UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 79-5772-P

INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.,

 

 

                                              Respondent.

 

August 29, 1980

DECISION

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

            This case is before the Commission for review 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’). A joint stipulation and settlement agreement entered into by Petitioner, Independence Foundry & Manufacturing Company, Inc. (‘Independence’), and the Secretary of Labor (‘the Secretary’) was approved ‘with the exception of the exculpatory language in paragraph 4’ by Administrative Law Judge Vernon Riehl. Commissioner Barnako granted a petition for review of the judge’s order filed by Independence. Before us is the issue of whether the judge erred in issuing an order approving a settlement agreement while rejecting one specific provision of that settlement. For the reasons which follow, the stipulation and settlement agreement filed by the parties is approved.

            Independence’s ‘gray iron’ foundry was inspected on September 29, 1975. As a result of that inspection two citations were issued. Citation 1, alleging a serious violation of 29 C.F.R. § 1910.95,[1] was issued on October 7, 1975, and citation 2, alleging, among other things, a nonserious violation of 29 C.F.R. § 1910.1000,[2] was issued on October 30, 1975. These citations set October 6, 1976, and March 6, 1976, as abatement dates for the alleged noise and silica dust violations respectively. Independence did not contest either citation. On October 12, 1976, the Secretary issued an amended citation changing both the noise and silica dust citations so as to extend the abatement period to October 6, 1977. Similarly, on November 3, 1977, abatement was extended to January 6, 1978; on February 2, 1978, it was extended to March 6, 1978; on April 12, 1978, it was extended to September 1, 1978; and, on September 22, 1978, it was extended to September 1, 1979.[3]

            On August 3, 1979, Independence filed with the OSHA Area Director a letter requesting abatement extensions to September 1, 1980 for both violations. Independence’s request was forwarded by the Secretary to the Commission on October 3, 1979, at which time it was accompanied by the Secretary’s motion for additional time to respond to the request. The Secretary’s submission was docketed by the Commission as a contested petition for modification of abatement pursuant to Commission Rule 34(d), 29 C.F.R. § 2200.34(d),[4] and the case was assigned to Administrative Law Judge Riehl on December 3, 1979. The judge received an executed stipulation and settlement agreement on March 3, 1980, and on March 13, 1980, issued his order approving the agreement ‘with the exception of the exculpatory language in paragraph 4.’[5]

            Based upon the record in this case Respondent’s August 3, 1979, petition for modification of abatement dates was timely filed. Having previously received five amended citations, each extending the time to abate, Independence acted with reasonable reliance on the past extensions in concluding that it had until extend the time for abatement to September its August 3, 1979, petition to extend the time for abatement to September 1, 1980, was timely filed under Commission Rule 34(c), 29 C.F.R. § 2200.34(c).[6] Further, we deem the Secretary’s action of forwarding Independence’s petition to the Commission along with his motion for additional time to respond as an objection to the petition pursuant to Commission Rule 34(d), supra. Cf., Amoco Chemicals Corp., 80 OSAHRC ——, 8 BNA OSHC 1085, 1980 CCH OSHD ¶24,253 (No. 79–4874–P, 1980) (Secretary’s response to a petition for modification of abatement stating a lack of sufficient data to object to or concur in petition is objection within the meaning of Commission Rule 34(d)).

            The Commission has held that it would be unfair to a respondent for the Commission to abrogate one term of an agreement while leaving the remainder intact. Seaboard Coast Line Railroad Co., 76 OSAHRC 125/G4, 3 BNA OSHC 1760, 1975–76 CCH OSHD ¶20,184 (No. 10541, 1975), appeal dismissed, No. 76–1058 (D.C. Cir. March 15, 1976); Cf. Connecticut Aersols, Inc., 80 OSAHRC ——, 8 BNA OSHC 1052, 1980 CCH OSHD ¶24,257 (No. 78–25, 1980) (Commission, having authority over only parts of a settlement agreement, declined to approve those parts because such action might not reflect intent of the parties). The judge, therefore, erred in issuing an order approving of the settlement agreement while rejecting a provision in the agreement that contained exculpatory language. In any event, since the issuance of the judge’s decision in this case, the Commission has held that settlement agreements which meet the requirements set out in Dawson Brothers-Mechanical Contractors, 72 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971–73 CCH OSHD ¶15,039 (No. 12, 1972), as adopted by Commission Rule 100,[7] will be approved by the Commission even if they contain exculpatory language. Farmer’s Export Company, 80 OSAHRC ——, 8 BNA OSHC 1655, 1980 CCH OSHD ¶24,569 (No. 78–1708, 1980).

