Docket No. 76-3749

SUN PETROLEUM PRODUCTS COMPANY

OSHRC Docket No. 76-3749

Occupational Safety and Health Review Commission

April 27, 1979

[*1]

Before CLEARY, Chairman, and BARNAKO, Commissioner *

* Prior to his appointment as a Member of the Commission, Commissioner Cottine appeared as counsel at the hearing before the administrative law judge in this case. Accordingly, he has disqualified himself from participating in this case. ABA, Code of Judicial Conduct, Canon 3C(1)(b) (1972); See 28 U.S.C. § 455(b)(2).

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

John A. McGuinn, for the employer

Steven Wodka, International Representative, OCAWIU, for the employees

OPINION:

DECISION

BY THE COMMISSION:

The Secretary of Labor cited Respondent (Sun Petroleum) for allegedly committing a serious violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970 n1 by failing to adequately monitor a particular area at its Marcus Hook, Pennsylvania, refinery for the presence of combustible gases. Sun Petroleum contested the citation and Local 8-901 of the Oil, Chemical and Atomic Workers International Union (the Union) adopted party status in the resulting proceedings before the Commission. Thereafter, prior to a hearing, the Secretary and Sun Petroleum entered into a [*2] settlement agreement resolving the issues in dispute between them. The Union objected to the proposed settlement but, following a hearing on the Union's objections, Judge William E. Brennan entered an order approving the settlement. Chairman Cleary directed that the order be reviewed by the Commission pursuant to Section 12(j) of the Act. n2

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n1 29 U.S.C. 651 et seq., hereinafter, "the Act." Section 5(a)(1) provides that

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

n2 The settlement agreement also resolved a citation alleging Sun Petroleum's violation of the safety standard at 29 C.F.R. 1910.132(a). The Union does not take exception to that aspect of the settlement agreement.

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Having reviewed the entire record, the Commission members are divided on the appropriate disposition for the reasons set forth below. In view of the statutory purpose [*3] of expeditious adjudication, the members agree to resolve their impasse by affirming the Judge's order but according it the precedential value of an unreviewed judge's decision. Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD P22,313 (No. 14910, 1977), aff'd, No. 78-1014 (4th Cir. Feb. 1, 1979).

The settlement agreement entered into by the Secretary and Sun Petroleum provided that Sun Petroleum would withdraw its notice of contest thereby admitting, for purposes of this proceeding, that it violated Section 5(a)(1) as alleged. The agreement specified that Sun Petroleum would abate the violation by monitoring for combustible gases in the cited location, and that

said gas test will be taken by persons knowledgeable in the care, use and reading of the instrument, and familiar with locations where combustible gases or vapors may be present or have collected.

The agreement did not explicitly mention an abatement date. The citation, however, specified an immediate abatement requirement, and Sun Petroleum's agreement to withdraw its notice of contest left this unchanged. Accordingly, the settlement provides for immediate abatement, and the parties [*4] understand that to be the case.

In arguing to the judge that the agreement should not be approved, the Union primarily contended that the above-quoted language did not adequately provide for abatement of the violation. It argued that the settlement should explicitly state that full time gas testers must perform the tests. The Union asserted that, without such a provision, the company may use production employees, who are not as well qualified as gas testers, to conduct the tests, and that the agreement will therefore fail to achieve abatement of the cited hazard. The Union contended that the Commission's authority under Section 10(c) of the Act to grant "other appropriate relief" permits the Commission to specify the means an employer must use to correct a violation. The Secretary and Sun Petroleum, on the other hand, argued that the agreement adequately provided for abatement of the violation, and that it was beyond the Commission's authority to require more specific abatement measures.

The parties also argued the effect of the Commission's decision in Local 588, United Auto Workers (Ford Motor Co.), 76 OSAHRC 58/B8, 4 BNA OSHC 1243, 1976-77 CCH OSHD P20,737 (No. 2786, [*5] 1976), aff'd, 557 F.2d 607 (7th Cir. 1977). In that case, the Secretary and an employer agreed to an abatement plan to which the affected employees objected by filing a notice of contest pursuant to section 10(c) of the Act requesting the Commission to modify the plan to which the other parties had agreed. The Commission held that it lacked authority to modify the plan, and that the Act did not grant the employees the right to contest an abatement plan except as to the time allotted for abatement. The employees could, however, dispute the time period allotted for abatement, and to that end could present evidence as to alternative abatement means for the purpose of showing that abatement could be accomplished in a shorter time than that specified in the plan. The Union attempted to bring this case within the confines of Local 588, United Auto Workers, arguing that if a settlement agreement did not adequately provide for abatement, then abatement would not be accomplished within the period permitted by the plan and that its objection therefore did concern the time allotted in the agreement for abatement.

Finally, the Union contended that the settlement agreement should [*6] contain an admission by Sun Petroleum that the violation was willful, despite the fact that the citation and complaint contained no such allegation.

