BABCOCK AND WILCOX COMPANY

OSHRC Docket No. 78-0446

Occupational Safety and Health Review Commission

September 29, 1980

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

Francis Carling, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   On August 10, 1978, Commissioner Cottine directed review sua sponte, pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i), of an order issued by Administrative Law Judge David G. Oringer approving a settlement agreement filed by the Respondent, Babcock and Wilcox Company, and the Secretary of Labor ("the Secretary").   Review was limited to consideration of the following issues:

1.   Whether Commission Rules 20(a) and 22(c) permit an employee who is a member of a collective bargaining unit to personally elect party status when the Authorized Employee Representative has not elected party status.

2.   Whether Commission Rule 22(c), regarding employee representatives, is consistent with the statutory grant of party status accorded employees by section 10(c) of the Act.

3.   Whether the personal election of party status by an employee is [*2]   limited to an employee who is exposed to an allegedly violative condition.

4.   Whether the Judge erred in approving the settlement agreement without considering the merits of the employee's objections.

5.   Whether the settlement agreement approved by the Judge is consistent with the provisions and objectives of the Act.

I

An Occupational Safety and Health Administration (OSHA) industria hygienist inspected the Respondent's Barberton, Ohio alloy foundry from October 13, 1977, to December 19, 1977. n1 Following the inspection, on December 23, 1977, the Secretary issued a citation for serious violations of 29 C.F.R. §   1910.1000(c) and §   1910.1000(e). n2 The citation alleged specifically that two foundry employees, the shakeout operator and the shakeout helper, "were exposed in excess of the eight hour time weighted average for respirable silica (crystalline quartz)." The Secretary proposed a $480 penalty and directed that the Respondent complete abatement of the hazard by December 22, 1978. n3

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n1 No evidentiary hearing was held in this case.   Accordingly, with the exception of those facts established by the pleadings, the background information noted in this opinion is based on assertions made in documents filed by the parties.

n2 The air contaminant standard at 29 C.F.R. §   1910.1000 provides, in pertinent part, that:

An employee's exposure to any material listed in Table Z-1, Z-2, or Z-3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section.

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(c) Table Z-3: An employee's exposure to any material listed in Table Z-3, in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average limit given for that material in the table.

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(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible.   When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section.   Any equipment and/or technical measures used for this purpose must be approved for each particular use by a competent industrial hygienist or other technically qualified person.   Whenever respirators are used, their use shall comply with §   1910.134.

Table Z-3, 29 C.F.R. §   1910.1000, sets forth formulae for determining exposure limits for mineral dust, including respirable silica (crystalline quartz).

n3 The Respondent was also cited for noise violations under 29 C.F.R. §   1910.95(b)(1).   It did not contest that citation.

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The Respondent timely contested the citation, initiating proceedings before this Commission.   29 U.S.C. §   659(c).   The Secretary filed a complaint alleging violations of the Act, and the Respondent denied these allegations in its answer.   On Aprt 5, 1978, Judge Oringer was assigned the case.   Following the filing of several pretrial motions and the Secretary's prehearing report, hearing was set by the judge for June 7, 1978, and then rescheduled to June 27 at the Secretary's request.   No hearing was held, however, because the parties indicated some time before June 27 that they had decided to enter a settlement agreement.

On June 29, 1978, Judge Oringer received a letter from employee R. L. Fletcher, who identified himself as a crane operator at the Respondent's Barberton foundry. In this letter, dated June 22, 1978, Fletcher asserted that he filed the section 8(f)(1) n4 complaint that led to the citation.   He requested an opportunity to testify about his complaint and "a continuation" of the alleged violation.

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n4 Section 8(f)(1), 29 U.S.C. §   657(f)(1), provides in pertinent part that:

Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger.   Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees. . . .   If upon receipt of such notification the Secretary determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists. . . .

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A few days later, on July 3, 1978, Judge Oringer received from the Secretary's counsel a letter and several attachments, including a copy of a settlement agreement signed by the Respondent and the Secretary on June 27, 1978.   Under the terms of the settlement agreement, the Secretary and the Respondent agreed to the entry of a final order affirming "other than serious" violations of the cited standards.   The $480 penalty was eliminated and the final abatement date was extended to July 1, 1979.   Paragraph 4 of the agreement provided for abatement:

4.   Respondent agrees that it will regularly monitor the employees engaged as the shak[e]out helper and operator in the alloy foundry of its Barberton, Ohio plant to determine whether their exposure to respirable silica (crystalline quartz) exceeds the 8-hour time weighted average limits listed for that material in Table Z-3 of subpart Z-3 of 29 C.F.R. Part 1910.   Respondent further agrees that where it is determined that exposure to respirable silica exceeds the limits, feasible administrative and/or engineering controls to reduce the exposure shall be determined [*5]   and implemented by July 1, 1979[.]

The settlement agreement also required the Respondent to make quarterly written reports about the silica dust hazard, and to provide and to require the use of appropriate personal respiratory equipment for exposed employees.   The Respondent certified in the settlement that the agreement had been posted at its foundry on June 26, 1978.

According to the Secretary's cover letter explaining the agreement, employee Fletcher had indicated to the Secretary's counsel "that he objected to the final abatement date of July 1, 1979 which was agreed upon by the Complainant and Respondent in the settlement of this action." The letter asserted that Local 900 of the United Boilermaker's Union was the representative of employees at the Respondent's facility and that the union had made no request to participate or to elect party status in this case.   Further, the Secretary's counsel contended that Fletcher had not been exposed to silica dust in excess of permissible limits.   He wrote:

At the time of the inspection, Mr. Fletcher was sampled to determine his level of exposure to respirable silica dust. Two (2) samples were taken.   One sample revealed that no respirable [*6]   dust was collected.   Another sample revealed Mr. Fletcher[']s time-weighted average exposure to be within the permissible limits.

