UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78–1155 OSHRC DOCKET NO. 78–1214 OSHRC DOCKET NO. 78–1409
MISSOURI FARMER’S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE, MFA, INC., D/B/A MFA GRAIN DIVISION, DESERT GOLD FEED COMPANY, RESPONDENTS,
Respondent.

August 22, 1980

DECISION

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

BY THE COMMISSION:

These consolidated cases are before the Commission pursuant to Commission Rule 75[1] as a result of the certification by Administrative Law Judge David H. Harris of the parties’ joint motion for Interlocutory Appeal.[2]

In each of these cases the parties submitted a jointly executed Stipulation for Withdrawal of Notice of Contest (‘settlement agreement’) to the judge. Based upon exculpatory language in each of the settlement agreements,[3] the judge concluded that they did ‘not comport with Review Commission policy.’ He therefore disapproved each settlement agreement, citing the Commission decisions in Matt J. Zaich Construction Co., 73 OSAHRC 55/D5, 1 BNA OSHC 1225, 1971–73 CCH OSHD ¶15,683 (No. 756, 1973); Greenfield & Associates, 73 OSAHRC 28/A2, 1 BNA OSHC 1245, 1971–73 CCH OSHD ¶16,269 (No. 798, 1973); and Blaisdell Manufacturing, Inc., 73 OSAHRC 53/B8, 1 BNA OSHC 1406, 1973–74 CCH OSHD ¶ 16,915 (No. 1566, 1973).

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,[4] will be approved by the Commission even if they contain exculpatory language. Farmer’s Export Co., 80 OSAHRC ——, 8 BNA OSHC 1655, 1980 CCH OSHD ¶24,569 (No. 78–1708, 1980). To the extent that Zaich, Greenfield, and Blaisdell were inconsistent with Farmer’s Export they were overruled.

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 agreements in these cases comply with the criteria set forth in Commission Rule 100. Each of the agreements includes a motion by Respondent to withdraw its notice of contest. Payment of the amended penalties has been tendered in Docket Nos. 78–1155 and 78–1214. There is a promise to pay the penalty in Docket No. 78–1409. Desert Gold Feed Co. (Docket No. 78–1409) has certified that it is now in compliance. A specific abatement date has been established in Docket Nos. 78–1155 and 78–1214. Proof of service accompanies each settlement proposal and more than 10 days has elapsed since each settlement proposal was posted at Respondents’ premises. Moreover, these agreements are not clearly repugnant to the Act’s objectives and provisions.

Accordingly, the judge’s decision is vacated and the settlement agreements are approved.

SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: AUG 22, 1980

COTTINE, Commissioner, concurring:

The exculpatory provisions contained in the settlement agreements before us do not attempt to preclude or limit the use of the affirmed violations in future proceedings before the Commission.[5] Accordingly, for the reasons set forth in Part I of my separate opinion in Farmer’s Export Co., 80 OSAHRC ___, 8 BNA OSHC 1655, 1980 CCH OSHD ¶24,569 (No. 78–1708, 1980), I concur in vacating the judge’s order before us.

I also join my colleagues in approving the agreements filed by the parties. The agreements comply with the requirements set forth in Dawson Brothers, Mechanical Contractors, 72 OSAHRC 5/B8, 1 BNA OSHC 1024, 1971–73 CCH OSHD ¶ 15,039 (No. 12, 1972) and Commission Rule 100, 29 C.F.R. § 2200.100. In addition, the record reveals that the judge considered all provisions of the agreements and found only the exculpatory provisions unacceptable.[6] On the record before us it is appropriate to conclude that the agreements are consistent with the provisions and objective of the Act and should be approved.[7]

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78–1155 OSHRC DOCKET NO. 78–1214 OSHRC DOCKET NO. 78–1409
MISSOURI FARMER’S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE, MFA, INC., D/B/A MFA GRAIN DIVISION, DESERT GOLD FEED COMPANY, RESPONDENTS,
Respondent.

ORDER

It appearing that the Compromise Settlement Agreement submitted by the parties herein does not comport with Review Commission policy, cf., Matt J. Zaich Construction Company, Docket No. 0756 (April 17, 1973); Greenfield & Associates, Docket No. 0798 (July 17, 1973) and Blaisdell Manufacturing, Inc., Docket No. 1566 (November 14, 1973), it is

ORDERED that the said Compromise Settlement Agreement be and the same is hereby disapproved.

DAVID H. HARRIS

JUDGE, OSHRC

Dated: November 21, 1978

New York, New York

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[1] 29 C.F.R. § 2200.75. This rule has since been amended. See 44 Fed. Reg. 70,106, 70,111 (1979).

[2] On December 19, 1978, the Commission ordered these proceedings stayed pending the disposition of the interlocutory appeal.

[3] In Docket Nos. 78–1155 and 78–1214 the settlement agreements provide, among other things, that each Respondent ‘neither admits or denies any violation.’ The settlement in Docket No. 78–1409 provides that Respondent does not admit any violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678. The settlement in Docket No. 78–1429 further provides that Respondent’s withdrawal of its notice of contest will not have any effect ‘in any action other than an action or proceedings specifically under the Occupational Safety and Health Act.’

[4] 29 C.F.R. § 2200.100. This rule was revised by the Commission on December 5, 1979. 44 Fed. Reg. 70,106, 70,112 (1979).

[5] The agreement in Desert Gold, OSHRC Docket No. 78–1409, provides, in pertinent part, the following:

Nothing contained herein shall be deemed an admission by respondent of a violation of the Occupational Safety and Health Act or any regulation or standard issued pursuant thereto. Nor does this withdrawal have any effect whatsoever in any action other than an action or proceeding specifically under the Occupational Safety and Health Act. [emphasis added.]

The parties have agreed to the following language in Missouri Farmer’s Association, Inc., OSHRC Docket No. 78–1155 and MFA, Inc., OSHRC Docket No. 78–1214:

Nothing in this Stipulation is to be taken as an admission for the purpose of any proceeding other than one before the Occupational Safety and Health Review Commission, it being understood that Respondent neither admits nor denies violations of the act and this Stipulation is made in order to prevent further litigation and expense to both the government and the Respondent and in order to insure compliance with the act. [emphasis added.]

[6] In a letter dated August 28, 1978, the judge informed the parties that he would approve the agreements if the exculpatory language was changed.

[7] I do not join in my colleagues’ criteria for approval—‘these agreements are not clearly repugnant to the Act’s objectives and provisions’—because the test is contrary to Commission precedent, see American Cyanamid Company, 80 OSAHRC ____, 8 BNA OSHC 1346, 1980 CCH OSHD ¶24,424 (No. 77–3752, 1980); Kaiser Aluminum & Chemical Corp., 78 OSAHRC 103/E8, 6 BNA OSHC 2172, 1978 CCH OSHD ¶ 23,200 (No. 76–2293, 1978), appeal dismissed, No. 79–7047 (9th Cir. Feb. 7, 1980); American Airlines, 75 OSAHRC 43/F3, 2 BNA OSHC 1391, 1974–75 CCH OSHD ¶ 19,393 (No. 6087, 1974), and to Commission Rule 100 that is selectively quoted in the majority opinion. The rule states:

(a) Policy . . .. A settlement proposal shall be approved when it is consistent with the provisions and objectives of the Act.

29 C.F.R. § 2200.100(a). See also my separate opinion in GAF Corporation, OSHRC Docket Nos. 78–0867 & 78–1399 (Aug. 22, 1980).