UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

August 29, 1980

DECISION

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

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 (‘the Act’). Administrative Law Judge Paul L. Brady issued an order approving a settlement agreement entered into by the parties. Commissioner Cottine granted Respondent’s petition for discretionary review placing before the Commission the issue of ‘[w]hether the administrative law judge erred in concluding that the Respondent violated the cited standards as alleged.’

  At a hearing on October 3, 1978, the parties entered into the record a series of stipulations which, in effect, constituted a settlement of all issues in the case. That settlement, in part, provides as follows:

Respondent agrees to withdraw its notice of contest with respect to those items and instances which have previously been described by [the Secretary] for the purpose of effectuating the settlement of Secretary vs. Snider Industries, Inc., No. 78–0452, and it is expressly agreed and stipulated that Respondent does not admit any violation of Williams-Stigert (Sic.), Occupational Safety and Health Act of 1970 and the regulations promulgated thereunder at 29 Code of Federal Regulations.

Despite the agreement quoted above, the judge’s order approving the settlement stated that ‘the Occupational Safety and Health Act, and the following standards were violated as alleged in the citation . . ..’

On review Respondent argues that due to the settlement, and the absence of a factual record and findings of fact, the judge could not properly conclude that Respondent violated the Act. Respondent asserts that finding it in violation of the Act is inconsistent with the stipulation and is not ‘a necessary prerequisite for affirming the citations and penalties.’ Respondent requests the Commission to modify the judge’s order to delete his conclusion that Respondent violated the Act and affirm the judge’s order as modified.

The Secretary seeks affirmance of the judge’s order arguing that the judge’s ‘interpretation’ of the stipulation results in the entry of an unambiguous final order and that the Commission decision in Matt J. Zaich Construction Co., 73 OSAHRC 55/D4, 1 BNA OSHC 1225, 1973–74 CCH OSHD ¶16,867 (No. 756, 1973), precludes approval of a settlement agreement containing a ‘non-admission’ clause such as in this case. For the reasons which follow, we remand the case to the judge.

  The Commission has held that it will not abrogate one term of a stipulation while leaving the remainder of the agreement intact. Seaboard Coast Line Railroad Co., 76 OSAHRC 125/G4, 3 BNA 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 1052, 1980 CCH OSHD ¶24,257 (No. 78–25, 1980) (settlement agreement which modified portions of citation which had become final order due to lack of timely contest rejected in its entirety). Further, after the issuance of the judge’s order in this case, the Commission held that settlement agreements which otherwise 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) and Commission Rule 100,1 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, June 27, 1980). To the extent that Zaich, supra, was inconsistent with Farmer’s Export, it was overruled.2

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 in this case fails to meet the criteria set forth in Commission Rule 100(c), supra, because it has not been served upon employees. Rule 100(c) makes no distinction between settlement agreements arrived at during a hearing and at other times, but requires all settlements to be served on affected employees. In order to effectuate this requirement, the parties on remand should reduce to writing the settlement agreement which was orally presented to the judge. Moreover, the judge’s order does not set forth the agreement of the parties as to all citation items nor in all instances accurately reflect the agreement of the parties as to those citation items that are set forth.

  Accordingly, this case is remanded to the judge in order to have the settlement reduced to writing, served upon the affected employees, and for further proceedings consistent with Commission Rule 100(c).3

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

October 19, 1978

ORDER APPROVING SETTLEMENT

On October 3, 1978, prior to commencement of the hearing scheduled in this cause, the parties, in attempting to resolve certain issues, reached a settlement of the matters pending before the Commission.

Therefore, it is ORDERED:

1. Serious citation number one is affirmed and a penalty in the amount of $3,500.00 is hereby assessed. The Occupational Safety and Health Act, and the following standards were violated as alleged in the citation, except where indicated.

(a) Section 5(a)(1) of the Act.

(b) 29 C.F.R. 1910.22(a) (nonserious)

(c) 29 C.F.R. 1910.23(a)(8) (nonserious)

(d) 29 C.F.R. 1910.23(c)(1)

(e) 29 C.F.R. 1910.23(d)(1)(iii)

(f) 29 C.F.R. 1910.10(g)(3)(v)(b)

(g) 29 C.F.R. 1910.106(b)(2)(ii)(a) (de minimus)

(h) 29 C.F.R. 1910.213(g)(1) (abatement date extended 60 days from date of final order)

(i) 29 C.F.R. 1910.213(g)(3) (abatement date extended 60 days from date of final order)

(j) 29 C.F.R. 1910.219(b)(2)

(k) 29 C.F.R. 1910.219(c)(4)(i) (nonserious)

(l) 29 C.F.R. 1910.219(d)(1)

(m) 29 C.F.R. 1910.219(e)(1)(i)

(n) 29 C.F.R. 1910.219(e)(3)(i)

(o) 29 C.F.R. 1910.219(f)(3)

(p) 29 C.F.R. 1910.219(i)(2)

(q) 29 C.F.R. 1910.265(d)(4)(iii)

(r) 29 C.F.R. 1910.265(c)(10)(i)

(s) 29 C.F.R. 1910.265(c)(26)(iii) (de minimus)

(t) 29 C.F.R. 1910.265(c)(26)(viii)

(u) 29 C.F.R. 1910.265(e)(1)(iv)

(v) 29 C.F.R. 1910.265(e)(4)(ii)(b)

(w) 29 C.F.R. 1910.309(a)

(x) 29 C.F.R. 1910.212(a)(1)

2. Citation number two is affirmed and a penalty in the amount of $100.00 is hereby assessed. The following standards were violated as alleged in the citation:

(a) 29 C.F.R. 1904.5(a)

(b) 29 C.F.R. 1910.22(a)(1)

(c) 29 C.F.R. 1910.106(g)(8)

(d) 29 C.F.R. 1910.141(a)(3)(i) (de minimus)

(e) 29 C.F.R. 1910.141(d)(2)(iv) (de minimus)

(f) 29 C.F.R. 1910.141(d)(2)(ii) (de minimus)

(g) 28 C.F.R. 1910.179(b)(5)

(h) 29 C.F.R. 1910.179(h)(2)(v) (de minimus)

(i) 29 C.F.R. 1910.215(a)(d)

(j) 29 C.F.R. 1910.215(b)(9)

(k) 29 C.F.R. 1910.252(a)(2)(ii)(b)

(l) 29 C.F.R. 1910.252(a)(ii)(d)

(m) 29 C.F.R. 1910.309(a)—Section 110–22, National Electrical Code, NFPA 70–1971

(n) 29 C.F.R. 1910.309(a)—Section 250–45(d)(3) National Electrical Code, NFPA 70–1971

(o) 29 C.F.R. 1910.309(b)—Section 350–4 National Electrical Code, NFPA 70–1971

(p) 29 C.F.R. 1910.309(b)—Section 370–18(c) National Electrical Code, NFPA 70–1971

Dated this 19th day of October, 1978.

PAUL L. BRADY

Judge

1 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).

2 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).

3 The judge’s order unnecessarily found that Respondent violated the Act. The withdrawal of a notice of contest by a Respondent results in the affirmance of those portions of a citation which were included within the scope of the withdrawn notice of contest. Those portions of a citation to which a contest has been withdrawn as part of a settlement agreement are thus final orders upon the Commission’s approval of the agreement regardless of the inclusion of exculpatory language in the Settlement. Farmer’s Export Co., supra.