The letter also noted the circumstances that led the parties to enter into the settlement agreement. Attached to the letter were copies of Fletcher's complaint (Form OSHA-7), the sampling data sheet for Fletcher, and the air sampling data and summary sheet reflecting OSHA's calculation of exposure levels.   In his complaint, Fletcher asserted that he was a member of Local 900.

Judge Oringer approved the settlement in its entirety.   He concluded that the agreement satisfied the intent of the Act and that it was in the interest of the public and the affected employees. The judge specifically noted that he approved the agreement despite employee Fletcher's letter because "the readings taken by the Secretary of Labor did not disclose excess concentrations of silica dust in the area where Mr. Fletcher worked. . . ." Further, he found that the United Boilermaker's Union, Local 900, was the authorized employee representative, and noted that neither the union nor the two employees whose exposure to silica dust exceeded permissible limits had objected to the   [*7]   agreement.

Neither the Secretary nor the Respondent nor employee Fletcher sought review of Judge Oringer's decision.   On August 10, 1978, Commissioner Cottine directed review sua sponte.

In a November 8, 1978 letter, the Secretary's counsel on review advised the Commission that the parties had agreed to modify the abatement provision of the settlement to avoid "a potential ambiguity." n5 The Respondent attached the amended version of the abatement provision to a November 22, 1978 letter to the Commission:

4.   Respondent is installing engineering controls in the alloy foundry at its Barberton, Ohio, plant which should abate the hazard. However, respondent agrees that it will regularly monitor the employees engaged as the shakeout helper and operator in the alloy foundry to determine whether their exposure to respirable silica (crystalline quartz) exceeds the 8-hour time weighted average limits listed for that material in Table Z-3 of subpart Z of 29 CFR Part 1910.   Respondent further agrees that if it is determined, based upon such monitoring, that exposure to respirable silica exceeds the limits, further feasible engineering and/or administrative controls to reduce the   [*8]   exposure shall be determined and implemented by July 1, 1979.

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n5 The Secretary's representative explained the revision as follows:

Although it is the parties' belief that the intent of the settlement agreement . . . comports with the objectives and provisions of the Act, we have carefully reviewed that agreement and concur in the opinion that a potential ambiguity exists with respect to the language of paragraph 4 thereof.   Thus, the parties have agreed to a new paragraph 4 which clarifies the respondent's abatement responsibility.   The new paragraph 4 makes clear that respondent is currently under an obligation to implement engineering controls and will conduct monitoring to determine their effectiveness.

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II

Rather than file a brief in this matter, the Secretary filed a letter requesting that the Commission approve the settlement agreement as amended by the parties.   Without conceding that employee Fletcher is entitled to party status, the Secretary advised the Commission that Fletcher would be provided a copy of [*9]   the revised paragraph 4 "in an abundance of caution."

Employee Fletcher has indicated a continuing interest in the case, although he has not submitted to the Commission a brief or any other statement of his contentions. n6 The authorized employee representative has not participated in this proceeding.

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n6 In a December 7, 1979 letter to Judge Oringer, Fletcher asserted that he had not been informed of the Commission's direction for review, and had only learned of it through his co-workers.   The Commission sent Fletcher a copy of the direction for review on January 7, 1980.

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In a letter submitted in lieu of a brief, the Respondent urges the Commission to affirm Judge Oringer's approval of the settlement agreement. The Respondent asserts that the judge did not err in failing to consider the objections of employee Fletcher because Fletcher was represented by a union that chose not to elect party status.   The Respondent specifically contends that Commission Rule 20(a), 29 C.F.R. §   2200.20(a), n7 and Commission Rule 22(c),   [*10]   29 C.F.R. §   2200.22(c), n8 do not permit Fletcher, a member of the collective bargaining unit, to personally elect party status.   Under Rule 22(c), the Respondent asserts, employees represented by an authorized employee representative, such as the union here, may appear only through the representative.   The Respondent suggests that Rule 20(a), which provides generally for the election of party status by affected employees, must be read consistently with Rule 22(c).

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n7 Commission Rule of Procedure 20(a) provides:

Affected employees may elect to participate as parties at any time before the commencement of the hearing before the judge, unless, for good cause shown, the Commission or the judge allows such election at a later time.   See also §   2200.21.

n8 Commission Rule of Procedure 22(c) provides:

Affected employees who are represented by an authorized employee representative may appear only through such authorized employee representative.

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The Respondent further argues that Rule 22(c) is consistent with the Act's [*11]   provision at section 10(c), 29 U.S.C. §   659(c), that an "employee or representative of employees" may contest a citation on the ground that the period fixed in the citation for abatement of the alleged violation is unreasonable. n9 The Respondent asserts that "[w]hat is really involved here" is the "fundamental" labor law principle that, once employees have selected an exclusive bargaining representative, they may deal with their employer only through that representative concerning their conditions of employment. n10

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n9 Section 10(c) of the Act provides:

(c) If an employer notifies the Secretary that he intends to contest a citation issued under section 9(a) or notification issued under subsection (a) or (b) of this section, or if, within fifteen working days of the issuance of a citation under section 9(a), any employee or representative of employees files a notice with the Secretary alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, 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 penalty, or directing other appropriate relief, and such order shall become final thirty days after its issuance.   Upon a showing by an employer of a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control, the Secretary, after an opportunity for a hearing as provided in this subsection, shall issue an order affirming or modifying the abatement requirment in such citation.   The rules of procedure prescribed by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this subsection.

n10 In its discussion of labor-management principles, the Respondent asserts that, while unrepresented employees are free to negotiate individually with the employer concerning their terms of employment, employees represented by a union surrender the right to individual bargaining in exchange for the strength of collective action.   In this process, the employer loses the opportunity to bargain directly with employees who select a union, but gains the right to expect that all member employees are bound by decisions the union makes on their behalf.   Even if individual employees represented by a union were permitted to elect party status, the Respondent continues, the National Labor Relations Act bars an employer from negotiating directly with them.   The Respondent warns that time-consuming procedural delays and hopeless entanglement of cases would result if individual, represented employees with differing views were allowed to elect party status.   Therefore, the distinction between represented and unrepresented employees, according to the Respondent, is incorporated appropriately into the Commission rules.

