GENERAL ELECTRIC COMPANY
OSHRC Docket No. 77-3915
Occupational Safety and Health Review Commission
April 26, 1979
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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
John R. MacKenzie, General Electric Company, for the employer
Leonard D. Kneszak, Local No. 1813, for the employees
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
On October 31, 1977, respondent General Electric Company was issued a three item citation alleging serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq (hereinafter "the Act"). Respondent contested the citation and the case was scheduled to be heard by Judge Abraham Gold.
Before a complaint was filed, Local 1813 of the International Brotherhood of Electrical Workers (IBEW) notified the Review Commission, by letter, that the union had an interest in the case, and requested permission to attend the hearing. After a complaint, answer, and several motions had been filed, the IBEW requested Judge Gold to permit its vice president to accompany its president at the hearing. No response to either request was made.
The Secretary and respondent entered into a settlement agreement on May 5, 1978. In that agreement, [*2] the Secretary moved to withdraw items 2 and 3 for lack of proof, and respondent moved to withdraw its notice of contest to item 1. Although the settlement agreement stated that a copy of the agreement was being posted at the worksite, and that another copy had been sent to the IBEW, there was no indication that the authorized employee representative had been consulted during the settlement negotiations. The judge approved the settlement agreement on May 18, 1978.
On June 19, 1978, the Order approving the settlement agreement was directed for review pursuant to section 12(j) of the Act, 29 U.S.C. § 661(i). The parties were requested to brief the issue of whether the authorized employee representative, having asserted party status and having been given notice of the stipulated agreement, had an opportunity for meaningful participation in this case.
None of the parties filed briefs. The Secretary filed a letter, however, dated November 28, 1978, stating that the authorized employee representative failed to notify either respondent or the Secretary of its election of party status, and that he was not made aware of the IBEW's desire to participate until after the complaint had been [*3] answered. The Secretary further stated that both the settlement agreement and a copy of the judge's order approving it were sent to the employee representative, and that no objection to the settlement was received. Also, the Secretary indicated that it had contacted the local IBEW's president to ascertain if there were any objections to the agreement. The president would not discuss the agreement, stating that the matter had been referred to the International IBEW. Finally, the Secretary opined that the employee representative had ample time to register any opposition to the settlement, and that its silence should be interpreted as assent to the agreement.
Through its notice to the judge that it wished to attend the hearing in this case, the employee representative elected party status. n1 Election of party status entitles the authorized employee representative to meaningful participation in settlements. n2 Reynolds Metal Co., Docket No. 78-2485 (January 12, 1979); Aspro, Inc., Spun Steel Division, 78 OSAHRC 78/C8, 6 BNA OSHC 1980, 1978 CCH OSHD P23,032 (No. 78-1381, 1978). n3
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n1 Affected employees need not expressly state that they wish to elect party status before it is conferred. Party status is conferred upon affected employees if they manifest an intent to be heard during the course of Commission proceedings. IMC Chemical Group, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1978 CCH OSHD P23,149 (No. 76-4761, 1978), petitions for review docketed, Nos. 79-3018 and 79-3041 (6th Cir., January 11 and 16, 1979). The union's letter manifests such an intent and, therefore, is considered an election of party status.
n2 Commissioner Barnako's views with respect to the right of employee representatives to participate in settlement negotiations are set forth in his dissenting opinion in Kaiser Aluminum & Chemical Corp., No. 76-2293 (Dec. 4, 1978), petition for review docketed, No. 79-7047 (9th Cir. Feb. 2, 1979); his concurring opinion in ITT Thompson Industries, Inc., 78 OSAHRC 70/D10, 6 BNA OSHC 1944, 1978 CCH OSHD P22,944 (Nos. 77-4174 & 77-4175, 1978); and his opinion concurring in part and dissenting in part in Reynolds Metals Co., supra. See also IMC Chemical Group, Inc., supra (dissenting opinion).
n3 We note that it is incumbent upon the judge to advise the Secretary and respondent of elections of party status. Reynolds Metals Co., supra.
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Although not given an opportunity to participate in the settlement, the authorized employee representative was served with a copy of the settlement agreement, as required by Commission Rule 100(c); 29 CFR § 2200.100(c). n4 Moreover, on February 1, 1979, the Commission received a letter from the president of Local 1813 of the IBEW stating that the employee representative had no objection to the settlement reached by the Secretary and General Electric, and that the Commission should affirm the settlement agreement. On the basis of the authorized employee representative's assurance that it has no objection to the settlement, we affirm the judge's order approving the agreement.
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n4 Rule 100 Settlement.
(c) Where parties to a settlement agree upon a proposal, it shall be served upon represented and unrepresented affected employees in the manner set forth in Rule 7 hereof. Proof of service shall accompany the proposed settlement when submitted to the Commission or the judge.
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So ORDERED.