KL SPRING & STAMPING CORPORATION

OSHRC Docket No. 78-5913

Occupational Safety and Health Review Commission

July 31, 1979

COUNSEL:

[*1]

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor

Robert Gettleman and Walter Poth, for the employer

George Prenatt, Staff Rep., Safety & Health Department - USWA, for the employees

Jesse Montemayor, Staff Rep., District 31 - USWA, for the employees

OPINION:

ORDER

BY THE COMMISSION: On April 26, 1979, the Order of Administrative Law Judge Paul A. Tenney, approving a settlement agreement entered into by the Secretary of Labor and the Respondent, KL Spring & Stamping Corporation ("KL"), was directed for review under 29 U.S.C. 661(i) and Commission Rule 91a(a), 29 C.F.R. 2200.91a(a). The parties were advised that an order would follow.

An October 5, 1978 inspection of KL's worksite resulted in the issuance, on November 3, 1978, of one citation alleging 4 serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act"), and one citation alleging 6 nonserious violations of the Act. Total penalties in the amount of $1260 were proposed by the Secretary for these alleged violations. In a letter dated November 20, 1978, KL contested the penalties proposed by the Secretary, as well as the abatement date [*2] set for item 1(c) of the serious citation. n1 In a letter dated December 12, 1978, the United Steelworkers of America, AFL-C10 and Local Union 4365, District 31, elected party status under 29 U.S.C. 659(c) and Commission Rule 20(a), 29 C.F.R. 2200.20(a).

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n1 Item 1(c) alleges noncompliance with 29 C.F.R. 1910.212(a) in that KL failed to provide point of operation guarding for two Loades testers in the kickpress department. The abatement date set in the citation for this item is November 20, 1978.

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Subsequently, the Secretary and KL entered into a settlement agreement under which total penalties would be reduced to $630 and the abatement date for item 1(c) of the serious citation would be extended to April 1, 1979. The agreement was approved by Judge Tenney on March 27, 1979. In a letter dated March 23, 1979, addressed to the OSHA Area Director, served on the authorized employee representative, and received by the Commission on March 27, 1979, KL requests that the abatement date for item 1(c) be extended from [*3] April 1, 1979 to July 1, 1979.

We herewith approve the settlement agreement reached by the parties. We take no action with respect to KL's letter requesting that the abatement date be extended to July 1, 1979. That date has passed and KL may well have abated the condition. n2 In any event the request should properly be handled as a petition for modification of abatement pursuant to Commission Rule 34, 29 C.F.R. 2200.34. Therefore if KL still desires additional time to abate the violative condition, it should proceed under Commission Rule 34 by filing a petition for modification of abatement with the Area Director of the department of Labor who issued the citation.

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n2 We recognize that under 10(b) of the Act (29 U.S.C. 659(b)), the period within which abatement must be effected does not begin to run until entry of a final order of the Commission, unless review proceedings were initiated soley for delay or avoidance of penalties. Therefore since this case was directed for review, Respondent had no obligation to abate.

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IT IS SO ORDERED.

CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

The requested extension in this case is not properly treated as a petition for modification of abatement under 29 U.S.C. 659(c) and Commission Rule 34, 29 C.F.R. 2200.34. On March 27, 1979, the Commission received KL's letter requesting an extension of the abatement date for item 1(c) from April 1, 1979 until July 1, 1979. The letter was received after the issuance of the judge's order in this case, but within the 30 day review period set forth in 29 U.S.C. 661(i) for Commission review of judges' reports. 29 C.F.R. 2200.91a. It is apparent that KL was seeking to modify the abatement provision of a negotiated agreement that had not yet received final Commission approval. Accordingly, the judge's order apporving the agreement should have been vacated and the case remanded for further proceedings in light of this request. See Kaiser Aluminum & Chemical Corp., 78 OSAHRC 103/A2, 6 BNA OSHC 2172, 1978 CCH OSHD P23,200.

However, because the request for an extension of the negotiated abatement date is now moot, and no useful purpose would be served by a further delay in the final disposition of [*5] this case, I would affirm the judge's order approving the settlement agreement.