Judge Brennan rejected the Union's objection to the abatement requirement contained in the settlement agreement. He noted that, since the agreement provided for immediate abatement, the Union's objection could hardly be construed as going to the time allowed for abatement. Thus, relying on Local 588, United Auto Workers, he concluded that, by objecting to the abatement method specified in the agreement, the Union had not raised a justiciable issue. The Judge did not explicitly deal with the Union's contention that the violation should be classified as willful.

On review, the Union and Sun Petroleum make the same arguments they made before the Judge. Sun Petroleum further contends that the Commission lacks any authority to interfere with a settlement agreement between the Secretary and an employer. The Secretary now agrees with the Union that the abatement order contained in the settlement agreement is inadequate, and requests that we remand for the purpose of allowing the agreement to be renegotiated. n3

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n3 The Secretary's position is set forth in his "Response to Direction for Review," which was filed more than eleven months after the parties were notified that the Secretary's third request for an extension of briefing time was denied. Sun Petroleum has moved to strike the Secretary's response as untimely. Chairman Cleary's disposition is based solely on the Union's right to raise objections to a settlement agreement in an action instituted by an employer's notice of contest, and is arrived at independent of the Secretary's response. He thus considers the motion to strike to be moot. Commissioner Barnako would grant the motion to strike, and has not considered the Secretary's response.

On March 14, 1979, Sun Petroleum moved to supplement the record with a collective bargaining agreement between the Company and the Union dated March 1, 1979. Sun contends that this agreement demonstrates that the Secretary's position regarding the inadequacy of the abatement order lacks merit. As we do not rely on the Secretary's argument in disposing of the case, we deny Sun Petroleum's motion.

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As a threshhold matter, both Commission members reject Sun Petroleum's contention that the Commission lacks authority to rule on the propriety of a settlement agreement reached between the Secretary and a cited employer. Although the Commission's rules encourage parties to settle their disputes, 29 C.F.R. 2200.100, such settlements must be consistent with the objectives of the Act, and the Commission retains the authority to make that determination when a proposed settlement is submitted. Blaisdell Manufacturing, Inc., 73 OSAHRC 53/B8, 1 BNA OSHC 1406, 1973-74 CCH OSHD P16,915 (No. 1566, 1973).

Chairman Cleary would vacate the judge's order and hold that the Commission has jurisdiction to consider the Union's objection to the settlement proposed by the other parties. He notes that the Local 588, United Auto Workers case is not pertinent to this proceeding. The primary issue addressed in that case concerned the scope of the right of employees under section 10(c) of the Act to file a notice contesting a citation and thereby invoke the Commission's jurisdiction. As noted above, the Commission obtained jurisdiction in this [*9] proceeding when respondent filed a notice of contest. A recently decided case does, however, address the issue presented here. In Kaiser Aluminum & Chemical Corporation, 78 OSAHRC 103/A2, 6 BNA OSHC 2172, 1978 CCH OSHD P23,200 (No. 76-2293, 1978), the Commission held that the Act requires that affected employees with party status be afforded the opportunity to review and raise objections to settlements proposed by the other parties, including objections to matters other than the abatement period specified in a settlement proposal. Accordingly, the Chairman would remand this case for further proceedings consistent with Commission precedent.

Commissioner Barnako would affirm the Judge's order approving the settlement agreement. In his view, the Commission's authority to direct "other appropriate relief," 29 U.S.C. 659(c), does not include specifying the precise means that an employer must follow to abate a violation. Local 588, United Auto Workers, supra. The agreement requires Sun Petroleum to immediately abate the violation. If Sun Petroleum does not take the steps necessary to eliminate the hazard for which it was cited, then the Union's proper recourse is to so inform [*10] the Secretary, who is authorized to enforce the abatement order, either through a petition for enforcement ot a court of appeals, 29 U.S.C. 660(b), or the issuance of a notification of failure to correct and proposed additional penalties. 29 U.S.C. 659(b) and 666(d).

Commissioner Barnako would also reject the Union's attempt to have the Commission find the violation to be willful. The Commission has held, in recognition of the Secretary's exclusive prosecutorial authority under the Act, that it cannot find a violation of a higher degree than alleged by the Secretary without the Secretary's consent. Wetmore & Parman, Inc., 73 OSAHRC 2/C5, 1 BNA OSHC 1099, 1971-73 CCH OSHD P15,400 (No. 221, 1973). The Secretary knows of the Union's position that the violation should be alleged to be willful and of the reasons underlying the Union's position, yet has not sought to amend his pleadings to contain such an allegation. Accordingly, the issue is not properly before the Commission.

Since the Union's objections to the settlement agreement are beyond the scope of the issues the Union can legitimately present for adjudication, Commissioner Barnako would approve the agreement. See [*11] IMC Chemical Croup, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1978 CCH OSHD P23,149 (No. 76-4761, 1978) (dissenting opinion).

Accordingly, the Judge's decision is affirmed.