SIERRA PERMANEER

OSHRC Docket No. 6112

Occupational Safety and Health Review Commission

May 23, 1975

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Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., an order by Judge Charles K. Chaplin approving a settlement agreement between complainant and respondent, Sierra Permaneer, was directed for review to determine whether service of the settlement agreement on an authorized employee representative by posting the agreement comports with the Commission's Rules of Procedure.

The Commission has received an affidavit by respondent's Personnel Manager indicating that, subsequent to the issuance of the direction for review, service upon the authorized employee representative was accomplished. Therefore, the service issue is now moot. n1 Also, no objections to the settlement agreement have been filed.

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n1 In Sinaiko Brothers Co., No, 4958 (August 28, 1974) the Commission held that a settlement agreement must be served upon an authorized employee representative and that posting of the agreement does not fulfill the requirements of the Commission's Rules of Procedure. See 29 CFR 2200.100, 7(c) and (f).

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Accordingly, it is ORDERED that the Judge's order be affirmed.

[The Judge's decision referred to herein follows]

CHAPLIN, JUDGE: This matter comes on for consideration upon the stipulation of the parties, which, if approved, would effectively dispose of this case in its entirety.

The citation herein charges respondent with 27 nonserious violations with penalties ranging from $60 to $170 with the exception of items no. 13, 17, 20, 21 and 22 which provided for $0 penalty.

Respondent filed its notice of contest to the citation as follows:

Item 1: Alleged Violation and Proposed Penalty

Item 2: Proposed Penalty

Item 3: Proposed Penalty

Item 4: Alleged Violation and Proposed Penalty

Item 5: Alleged Violation and Proposed Penalty

Item 6: Proposed Penalty

Item 7: Proposed Penalty

Item 8: Proposed Penalty

Item 9: Proposed Penalty

Item 10: Proposed Penalty

Item 11: Alleged Violation and Proposed Penalty

Item 14: Alleged Violation and Proposed Penalty

Item 16: Alleged Violation and Proposed Penalty

Item 23: Alleged Violation and Proposed Penalty

Item 24: Alleged Violation and Proposed [*3] Penalty

Item 25: Proposed Penalty

Item 26: Proposed Violation and Proposed Penalty

Item 27: Proposed Penalty

The settlement agreement incorporates motions by the parties as follows:

Complainant amended the proposed penalties for the several items in contest as follows:

Item No. 1 $60 to $30

Item No. 5 $80 to $40

Item No. 11 $65 to $35

Item No. 24 $75 to $35

Item No. 26 $75 to $35

and

Items no. 2, 3, 6, 7, 8, 9, 10, 25, and 27 together -- $605 to $302.50 Respondent moves to withdraw as to all items contested except items no. 4, 14 and 23 which complainant moves to vacate.

Both parties agreed to extensions of time within which to abate items no. 16 and 24 and amend the standard cited in item no. 11.

Respondent represented that all other items still in issue have been abated, that it will continue to comply with the provisions of the Occupational Safety and Health Act of 1970 and the regulations thereunder and that a copy of the joint stipulation was posted at the employees workplace.

On September 23, 1974, respondent tendered a check in payment of the proposed penalties for the contested items of the citation as amended by the stipulation.

A reasonable time [*4] has passed without objection from or on behalf of any affected employees.

The undersigned, upon review of the file and being fully advised on the premises, finds that approval of the proposed settlement accords with the purposes and objectives of the Act and is consistent with the policy encouraged by Review Commission Rule 100 relating to settlements.

It is therefore ORDERED:

1. That the settlement agreement of the parties is hereby approved.

2. That accordingly complainant's motion to vacate as to items no. 4, 14 and 23 and respondent's motion to withdraw as to all other items in issue, with the penalty and abatement amended as provided in the stipulation are granted.

3. That the amended citation is affirmed as to items no. 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 16, 24, 25, 26 and 27.