UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 79-0929

NATIONAL STEEL AND SHIPBUILDING COMPANY,

 

 

                                              Respondent.

 

 

August 29, 1980

DECISION

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

BY THE COMMISSION:

            This case 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. Administrative Law Judge Jerry W. Mitchell approved a settlement agreement entered into by the parties. Commissioner Cottine directed review of this case on the question of whether the judge erred in approving a settlement agreement containing a provision to the effect that a violation being affirmed could not become the basis of a future repeat violation.[1]

            Since the issuance of the judge’s decision in this case, the Commission has held that a settlement agreement that contains exculpatory language, even though that language may cast doubt as to whether the violation may be used in future proceedings against the Respondent, will be approved by the Commission as long as the agreement otherwise meets 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) and Commission Rule 100.[2] Farmers Export Co., 80 OSAHRC ——, 8 BNA OSHC 1655, 1980 CCH OSHD ¶24,569 (No. 78–1708, 1980).[3]

            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 agreement includes a motion by the Secretary to withdraw specified items of the citation. Inasmuch as no penalty is to be assessed a promise to pay the penalty is not required. A specific abatement date has been established. The record, however, fails to demonstrate affirmatively that a copy of the settlement agreement was ‘served upon represented and unrepresented affected employees in the manner prescribed for notices of contest’ as required by Commission Rule 100(c), supra. Thus, the settlement agreement does not meet the criteria set forth in Rule 100.

            Accordingly, the case is remanded to the judge to allow the parties the opportunity to provide proof of service of the settlement proposal and, if necessary, to conduct further proceedings consistent with this opinion and Commission Rule 100(c).

 

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. 79-0929

NATIONAL STEEL AND SHIPBUILDING COMPANY,

 

 

                                              Respondent.

 

January 2, 1980

ORDER APPROVING SETTLEMENT STIPULATIONS AGREED TO DURING OPEN HEARING

            A place of business and employment under the operation and control of National Steel and Shipbuilding Company (National), located in the lead shop at National’s ship building and ship repair yard at Harbor Drive and 28th Street in San Diego, California, was inspected by a representative of the Secretary of Labor (the Secretary) on 26 January 1979. Following that inspection, the Secretary issued Citation No. 1 to National on 29 January. That citation alleged Nonserious violation of five separate safety and health standards and proposed a penalty of $0.

            National contested each of the five Items of the citation in a letter dated 9 February. After complaint and answer were duly filed, the parties entered into settlement negotiations. Following two telephone pretrial conferences in which the parties were unable to agree to settlement, they were instructed to continue negotiations during trial preparations and the case was set for trial on 14 November. At the time trial was to convene on 14 November, the parties advised that they were very close to agreement and requested an additional hour in which to conclude their negotiations. When the record was opened an hour after the time scheduled for convening, the parties stated their agreement on the record and requested opportunity to put that agreement into a written stipulation. This request was granted after noting on the record that none of National’s affected employees or their representatives were present, even though their union was aware of the trial and had indicated to counsel for the Secretary on 13 November that counsel for the Union would be present at the trial on 14 November.

            On 7 December, the parties filed a document captioned ‘Settlement Stipulations’, executed by National on 30 November and by the Secretary on 3 December. The file and record herein shows that:

            1. National agrees to the affirmance of Item 3 of the Citation as that Item is set forth in paragraph IV C of the complaint;

            2. The Secretary withdraws Items 1, 2, 4, and 5 of Citation No. 1;

            3. The parties have not agreed that the federal shipbuilding safety standards apply to the circumstances involved here and there is no determination in this proceeding as to the applicability or non-applicability of the federal standards in this situation;

            4. The parties agree that the citation issued on 29 January 1979, and at issue here, shall not become the basis for the issuance of a future repeat citation;

            5. Within sixty days of 3 December 1979, National will fabricate and test a ‘flanged hood’ engineering control following the design of a model to be furnished by the Secretary. National will submit test results of the use of the ‘flanged hood’, including air sample data before and after use of this engineering control, to the Secretary for evaluation. If the tests show an appreciable reduction in the atmospheric levels of lead and zinc chloride with respect to the work processes in National’s lead facility, National will implement use of the ‘flanged hood’ engineering control; and

            6. Even though National’s affected employees and the union representing them, were fully aware of the date, time, and place of the trial and indicated on the day before that trial that the union would be represented at the trial, there was no appearance by any affected employee or the union at the trial on 14 November.

            Accordingly, the Settlement Stipulations being consistent with the provisions and fully effectuating the purposes of the Act by providing for abatement of the hazardous working conditions, it is

 

ORDERED that:

            1. The Settlement Stipulations be, and hereby are, APPROVED;

            2. The Secretary’s withdrawal of Items 1, 2, 4, and 5 of Citation No. 1 be, and hereby are, APPROVED;

            3. Items 1, 2, 4, and 5 of Citation No. 1 be, and hereby are, VACATED;

            4. Item 3 of Citation No. 1, as modified and set forth in paragraph IV C of the complaint be, and hereby is, AFFIRMED.

 

JERRY W. MITCHELL

Judge, OSHRC Burlingame, CA

DATED: January 2, 1980


[1] The agreement contains the following language:

4. That the citation . . . giving rise to the above-captioned matter shall not be utilized as or form the basis of a future repeat citation.

[2] 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).

[3] In Commissioner Cottine’s view, a settlement agreement can be approved only when it complies with Commission Rule 100(a).

(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). In his view, an agreement containing exculpatory language that attempts to limit the use of affirmed violations in future proceedings under the Act is inconsistent with the provisions and objectives of the Act and under Commission Rule 100(a) should not be approved. Farmer’s Export Co., supra (dissenting opinion).