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In addition, the Respondent contends that union member Fletcher was not affected by the silica dust condition in dispute.   It asserts that only employees exposed to an allegedly violative condition are permitted to elect party status.   Rule 20(a) and Rule 22(c) limit this election to "affected" employees and, according to the Respondent, employees not exposed to a hazard are not affected by it.   Section 10(c) of the Act, the Respondent therefore reasons, should be read to preclude intervention of unaffected employees such as Fletcher.

Finally, the Respondent argues that the agreement approved by Judge Oringer was appropriate, warning that the Commission should be loathe to substitute its judgment for that of the parties in settlement cases because a settlement agreement inevitably involves difficult judgments concerning the weight of evidence and the outcome of a possible trial.

III

Under Commission Rule 20(a), note 7 supra, affected employees may elect to participate as parties in Commission proceedings.   However, Rule 22(c), note 8 supra, limits this right by providing that affected employees [*13]   represented by an authorized employee representative may appear only through such representative. n11 In the case before us, employee Fletcher asserts and the parties concede that he is a member of Local 900 of the United Boilermaker's Union.   Moreover, the record establishes that the United Boilermaker's Union is the authorized employee representative, as defined at Commission Rule 1(g), 29 C.F.R. §   2200.1(g), n12 at the Respondent's foundry. Accordingly, under the clear terms of Rule 22(c), if Fletcher is an affected employee, he may appear in this proceeding only through his union. n13

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n11 Commission Rules 20(a) and 22(c) were promulgated under the mandate of the last sentence of section 10(c) of the Act, 29 U.S.C. §   659(c): "The rules of procedure prescribed by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this subsection." See note 9 supra. This provision grants the Commission discretionary authority in defining the circumstances under which affected employees or their authorized representatives may appear before the Commission in a proceeding initiated by an employer notice of contest. As the Respondent correctly indicates, note 10 supra, there are strong legal and policy arguments supporting a requirement that represented employees appear only through their union.   See, e.g., Medo Photo Supply Co. v. NLRB, 321 U.S. 678, 683-684 (1944) (union's status as exclusive representative of all workers in a bargaining unit requires employer to negotiate only with union on behalf of represented employees); Vaca v. Sipes, 386 U.S. 171, 184-186 (1967) (aggrieved union member obliged to exhaust procedures within union before seeking relief in another forum unless the member can demonstrate union breached its duty of fair representation).   See also section 9(a) of the National Labor Relations Act, as amended, 29 U.S.C. §   159(a).   Accordingly, Rule 22(c) is a proper exercise of the Commission's authority.

n12 Commission Rule 1(g), 29 C.F.R. §   2200.1(g), provides:

"Authorized employee representative" means a labor organization which has a collective bargaining relationship with the cited employer and which represents affected employees.

n13 Commission Rule 1(e), 29 C.F.R. §   2200.1(e), provides:

"Affected employee" means an employee of a cited employer who is exposed to the alleged hazard described in the citation, as a result of his assigned duties.

We can enter no finding relating to whether Fletcher is an affected employee because the issue is disputed and no evidentiary hearing has been held.   Nevertheless, such finding is not necessary to the disposition of this case.   If Fletcher is not an affected employee, there is no provision under the Act or under the Commission Rules of Procedure that entitles him to elect party status.

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We therefore conclude that Judge Oringer did not err in disregarding Fletcher's objections and that the judge acted properly in approving the settlement agreement despite those objections. n14

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n14 Commissioner Cottine begins his separate opinion in this case by stating, "Today my colleagues decide that 'the law of the shop' prevails over 'the law of the land' . . . ." (Footnote omitted.) He also chides us for, as he sees it, our "reluctance to address the interrelation between labormanagement relations and occupational safety and health." (Footnote omitted.) We suspect that those truly knowledgeable in the reality of labor-management relations will recognize that our decision today - a reaffirmation of the intent behind Rule 22(c) - exhibits neither a failure to heed "the law of the land" nor a reluctance to face the relationship between the Act and labor-management relations.   If our opinion and Rule 22(c) exhibit anything, it is a truer understanding of the applicable "law of the land" and the labor-management relationship.

In this regard, we submit that our colleague's view of the "law of the land" is somewhat selective.   For example, Commissioner Cottine all but ignores our national labor policy - a policy grounded in a respect for the collective bargaining relationship.   The backbone of that relationship - and hence our national labor policy - is an appreciation of the role played by the collective bargaining agreement along with the judicially recognized "new common law - the common law of a particular industry or of a particular plant," in other words, to use our colleague's term, "the law of the shop." See United Steelworkers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 579 (1960). Commissioner Cottine also pays little respect to the relationship between an individual employee, the employee's union, and the employee's employer.   It is axiomatic in our collective bargaining system that the individual employee makes a "contribution" of his or her right to act as an individual in negotiating with his or her employer in order to gain "the collective result" of being represented by a union.   See J.I. Case Co. v. N.L.R.B., 321 U.S. 332, 339 (1944).

Of course, individuals represented by an exclusive bargaining agent may present their grievances to their employer within the context of the collective bargaining agreement, see 29 U.S.C. §   159(a), and individuals may seek redress if they believe they are not being represented fairly by their union.   Vaca v. Sipes, 386 U.S. 171 (1967). Such is an established part of our national labor policy. Unlike our colleague, however, we find nothing in the Act mandating a change in that established policy.

