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

OSHRC Docket No. 78-1764-P

Occupational Safety and Health Review Commission

October 24, 1978

[*1]

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Wallett Bancroft Rogers, General Motors Corporation, for the employer

OPINIONBY: COTTINE

OPINION:

ORDER

COTTINE, Commissioner:

The June 6, 1978 order of Administrative Law Judge Cecil L. Cutler, Jr., approving a settlement agreement entered into by General Motors Corporation ("GM") 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. n1 The issues to be considered include whether the Authorized Employee Representative was served with the proposed settlement agreement in accordance with Commission Rules of Procedure. In a Statement of Issues on Review the parties were invited to supply evidence demonstrating that the Authorized Employee Representative was served and had an opportunity to consider the provisions of the agreement prior to its submission to the Judge. It was also indicated that upon receipt of this evidence the Commission would entertain a motion to correct the Judge's order (see n.1, supra) and affirm the order as modified.

- - - - - - - - - - - - - - - - [*2] - -Footnotes- - - - - - - - - - - - - - - - - -

n1 These proceedings were initiated by a petition for modification of abatement date filed by GM, and originally opposed by the Secretary, requesting that the period for abating a violation of 29 C.F.R. 1910.95(b)(1) for excessive noise exposure be extended from March 14, 1978, to March 14, 1979. The settlement agreement entered into by the parties sets the new abatement date as March 14, 1979. Judge Cutler's June 6th order inadvertently set the new abatement date as March 14, 1978.

By order also dated June 6, 1978, Judge Cutler purported to correct his previous order, and set the new abatement date as March 14, 1979. A Judge does not retain jurisdiction of a case once his order has been filed with the Commission. Singleton Sheet Metal Works, 73 OSAHRC 6/F6, 1 BNA OSHC 1062, 1971-73 CCH OSHD P15,273 (No. 878, 1972). Therefore, if a correction to a Judge's order is necessary, it must be made by the Commission.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In a "Joint Motion in Lieu of Briefs," n2 received on September 11, 1978, the Secretary and GM move the Commission to adopt the Judge's [*3] order approving the settlement agreement. The parties represent that from May 17, 1978 until June 6, 1978, a copy of the settlement agreement was posted in GM's facility on a column located 20 feet from the equipment alleged to be the source of the excessive noise. Another copy of the agreement was posted 25 feet from the "Union work center" and 100 feet from the office of the Authorized Employee Representative. n3 The parties also state that the settlement agreement was personally served on the Authorized Employee Representative on August 9, 1978, 62 days after Judge Cutler's order was entered. The parties further represent that GM contacted the Authorized Employee Representative and was authorized to state that the Representative does not object to the settlement agreement.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 Although the motion is represented to be a joint motion, it was signed only by the Secretary. The Secretary states that he was authorized by GM to file the motion on behalf of both parties.

n3 An affidavit supporting these representations, signed by GM's Safety Engineer, has been filed with the Commission.

- - - - [*4] - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We emphasize that employee notice in Commission proceedings is essential. One of our concerns in reviewing settlement agreements is that affected employees and their representatives have been notified and afforded an opportunity to be heard. ITT Thompson Industries, Inc., 78 OSAHRC 70/D10, 6 BNA OSHC 1944, 1978 CCH OSHD P22,944 (Nos. 77-4174 & 77-4175, 1978). The Commission Rules of Procedure specifically provide for employee notice of settlement proceedings by requiring that proposed settlement agreements be served upon represented and unrepresented affected employees. Commission Rule 100(c), 29 C.F.R. 2200.100(c). Absent this notice, affected employees may be deprived of their right to participate in settlement adjudications.

On the basis of the representation on behalf of the Authorized Employee Representative and the lack of any objections of record, we conclude that the parties and the Authorized Employee Representative are in agreement with respect to the settlement of this matter. Although the Authorized [*5] Employee Representative was not served with the agreement until after it was approved by Judge Cutler, contrary to the requirements of Rule 100(c), we are satisfied that the Representative has since been afforded the opportunity to be heard. Therefore, consistent with the terms of the Statement of Issues on Review, the order of Judge Cutler is modified to set an abatement date of March 14, 1979, and is AFFIRMED.