CORPORACION RAYMOND, S. A.
OSHRC Docket No. 4588
Occupational Safety and Health Review Commission
July 22, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: On January 17, 1974, Judge Charles K. Chaplin issued his decision and order in this case approving a joint Stipulation and Settlement Agreement executed by the parties and granting respondent's motion to withdraw its notice of contest.
On January 24, 1974, the Commission directed review of the decision and order of the Judge in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter referred to as "the Act"). Submissions were invited on the issue of whether respondent had complied with the Commission's service requirements as set forth in rule 7 and rule 100 of the Commission's Rules of Procedure.
The Commission has reviewed the entire record in this case. We adopt the Judge's decision to the extent that it is consistent with the following.
On August 28, 1973, the Secretary issued to respondent one citation for serious violation and one citation for non-serious violation together with a notification that a penalty of $1,040 was proposed. On September 10, 1973, respondent timely filed a notice of contest as to the [*2] serious citation and penalty therefor. After a complaint and answer were filed, complainant and respondent executed a stipulation and settlement agreement requesting the Commission to enter a final order affirming the contested citation and proposed penalty without modification.
The settlement agreement was posted, but it was not served on the authorized employee representatives: Seafarers International Union de Puerto Rico Caribe y Latino America, affiliated to the Seafarers International Union of North America, AFL-CIO; and United Brotherhood of Carpenters and Joiners of America, AFL-CIO.
Commission Rule 100(c) [29 CFR § 2200.100(c)] states the following concerning service on representatives of affected employees:
Rule 100 Settlement
(c) Where the parties to settlement agree upon a proposal, it shall be served upon represented and unrepresented affected employees in the manner set forth in rule 7 hereof. Proof of such service shall accompany the proposed settlement when submitted to the Commission or the Judge. [Emphasis added]
Commission Rule 7(d) [29 CFR § 2200.7(d)] states the following:
Rule 7 Service and Notice
(d) Proof of service shall be accomplished [*3] by a written statement of the same which sets forth the date and manner of service. Such statement shall be filed with the pleading or document.
Subsequent to the Commission's direction for review, respondent's attorney notified the Commission by letter that a copy of the stipulation and settlement agreement had been served on each of the authorized representatives. Although the quoted rules contemplate an opportunity to be heard on settlements before approval, said representatives have not requested a hearing as of this date. Further proceedings would therefore serve no useful purpose.
Accordingly, it is ORDERED that the Judge's decision affirming the citation and proposed penalty is affirmed.
[The Judge's decision referred to herein follows]
CHAPLIN, JUDGE, OSAHRC: On August 16, 1973, the Respondent was inspected by Complainant's inspectors with the result that Citations were issued August 28, 1973, alleging various nonserious violations, with a proposed penalty of $240, and one serious violation, with a proposed penalty of $800 under the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter the Act).
Respondent filed a Notice of Contest [*4] September 10, 1973, contesting only the alleged serious violation. The nonserious violations were not placed in issue. A hearing on the contested issue was set for January 23, 1974. On January 11, 1974, there was received a joint STIPULATION AND SETTLEMENT AGREEMENT (in effect a motion to withdraw) in which Respondent moved that an appropriate entry be made making the Citation and proposed penalty of $800 the final order of the Commission.
It was represented that the proposed penalty had been paid, and a copy of this stipulation had been posted and would be maintained at the job site in accordance with Commission Rule 2200.7(n). n1
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n1 In transmitting the agreement, the Secretary's Regional Solicitor stated that abatement was moot since the construction project had been completed, that Respondent was now in compliance with the Act and would continue to do so.
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The agreement further provided that:
11. Respondent's, consent to the entry of the final order by the Commission, pursuant to this Settlement [*5] Agreement, shall not constitute an admission of Respondent of violation of the Act.
13. It is agreed that Respondent's non-admission of the violations alleged, as set forth in paragraph 11 herein, will not be raised by Respondent as a defense to any future proceedings brought by the Complainant under the provisions of the Occupational Safety and Health Act of 1970, including but not limited to any citation or proposed penalty issued by the Secretary under the provisions of Section 10 of the Act, in which violations of said Act are alleged pursuant to Section 17 of the Act.
In a recent decision n2 Judge Chalk observed that:
The fact that Respondent regards it execution of this agreement as no admission on its part of the violations or of the truth of the allegations or conclusions set forth in the Citations does not affect the integrity of a final order of this Commission, for affirmed Citations constitute violations of the Act as a matter of law. . . . n2
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n2 Secretary of Labor v. Miller & Long Co. of Virginia, Inc.,
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Since the acceptance of this stipulation constitutes the final order of the Commission affirming the cited violation and proposed penalty, the violation is established for the purpose of the Act. Thus, I am satisfied that approval thereof comports with the provisions and objectives of the Act. n3
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n3 Secretary of Labor v. Miller & Long Co. of Virginia, Inc., supra.
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The STIPULATION AND SETTLEMENT AGREEMENT is approved. Respondent's motion to withdraw its Notice of Contest is granted and the Notice of Contest is dismissed. The Citation for Serious Violation of the Act (29 C.F.R. 1926.652(c)) and proposed penalty of $800 are affirmed.
It is so ORDERED.