In his separate opinion, our colleague cites Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) ("Gardner-Denver") and Marshall v. N.L. Industries, 618 F.2d 1220 (7th Cir. 1980) ("N.L. Industries").   Gardner-Denver deals with the issue of whether an individual's right to pursue a "racial discrimination" grievance through the arbitration step of a collective bargaining agreement's grievance procedure forecloses that individual's separate right to a trial de novo under Title VII of the Civil Rights Act of 1964 ("Title VII").   The issue in N.L. Industries is whether an individual's acceptance of an arbitrator's award directing reinstatement but not back pay for the employer's discriminatory action under the Act precludes the Secretary of Labor from filing an action in federal court under §   11(c) of the Act, 29 U.S.C. §   660(c), based upon the same incident of discrimination.   The case before us does not involve separate rights nor are we concerned with the interrelationship of separate forums.   As such, the cases cited by our colleague are clearly inapposite.   Our ruling today is consistent with the general mandate in §   10(c) of the Act to formulate rules of procedure that "provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this subsection." We note parenthetically that, unlike the situation under Title VII, at least one court has held that no private right of action exists under §   11(c) of the Act.   Taylor v. Brighton Corp., 616 F.2d 256 (6th Cir. 1980). Actions to redress discrimination under the Act must be brought by the Secretary of Labor.   Id.

Commissioner Cottine, in support of his position, also cites the Commission decisions in IMC Chemical Group, Inc., 78 OSAHRC 95/C14, 6 BNA OSHC 2075, 1978 CCH OSHD P23,149 (No. 76-4761, 1978), appeals docketed, Nos. 79-3018 and 79-3041 (6th Cir. Jan. 11 and 16, 1979); ITT Thompson Industries, Inc., 78 OSAHRC 70/D10, 6 BNA OSHC 1944, 1978 CCH OSHD P22,944 (Nos. 77-4174 and 4175, 1978); American Cyanamid Co., 80 OSAHRC    , 8 BNA OSHC 1346, 1980 CCH OSHD P24,424 (No. 77-3752, 1980), appeals docketed, Nos. 80-1942 and 80-1943 (3rd Cir. June 26, 1980); Reynolds Metals Co., 79 OSAHRC    , 7 BNA OSHC 1042, 1979 CCH OSHD P23,295 (No. 78-2485, 1979); and International Harvester Co., 80 OSAHRC    , 7 BNA OSHC 2194, 1980 CCH OSHD P24,216 (No. 76-4572, 1980).   In each of these cases, however, a union asserted party status and participated in the case.   Accordingly, like Gardner-Denver and N.L. Industries, these cases are inapposite.

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IV

Judge Oringer examined the settlement agreement and concluded that ". . . it meets the intent of the statute, is in the public interest and in the interest of affected employees." Accordingly, he approved the agreement in its entirety.

We agree that the settlement, as amended by the parties, comports with the provisions and objectives of the Act.   The modified agreement contains provisions to amend the citation, to withdraw the Respondent's notice of contest, to eliminate the penalty, and to abate the hazard by a specified date.   The settlement therefore satisfies the procedural requirements of Commission Rule 100(b), 29 C.F.R. §   2200.100(b). n15 In addition, the agreement meets the substantive requirement of Commission Rule 100(a), which provides that, as a matter of policy, "[a] settlement proposal shall be approved when it is consistent with the provisions and objectives of the Act."

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n15 Commission Rule 100(b) provides:

(b) Requirements. Every settlement proposal submitted to the judge or Commission shall include, where applicable, the following:

(1) A motion to amend or withdraw a citation, notification of proposed penalty, notice of contest, or petition for modification of abatement;

(2) A statement that payment of the penalty has been tendered or a statement of a promise to pay; and

(3) A statement that the cited condition has been abated or a statement of the date by which abatement will be accomplished.

Although this provision only became effective on January 1, 1980, while the settlement agreement was filed with the Commission in June 1978 and amended in November 1978, the rule is essentially a codification of the first three elements for hospitable consideration of settlement agreements originally outlined in Dawson Brothers-Mechanical Contractors, 72 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971-73 CCH OSHD P15,039 (No. 12, 1972):

(1) the date on which abatement has been or will be accomplished; (2) assurance by the respondent of continuing compliance; (3) tender of payment of the penalty proposed by the Secretary of Labor; . . .

1 BNA OSHC at 1025, 1971-73 CCH OSHD at p. 20,053.

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Although we find the agreement acceptable on its face, three defects in notice or service require that we allow the authorized employee representative, Local 900 of the United Boilermaker's Union, an opportunity to examine the revised settlement agreement. First, it appears from the record before us that the union was not served a copy of the original settlement agreement by mail or by personal delivery as required by Commission Rule 100(c), 29 C.F.R. §   2200.100(c), and Commission Rule 7, 29 C.F.R. §   2200.7. n16 Under Rule 100(c), the union should have been served in this manner regardless of its decision not to elect party status.   Second, the union did not receive a copy of the executed settlement agreement that had been filed with the judge, as required by Rule 100(c).   See American Cyanamid Co., 80 OSAHRC    , 8 BNA OSHC 1346, 1980 CCH OSHD P24,424 (No. 77-3752, 1980).   Instead, the parties posted a copy of the proposal the day before they signed it and several days before it was filed with the judge.   Finally, there is no indication that the parties notified the union, as required under [*17]   Rule 100(c), of the revision of the abatement provision that took place while this matter was pending before the Commission.

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n16 Rule 100(c) provides in pertinent part:

(c) Filing; service and notice. When a settlement proposal is filed with the judge or Commission, it shall also be served upon represented and unrepresented affected employees in the manner prescribed for notices of contest in §   2200.7.   Proof of service shall accompany the settlement proposal . . . .

