UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 78–O737 |
TEXACO,
INC., RESPONDENT & OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION
AND ITS LOCAL 4-23, AUTHORIZED EMPLOYEE REPRESENTATIVE |
|
|
|
September 30, 1982
DECISION
Before: ROWLAND, Chairman; CLEARY, Commissioner.[1]
BY THE COMMISSION:
An
order of Administrative Law Judge Erwin L. Stuller approving a settlement
agreement between the Secretary of Labor and Texaco, Inc., is before the
Commission for review. The judge held that the Oil, Chemical and Atomic Workers
International Union and its Local 4–23 (‘the Union’) were not entitled to an
evidentiary hearing on certain objections they raised to the agreement.
Commissioner Cleary directed review of the judge’s decision pursuant to section
12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 661(i)).
The principal issue on review is whether an employee party can object to
provisions in a settlement agreement between the Secretary of Labor and a cited
employer wherein the Secretary agrees to withdraw contested items of a
citation.
The
two participating members are divided on the disposition of this case. Chairman
Rowland would affirm the judge’s ruling on the ground that the Commission lacks
authority to consider employee objections that are not related to the abatement
period. Mobil Oil Corp., 82 OSAHRC
——, 10 BNA OSHC 1905, 1982 CCH OSHD ¶26,187 (No. 77–4386, 1982) (dissenting
opinion). Chairman Rowland agrees with Texaco’s argument that the Secretary’s
decision to withdraw the three items at issue eliminates from any possible
controversy the one point on which an employee party should be permitted to object
to a settlement agreement.1 Commissioner
Cleary would vacate the judge’s order and hold that the Commission has
jurisdiction to consider the Union’s substantive objections to the settlement
agreement. For the reasons stated in his concurring opinion in Mobil Oil Corp., supra, Commissioner
Cleary would hold that under section 10(c) of the Act affected employees who
have elected party status must be afforded the opportunity to review and raise
objections to settlements proposed by the other parties, including objections
to matters other than the abatement period specified in a settlement proposal.
In
view of the divided vote on the merits of the case, Chairman Rowland and
Commissioner Cleary agree to dispose of the case by vacating the direction for
review. Baldwin Industries, Inc., 82
OSAHRC ——, 10 BNA OSHC 1572, 1982 CCH OSHD ¶25,980 (No. 78–741, 1982), appeal filed, No. 82–7178 (11th Cir. May
28, 1982).
Accordingly,
the direction for review is vacated and the judge’s order is the Commission’s
final disposition of this case.
SO ORDERED.
FOR THE COMMISSION:
Ray H. Darling, Jr.
Executive Secretary
DATED: SEP 30, 1982
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 78–O737 |
TEXACO,
INC., RESPONDENT & OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION
AND ITS LOCAL 4-23, AUTHORIZED EMPLOYEE REPRESENTATIVE |
|
|
|
August 28, 1978
DECISION AND ORDER
APPEARANCES:
JACK F. OSTRANDER, Esquire Office of the
Solicitor U.S. Department of Labor
555 Griffin Square Bldg—Suite 501 Griffin
and Young Streets Dallas, Texas 75202 Attorney for Complainant
MARK A. LIES, II, Esquire Seyfarth, Shaw,
Fairweather & Geraldson
55 East Monroe Street Chicago, Illinois
60603 Attorney for Respondent.
STEVEN WODKA, International Representative
Oil, Chemical and Atomic Workers
International Union Local 4–23 1126 16th
Street, N.W. Washington, D.C. 20036 Representative for Affected Employees
ANTHONY MAZZOCCHI, Vice-President Oil,
Chemical and Atomic Workers
International Union Local 4–23 1126 16th
Street, N.W. Washington, D.C. 20036 Representative for Affected Employees
DECISION
Texaco
Inc. has been charged with four violations of the Occupational Safety and
Health Act. The charges are contained in a citation that was issued on January
26, 1978. Texaco contested the citation. After the complaint was filed, the
authorized representative of the affected employees, the Oil, Chemical and
Atomic Workers International Union (OCAW), elected party status. They did not
file a pleading.
The
case was called to trial on June 6, 1978. It was then continued to July 13,
1978.
