WESTERN ELECTRIC CO., INC.

OSHRC Docket No. 15362

Occupational Safety and Health Review Commission

November 22, 1978

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Officer of the Solicitor, USDOL

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

Raymond A. Ledogar, Western Electric Company, Inc., for the employer

Edwin M. Noga, Western Electric Company, Inc., for the employer

OPINION:

ORDER

BY THE COMMISSION:

The parties' settlement agreement of July 12, 1978, is approved. Aspro, Inc., Spun Steel Division (No. 78-1381, September 15, 1978); Dawson Bros. Mechanical Contractors, 72 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971-73 CCH OSHD para. 15,039 (No. 12, 1972).

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

My colleagues imply that their approval of the settlement agreement is consistent with the Commission decision in Dawson Brothers Mechanical Contractors, 72 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971-73 CCH OSHD P15,039 (No. 12, 1972). I disagree. Dawson Brothers sets forth several prerequisites that must be satisfied before the Commission is able to determine whether a settlement agreement is consistent with the provisions and objectives of the Act. Among other things, Dawson Brothers requires that the record establish the date when abatement [*2] has been or will be accomplished. In my view, this requirement must be interpreted to impose on parties offering a settlement the obligation to provide record evidence that supports the conclusion that a cited hazard has been or will be abated.

In this case, the parties have failed to satisfy this burden of proof. Western Electric was cited for a violation of the occupational noise standard, 29 C.F.R. 1910.95. The citation alleged that the Respondent's employees were exposed to excessive noise levels at presses 620-108, 620-120, and 620-124. Paragraphs 2 and 3 of the settlement agreement represent that abatement has been achieved with respect to presses 620-108 and 620-124. However, these factual assertions are without record support and thus the requisite findings of abatement cannot be made. The method of proving the asserted facts need not be elaborate. An affidavit attesting to the veracity of these assertions would have been sufficient. Furthermore, the record fails to support a conclusion that the Respondent has abated the excessive noise levels emanating from press 620-120. Paragraph 4 of the settlement agreement initially states that the Respondent has relocated [*3] press 620-120, that it has installed a full room type enclosure around the press, and that the press has been brought into compliance with 1910.95. However, the same paragraph continues with the assertion that the Respondent will measure the noise level of the press "after" completion of the full room type enclosure. The factual assertions made in paragraph 4 are internally inconsistent with respect to whether abatement has been accomplished or will be accomplished at some future date. In addition, this paragraph is not supported by record evidence. Clearly, no finding of abatement at press 620-120 can be rendered.

Moreover, I must disagree with the manner in which my colleagues have entered their approval of the settlement agreement. By suggesting that the proposed agreement is consistent with Dawson Brothers, the majority presumably implies that the settlement agreement is consistent with the purposes and objectives of the Act. However, an implied finding does not satisfy the obligation of an adjudicatory agency to render specific findings of fact and conclusions of law as required by section 8(b) of the Administrative Procedure Act, 5 U.S.C. 557(c). If the Commission [*4] is to properly conclude that a settlement is consistent with the purposes of the Act, the APA requires the Commission to explicitly state that conclusion and to set forth the specific findings of fact supporting the conclusion.

On the basis of the present record, I would not approve the settlement agreement. I would, however, afford the parties the opportunity to provide the necessary record evidence and clarification with respect to abatement.