Rule 7 provides in pertinent part:

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(c) Unless otherwise ordered, service may be accomplished by postage prepaid first class mail or by personal delivery.   Service is deemed effected at the time of mailing (if by mail) or at the time of personal delivery (if by personal delivery).

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(f) Service and notice to employees represented by an authorized employee representative shall be deemed accomplished by serving the representative in the manner prescribed in paragraph (c) of this section.

Rule 100(c), as currently written, was adopted after the parties had filed the settlement agreement and the revision of that agreement in the case now before us.   See 44 Fed. Reg. 70,106 (1979). However, the current rule is an amendment of a prior rule that also required personal service on the authorized employee representative. See Reynolds Metal Co., 79 OSAHRC 4/A2, 7 BNA OSHC 1042, 1979 CCH OSHD P23,295 (No. 78-2485, 1979).   That earlier service rule was in effect in 1978 when the parties in this case filed and revised the settlement agreement.

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We find the terms of the agreement in question consistent with the intent of the Act and accept the settlement as amended by the parties.   In light of the notice problems under Rule 100(c), however, we approve the settlement only on the condition that the parties serve the revised agreement on the authorized employee representative and supply to the Commission certification of such service.   In the absence of an election of party status by the union within 10 days of service, this decision accepting the amended settlement agreement will become a final order of the Commission.

IT IS SO ORDERED.  

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

Today my colleagues decide that "the law of the shop" prevails over "the law of the land" n1 and as a consequence affected employees are deprived of participatory rights under the Occupational Safety and Health Act. The mandatory language of section 10(c) of the Act requires the Commission to adopt rules that "shall provide affected employees or representatives of affected employees an opportunity to participate as parties." Nonetheless, my colleagues find discretion [*19]   to apply our rules so that neither affected employees nor their representatives will participate as parties in this case despite a request to participate by an affected employee.   Though I conclude that Commission Rule 22 properly states a preference for appearances by represented employees through their union, this rule cannot be fairly interpreted to deprive affected employees of their statutory right to participate simply because their representative has not elected to participate as a party. n2

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n1 See Alexander v. Gardner-Denver Co., 415 U.S. 36, 57 (1974).

n2 The majority's disposition in this case is based merely on representations in the June 30 letter from the Secretary's counsel and attachments to that letter.   Fletcher was not sent a copy of that letter and has not had an opportunity to respond to the representations that he is a member of a collective bargaining unit but not a representative of the employees.   Fletcher should not be denied an opportunity to participate in this case based on a record so devoid of evidence regarding his status.   Nonetheless, I must assume the accuracy of the Secretary's representations in order to respond to my colleagues' holding in this case.

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I

The Act grants employees several basic rights directly related to enforcement actions initiated by the Secretary and adjudicated by the Commission.   Section 8(f)(1) of the Act, 29 U.S.C. §   657(f)(1), states that, "[a]ny employees or representatives of employees who believe that a violation of a safety or health standard exists . . . may request an inspection. . . ." In this case, Fletcher filed his complaint under the provisions of section 8(f)(1), which clearly permits either employees or representatives of employees to file complaints concerning unsafe or unhealthful working conditions. n3 Under section 10(c) of the Act, 29 U.S.C. §   659(c), "any employee or representative of employees" may file a notice contesting the period of time for the abatement of the cited violation.   Furthermore, section 8(e) of the Act, 29 U.S.C. §   657(e), indicates a preference for "a representative authorized by . . . employees. . . ." to accompany the OSHA compliance officer during the inspection. However, section 8(e) further provides that "[w]here there is no authorized employee representative, the Secretary or his [*21]   authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace." Similarly, the Act provides that Commission rules "shall provide affected employees or representatives of affected employees an opportunity to participate as parties . . ." in hearings conducted under section 10(c).   29 U.S.C. §   659(c).   In contrast, section 20(a)(6), which does not involve either enforcement or adjudication, provides that a health hazard evaluation shall be statutorily available only to an "authorized representative of employees." 29 U.S.C. §   669(a)(6). n4

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n3 In his complaint, Fletcher requested that his name not be revealed to the employer.   The confidentiality of a complaint is required by section 8(f)(1) of the Act, 29 U.S.C. §   657(f)(1).   There is no indication in the record that Fletcher agreed to the disclosure of his identity to the employer with respect to his pre-inspection complaint.   Nonetheless, the Secretary's attorney revealed Fletcher's identity in his June 30, 1978 letter to the judge, and a copy of this letter was sent to the Respondent's counsel.   This Commission recognizes the importance to the government of assuring the free flow of information by preserving the confidentiality of employee complaints and other communications concerning violations of the Act.   Massman-Johnson (Luling), OSAHRC     /    , 8 BNA OSHC 1369, 1980 CCH OSHD P24,436 (No. 76-1484, 1980), appeal docketed, No. 80-3413 (5th Cir. June 2, 1980).   It is equally important to the employee that these communications be protected from premature or unauthorized disclosure.   Id.

n4 See In the Matter of Keokuk Steel Castings Div., Keokuk Metals Corp., Civ. No. 80-45-N-1, slip op. at 3 (S.D. Iowa, June 3, 1980) (section 20(a)(6) provides for a scientific and medical review by the National Institute for Occupational Safety and Health ("NIOSH") of the health experience at a particular worksite).

