WHIRLPOOL CORPORATION

OSHRC Docket No. 78-6055

Occupational Safety and Health Review Commission

August 31, 1982

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

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Regional Solicitor, U.S. Department of Labor

Robert Mann, for the employer

Kenneth Copeland, President, AIW Local 370, for the employees

Milan Racic and Dave Ortlieb, Allied Industrial Workers of America, for the employees

OPINION:

DECISION

BY THE COMMISSION:

Various related rulings made by Administrative Law Judge John S. Patton are before the Commission on interlocutory appeal. Judge Patton concluded that Local No. 370 of the Allied Industrial Workers of America ("the Union") has a right to present evidence and be heard on its objections to a settlement agreement between the Secretary of Labor ("the Secretary") and Respondent, Whirlpool Corporation.   Specifically, the judge ruled that (1) the Union is not limited to raising issues related to abatement but can litigate the appropriateness of any part of the settlement agreement, including the change in the classification of the violation from serious to other than serious; (2) the issue to be resolved is whether the settlement agreement is appropriate rather than whether the alleged violation is meritorious; (3) the entire [*2]   settlement agreement will be set aside if any part of the agreement is found to be improper; and (4) a hearing on the merits of the case will then be held if the settlement agreement is not approved.       The judge's rulings are therefore affirmed.

While this case was pending on review, the Union filed with the Commission a motion for an order compelling the production of documents in the Secretary's possession.   The Secretary respondent by filing a memorandum in opposition to the Union's motion in which he raised several procedural objections to the Commission's consideration of the motion and also asserted that the requested documents are exempt from discovery under Rules 26(b)(3) and (b)(4) of the Federal Rules of Civil Procedure.   We decline to rule on this motion.   The motion raises issues that are beyond the scope of the interlocutory appeal and that the judge has not had the opportunity to rule on in the first instance.   Moreover, these issues are not easily [*3]   resolved in light of the Secretary's claims of privilege and the need to provide the Union an opportunity to respond to those claims.   Therefore, in the interest of adjudicative efficiency, we conclude that the Union's motion should be considered and resolved on remand.

Accordingly, the judge's rulings are affirmed and the case is remanded to the Chief Judge n1 for further proceedings consistent with this opinion. n2

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n1 Judge Patton has retired.

n2 Chairman Rowland dissents from the affirmance of the judge's rulings.   For the reasons explained in his dissenting opinion in Mobil, the Chairman believes consideration of the settlement agreement should be limited to any objections the Union may have to the reasonableness of the abatement period agreed upon by the Secretary and Whirlpool.   Since the Union has 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.   For this reason, the Chairman would also deny the Union's motion for an order compelling the production of documents.

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SO ORDERED.