  He notes that a consistent reading of the first and last sentences of 10(c) would be resolved in this manner: "[i]mplementation of an inadequate plan called for in a citation would mean that a citation is never abated.  "Never" is too long and therefore constitutes an unreasonable abatement date under 10 (c). See ROTHSTEIN, supra, 369, 1988 pocket part.

See also 85 Columbia L. Rev. 1317, supra, in which the author proposes that the Act gives the Review Commission jurisdiction to hear any employee objection to the terms of a settlement agreement in that the Review Commission has power to issue all final abatement orders.  "Because an employer-initiated contest must continue for [the Review Commission] to approve a settlement, employees, participating as "parties," are entitled to object to all aspects of a settlement agreement."

See, Judge Pollak's dissent in Marshall v. Sun Petroleum Products, 622 F.2d 1176 (1980).

[[10]] Rule 101 concerning "Settlement Judge procedure", which prescribes procedures by which parties may obtain the assistance of mediation by a Settlement Judge, is the only rule to directly address this issue.  With both parties' consent, a settlement conference may be scheduled. Rule 2200.101 (c) (2) states in part that "The Settlement Judge may recommend that the attorney or other representative who is expected to try the case for each party be present, and, without regard to the scope of the attorney's or other representative's powers, may also recommend that the parties, or agents having full settlement authority, be present...." This rule, however, is inapplicable to the circumstances in the instant matter.