At
the hearing, the Secretary and Texaco announced that they had reached a basis
for the settlement of all issues. All of the parties agreed to the settlement
provisions for Item 1 of the citation.[2] As to the three remaining
items, the Secretary and Texaco agreed that prosecution of these items would be
withdrawn and moved that the items be vacated. OCAW objected.
OCAW
argues that once they elect party status and indicate that they are interested
in prosecuting the complaint, no part of the citation or complainant can be
vacated without their approval. They believe that they must be allowed to
prosecute the Secretary’s citation and complaint when the Secretary refuses to
do so.
In
his brief, the Secretary cites one case to support his position: Secretary of Labor v. Southern Bell
Telephone and Telegraph Co., 77 OSAHRC 83/D1, 5 BNA OSHC 1405, 1977–78 CCH
OSHD para. 21, 8040, (No. 10340, 1977.). In that case the Commission held that
only the Secretary has enforcement power under the Act. The exclusiveness of
this power does not allow the affected employees to take over the prosecution
or force the Secretary to prosecute. The affected employees do not have the
right to prosecute citations. They have no standing to contest the Secretary’s
withdrawal of a citation. Apparently, in an employer contest, the employees’
rights as a party may be exercised only if the other parties wish to go forward
with the case. Therefore, OCAW’s objection to the withdrawal of three items of
the citation is overruled.
OCAW
has also requested an order that would require ‘the Secretary to consult with
the authorized employees representative before amending any citations or making
any settlement offers in all cases with Texaco Inc., at their facility (Port
Arthur, Texas)’. This order was requested because there are several such cases
presently pending before judges of this Commission. OCAW is fearful that the
Secretary may attempt to settle these cases without their assistance or approval.
ORDER
The
characterization of the violation alleged in Item 1 is amended from ‘Serious’
to ‘Nonserious’. The abatement provisions and abatement date of the item are
stricken and those provisions contained in parties’ Settlement Agreement is
substituted in their place as if repeated here word for word. Item 1, as
amended, is AFFIRMED. The proposed penalty of $1000 is VACATED.
Items 2, 3, and 4 of the citation and the related
proposed penalties are VACATED.
ERWIN L. STULLER
Judge
DATED: August 28, 1978
1 Under the
settlement agreement, a fourth item is to be affirmed and a detailed plan for
the abatement of that violation is to be implemented. Nevertheless, the Union
has expressly agreed to the settlement agreement’s disposition of that citation
item, including the abatement period established by the agreement.
[2] Pertinent
provision of the Settlement Agreement for Item 1 of the citation, beginning on
page 6 of Transcript of Proceedings, is as follows:
(A) Item 1 of the Citation will allege a
non serious violation of 29 CFR 1910.95(b)(1), with no penalty against
Respondent.
(4) Respondent will retain the services of
a qualified engineering consultant to advise Respondent with respect to
potential engineering controls available to reduce noise levels. Respondent
represents it already has obtained services of such a consultant.
(5) Respondent agrees to implement
engineering controls which are now feasible, in an attempt to reduce sound
levels in Respondent’s P&S Building (barrel painting facility) to within
the levels of Table G–16 or as low as is feasible if it is not possible to
reduce levels to within limits of Table G–16.
(6) Respondent agrees to implement
feasible administrative controls to regulate employee contact with noise
conditions present in Boiler House No. 6.
(7) Respondent represents that its
affected employees are currently using and will continue to use, and that
Respondent is currently enforcing and will continue to enforce, the use of
personal hearing protection by the affected employees during the period of
implementation of said engineering and administrative controls, and that other
times, when employees are exposed to noise levels in excess of Table G–16.
(8) Respondent agrees within 60 days to
submit a proposed plan of feasible engineering and administrative controls of
noise control measures to the Area Director, Houston, Texas, that will be
implemented to abate the violations alleged in Item 1 of the non serious
violation issue, January 26, 1978.
(9) Within 40 days after submission of an abatement plan to the Area Director, Occupational Safety and Health Administration, Houston, Texas, Respondent agrees to complete feasible administrative or engineering controls in order to abate the violations alleged in Item 1 of the citation issued January 26, 1978.