SECRETARY OF LABOR, Complainant, v. CONTRACTORS, WELDING OF WESTERN NEW YORK, INC., Respondent. OSHRC Docket No. 88-1847 /_DECISION_/ Before: FOULKE, Chairman; WISEMAN, Commissioner. BY THE COMMISSION: *I. lntroduction* On September 6, 1991, the Commission issued its decision in this case. /Contractors Welding of Western New York., Inc.,/ 15 BNA OSHC 1249, 1991 CCH OSHD ¶ 29,454 (No. 88-1847,1991). The citation adjudicated in that decision alleged, among other things, that the company had violated the standard at 29 C.F.R. § 1926.106(a) [[1]] because welders employed by the company were not wearing life vests or buoyant work vests while they were working on the metal structure of a drawbridge. The citation also alleged that the company had failed to comply with 29 C.F.R. § 1926.106(c) [[2]] by not having available at the worksite a ring buoy with at least 90 feet of line attached. The Commission found that the company had violated section 1926.106(c) because no ring buoy at the site had the required 90 feet of line attached. The Commission vacated the section 1926.106(a) item because the company presented evidence that it had provided enough life vests at the worksite for every employee. The Commission rejected the Secretary's assertion that there was an implicit requirement in the standard that an employer require its employees to wear the life vests. It found that the company had fulfilled its obligation under the standard to provide life vests for its employees by having the vests at the worksite available for any employee who wished to use one. Noting that its decision could be appealed to the United States Court of Appeals for the Second Circuit, the Commission examined that court's precedent on the question and found that it supported the Commission's conclusion. Both parties appealed the Commission's decision to the Court of Appeals for the Second Circuit. Subsequently, the parties agreed to settle their disputes and submitted a motion to the court requesting that the appeals be dismissed and the case returned to the Commission for the Commission to approve the parties' settlement agreement and vacate its decision. The stipulation submitted by the parties to the court, and entered by the court on February 5, 1992, recited that the appeal was withdrawn subject to reinstatement if the Commission did not vacate its decision by March 17, 1992. It did not, however, contain any language remanding the case to the Commission. The parties filed with the Commission a joint motion asking the Commission to vacate its September, 1991 decision and approve the parties' settlement agreement. However, because the parties never responded to a request from the Commission to inform the Commission of the jurisdictional basis for the Commission to act on their motion, the Commission dismissed the joint motion. The parties have again submitted a settlement agreement to the court, which entered an order dismissing the appeal and remanding the case to the Commission "for further proceedings before the Commission in accordance with the parties' settlement agreement." *II. Discussion. * The settlement agreement recites that the Secretary withdraws the citations as to both the section 1926.106(a) allegation and the section 1926.106(c) allegation. To conform our decision to the parties' settlement agreement, we must therefore vacate that portion of the decision finding a violation of 29 C.F.R. § 1926.106(c). Also although we vacated the item alleging a violation of 29 C.F.R. § 1926.106(a), we must now amend our decision to indicate that the citation was withdrawn, and that portion of the decision is now moot. We note, however, that the Second Circuit did not review any portion of the decision and has made no adjudication as to the merits of the issues presented. Indeed, our original decision on the section 1926.106(a) item relied on Second Circuit precedent. The Commission was created by the Congress as a single agency with nationwide jurisdiction in order to establish a uniform body of law that would afford consistency in the adjudication of case arising under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678. /Keystone Roofing, Inc/. /v. OSHRC/, 539 F.2d 960, 963, 964 (3d Cir. 1976). The Commission is concerned that, if the Secretary were to appeal adverse decisions solely for the purpose of entering into settlement agreements to eliminate the binding effect of our precedent, that practice could frustrate this congressional objective. This is not to say that we oppose settlement of cases before the courts of appeals, or at any level. In fact, the Commission has a policy which encourages settlement of cases which are before it at any stage. of the proceedings.[[3]] While the decision on the 1926.106(a) item is now moot, we believe that the analysis of the issue presented was correct. Under the circumstances, we conclude that our decision still constitutes valid precedent and may be relied on in future arguments to the Commission. *III Conclusion.