OSHRC Docket No. 76-967

Occupational Safety and Health Review Commission

May 31, 1979


Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor

Sibley P. Reppert, for the employer




CLEARY, Chairman:

On October 27, 1978, Administrative Law Judge Ben D. Worcester approved a settlement reached by the Secretary of Labor and Boston Gear. Boston Gear agreed to withdraw its notice contesting a citation and to pay a penalty of $25. The judge's order approves the settlement, but assesses a penalty of $800, the amount proposed by the Secretary before the parties settled on the lower amount. The parties moved the judge to modify his order by specifying a penalty assessment of $25. On November 14, after the judge had filed his initial order with the Commission, he issued an order that purports to correct the penalty assessment. This order was forwarded to the Commission, but was not sent to the parties. I directed review of the judge's October 27 order pursuant to the authority conferred by section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act").

A judge does not have jurisdiction to modify his order after it [*2] has been filed with the Commission. Singleton Sheet Metal Works, 73 OSAHRC 6/F6, 1 BNA OSHC 1062, 1971-73 CCH OSHD P15,273 (No. 878, 1972). The order of correction is therefore void. In the absence of both a dispute over other terms of the agreement and a compelling public interest to review the settlement further, we restrict our review to the clerical error in the judge's original order. Cf. Champion Construction & Engineering Co., Inc., 78 OSAHRC 6 BNA OSHC 2116, 1978 CCH OSHD P23,186 (No. 76-2576, 1978). Rule 60(a) of the Federal Rules of Civil Procedure, which is applicable in the absence of a Commission Rule, n1 governs this matter. n2 Pursuant to that Rule, we replace the $800 penalty figure specified in the judge's order with the $25 figure agreed upon by the parties.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Section 12(g) of the Act, which is implemented by Commission Rule 2(b), 29 CFR 2200.2(b).

n2 Federal Rule 60(a) provides, in pertinent part, that:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party. . . .


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Commission has not made formal findings of fact with respect to settlements directed for review. Where all interested parties have agreed to a settlement, we generally limit our review to ascertaining whether certain criteria have been met. See, e.g. Globe Industries, Inc., No. 78-3605 (   , 1979); Walling Crate Co., 78 OSHARC, 6 BNA OSHC 2191, 1978 CCH OSHD P23,197 (No. 78-1403, 1978). Section 10(c) of the Act n3 directs the Commission to issue orders based on findings of fact after affording the parties an opportunity for a hearing in accordance with section 5 of the Administrative Procedure Act, 5 U.S.C. 554 ("the A.P.A."). Section 5(b) of the A.P.A. explicitly states that the elements of a formal "hearing and decision upon notice" required by sections 7 and 8 of the A.P.A. come into play only when the parties have failed to resolve their dispute through settlement or consent. n4 Thus, section 10(c) of the Act does not require the Commission to make factual findings when parties preclude the need to follow the formalities incident to an administrative hearing and decision [*4] by settling a dispute. Indeed, findings of fact cannot be made in the absence of a hearing. Finally, as explained in the Attorney General's manual, section 5 of the A.P.A. stresses the importance of providing the opportunity for informal settlements, n5 and we find structured findings of fact and attendant delay to be inconsistent with this policy. We adhere to our practice and do not make any additional findings of fact in this case.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Section 10(c) of the Act provides, in partinent part, that:

[after a notice of contest has been filed] . . . the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing (in accordance with section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such section). The Commission shall thereafter issue an order, based on findings of fact, affirming, modifying or vacating the Secretary's citation or proposed penalties, or directing other appropriate relief. . . .

n4. Section 5(b) of the A.P.A., 5 U.S.C. 554(c) provides that:

The agency shall give all interested parties opportunity for --

(1) the submission and consideration of facts, argument, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit; and

(2) to the extent that the parties are unable so to determine a controversy by consent, hearing and decision on notice and in accordance with sections 556 and 557 of this title.

n5. See section 5(b) of the A.P.A.; U.S. DEPT. OF JUSTICE, ATTORNEY GENERAL'S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 47-49 (1947); Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. National Labor Relations Board, 339 F.2d 795, 801 (2d Cir. 1964); Commission Rule 100(a), 29 CFR 2200.100(a).


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -



COTTINE, Commissioner, dissenting:

The majority decision fails to set forth findings of fact and conclusions of law with respect to whether the settlement agreement filed in this case is consistent with the provisions and objectives of the Act. The majority does not even render a determination regarding whether the approved agreement is "consistent with the intent of the Act and the public interest." Kaiser Aluminum and Chemical Corp., 78 OSAHRC 103/A2, 6 BNA OSHC 2172, 2173, 1978 CCH OSHD P23,200 at p. 28,048 (No. 76-2293, 1978), appeal filed, No. 79-7047 (9th Cir. Feb. 2, 1979); Commission Rule 100(a), 29 C.F.R. 2200.100(a). In addition, there is no record evidence to support the Respondent's assertion in paragraph 6 of the settlement agreement that the cited hazard has been abated. See Dawson Brothers, Mechanical Contractors, 72 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971-73 CCH OSHD P15,039 (No. 12, 1972). I therefore dissent from the Commission's disposition of this case. n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Relief from final orders and judgments is available under Rule 60(a) of the Federal Rules of Civil Procedure made applicable to Commission proceedings by section 12(g) of the Act, 29 U.S.C. 661(g), and Commission Rule 2(b), 29 C.F.R. 2200.2(b). However, the judge's decision in this case is before the Commission under a direction for review issued pursuant to 12(j) of the Act, 29 U.S.C. 661(j). As a result, no final order or judgment has been issued and Rule 60(a) is not properly applied to this proceeding.