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It is evident that these five statutory provisions reveal (1) an intent to freely allow filing of a complaint (§   8(f)(1)) or notice of contest (§   10(c)) by any employee or representative, (2) a preference for an employee representative rather than individual employees to assist the compliance officer in inspections (§   8(e)), (3) a similar instruction to this Commission that its rules may express a preference for representative rather than individual employee participation as long as the basic right of participation is not infrigned (§   10(c)), and (4) a qualification of the statutory right to request health hazard evaluations to representatives conclusively (§   20(a)(6)). n5

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n5 NIOSH has broadly interpreted section 20(a)(6) to permit requests for health hazard evaluations by (1) representatives other than collective bargaining representatives, i.e., any employee authorized by at least two employees to represent them, (2) an individual employee who is one of three or fewer employees employed where the suspected health hazard exists, and (3) a collective bargaining representative.   45 Fed.Reg. 2651 (Jan. 14, 1980)(to be codified in 42 C.F.R. §   85.3-1).

  [*23]  

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Apparently, the majority does not dispute that Fletcher, an individual employee, was authorized by the Act to file a complaint in this case.   Nevertheless, despite the fact that Fletcher actually filed the complaint that precipitated the Secretary's inspection, the majority prevents him from participating in this proceeding in support of his complaint because the authorized employee representative has not filed an appearance.

Nothing in the Commission rules compels this result.   Moreover, the statutory foundation for these rules precludes this interference with the right of affected employees to participate.   Even if Fletcher is represented by a union in labor-management relations, that fact does not and should not deprive him of an opportunity to appear personally in our proceedings where the union has not entered an appearance. Commission Rule 22(c) simply states, "Affected employees who are represented by an authorized employee representative may appear only through such authorized employee representative." 29 C.F.R. §   2200.22(c)(emphasis added).   The proper interpretation of this rule, and   [*24]   the only interpretation consistent with the statutory mandate for employee participation, is that a member of a collective bargaining unit is prevented from appearing only when actually represented by the union in our proceedings. n6 If the union does not enter an appearance, affected employees who are members of a collective bargaining unit should be permitted to appear in the same manner as affected employees who do not have a collective bargaining agent. n7 Only this interpretation of Rule 22 is consistent with the statutory grant of party status to affected employees under section 10(c) of the Act.

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n6 This interpretation is also supported by the absence of a requirement in Rule 22(c) that an affected employee approach the union to appear on his behalf in our proceedings.   If the rule is interpreted to designate the collective bargaining agent as the exclusive representative of affected employees, then a duty to represent the affected employees' specific interests in a Commission proceeding would have to be imposed on the exclusive representative.   The complexity of defining and enforcing the obligations of the exclusive representative is unnecessary under an interpretation of Rule 22(c) that establishes a simple preference for the appearance of an authorized employee representative on behalf of the affected employees in the bargaining unit.

n7 The administrative law judge has ample authority to regulate the course of the hearing and to resolve any difficulties that might arise from the participation of a large number of employees.   See Commission Rule 66(f), 29 C.F.R. §   2200.66(f).   For example, the judge could require the employees present at the hearing to select a single spokesperson or the judge could place appropriate time limits upon each employee's opportunity to speak.   This action would be no different than in a proceeding in which affected employees are not members of a collective bargaining unit and they have elected to appear in their individual capacity as affected employees.

  [*25]  

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II

The purpose of the requirement in section 10(c) "to provide affected employees or representatives of affected employees an opportunity to participate as parties" is to promote employee participation in proceedings affecting their right to a safe and healthful workplace. This purpose is supported by a reading of other provisions pertaining to employee rights in adjudicatory proceedings under the Act.   See 29 U.S.C. §   657(f)(1) (employee complaints); 29 U.S.C. §   659(c) (notices of contest regarding abatement).   It is further buttressed by the overall statutory purpose "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. . . ." Section 2(b) of the Act, 29 U.S.C. §   651.

In IMC Chemical Group, Inc., the Commission stated:

In section 659(c) of the Act, Congress directs the Commission to ". . . provide affected employees an opportunity to participate as parties to hearings . . ." conducted by the Commission.   This opportunity to participate, which is implemented by Commission Rule 20(a), is an unconditional right on its face, and there [*26]   is no language in any other provisions of the Act to suggest that Congress intended to create a conditional right.   It is also significant that Congress grants the Commission the general authority to adopt rules of procedure (29 U.S.C. §   661(f)) but specifically orders the adoption of a rule to permit affected employees an opportunity to protect their interests as parties.

78 OSAHRC 95/C14, 6 BNA OSHC 2075, 2077, 1978 CCH OSHD P23,149 at p. 27,990 (No. 76-4761, 1978), appeals docketed, Nos. 79-3018 and 79-3041 (6th Cir. Jan. 11 and 16, 1979).   The Commission emphasized the significance of this statutory right:

The right to participate is, therefore, not merely a right to intervene in on-going litigation, it is a right to meaningful participation, which the Secretary has a duty to ensure.   ITT Thompson Industries, Inc., [78 OSAHRC 70/D10, 6 BNA OSHC 1944, 1978 CCH OSHD 22,944 (Nos. 77-4174 & 4175 (1978)].   The Secretary cannot be permitted to exercise prosecutorial discretion in a manner that would interfere with the right of affected employees to be heard as parties protecting their interest.   This means that the Secretary may be granted permission to withdraw from a [*27]   case, but the proceedings may continue based on the citation originally issued by the Secretary if affected employees have elected party status.   [citations and footnotes omitted].

Id., 6 BNA OSHC at 2077, 1978 CCH OSHD at pp. 27,990-91. These considerations apply with equal force to all affected employees regardless of whether they happen to be represented by a collective bargaining agent or are employed in a non-union workplace.