            Commission Rule 100, which essentially codifies the criteria set forth in Dawson Brothers-Mechanical Contractors, supra, provides, in pertinent part, as follows:

 

Rule 100 Settlement.

(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.

 

(c) Filing; service and notice. When a settlement proposal is filed with the Judge or Commission, it shall also be served upon represented and unrepresented affected employees in the manner prescribed for notices of contest in § 2200.7. Proof of service shall accompany the settlement proposal. A settlement proposal shall not be approved until at least 10 days following service of the settlement proposal on affected employees.

 

            The settlement agreement in this case essentially complies with the criteria set forth in Commission Rule 100. The agreement includes (a) the Secretary’s statement that he does not object to the petition for modification of the abatement date to September 1, 1980, (b) a statement that a copy of the agreement has been served on the authorized representative of affected employees and posted at the workplace, and (c) a statement that the parties agree to the entry of a final order establishing September 1, 1980, as the abatement date. Moreover, this agreement is not clearly repugnant to the Act’s objective and provisions.[8]

            Accordingly, the judge’s decision is set aside and the settlement agreement submitted by the parties is approved.

 

SO ORDERED.

 

FOR THE COMMISSION:

 

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: AUG 29, 1980

 


 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 79-5772-P

INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.,

 

 

                                              Respondent.

 

March 13, 1980

ORDER

            The attached joint stipulation and settlement agreement, filed March 3, 1980, and made a part hereof by reference, is before me for approval.

            The agreement is therefore approved with the exception of the exculpatory language in paragraph 4. Said language is not approved because it extends the jurisdiction of this Court.

            Respondent is given until September 1, 1980, to be in abatement as per their letter August 3, 1979.

 

Date: March 13, 1980

 

Vernon Riehl

Judge, OSHRC

Attachment

 

STIPULATION AND SETTLEMENT AGREEMENT

            Ray Marshall, Secretary of Labor, United States Department of Labor, hereinafter referred to as the ‘Secretary’, and Independence Foundry and Manufacturing Co., hereinafter referred to as the ‘Petitioner,’ stipulate and agree as follows:

            1. Based upon an evaluation of the factors upon which abatement dates are determined, and the specific situation of the Petitioner in the above captioned matter, the Secretary does not object to Petitioner’s petition to modify the abatement date in the above-captioned matter to September 1, 1980.

            2. Petitioner hereby states that in support of the Secretary’s determination not to object to Petitioner’s petition for modification of abatement dates it agrees as follows:

(a) That attached hereto as Appendix A is Petitioner’s Standard Operating Procedure for Selection and Use of Respirators at Petitioner’s plant. The procedure constitutes Petitioner’s respiratory protection program required under OSHA rules for employee personal protective equipment. This procedure shall be maintained and enforced until economically and operationally feasible administrative or engineering controls can be implemented which will abate the violation alleged in item 1, citation number 2, CSHO No. M2882, dated October 30, 1975. As of the date of the signing by Petitioner of this Stipulation and Settlement Agreement, Petitioner states that it has no knowledge of any economically or operationally feasible administrative or engineering controls that can be implemented that will abate the above-stated violation. Present affected employees of Petitioner shall be instructed and trained in the proper use and limitations of respirators within two (2) weeks of the date this Stipulation and Settlement Agreement is signed by Petitioner. New affected employees shall be instructed and trained in the proper use and limitations of respirators within one (1) week from the date their status as an affected employee commences. Repeated instruction and reminders regarding the use and limitations of respirators shall be given.

