BURKART-RANDALL COMPANY
OSHRC Docket No. 77-3712
Occupational Safety and Health Review Commission
December 6, 1978
[*1]
Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
This case was directed for review 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. On October 27, 1978, Administrative Law Judge John S. Patton approved a settlement reached by the Secretary of Labor and Burkart-Randall Company. The settlement characterizes all items of citation number 2 as serious violations. In a joint motion to the judge, the parties admitted to a mutual mistake and requested that items 1, 4, 8, and 10 of citation number 2 be recharacterized as repeat violations. The judge properly transmitted the motion to us because he lost jurisdiction of the case after filing his order approving the settlement. Singleton Sheet Metal Works, Inc., 73 OSAHRC 6/F6, 1 BNA OSHC 1062, 1971-73 CCH OSHD para. 15,273 (No. 878, 1972). While we have the authority to handle the joint motion, we conclude that the case should be remanded because paragraph 9 of the settlement agreement is ambiguous, i.e., it is unclear if the abatement date specified in the paragraph applies to all items or only [*2] to those involving machine guarding violations. The judge's order is therefore vacated and the case is remanded for further proceedings.
APPENDIX A
ORDER APPROVING SETTLEMENT AGREEMENT
This case is before the Occupational Safety and Health Review Commission on the complaint of complainant alleging that the respondent has violated numerous standards under the Occupational Safety and Health Act.
On October 19, 1978, the parties filed a stipulation and settlement agreement settling all of the issues arising in this case. Said settlement agreement provides that as to items one and two of citation number four, the complainant amends the nature of the alleged violations from allegations of willful violation to serious. As to item three of citation number four, the complainant agrees that the respondent's execution of the stipulation and settlement agreement does not constitute an admission by the respondent that it has violated the complainant's standards or the Act in the manner and nature alleged by the Complainant. The complainant amends citation number two so as to allege serious violations. With respect to the total proposed penalties for citations numbers one, two, three [*3] and four, as amended, the complainant reduces the total proposed penalties to $9,000.00. With respect to item two of citation number four which alleges a violation of standard 29 C.F.R. 1910.217(b)(3)(i), the complainant agrees that compliance with standard 29 C.F.R. 1910.217(b)(3)(i) is achieved by placing the operator of a full revolution mechanical power press in restraint, pull-out or hold-out devices which prevent the operator from reaching into the point of operation during the operating cycle. It is further agreed that on full revolution mechanical power presses so guarded, the respondent where practicable will also construct and install barrier guards on the front of the full revolution mechanical power presses which will comply as close as possible with the requirements of Table 0-10.
It is understood by the complainant that the nature of many of the employees' operations preclude strict compliance with Table 0-10 where fixed barrier guards are installed on mechanical power presses. The respondent agrees to modify its die-setting procedure to require die setters to use restraint hold-out or pull-out devices whenever a press power is engaged in order to facilitate setting [*4] adjustments. At all other times during the die-setting procedure each press with electrical power will be locked up. With respect to new mechanical power press installations or any change in the operations performed on existent presses which require a change in the method of safeguarding the point of operation, the respondent safety maintenance supervisor shall study the new operation and whenever practicable install new guards or safety devices five working days after the new press or operation becomes fully operational.
It is agreed that nothing in said agreement prejudices the right of the respondent to petition for an extension of the final abatement date set forth which may become necessary by reason of delays occasioned by variables over which the respondent has no control in its attempt to carry out its machine guarding abatement.
Complainant amends the abatement dates for all citations to April 30, 1979. The respondent agrees that at the conclusion of said abatement period the complainant's compliance officer will have the right to conduct a follow-up inspection for the sole, exclusive and limited purpose of determining whether the items and machines which are the subject [*5] of the citations have been abated in accordance with the terms therein. The respondent withdraws its notice of contest to the citations and notice of proposed penalties as they are amended by the stipulation and settlement agreement. The respondent agrees to pose a copy of the agreement so that it may be observed by affected employees.
It appears that it would effectuate the purposes of the Act to approve said settlement agreement.
It is therefore ORDERED that:
Said stipulation and settlement agreement is approved.
The amendment to the notice of proposed penalties as set forth therein is approved. Other amendments as set forth therein are approved.
Withdrawal of the notice of contest to the citations and notice of proposed penalties as said documents are amended by the stipulation and settlement agreement is approved.
The citations, complaint and notice of proposed penalties, as amended by the stipulation and settlement agreement and under the terms and conditions thereof are affirmed. Dated this 27th day of October, 1978.
JOHN S. PATTON, Judge