MARINE TERMINALS CORPORATION

OSHRC Docket No. 5009

Occupational Safety and Health Review Commission

January 23, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: This matter is before this Commission for review of a March 28, 1974, order of Judge James A. Cronin, Jr., pursuant to 29 U.S.C. 661(i). At issue is whether the Judge erred in approving a settlement agreement without evidence that the agreement had been served by mail or personal delivery on the authorized employee representative.

The agreement provided for the complainant's withdrawal of one penalty proposal and the respondent's withdrawal of its notice of contest which had contested two penalty proposals but not the citation. Since there is evidence that the agreement was posted at the worksite and no employee or employee representative has elected party status in the case, the Commission finds no error in the Judge's action. Secretary v. Newspaper Agency Corporation, 8 OSAHRC 210 (1974); see Secretary v. Wheeling-Pittsburgh Steel Corporation, 11 OSAHRC 808 (1974). His order is therefore affirmed.

For the reasons given in his separate opinions in the abovecited cases. Commissioner Cleary would require evidence that the settlement agreement was served on the authorized employee [*2] representative and permit a reasonable time thereafter for him to object to the agreement before acting thereon.

[The Judge's decision referred to herein follows]

CRONIN, JUDGE: A Stipulation for Withdrawal of a Proposed Penalty and for Withdrawal of Notice of Contest was executed by the parties and filed by the Complainant on March 13, 1974.

On September 26, 1973, Respondent was issued a citation alleging violations of 29 C.F.R. 1918.105(a) and 1918.74(a)(10). On that same date a Notification of Proposed Penalty was issued proposing the assessment of $125.00 for each of the alleged violations. Respondent's Notice of Contest contested only the penalties and therefore the Citation became a final order by operation of Section 10(a) of the Occupational Safety and Health Act of 1970.

By the terms of the stipulation Complainant moves to withdraw the proposed penalty of $125.00 for violation of C.F.R. 1918.74(a)(10) and Respondent moves to withdraw its Notice of Contest to the proposed penalty of $125.00 for violation of 29 C.F.R. 1918.105(a).

This stipulated agreement has been posted and no objection has been filed. Respondent also represents that it will tender [*3] payment of the penalty and that the conditions upon which the citation was based have been abated. Therefore, the undersigned approves the settlement agreement, finding that such settlement is consistent with the provisions and objectives of the Occupational Safety and Health Act of 1970.

In accordance with the terms of the stipulation, it is ORDERED:

1. The proposed penalty for the violation of 29 C.F.R. 1918.74(a)(10) is VACATED.

2. A penalty of $125.00 for violation of 29 C.F.R. 1918.105(a) is hereby ASSESSED.