(b) That during the month of June, 1980, an appropriate inspection of work area conditions and degree of employee exposure or stress shall be made and a written report of the same shall be prepared and sent to the Occupational Safety and Health Administration. An appropriate inspection shall be a review of work area conditions regarding silica dust and a review of the effectiveness of the Petitioner’s respiratory protection program with regard to such dust.

(c) That every twelve (12) months, on a date selected by the Petitioner (unless the Petitioner’s physician determines more frequent review is necessary), all persons regularly working in a job requiring the use of respirators pursuant to this program will be examined by the Petitioner’s physician to determine the person’s continued ability to perform the work while wearing a respirator. The employee will be advised of the results of these examinations.

 (d) That Petitioner shall on an annual basis engage in an inspection of work area conditions and degree of employee silica exposure. The Petitioner shall maintain a separate file containing the information obtained from the inspection, and a copy of the same shall be provided the Occupational Safety and Health Administration. Modifications of the procedure attached hereto as Appendix A shall be made as is determined is necessary from the inspection. All such modifications shall be reported to the Occupational Safety and Health Administration. Any modifications shall be properly announced and explained to all affected employees.

(e) That protection against the effects of noise exposure shall be provided at no cost to employees.

(f) That attached hereto as Appendix B is Petitioner’s Standard Operating Procedure for Selection and Use of Hearing Protection Devices at Petitioner’s plant. The procedure constitutes Petitioner’s hearing conservation program required under OSHA rules for employee personal protective equipment. This procedure shall be maintained and enforced until economically and operationally feasible administrative or engineering controls can be implemented which will abate the violation alleged in item 1 of citation number 1, CSHO No. M2882 issued October 7, 1975. As of the date of the signing by Petitioner of this Stipulation and Settlement Agreement, Petitioner states that it has no knowledge of any economically or operationally feasible administrative or engineering controls that can be implemented that will abate the afore-stated violation. Present affected employees shall be instructed and trained in the proper use and limitations of the hearing protective devices provided within two (2) weeks of the date this Stipulation and Settlement Agreement is signed by Petitioner. New affected employees shall be instructed and trained in the proper use and limitations of the hearing protective devices within one (1) week from the date their status as an affected employee commences. Repeated instructions and reminders regarding the use and limitations of the hearing protective devices shall be given.

(g) That every twelve (12) months on a date selected by the Petitioner an audiogram will be obtained for each person regularly assigned in the jobs listed in paragraph 2 of Appendix B and for all persons who on a regular basis work for a meaningful period of time in areas in or around the work areas of the listed jobs. The result of the examination will be provided the employee. Retesting and/or referral to an otolaryngologist or qualified physician shall be done when a significant shift in hearing occurs. A ‘significant shift in hearing’ is equal to or greater than a -20db shift at any frequency from the previous year’s test results of that employee.

(h) That Petitioner shall on an annual basis engage in an inspection of work area conditions and degree of employee noise exposure. The Petitioner shall maintain a separate file containing the information obtained from the inspection, and a copy of the same shall be provided the Occupational Safety and Health Administration. Modifications of the procedure attached hereto as Appendix B shall be made as is determined from the inspection. All such modifications shall be reported to the Occupational Safety and Health Administration. Any modifications shall be properly announced and explained to all affected employees.

(i) For the purposes of this Stipulation and Settlement Agreement, the term ‘affected employees’ shall mean those persons regularly assigned to a job covered by the applicable Operating Procedure.

            3. Respondent and Petitioner agree that the procedures set forth in paragraph 2 above and Appendices A and B shall constitute adequate interim controls under citation number 2, CSHO No. M2882 item 1 issued October 30, 1975 and citation number 1, CSHO No. M2882 issued October 7, 1975, during the abatement extension period during which any available economically and operationally feasible administrative or engineering controls shall be commenced or implemented that will abate the aforementioned violations.