My colleagues' restrictive reading of Rule 22 and section 10(c) of the Act are predicated on their reluctance to address the interrelation between labor-management relations and occupational safety and health. n8 The majority alludes to several legal and policy grounds to support their exclusion from Commission proceedings of an affected employee who is a member of a union that has not appeared in the case.   The majority's support is inapposite for it concerns the respective rights and obligations in collective bargaining, not the statutory rights afforded affected employees under the Occupational Safety and Health Act of 1970.   Certainly, an employee who is a member of a union that negotiates terms of employment with the employer is bound by   [*28]   the union's decisions regarding the matters negotiated after ratification by the membership. n9 However, collective bargaining is not a substitute for statutory rights.   Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). n10 Employee rights under the Act are not collective bargaining rights and are not waived by membership in a collective bargaining unit. As stated by the United States Court of Appeals for the Seventh Circuit,

. . . the OSHA legislation was intended to create a separate and general right of broad social importance existing beyond the parameters of an individual labor agreement. . . .

Marshall v. N.L. Industries, 618 F.2d 1220, 1222 (7th Cir. 1980).

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n8 OSHA and labor-management relations are inextricably intertwined.   Safety and health issues constitute mandatory subjects of collective bargaining. N.L.R.B. v. Gulf Power Co., 384 F.2d 822, 824-825 (5th Cir. 1967); J.P. Stevens & Co., 239 N.L.R.B. No. 95 (1978); San Isabel Elec. Service, 225 N.L.R.B. No. 151 (1976). In fact, a recent study estimates that more than 80% of collective bargaining contracts include safety and health provisions.   Bureau of National Affairs, Basic Patterns in Union Contracts 107-111 (9th ed. 1979).   In addition, disputes concerning safety and health are subject to arbitration.   Gateway Coal Co. v. United Mine Workers, 414 U.S. 368 (1974); Banyard v. N.L.R.B., 505 F.2d 342 (D.C. Cir. 1974) (no deference to arbitral award that would have permitted violations of safety laws); see generally N. Ashford, Crisis in the Workplace 185-201 (1976) (impact of OSHA on labor law, arbitration, and collective bargaining).

n9 Even the collective bargaining process established by the National Labor Relations Act accommodates the interests of the union with the individual interests of the union members by establishing an exclusive collective bargaining agent with certain affirmative obligations owed by the union to its members.   See 29 U.S.C. §   159(a) (exclusive bargaining representative); Vaca v. Sipes, 386 U.S. 171, 177-78 (1967) (duty of fair representation).

n10 My colleagues refer to "our national labor policy." See note 14 of lead opinion.   However, they ignore the fact that in passing the Occupational Safety and Health Act of 1970, Congress was cognizant of "our national labor policy," yet chose to accord employees certain statutory, as opposed to collective bargaining, rights.

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In dealing with the statutory rights of employees the Supreme Court has held that an employee is not foreclosed from suing in his own behalf on a job discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §   2000e et seq., despite final arbitration on his claim under the nondiscrimination clause of a collective bargaining agreement.   Alexander v. Gardner-Denver Co., supra. The Court emphasized the distinction between matters that are exclusively the subject of collective bargaining and those that concern individual employee rights.   The Court stated that collective bargaining rights, such as the right to strike,

. . . are conferred on employees collectively to foster the process of bargaining and properly may be exercised or relinquished by the union as collective bargaining agent to obtain economic benefits for union members.   Title VII, on the other hand, stands on plainly different ground; it concerns not majoritarian processes, but an individual's right to equal employment opportunities.

415 U.S. at 51.

In Marshall v. N.L. Industries, supra, the   [*30]   court applied the reasoning of the Supreme Court in Alexander v. Gardner-Denver to the Occupational Safety and Health Act. The court noted that both Title VII and OSHA represent efforts on the part of the federal government to eradicate specific problems encountered by American workers.   618 F.2d at 1222, citing Whirlpool Corp. v. Marshall, 100 S.Ct. 883, 890 (1980). Accordingly, the court ruled that it was inconsistent with the purpose of OSHA to defer to an arbitrator's decision concerning an employee's discharge for refusal to work in conditions he believed were hazardous.

Title VII also authorizes an individual to sue for job discrimination even if the federal agency charged with enforcement of the law, the Equal Employment Opportunity Commission, finds no reasonable cause to believe the statute has been violated.   McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-799 (1973). Similarly, the Commission has held that both represented and unrepresented affected employees are entitled to elect party status in our proceedings, to be heard on their objections to settlements agreed to by the Secretary and the employer, and to continue proceedings in place of the Secretary [*31]   under certain circumstances.   IMC Chemical Group, Inc., supra; Reynolds Metals Co., 79 OSAHRC     7 BNA OSHC 1042, 1979 CCH OSHD P23,295 (No. 78-2485, 1979); American Cyanamid Co., OSAHRC    , 8 BNA OSHC 1346, 1980 CCH OSHD {24,423} (No. 77-3752, 1980), appeals docketed, Nos. 80-1942 and 80-1943 (3rd Cir. June 26, 1980). n11

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n11 See discussion of "affected" employees, infra.

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Considering the importance of the statutory rights that the Occupational Safety and Health Act grants to employees, rights that are independent of collective bargaining, and also considering the limitations on unions' capacity to represent the interests of individual members in particular cases, n12 Commission Rule 22(c) should be read to permit affected employees like Fletcher to be heard in our proceedings where their union has not entered an appearance. n13

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n12 My colleagues apparently assume that a union will always have the financial resources, time, and manpower to represent a particular employee or group of employees in an OSHA proceeding.   They also assume that there will always be an identity of interest between each affected employee and the authorized employee representative. See Alexander v. Gardner-Denver Co., supra at 58 n.19; Trbovich v. United Mine Workers of America, 404 U.S. 528 (1972).

n13 A complaining party has a particularly significant role to play in accomplishing the purposes of the Act.   Cf., e.g., Marshall v. Local 299, International Brotherhood of Teamsters, 617 F.2d 154, 156 (6th Cir. 1980).

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III

As stated in the statute, the Commission rules, and IMC Chemical Group, supra, only "affected" employees are entitled to participate in the adjudication of a contested citation.   In International Harvester Co., OSAHRC    , 7 BNA OSHC 2194, 1980 CCH OSHD P24,216 (No. 76-4572, 1980), a citation was issued alleging a violation of the occupational noise standard published at 29 C.F.R. §   1910.95(b)(1).   The citation alleged excessive noise exposure of certain non-union employees, specifically endurance testers and test engineers.   However, certain union mechanics claimed through their union that they too were affected by the excessive noise levels.   Accordingly, the union asserted party status in the case and ultimately objected to a settlement agreement between the Secretary and the employer.   The union agreed that its members were not exposed to excessive noise levels during the inspection that led to this citation.   However, it argued that because its members' duties in the cited area vary according to company work schedules, its members may be exposed to excessive noise.   Therefore, the [*33]   union urged that any agreement to abate the noise should extend protection to its members.   In an equally divided Commission decision on the issue of whether the union members were "affected" employees who were entitled to participate as parties, Chairman Cleary stated:

The Secretary's decision to issue a citation is based on an inspection or investigation covering a limited period of time.   Obviously, the Secretary may not be able to identify each and every employee exposed to a specific hazard. This is particularly true for a health hazard such as noise for which . . . accurate exposure measurements are difficult to make.   Employees who are familiar with conditions in the workplace on a day-to-day basis may have considerably more information about a cited hazard than does the Secretary.   If, however, the right of employees to participate in Commission proceedings is conditioned on the Secretary's belief that such employees are exposed to the cited hazard, the opportunity for certain employees to participate in a proceeding that will directly affect their working conditions will be lost.   If this right to participate is lost, the Commission will never learn the true extent of the [*34]   problem, and, as a result, the Commission's abatement order may be inadequate.   Where, as here, employees seek party status in a case that directly involves their working conditions, Chairman Cleary believes that the Act requires the Commission to allow the employees to participate.   See IMC Chemical Group, Inc., 78 OSAHRC 96/C14, 6 BNA OSHC 2075, 1978 CCH OSHD P23,149 (No. 76-4761, 1978), appeal filed, No. 79-3041 (6th Cir. Jan. 16, 1979).

7 BNA OSHC at 2199, 1980 CCH OSHD at pp. 29,465-66. The Chairman concluded that the union had shown a sufficient nexus between the cited hazard and the assigned work duties of its members to justify participation in the proceedings.   I agree that these union members were properly considered "affected" employees for the purposes of participation under the Act.   As a general rule, I conclude that an employee is an "affected" employee within the meaning of the statute and the Commission rules when that employee has an interest sought to be protected by the citation.   This interest includes the existence of a hazardous or violative condition, the consequences of employee exposure to the hazard, and the abatement of the condition.   Consistent   [*35]   with this particapatory interest, a judge may not approve a settlement agreement until the following conditions have been satisfied: (1) notice of the agreement has been served on the affected employees, n14 (2) affected employees have been afforded a meaningful opportunity to be heard on their objections to the settlement agreement, n15 and (3) the judge has ruled on the merits of the affected employees' objections.   After receiving notice of a proposed settlement, the scope and nature of objections that may be raised by an affected employee are unlimited. n16 IMC Chemical Group Inc., supra, 6 BNA OSHC at 2077, 1978 CCH OSHD at p. 27,990. However, when a judge rules that an affected employee's objections are meritorious, he must nevertheless consider the objections in light of whether the settlement proposal as a whole is consistent with the provisions and objectives of the Act.   Unless an objection raised by the affected employee and found to be meritorious by the judge concerns the affected employee's interest sought to be protected by the citation, i.e., the existence of a hazardous or violative condition, the consequences of employee exposure, and abatement of the [*36]   violation, the judge is not precluded from approving the agreement as being consistent with the Act's objectives.   On the other hand, a proposed agreement cannot as a matter of law be approved over a meritorious objection concerning an affected employee's interests sought to be protected by the citation in issue.

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n14 Commission Rule 100(c), 29 C.F.R. §   2200.100(c), is reasonably calculated to provide affected employees with notice of a settlement proposal by requiring the settlement to be served on employees in the manner prescribed for notices of contest in Commission Rule 7, 29 C.F.R. §   2200.7.

n15 The exact form of this opportunity to be heard will depend on the nature of the objections and the need for documentary or testimonial evidence.

n16 Under the Administrative Procedure Act, the Commission and its judges are, of course, directed to exclude "irrelevant, immaterial, or unduly repetitious evidence." 5 U.S.C. §   556(d).

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In this case Fletcher's interest is predicated on the abatement of the health hazard created [*37]   by exposure to silica dust. n17 Fletcher works in the general area of the plant where the alleged violation occurred.   The Secretary's measurements show that Fletcher was exposed to silica dust, though apparently within permissible limits on the day of the inspection. Under these circumstances Fletcher is clearly seeking to protect his interest under the Act.   Therefore, he must be considered an "affected employee" entitled to the full participatory rights afforded affected employees in our proceedings by Section 10(c) of the Act, the Commission's rules of procedure, 29 C.F.R. Part 2200, and Commission case law.   Accordingly, this case should be remanded to afford Fletcher the opportunity to be heard.   Anything less deprives him of his statutory rights as an affected employee.

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n17 Prior to the parties' submission of the settlement to Judge Oringer, Fletcher filed a letter with the judge, received on June 29, 1978, where he stated:

I [feel] I am directly involved in this Occupational Safety Hazard at the Babcock & Wilcox Company in Barberton, Ohio, Alloy Foundry; Shop #180.   Being that I turned in the complaint that [led] to the citation and possibly court battle, I [feel] that I can further shed light on the case by being present to testify as to what happened at the time I filed the complaint and also a continuation of the same typical type of violations I have observed since I filed my complaint.

  [*38]  

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