SECRETARY OF LABOR,

Complaint,

v.

METAL GOODS SERVICE CENTERS,
DIV. OF ALCAN ALUMINUM CORP.,

Respondent.

OSHRC DOCKET NO. 90-0832

ORDER OF REMAND

Before: FOULKE, Chairman; MONYOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

On August 28, 1990, Administrative Law Judge Stanley M. Schwartz approved a settlement agreement between the parties.  Due to an error in the settlement agreement, Judge Schwartz's approval was premature.  Affected employees had not been given 10 days' notice of the settlement.  The case must therefore be remanded to ensure that the rights of affected employees are preserved.  E.g., General Electric Co., 14 BNA OSHC 1763, 1990 CCH OSHD 29,072 (No. 88-2265, 1990).

Therefore, this case is remanded to Judge Schwartz for further proceedings consistent with Commission precedent on the issue.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated:    January 11, 1991


SECRETARY OF LABOR,

Complaint,

v.

METAL GOODS,

Respondent.

OSHRC DOCKET NO. 90-0832

ORDER

SCHWARTZ, Judge:

The parties have submitted a settlement agreement pursuant to Rule 100 of the Rules of Procedure.  The agreement meets the requirements of the Commission for hospitable consideration of settlements.  No objection has been received from affected employees.  The settlement agreement is approved and incorporated herein by reference.

So ORDERED.

STANLEY M. SCHWARTZ
Administrative Law Judge

Date:    August 28, 1990

 


SECRETARY OF LABOR

Complainant,

v.

METAL GOODS,

Respondent.

OSHRC DOCKET NO. 90-0832

APPEARANCES: Jamison Ann Milford, Esquire
Kansas City, Missouri
For the Complainant.

Julie A. Emmerich, Esquire
St. Louis, Missouri
For the Respondent.

DECISION AND ORDER

SCHWARTZ, Judge:

This case is on remand from the Occupational Safety and Health Review Commission ("the Commission") pursuant to 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act"). The purpose of the remand is to ensure that, prior to approving the settlement agreement submitted by the parties, the rights of affected employees have been preserved.

The Secretary and the Respondent have submitted an Amended Stipulation and Settlement Agreement, which is incorporated herein by reference as "Attachment A." The agreement was served on all parties and on the authorized employee representative, and was also posted at Respondent's workplace on April 3, 1991.[[1]] Pursuant to the agreement, the Secretary amended the citation from a serious to a nonserious violation, and Respondent withdrew its notice of contest. One of Respondent's employees, Richard Roberts, objected to the amendment in a letter to the Commission, which is included in Attachment A. In view of Roberts' objection, the issue to be determined is whether approval of the agreement is consistent with Commission precedent regarding the rights of affected employees.

Affected employees or their representatives have the right to participate in settlement negotiations. See Boise Cascade Corp., 14 BNA OSHC 1993, 1991 CCH OSHD 29,222 (Nos. 89-3087 and 89-3088, 1991); National Steel & Shipbuilding Co., 14 BNA OSHC 1866, 1990 CCH OSHD 29,127 (Nos. 88-227 et al., 1990); General Electric Co., 14 BNA OSHC 1763, 1990 CCH OSHD 29,072 (No. 88-2265, 1990). However, as prosecutorial discretion in the enforcement of the Act is vested solely in the Secretary, the Commission and employees have only limited roles in the settlement process. Id. Consequently, as long as employee input has been considered, the Secretary may arrive at an agreement with the employer notwithstanding the contrary views of employees, and the sole objection employees may make to a settlement agreement before the Commission is in regard to the reasonableness of the abatement period. Id.

In this case, the settlement was served on the authorized employee representative and posted at the workplace as required by the Commission's Rules of Procedure. The only objection of record to the settlement was that of Roberts. The agreement, at page 2, item 3, notes his objection as follows:

[T]he parties have received, reviewed and considered the letter and attachments from respondent's employee Richard D. Roberts (copy attached) wherein Mr. Roberts objects to that part of this settlement wherein the Secretary modifies item 1 of serious citation number 1 to an other than serious citation.

Since the Secretary considered Roberts' objection, she has done all that the Act requires in regard to his participation in the settlement process. The fact that she reached a settlement in spite of the objection is no basis for rejecting the agreement. I have also considered the nature of Roberts' objection concerning the reduction of the classification from serious to nonserious. The Commission's jurisdiction, as noted above, is limited to reviewing objections from employees or their representatives only with respect to reasonableness of the abatement period. Such is not the case here, as the agreement states that the condition has been abated and there is no claim to the contrary.

It is found that the Amended Stipulation and Settlement Agreement submitted by the parties meets the requirements of the Commission for hospitable consideration of settlements. Accordingly, the settlement agreement is approved. So ORDERED.

STANLEY M. SCHWARTZ
Administrative Law Judge

DATE: MAY 28 1991


SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR,

Complainant,

v.

METAL GOODS SERVICE CENTERS
A DIVISION OF ALCAN ALUMINUM CORP.,
Respondent.

OSHRC DOCKET
NO. 90-0832

AMENDED STIPULATION AND SETTLEMENT AGREEMENT

The Secretary of Labor, United States Department of Labor, hereinafter referred to as the "Secretary," and Metal Goods Service Centers, hereinafter referred to as the "respondent," stipulate and agree as follows:

1. (a) Based upon a reevaluation of the evidence, the Secretary hereby modifies item 1 of serious citation number 1 by changing said citation to an other than serious violation of section 1910.252(D)(2)(vi)(c) with a $200.00 penalty. The citation is amended accordingly.

