OSHRC Docket No. 77-3752

Occupational Safety and Health Review Commission

June 29, 1981



Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

James S. Maxwell, for the employer

Steven Wodka, International Representative, Oil, Chemical and Atomic Workers International Union, for the employees



This case is before the Commission on remand from the United States Court of Appeals for the Third Circuit. Marshall v. Oil, Chemical & Atomic Workers & Its Local 4-208, Nos. 80-1942 & 80-1943 (3rd Cir. Apr. 23, 1981), rev'g & remanding American Cyanamid Co., 80 OSAHRC 40/C8, 8 BNA OSHC 1346, 1980 CCH OSHD P24,423 (No. 77-3752, 1980).

Administrative Law Judge Dee C. Blythe had approved a settlement agreement which, among other things, represented that the violative conditions had been abated. The Commission reviewed the judge's decision and remanded the case to the judge to consider the Union's objection that, contrary to the assertion in the proposed settlement agreement, abatement had not occurred. American Cyanamid, supra.

The Court of Appeals reversed the Commission's remand order as inconsistent with the Court's prior decision in Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir.), cert. denied, 101 S.Ct. [*2] 784 (1980). The court remanded this case to the Commission "for proceedings not inconsistent with this opinion." Oil, Chemical & Atomic Workers, supra, slip op. at 11, 12.

The decision of the Third Circuit on appeal constitutes the law of this case which must be followed on remand. See 11(a), 29 U.S.C. 660(a), of the Occupational Safety & Health Act of 1970, 29 U.S.C. 651-678; Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306 (1948); Stewart-Warner Corp., 80 OSAHRC 28/F4, 8 BNA OSHC 1316, 1980 CCH OSHD P24,472 (No. 78-5910, 1980) (lead and concurring opinions); Frank Irey, Jr., Inc., 77 OSAHRC 192/F11, 5 BNA OSHC 2031, 1977-78 CCH OSHD P22,283 (No. 701, 1977). Accordingly, we vacate our previous order and affirm the judge's approval of the settlement agreement.