PYROPAK MANUFACTURING, INC.

OSHRC Docket No. 9860

Occupational Safety and Health Review Commission

February 20, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners.

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: An order of Review Commission Judge James D. Burroughs, dated November 22, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's order is hereby affirmed in all respects.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur with the majority's affirmance of the Judge's disposition of this case solely on the grounds that the issues are moot.

As indicated in my concurring opinion in Carolina Power & Light Co., No. 6130 (February 7, 1975), I consider the Commission to be bound by its "public interest" obligations to review carefully all settlements. Cf. Blaisdell Mfg. Co., Inc., No. 1566 (November 13, 1973). The present case is no exception.

Although the abatement date contained in the settlement agreement has passed making the issues moot, I am constrained to comment on these issues because of their importance.

The petition for modification of the abatement date was timely filed only as to item 5. As the Judge noted, it was untimely [*2] as to items 6, 7, and 8 under Commission rule 34. The Judge's comment with respect to the parties obligations under the settlement agreement as to items 6, 7, and 8 is improper.

The Judge approved the settlement agreement as to item 5. He did so without requiring proof of service of the proposed settlement agreement as required by Commission rule 100(c). Sinaiko Bros. Co., No. 4958 (August 28, 1974). The settlement agreement states that: "Petitioner will post a copy of this agreement to inform affected employees of this action" (emphasis added). This is not in compliance with rule 100(c) (29 CFR 2200.100(c)) that requires that proof of service "shall accompany the proposed settlement when submitted to the Commission or the Judge."

If the abatement date had not passed, I would remand the case for service on affected employees pursuant to the Commission's Rules.

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE: Pyropak Manufacturing, Inc., maintains a place of business and manufacturing facility at 93 Airport Road, New Knoxville, Ohio. It is engaged at that location in the business of metal stampings and welding. It is an employe [*3] within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

On March 13, 1974, the respondent conducted an inspection of petitioner's facilities located at 93 Airport Road, New Knoxville, Ohio. As a result of that inspection, one non-serious citation was issued to petitioner on March 28, 1974, alleging that it violated section 5(a)(2) of the Act by failing to comply with 12 specific occupational safety and health standards.

Items 5, 6, 7, and 8 of the citation alleged violations of the standards as indicated and specified correction dates as indicated:

Item No. -- Standards Violated -- Abatement Dates

5 -- 29 CFR 1910.212(a)(3)(ii) -- September 25, 1974

6 -- 29 CFR 1910.212(a)(1) -- July 29, 1974

7 -- 29 CFR 1910.308 & 309(a) N.E.C., NFPA 73-1971 Article 250-42(a) -- May 6, 1974

8 -- 29 CFR 1910.219(3)(1)(i) -- July 29, 1974

The petitioner, by letter dated Spetember 3, 1974, notified the respondent that it desired an extension of 6 to 8 months for Items, 5, 6, 7, and 8. The citation was not contested and became a final order of the Commission pursuant to section 10(a) of the Act.

Prior to the scheduled hearing in this matter, the parties advised [*4] that the matter had been amicably resolved. On November 13, 1974, a settlement agreement was received from the parties. Under the terms of the agreement, respondent agrees that a final abatement date of January 6, 1975, is reasonable for Items 5, 6, 7, and 8. Petitioner represents:

(1) That Items 5, 6, 7, and 8 will be abated by January 6, 1975.;

(2) That the proposed penalty for Item 5 in the amount of $110 has been paid (no penalty was proposed for Items 6, 7, and 8);

(3) Petitioner agrees to comply with the Act in the future; and

(4) Petitioner agrees to post a copy of the agreement to insure affected employees are informed of the agreement.

Commission Rule 34 provides that an employer may file with the Commission a petition for modification of an abatement period no later than the close of the next working day following the date on which abatement is required. The petition for modification of abatement in this case was filed timely only with respect to Item 5 which provided for an abatement date of September 25, 1974. The petition was not timely as to Items 6, 7, and 8. There is no evidence to indicate that the Commission has waived Rule 34 on behalf of the [*5] petitioner. Accordingly, this Judge has no authority to grant the petition for modification of abatement as to Items 6, 7, and 8. See decision of this Judge in H.K. Porter Company, Inc. -- Thermoid Division, Items 6, 7, and 8 of the citation are not properly before this Judge for decision. The parties are bound by their own agreement as to items 6, 7, and 8 without the sanction of the Commission.

Accordingly, it is

ORDERED:

(1) That the abatement date for Item 5 of the citation issued to respondent on March 28, 1974, is extended from September 25, 1974, to January 6, 1975; and

(2) That the petition as it pertains to items 6, 7, and 8 is untimely and is dismissed.