2. Respondent hereby withdraws its notice of contest to the citation and notification of proposed penalty, as amended herein. In support of its withdrawal, respondent states:

(a) That the abatement of item 1 of citation number 1 has been accomplished. There being no cited conditions which remain unabated at the time of execution of the agreement, the matter of unreasonableness of abatement is not at issue.

(b) That a copy of this stipulation and settlement agreement was posted at respondent's workplace on April 1, 1991, at 8800 Page Boulevard, St. Louis, Missouri where it may be viewed by its employees; that affected employees are represented by Teamsters Local 688; and, that a copy of this stipulation and settlement agreement has been served on Teamsters Local 688, 300 South Grand, St. Louis, Missouri 63103 by prepaid, first class mail this 26th day of March 1991.

(c) That it has tendered payment of the total penalty of $200.00 to the Secretary's representative.

3. That the parties have received, reviewed and considered the letter and attachments from respondent's employee Richard D. Roberts (copy attached) wherein Mr. Roberts objects to that part of this settlement wherein, the Secretary modifies item 1 of serious citation number 1 to an other than serious citation.

4. Respondent takes the position that for purposes of actions other than actions or proceedings under the provisions of the occupational Safety and Health Act of 1970 (hereinafter OSHA), nothing contained herein shall be deemed an admission by respondent that respondent violated the Act or its regulations or standards. The parties further agree that this Stipulation and Settlement Agreement will not be used by either party as evidence in any action other than actions or proceedings under OSHA.

5. The secretary and respondent agree that based on the foregoing representations of respondent, an order may be entered of record showing that respondent has withdrawn its notice of contest and entering the citation and notification of proposed penalty, as amended herein, as a final order of the Commission.

6. Further, each party hereby agrees to bear her or its own fees and other expenses incurred by such party in connection with any stage of this proceeding. Dated this 26th day of March, 1991.

Robert P. Davis
Solicitor of Labor

METAL GOODS SERVICE CENTERS
A Division of Alcan Aluminum
Corporation

Tedrick A. Housh, Jr.
Regional Solicitor

Julie A. Emmerich
Frank L. Pelligrini, P.C.
Attorneys for Respondent

Jamison Ann Milford Attorney
Attorneys for Secretary of Labor,
U.S. Department of Labor

NOTICE TO EMPLOYEES OR EMPLOYEE REPRESENTATIVE

The attached stipulation and settlement agreement has been executed by the parties hereto, and has been submitted to the Occupational Safety and Health Review Commission for entry as a final order. If you have any comments on the stipulation and settlement agreement, you may submit them within ten days of service or posting of the stipulation to:

Judge Stanley M. Schwartz
Occupational Safety and Health

Review Commission

A copy of such comments should also be sent to:

Tedrick A. Housh, Jr.
Regional Solicitor
U.S. Department of Labor

Served and/or posted this 1st day of March, 1991.


April 3, 1991

DELIVERED VIA FACSIMILE #(214) 767-0350

Judge Stanley M. Schwartz
Occupation Safety and Health Commission

RE: Secretary of Labor v. Metal Goods
       OSHRC Docket No. 90-0832

Dear Judge Schwartz:

This will confirm our telephone conversation of this date, wherein I stated to you that the Amended Stipulation and Settlement Agreement, which the parties filed on or about March 27, 1991, had not been posted for the employees on April 1, 1991 as the Agreement had indicated. George Giltinan, the Safety Director for Metal Goods and addressee of the Agreement, was on vacation until April 3, 1991 and did not receive the Agreement in time to post it by April 1st. I failed to confirm with him that he or someone else would be present to receive and post the Agreement.

Based on these facts, you indicated that we could rectify the situation by stating to you by letter that the Agreement will now be posted on April 3, 1991, and that April 3rd would be used for purposes of computing the time for employee objections to the Agreement.

I have forwarded a copy of this letter to Metal Goods for posting along with the Amended Stipulation and Settlement Agreement. In addition, I have forwarded copies to Jamie Milford, Attorney for the Department of Labor, and the Teamsters Local 688. If you require additional information, please do not hesitate to call.

Sincerely yours,
Julie A. Emmerich

Judge Stanley M. Schwartz

Occupational Safety and Health Commission


April 3, 1991

cc: Jamie Milford
U.S. Department of Labor
Office of the Solicitor

Teamsters Local 688

George Giltinan
Division Safety Coordinator

Case Name: Metal Goods

OSHRC Docket No.: 90-0832
Employer:

Julie A. Emmerich, Esq.
Frank L. Pellegrini

I hereby certify that a copy of the decision in this case has been mailed to the parties whose names and addresses appear on this notice, by first class mail.

Regional Solicitor:

Jamison Ann Milford, Esq.
Office of the Solicitor
U. S. Department of Labor

Authorized Employee Representative:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL


FOOTNOTES:

[[1]] Although the agreement states that it was posted at the workplace on April 1, 1991, a letter from Respondent's attorney, incorporated herein by reference as "Attachment B," explains that the agreement was not actually posted until April 3, 1991.