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).