            4. Petitioner states affirmatively that the instant Stipulation and Settlement Agreement is being entered into solely in the spirit of conciliation and to avoid protracted and expensive litigation. Any admissions contained herein are solely for the purpose of reaching settlement of this case and shall not be construed as an admission by Petitioner in any Court of law or equity or for any purposes whatsoever’ excepting and limited to any subsequent OSHA proceeding regarding Petitioner.

            5. Petitioner states that affected employees are represented by International Molders and Allied Workers Union and its Local 162, and that a copy of this Stipulation and Settlement Agreement will be served on the Union, c/o Robert McMiller by prepaid, first-class mail on February 29, 1980. Petitioner also states that a copy of this Stipulation and Settlement Agreement was posted at Petitioner’s workplace on February 29, 1980 at a place where it may be viewed by its employees.

            6. The Secretary and Petitioner agree that based upon the foregoing representation of Petitioner an order may be entered allowing a modification of abatement date in the above-captioned matter to September 1, 1980, be entered as a final order of the Commission.

 

Dated this 27 day of February,1980

 

Watson, Ess, Marshall & Enggas

By Leonard Singer 1006 Grand Avenue Kansas City, Missouri 64106

Attorneys for Petitioner

 

Carin Ann Clauss Solicitor of Labor

Tedrick A. Housh, Jr. Regional Solicitor

James R. Cato Attorney

Room 2106, 911 Walnut Street

Kansas City, Missouri 64106

(816) 374–6441

 

Attorneys for Ray Marshall,

 

Secretary of Labor, United

 

States Department of Labor

 

NOTICE TO EMPLOYEES OR EMPLOYEE REPRESENTATIVE

            If you have any comments on the settlement agreement entered into by the parties hereto, you may submit them within ten days of service or posting of the stipulation to:

Judge Vernon G. Riehl

 

Occupational Safety and Health Review Commission

1114 Market Street, Room 606

St. Louis, Missouri 63101

 

or to:

Tedrick A. Housh, Jr.

Regional Solicitor

U.S. Department of Labor

911 Walnut Street, Suite 2106

Kansas City, Missouri 64106

 

            A copy of such comments must be served on the persons who signed the attached stipulation and settlement agreement.

 

Appendix A

STANDARD OPERATING PROCEDURE FOR SELECTION AND USE OF RESPIRATORS AT INDEPENDENCE FOUNDRY AND MANUFACTURING COMPANY

            1. The Company selects respirators on the basis of the known needs of the workforce. The selection of OSHA-approved respirators or respirators approved by another appropriate body shall be made in all cases.

            2. Persons performing the following jobs shall wear respirators while working:

(a) Grinders

(b) Shake-out Helpers

(c) Mullor Operators

(d) Pit Cleaners

(e) Any other function wherein OSHA standards require such personal protective equipment

            3. If the Company provides reusable respirators, the following procedures will be followed:

(a) Where practicable, the respirators should be assigned to individual workers for their exclusive use;

(b) Respirators will be regularly cleaned and disinfected. Those issued for the exclusive use of one worker should be cleaned after each day’s use, or more often if necessary. Those used by more than one worker shall be thoroughly cleaned and disinfected after each use;

(c) Respirators shall be stored in a convenient clean and sanitary location;

(d) Respirators shall be inspected during cleaning. Worn or deteriorated parts shall be replaced.

            4. Supervisors are responsible for requiring employees who should wear respirators under this program to wear the respirator properly. Supervisors will make random inspections of employee respirator use.

 

Appendix B

STANDARD OPERATING PROCEDURE FOR SELECTION AND USE OF HEARING PROTECTION DEVICES OF INDEPENDENCE FOUNDARY AND MANUFACTURING COMPANY

            1. The Company selects personal protective hearing devices (‘devices’) on the basis of known needs of the workforce. The selection of OSHA approved devices or such devices approved by another appropriate body shall be made in all cases.

            2. Persons working in the following jobs shall wear hearing protection devices while working:

(a) Automatic Molding Machine Operators

(b) Jolt Squeeze Machine Operators

(c) Grinders

(d) Shake-out Helpers

(e) Blast Machine Operators

(f) Inspectors

(g) Mullor Operators

(h) Or other functions wherein OSHA standards require such personal protective equipment.

