WHIRLPOOL CORPORATION

OSHRC Docket No. 78-3930

Occupational Safety and Health Review Commission

September 29, 1982

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

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Robert Mann, for the employer

Jim Gattis, President, Allied Industrial Workers of America Local 370, for the employees

Dave Ortieb, OS&H Specialist, Allied Industrial Workers of America, for the employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John S. Patton approving a settlement agreement entered into by the Secretary of Labor ("the Secretary") and Respondent, Whirlpool Corporation, is before the Commission pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Local 370 of the Allied Industrial Workers of America ("the Local Union") and International Union, Allied Industrial Workers of America ("the International Union") both petitioned for raview of the judge's order. Both petitioners objected to a provision in the settlement agreement reducing the classification of an alleged violation of the Act from serious to other than serious. Commissioner Cottine subsequently directed review of this case on the issue of whether the judge erred in [*2] approving the settlement agreement.

We conclude that the settlement agreement should not be considered for approval without the opportunity of the employee representatives to comment. At the time this settlement agreement was submitted for approval by the judge, Rule 100(c), 29 C.F.R. 2200.100(c), of the Commission's Rules of Procedure, provided n1 as follows:

(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.

Commission Rule 7, which is referred to in Rule 100(c), provided (then, as now) in pertinent part as follows:

(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.

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n1 Rule 100(c) has been amended since this settlement agreement was filed. However, the current rule retains the requirements that the settlement agreement be served on affected employees and that proof of this service accompany the settlement agreement. We note in addition that the criteria for approval of settlement agreements are set forth in Commission Rules 100(a) & (b), 29 C.F.R. 2200.100(a), (b).

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In the settlement agreement now before us, Respondent certified that affected employees were notified of the settlement by posting of a copy of the agreement. However, under the Commission's Rules of Procedure, posting of a settlement agreement is adequate service on affected employees only if none of those employees are represented by an authorized employee representative. If any of the affected [*4] employees are represented by an authorized employee representative, that representative is entitled to service of a copy of the settlement agreement in the manner prescribed in Commission Rule 7(c), regardless of whether it has previously elected party status in the case. Here, the Local Union and the International Union have indicated that they are authorized employee representatives within the meaning of the Commission's rules by filing their petitions for review. Moreover, in its brief on review, Respondent states that it personally served other documents in this case (but not a copy of the settlement agreement) on an unidentified "authorized employee representative." Accordingly, we conclude that the record does not establish that the settlement agreement was served on affected employees in compliance with Commission Rule 100(c). In addition, we note that the Secretary and Respondent, through correspondence [*5] with the judge, revised the abatement provisions of the settlement agreement after they had filed the original written agreement with the judge. The record contains no indication that affected employees were notified of this amendment through any means, even though such notification is required. See Babcock & Wilcox, supra. For these reasons, we disapprove the settlement agreement filed in this case and remand for further proceedings. n2

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n2 We reject the arguments raised by the Secretary and Respondent in opposition to Commission review of this settlement agreement. The direction for review in this case is valid because a Commissioner has the authority to direct review of a case on his own motion. Rule 92(d), 29 C.F.R. 2200.92(d) (at the time pertinent, designated Rule 91a(d), 29 C.F.R. 2200.91a(d)). In addition, contrary to the arguments of the parties, the Commission does have the authority to review settlement agreements. E.g., Raybestos Friction Materials Co., 80 OSAHRC 111/E14, 9 BNA OSHC 1141, 1980 CCH OSHD P24,910 (No. 80-2793, 1980) and cases cited. Accordingly, in order that the Commission may effectively exercise this authority, the general policy limiting Commission review to issues raised by a party before the judge is inapplicable to settlement agreements where a union has not had the opportunity to voice objections. Because the direction for review is otherwise valid, any defects in the underlying petitions for review would have no effect on the Commission's authority to review this case. See, e.g., Little Beaver Creek Ranches, Inc., 82 OSAHRC    , 10 BNA OSHC 1806, 1809-10 n. 4, 1982 CCH OSHD P26,125 at p. 32,878 n. 4 (No. 77-2096, 1982).

We need not decide whether the Local Union and the International Union elected party status prior to the time the settlement agreement was filed with the judge. As indicated above, an authorized employee representative is entitled to service of a copy of a settlement agreement regardless of whether it has previously elected party status. Furthermore, we construe the petitions for discretionary review filed by the International Union and its local, as well as the specific election subsequently filed with the Commission, to be effective elections of party status in this case. See Commission Rule 20(a), 29 C.F.R. 2200.20(a). On remand, the Local Union and the International Union will be provided an opportunity to participate as parties to the proceedings.

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The judge's decision is set aside, the settlement agreement is disapproved, and the case is remanded to the Chief Judge n3 for further proceedings consistent with this opinion. n4

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n3 Judge Patton has retired.

n4 Chairman Rowland dissents from the Commission's order disapproving the settlement agreement and remanding this case for further proceedings. Notwithstanding any defect in the service of the settlement agreement, the record establishes that the Local Union and the International Union both received actual notice of the agreement and that both have had the opportunity to state their objections to the agreement. Those objections are limited to a provision in the settlement agreement reducing the classification of the alleged violation from serious to other than serious. However, the Chairman believes consideration of the settlement agreement should be limited to any objections the unions may have to the reasonableness of the abatement period agreed upon by the Secretary and Whirlpool. Since the unions have raised no objection to the reasonableness of the abatement period, in the Chairman's opinion, further consideration of the adequacy of the settlement agreement is inappropriate. See Mobil Oil Corp., supra note 1 (dissenting opinion). See also, Englehard Indus., supra note 1 (dissenting footnote) (union party not entitled to hearing on objection to reduction in classification of violation).

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SO ORDERED.