D. F. GOLDSMITH CHEMICAL AND METAL CORPORATION

OSHRC Docket No. 79-6485

Occupational Safety and Health Review Commission

March 31, 1982

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Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor, USDOL

Ellen J. Friedman, for the employer

OPINION:

DECISION

BY THE COMMISSION:

An order of Administrative Law Judge Edward A. Bobrick 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. Judge Bobrick dismissed the Secretary of Labor's charges with prejudice upon the motion of the Secretary. The motion was submitted pursuant to a settlement agreement between the parties by which the Secretary agreed to withdraw the charges with prejudice and D.F. Goldsmith Chemical and Metal Corporation agreed to undertake certain abatement measures.

However, the settlement agreement did not include a certification showing that it was posted to give notice to the affected employees. See Commission Rule 100(c), 29 C.F.R. 2200.100(c). Accordingly, we affirm the judge's order n1 upon the condition that the parties submit a certification to the Executive Secretary showing that the settlement agreement has been posted (Commission Rule 7, 29 U.S.C. 2200.7) n2 and upon the condition [*2] that affected employees are afforded at least ten (10) days following posting to comment on or object to the settlement. The certification must be submitted within fifteen (15) days of the issuance of this order. SO ORDERED.

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n1 Upon his own motion, Commissioner Cottine directed review on two issues, one concerning service upon affected employees and the other concerning the parties' failure to state specific dates by which abatement will be accomplished. In Commissioner Cleary's view, inasmuch as the Respondent has agreed to substantial abatement measures in the settlement agreement, and has agreed to study other suggested measures, the settlement comports with his position as set out in his dissenting opinion in Nashua Corp., 80 OSAHRC 121/A2, 9 BNA OSHC 1113, 1981 CCH OSHD P25,020 (No. 78-2146, 1980)

Chairman Rowland concludes that the Commission should not look beyond the terms to which the parties have agreed and therefore the Commission should not require the parties to state any particular abatement terms. See Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3rd Cir.), cert. denied, 101 S.Ct. 784 (1980). Accordingly, Chairman Rowland agrees with Commissioner Cleary that the settlement agreement should not be disapproved because of the lack of specific dates by which abatement will be accomplished.

n2 Respondent's employees are not represented by an authorized employee representative. Accordingly, service by posting is sufficient.

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CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

The majority correctly concludes that the Secretary's motion to dismiss "was submitted pursuant to a settlement agreement between the parties." Thus, the settlement agreement in this case is before the Commission pursuant to our review of the Judge's order granting the Secretary's motion to dismiss. In this unique procedural posture, the specific requirements to Commission Rule 100(b) n1 are not controlling as to whether the judge's order should be affirmed. n2 Nevertheless, the Respondent has entered into an agreement by which it makes specific abatement commitments and further commits itself to additional means of controlling mercury exposure in its workplace. That agreement and its attachments are the basis for the Secretary's motion and are incorporated into the judge's order. Under these circumstances the agreement is consistent with the Act's provisions and objectives as generally required by Commission Rule 100(a). n3 Accordingly, I concur in affirming the judge's order granting the motion, conditioned upon posting and an opportunity for affected employees [*4] to be heard, John Deere Foundry, 81 OSAHRC 14/B9, 9 BNA OSHC 1351, 1981 CCH OSHD P25,218 (No. 78-4449, 1981).

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n1 Commission Rule 100(b), 29 C.F.R. 2200.100(b), provides:

(b) Requirements. Every settlement proposal submitted to the Judge or Commission shall include, where applicable, the following:

(1) A motion to amend or withdraw a citation, notification of proposed penalty, notice of contest, or petition for modification of abatement;

(2) A statement that payment of the penalty has been tendered or a statement of a promise to pay; and

(3) A statement that the cited condition has been abated or a statement of the date by which abatement will be accomplished.

n2 The typical settlement agreement submitted to the Commission for approval is a bargained for exchange between the parties that ultimately affirms in part a citation issued by the Secretary. Compare, e.g., Consolidated Edison Co. of New York, 81 OSAHRC 9/B2 9 BNA OSHC 1267, 1981 CCH OSHD P25,165 (Nos. 80-999 & 80-1252, 1981) (settlement resulting in affirmance of citation but modifications of characterization and penalty) with Consolidated Aluminum Corp., 80 OSAHRC 125/A2, 9 BNA OSHC 1144, 1981 CCH OSHD P25,069 (No. 77-1091, 1980), Petition for review filed, No. 81-3079 (6th Cir. Feb. 16, 1981) (citation withdrawn). The settlement agreement before the Commission in this case does not affirm in any part the citation issued by the Secretary.

n3 Commission Rule 100(a), 29 C.F.R. 2200.100(a), provides in part, "A Settlement proposal shall be approved when it is consistent with the provisions and objectives of the Act."

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