BROCKWAY CLASS COMPANY, INC.

OSHRC Docket No. 77-3817-P

Occupational Safety and Health Review Commission

November 13, 1978

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Stanford J. Stanford, for the employer

Lawrence Gale, President, Glass Bottle Blowers Association, Local 178, for the employees

OPINIONBY: COTTINE

OPINION:

ORDER

COTTINE, COMMISSIONER:

On July 29, 1977, Petitioner, Brockway Glass Company, Inc. (Brockway), filed a petition for modification of abatement date (PMA), requesting an extension until December 31, 1979, for final abatement of a violation of the occupational noise standard published at 29 C.F.R. 1910.95. The Secretary of Labor initially opposed Brockway's request, but the parties subsequently reached a negotiated settlement. The settlement agreement, which establishes December 31, 1979, as the final abatement date as requested by Brockway, was approved by Administrative Law Judge David G. Oringer on March 6, 1978.

On April 5, 1978, the Order of Judge Oringer was directed for review by Chairman Cleary. The parties were invited to address the issue of whether Brockway's employees were given notice of the settlement agreement. Brockway filed a brief with the Commission in which it states that copies of the executed settlement [*2] agreement were sent by certified mail on March 13, 1978, to the presidents of the three local unions that represent Brockway employees. Copies of Brockway's brief were also sent by certified mail to the presidents of the locals on May 8, 1978. n1 The Secretary did not file a brief, but indicated that he would rely instead upon Brockway's assertion, and its supporting affidavit, that employees were notified of the settlement agreement.

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n1 The record does not disclose whether the original PMA was posted to afford employee notice as required by Commission Rule 34(c)(1), 29 C.F.R. 2200.34(c)(1). However, Attachment B to Brockway's review brief is a copy of its July 29, 1977 petition.

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As of this date no employee objection to the settlement agreement has been received by the Commission. We note, however, that the authorized employee representatives did not receive copies of the executed settlement agreement until after it had been approved by the judge. This type of notice does not comport with Commission Rule 100(c), [*3] 29 C.F.R. 2200.100(c), n2 which requires the parties to give notice of a proposed settlement agreement before it is submitted for approval.

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n2 Rule 100(c) sets forth the following requirements:

(c) Where parties to settlement agree upon a proposal, it shall be served upon represented and unrepresented affected employees in the manner set forth in 2200.7. Proof of such service shall accompany the proposed settlement when submitted to the Commission or the Judge.

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We emphasize the importance of employee notice in Commission proceedings. The Commission Rules of Procedure set forth specific requirements for notifying employees that a PMA has been filed, Rule 34(c)(1), 29 C.F.R. 2200.34(c)(1), n3 or that a settlement agreement has been entered into by an employer and the Secretary. Rule 100(c). n4 Absent this notice, affected employees may be deprived of their right to oppose an employer's request for an extension of the abatement date and to participate in a settlement. Aspro, Inc., Spun Steel [*4]

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n3 Rule 34(c)(1) requires that a copy of the employer's PMA "be posted in a conspicuous place where all affected employees will have notice thereof or near each location where the violation occurred."

n4 See note 2 supra.

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In order to allow affected employees the opportunity to be heard, we conclude that this Order shall be posted by Brockway immediately upon receipt in the manner prescribed by Commission Rule 34(c)(1) for the posting of PMA's. In addition, the Executive Secretary shall serve this Order on the three authorized employee representatives referred to in Brockway's brief to the Commission. The March 6, 1978 Order of Judge Oringer, approving the terms of the settlement agreement executed by the parties, is affirmed unless within 10 days from the issuance of this Order affected employees or their authorized employee representatives indicate an objection to the agreement and request that their objections be heard by the judge. IT IS SO ORDERED.