            3. Where insert earplugs or custom-molded hearing protection devices other than self-fitted, malleable plugs are utilized, individual employee fitting shall be conducted by a trained person.

            4. Each person regularly assigned to a job in which it is required by this program to use a hearing protection device shall be instructed regarding the use of the hearing protection device. Follow-up instruction or reminders will occur regarding the use of hearing protection devices.

            5. Supervisors are responsible for requiring employees who should wear hearing protection devices under this program to wear the hearing protection devices properly. Supervisors will make random inspections of employees using hearing protection devices.

            6. Within six months of the date of assignment or the commencement of regular work in the specified job, a baseline audiogram will be obtained for all employees who, at the time of hire, are assigned to the jobs listed in paragraph 2 and for all employees who on a regular basis work for a meaningful period.



[1] This standard essentially seeks to protect employees from exposure to excessive noise levels.

[2] This standard essentially seeks to protect employees from exposure to excessive concentrations of airborne silica dust.

[3] Although the record is not clear as to the procedure by which the abatement dates were extended, we construe the amended citations to be abatement extensions under section 10(c) of the Act because the Secretary cannot amend a citation that has become a final order.

[4] This Rule provides as follows:

§ 2200.34 Petitions for modification of abatement period.

(d) Where any petition is objected to by the Secretary or affected employees, such petition shall be processed as follows:

(1) The petition, citation and any objections shall be forwarded to the Commission within three (3) working days after the expiration of the fifteen (15) day period set out in paragraph (c)(4).

(2) The Commission shall docket and process such petitions as expedited proceedings as provided for in § 2200.101 of this Part.

(3) An employer petitioning for a modification of abatement period shall have the burden of proving in accordance with the requirements of 29 U.S.C. § 659(c), that such employer has made a good faith effort to comply with the abatement requirements of the citation and that abatement has not been completed because of factors beyond the employer’s control.

(4) Within ten (10) working days after the receipt of notice of the docketing by the Commission of any petition for modification of abatement date, each objecting party shall file a response setting forth the reasons for opposing the granting of a modification date different from that requested in the petition.

[5] Paragraph 4 of the agreement states:

4. Petitioner states affirmatively that the instant Stipulation and Settlement Agreement is being entered into solely in the spirit of conciliation and to avoid protracted and expensive litigation. Any admissions contained herein are solely for the purpose of reaching settlement of this case and shall not be construed as an admission by Petitioner in any Court of law or equity or for any purposes whatsoever, excepting and limited to any subsequent OSHA proceeding regarding Petitioner.

[6] Rule 34(c) provides, in pertinent part:

A petition for modification of abatement date shall be filed . . . no later than the close of the next working day following the date on which abatement was originally required.

[7] 29 C.F.R. § 2200.100. This Rule was revised by the Commission on December 5, 1979. 44 Fed. Reg. 70106, 70112 (1979).

[8] None of the exculpatory language contained in the settlement agreement attempts to preclude or limit the use of the agreement in any future proceeding under the Act. Accordingly, for the reasons set forth in Part I of his dissenting opinion in Farmer’s Export Co., supra, Commissioner Cottine concurs in vacating the judge’s order before us. Commissioner Cottine also concurs in the Commission’s approval of the settlement because it complies with the requirements set forth in Dawson Brothers and Commission Rule 100, 29 C.F.R. § 2200.100, and is sufficiently detailed and comprehensive to allow the Commission to make the necessary initial determinations that the agreement furthers the public interest and is consistent with the provisions and objectives of the Act. See Boston Gear, A Div. of Murray Co. of Texas, Inc., —— OSAHRC ——, 7 BNA OSHC 1414, 1979 CCH OSHD ¶23,595 (No. 76–967, 1979) (dissenting opinion), and Western Electric Co., Inc., 78 OSAHRC 98/A2, 7 BNA OSHC 1020, 1978 CCH OSHD ¶23,158 (No. 1536, 1980) (dissenting opinion).