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Commission is responsible for "carrying out adjudicatory functions under the Act." 29 U.S.C. 651(b)(3). This responsibility necessarily includes the duty to establish national precendent consistent with the public interest in occupational safety and health. See Monroe & Sons, Inc., 77 OSAHRC 14/B7, 4 BNA OSHC 2016, 1976-77 CCH OSHD P21,470 (No. 6031, 1977), appeal filed, No. 77-3157 (6th Cir. Mar. 16, 1977).

Commission jurisdiction vests and the adjudicatory process begins when a notice of contest is filed under 10(a) or 10(c) of the Act 29 U.S.C. 659(a) or (c). See IMC Chemical Group, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1978 CCH OSHD P23,149 (No. 76-4761, 1978). Section 10(c) of the Act directs that "the Commission shall afford [the parties] an opportunity for a hearing (in accordance with section 554 of title 5, United States Code, . . .). . . ." The Act further directs that "[t]he Commission shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate [*7] relief . . .," 29 U.S.C. 659(c). n2 Pursuant to this statutory obligation, the Commission independently reviews settlement agreements to determine if the agreements reached by the parties are consistent with "the intent of the Act and the public interest." Kaiser Aluminum & Chemical Corp., supra. n3 A proposed settlement agreement filed with the Commission by the parties is not final until the Commission determines that the settlement is consistent with the intent of the Act and the public interest, and an order approving its provisions is entered. n4 Kaiser Aluminum & Chemical Corp., supra. A Commission order that approves a settlement agreement is an order that affirms, modifies, or vacates the Secretary's citation or proposed penalties within the meaning of 10(c) of the Act. Consequently, under the controlling statutory directive an order approving a settlement agreement must include findings of fact justifying the Commission action. n5 Therefore, even though the parties have negotiated a settlement agreement or have provided the Commission with a stipulated record, the need for findings of fact is not obviated because a formal hearing has not been held. These [*8] findings, particularly those involving the abatement of workplace hazards, are the essential prerequisite to the fulfillment of the Commission's public interest responsibility. As a consequence, the Commission's proceedings must be ordered so that the "interest of the public is our foremost concern," Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 122 (1973).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 There is nothing in the statute to suggest that this statutory requirement for an order based on findings of fact is strictly limited to cases where formal testimonial hearings have been conducted.

n3 Administrative agencies are responsible for the protection of the public interest. This obligation originates in the Congressional delegation to implement the purposes and provisions of their enabling statutes. See Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 377, 385-386 (1969); In re Permian Basin Rate Cases (FPC), 390 U.S. 747, 776, 821 (1968); Brooks v. AEC, 476 F.2d 924, 927 (D.C. Cir. 1973). For example, in Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261 (1940), the Supreme Court held that Congress delegated to the National Labor Relations Board the duty to protect the recognized public interest in preventing unfair labor practices. Furthermore, an administrative agency must protect the public interest through the effective exercise of its remedial authority. See, e.g., Warner-Lambert Co. v. FTC, 562 F.2d 749, 762 (D.C. Cir. 1977).

n5 Section 5(b) of the Administrative Procedure Act ("APA"), 5 U.S.C. 554(c), does not require a contrary result. The APA was enacted when enforcement and adjudicatory functions were combined within a single administrative agency, for example the Federal Trade Commission and the National Labor Relations Board. See U.S. DEP'T OF JUSTICE, ATTORNEY GENERAL'S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 13 (1947). Within this unified administrative framework, the agency not only enforced its enabling statute and adjudicated disputes, it also was a party to the dispute. Thus, the agency was a party to any settlement negotiations and resulting agreement. Moreover, the same agency was obligated to afford interested parties an opportunity for hearing and decision under 5 U.S.C. 556 and 557 when the controversy could not be determined by consent of the parties. Sections 5(b)(1) and (2), 5 U.S.C. 554(c)(1) and (2). Section 5(b) of the APA simply maintained this traditional division between uncontroverted and controverted cases when the agency was a party to the procedures. Accordingly, no findings of fact and conclusions of law were necessary unless a hearing was held pursuant to section 7 of the APA, 5 U.S.C. 556. In contrast, the Commission is not a party to a dispute presented to it for resolution, nor is it assigned enforcement functions under the Act. Instead, the Commission is an independent forum for the adjudication of enforcement actions under the Act. Moreover, 10(c) of the Act expressly directs the Commission to issue decisions containing findings of fact, 29 U.S.C. 659(c). To the extent that an interpretation of 5 U.S.C. 554(c) conflicts with this express direction in the Act it would be superseded. 5 U.S.C. 559; see Lance Roofing Company, Inc. v. Hodgson, 343 F.Supp. 685, 689 (N.D. Ga.), aff'd without opin., 409 U.S. 1070 (1972). An interpretation that results in a conflict between statutes is to be avoided if at all possible. 2A A. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION 51.02 (4th ed. 1973).


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -