1 of 138 DOCUMENTS

BRISTOL-MYERS COMPANY


BOONVILLE DIVISION OF ETHAN ALLEN, INC.


OWENS-ILLINOIS, INC.


CONTINENTAL GRAIN COMPANY


WALLING CRATE COMPANY


MATERIAL FABRICATION CORPORATION


BURKART-RANDALL COMPANY


KAISER ALUMINUM & CHEMICAL CORP.


BETHLEHEM STEEL CORPORATION, (BUFFALO TANK DIVISION)


WESTERN WATERPROOFING CO., INC.


SOUTHWESTERN BELL TELEPHONE CO.


CHAMPION CONSTRUCTION & ENGINEERING CO., INC.


DEERING MILLIKEN, INC.


WESTERN ELECTRIC CO., INC.


JOHN & ROY CARLSTROM, d/b/a CARLSTROM BROTHERS CONSTRUCTION


NOBLE DRILLING CORPORATION


IMC CHEMICAL GROUP, INC.


CF&I STEEL CORPORATION


DELCO REMY, DIVISION OF GENERAL MOTORS CORPORATION, A CORPORATION


CONTINENTAL CAN COMPANY, U.S.A., a member of THE CONTINENTAL GROUP, INC.


McLEAN-BEHM STEEL ERECTORS, INC.


BROCKWAY CLASS COMPANY, INC.


OTIS ELEVATOR COMPANY


KROEHLER MANUFACTURING CO.


GENERAL MOTORS CORPORATION


GROSSMAN STEEL & ALUMINUM CORP.


YELVINGTON WELDING SERVICE


MRS PRINTING, INC.


BAILEY CONSTRUCTION COMPANY


WILLIAMS ENTERPRISES, INC.


ASPRO, INC., SPUN STEEL DIVISION

OSHRC Docket No. 78-1381

Occupational Safety and Health Review Commission

September 15, 1978

[*1]

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

John A. Zangerle, for the employer

OPINIONBY: COTTINE

OPINION:

DECISION AND ORDER OF REMAND

COTTINE, Commissioner:

The Order of Commission Judge Cecil L. Cutler, Jr., approving a settlement agreement entered into by Aspro, Inc. and the Secretary of Labor, is before the Commission for review under 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. The issues to be considered include whether affected employees were afforded notice and the opportunity to participate in the proceedings initiated by Aspro's petition for modification of abatement date filed on March 27, 1978. n1 The settlement agreement approved by the Judge on May 22, 1978, modified the abatement date as requested by Aspro.

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n1 Commission Rule 34(c)(1), 29 C.F.R. 2200.34(c)(1), requires that petitions for modification of abatement date "be posted in a conspicious place where all affected employees will have notice thereof."

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The International Representative for the United Automobile, Aerospace and Agricultural Implement Workers of America and its Local 917 elected party status in this case by letter to the Judge dated May 25, 1978. Thereafter, the Commission received a letter from the International Representative, dated June 7, 1978, objecting to the settlement agreement approved by Judge Cutler.

By motion received August 10, 1978, and served on Aspro and the Authorized Employee Representative, the Secretary of Labor moves the Commission to set aside the Judge's order and remand the case for further proceedings in accordance with Commission Rule 34(d), 29 C.F.R. 2200.34(d). n2 The Secretary states that the petition for modification of abatement date inadvertently was not posted to afford notice to affected employees. He also states that Aspro and the Authorized Employee Representative have consented to the request for a remand.

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n2 Rule 34(d) sets forth the procedures to be followed when a petition for modification of abatement date is objected to by the Secretary or affected employees.

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The Commission Rules of Procedure set forth specific requirements for notifying employees that a petition for modification of abatement date has been filed by an employer n3 or a settlement agreement has been entered into by an employer and the Secretary. 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, Keystone Seneca Wire Cloth Co., 75 OSAHRC 83/E10 (microfiche), 3 BNA OSHC 1553, 1975-76 CCH OSHD P19,993 (No. 10996-P, 1975), and to participate in settlement adjudications. Furthermore, where affected employees have indicated an intent to participate in a proceeding by exercising their statutory right to elect party status under 29 U.S.C. 659(c), it is the duty of the Commission judge, as well as the Secretary and the employer, to ensure an opportunity for meaningful employee participation. ITT Thompson Industries, Inc.,    OSAHRC   ,    BNA OSHC   , 1978 CCH OSHD P    (Nos. 77-4174 & 77-4175, 1978). n5

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n3 See n. 1, supra.

n4 Commission Rule 100(c), 29 C.F.R. 2200.100(c).

n5 Commissioner Barnako would note his concurring opinion in ITT Thompson Industries, Inc., supra, in which he explained his interpretation of the phrase "meaningful employee participation."

[*4]

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The Secretary's motion is granted. The Order approving the settlement agreement is set aside and the case is remanded for further proceedings.

It is so ORDERED.