* Accordingly, pursuant to the instructions of the court of appeals, our prior decision in this case is vacated as moot. Edwin G. Foulke, Jr. Chairman Donald G Wiseman Commissioner Velma Montoya Commissioner Dated: August 6, 1992 ------------------------------------------------------------------------ SECRETARY OF LABOR, Complainant, v. CONTRACTORS WELDING OF WESTERN NEW YORK, INC., Respondent. OSHRC Docket No. 88-1847 THE PARTIES' JOINT MOTION TO APPROVE THEIR SETTLEMENT AND TO VACATE THE DECISION The Secretary of Labor and Contractors Welding of Western New York, Inc. ("Contractors") jointly request that the commission approve the parties' settlement, agreement in this case and vacate its decision dated September 6, 1991. As grounds for this motion, the parties state as follows: 1. In July of 1988, the Secretary cited Contractors pursuant to the Occupational Safety and Health Act and regulations in connection with work performed by it on the Ferry Street Bridge, in Buffalo, New York. Item 1 of the citation alleged that Contractors violated 29 C.F.R. §1926.106(a) by failing to provide life preservers or buoyant life vests, or other protection against drowning, to two employees working on the bridge structure from the edge of an abutment, near deep water. Item 2 of the citation alleged that the company violated 29 C.F.R. §1926.106(c) by failing to provide a ring buoy with at least 90 feet of line for emergency rescue operations. Item 3 alleged a violation of 29 C.F.R. §1926.106(d) for failure to make a lifesaving skiff available. The Secretary proposed a penalty of $480 for each violation. 2. Contractors contested the citation and proposed penalty. In a decision dated February 2, 1990, an ALJ affirmed the alleged violations of 29 C.F.R. §§ 1926.106(a), 1926.106(c) and 1926.106(d) and imposed a penalty of $480 for each violation. The full Commission directed review of the ALJ's decision on the violations of 29 C.F.R. §§ 1926(a) and 1926.106(c). In a decision dated September 6. 1991, it vacated the alleged violation of 29 C.F.R. § 1926.106(a) and affirmed the alleged violation of 29 C.F.R. §1926.106(c). 3. Both the Secretary and Contractors filed petitions for review of the Commission's decision in the United States Court of Appeals for the Second Circuit (Nos. 91-4179 and 91-4187). While the case was pending before the court, the parties agreed to a settlement of citation items 1 and 2 conditioned upon vacatur of the underlying Commission decision. (Attachment 1). 4. As set forth in the parties' agreement, settlement was reached on the basis of the stipulated use of safety belts and lanyards by employees working on the bridge from the edge of the abutment. (Attachment 1, ¶ 5). The use of safety belts and lanyards by these employees is a threshold factual issue governing the applicability of 29 C.F.R. §§ 1926.106(a) and 1926.106(c), which was raised by Contractors below but not decided by the Commission. [[1]] Because the parties' stipulation that belts and lanyards were worn renders the cited sections 1926.106(a) and 1926.106(c) inapplicable on the record of this case, both the Secretary and Contractors desire that the Commission's decision interpreting and applying these provisions in this case should be vacated. 5. The parties discussed their settlement and desire that the Second Circuit vacate the underlying decision in a pre-argument conference with staff counsel for the Second Circuit. Staff counsel thereupon directed the parties to follow the approach outlined by the Second Circuit in _Nestle Co., Inc. v. Chester's Market, Inc.,_ 756 F.2d 280, 282-84 (2d Cir. 1985). In Nestle, the court honored a similar settlement in which both parties sought vacatur of the decision below as a condition to a comprehensive agreement and dismissal of their appeal. However, the court indicated that as a procedural matter the lower tribunal should have the initial opportunity to vacate in accordance with the parties' settlement agreement. Id. at 281. In the instant case, staff counsel advised the parties the court would accept a reinstated appeal and Joint Notion for Order to Vacate Below if the Commission did not accept the settlement and vacate its underlying decision by March 17, 1992.[[2]] For these reasons, the Secretary and Contractors request that the Commission grant their joint motion and vacate the underlying decision in this case. Respectfully submitted. THOMAS BRYDGES Jaeckle, Fleischmann & Mugel Attorney for Contractors Welding of Western New York, Inc. MARSHALL J. BREGER Solicitor of Labor CYNTHIA L. ATTWOOD Associate Solicitor for Occupational Safety and Health BARBARA WERTHMANN Counsel for Appellate Litigation CHARLES F. JAMES Attorney U.S. Department of Labor Office of the Solicitor Attorneys for the Secretary of Labor FOOTNOTES: [[1]] Section1926.106(a) provides: (a) Employees working over or near water, where the danger of drowning exists, shall be provided with U.S. Coast Guard- approved life jacket[s) or buoyant work vests. [[2]] Section 1926.106(c) provides: (c) Ring buoys with at least 90 feet of line shall be provided and readily available for emergency rescue operations. Distance between ring buoys shall not exceed 200 feet. [[3]] That policy is embodied in Rule 100 of the Commission's Rules of Procedure, 29 C.F.R. § 2200.100. In settling this case, however, the Secretary has stipulated to facts that are directly contrary to the explicit and very positive testimony of the compliance officer who conducted the inspection in this case. The compliance officer testified that the employees in question were not wearing safety belts with lanyards attached to a structural member of the bridge on which they were working. The Secretary has nevertheless stipulated that the employees were "tied off." *************************** [[1]] See Commission decision at 3, n. 1; Contractors' Petition for Stay of Final Order, dated October 25, 1991. [[2]] The parties filed a joint stipulation with the court withdrawing the appeal, subject to reinstatement, to permit the Commission to vacate the underlying decision. The court issued the parties' stipulation as an order and mandate on February 5, 1992. Pursuant to the terms of the stipulation, the appeal may be reinstated or permanently withdrawn on or before March 17, 1992.